Global Freedom of Expression

R. v. Zundel

Closed Expands Expression

Key Details

  • Mode of Expression
    Books / Plays
  • Date of Decision
    August 27, 1992
  • Outcome
    Acquittal, Law or Action Overturned or Deemed Unconstitutional
  • Case Number
    [1992] 2 S.C.R. 731
  • Region & Country
    Canada, North America
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Criminal Law, Constitutional Law
  • Themes
    Content Regulation / Censorship, Hate Speech
  • Tags
    Vague Standard

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Case Analysis

Case Summary and Outcome

The Supreme Court of Canada declared a provision in the Canadian Criminal Code as unconstitutional since it did not constitute a justifiable limit on freedom of expression. Ernst Zundel published a book that denied facts about the Holocaust and was charged and convicted for spreading false statements under Section 181 of the Canadian Criminal Code. He appealed, citing freedom of expression. The Court reasoned that even lies and false statements are protected forms of expression, and therefore Section 181 infringed Section 2(b) of the Canadian Charter of Rights and Freedoms.


Ernst Zundel published a 32-page pamphlet entitled Did Six Million Really Die?  The publication contended that there is not sufficient evidence that can confirm six million Jewish people died before and during World War II. The pamphlet also alleged that the Holocaust is a myth and a conspiracy created by the Jewish people. Zundel was convicted for spreading false news contrary to Section 181 of the Canadian Criminal Code, which he then appealed to the Supreme Court of Canada. He challenged the constitutionality of Section 181 because it was a restriction of his right to freedom of expression pursuant to Section 2(b) of the Charter.

Decision Overview

Justice McLachlin delivered the majority judgment of the Supreme Court of Canada. The issues presented to the Court were whether Section 181 of the Criminal Code violated Section 2(b) of the Charter and whether the infringements were justifiable pursuant to Section 1 of the Charter. The majority judgment concluded that Section 2(b) of the Charter had been infringed. The Court followed the two-step analysis established in the Irwin Toy case. The first step consists of determining whether the expression conveyed is within the realm of protection of Section 2(b) of the Charter. The second step requires determining if the purpose of the government action or legislation is to restrict expression.

McLachlin asserted that the Court in various occasions had recognized the broad domain of expression protected under Section 2(b) of the Charter and that all expression that conveys or attempts to convey a meaning is protected by the provision. However, it will not protect expression that is conveyed through violent form. McLachlin submitted that even lies and false statements are protected as expression under Section 2(b) of the Charter. The majority judgment also determined that the effect of Section 181 was to restrict freedom of expression.

Furthermore, the majority judgment turned to analyze if the restriction to freedom of expression in Section 181 of the Criminal Code was justifiable under Section 1 of the Charter. The majority determined that it was not a justifiable limitation pursuant to Section 1 of the Charter and had failed the test established in R. v. Oakes. In this regard, McLachlin first examined the legislative objective of Section 181 and determined that there was no pressing and substantial objective attached to it. She rejected the notion that Section 181 had shifted its purpose to become a provision for the preservation of social harmony. She also alluded to a report made by the Law Reform Commission of Canada that recommended repealing Section 181 because of its anachronism.

Even though the majority judgment found that Section 181 had no pressing and substantial objective, the Court still undertook the analysis of proportionality. It was determined that Section 181 did not have a minimum impairment to the right of freedom of expression. The majority judgment asserted that Section 181 suffered from vagueness and was overly broad.  As such, Section 181 could affect a broad range of expression and speech.

The dissenting opinion agreed that Section 2(b) of the Charter had been infringed, but that under Section 1 it was a justifiable and reasonable limitation on freedom of expression. The dissent identified that the objective of Section 181 was to prevent the willful publication of injurious lies. Moreover, the objective promoted and protected social, racial, and religious harmony. The dissent alluded to international human rights instruments that encouraged its signatories to enact legislation prohibiting discrimination and incitement of discrimination. They also concluded that Section 181 had a minimum impairment to freedom of expression because the Crown had to prove that the publisher knew the falsehood of the statements and that the expression would cause injury to the public interest. Finally, they submitted that the Court was bound to follow the precedent of R. v. Keegstra in order to prevent discriminatory expression that could harm society and multiculturalism in Canada.

Decision Direction

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Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

This decision by the Supreme Court of Canada expands expression because it determined that Section 181 of the Criminal Code was unconstitutionally vague. The Court found that the infringement on freedom of expression caused by Section 181 was not justifiable under Section 1 of the Charter and could unduly limit a broad spectrum of expression and speech.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related International and/or regional laws

  • ICCPR, art. 20
  • International Convention on the Elimination of All Forms of Racial Discrimination, art. 4

National standards, law or jurisprudence

  • Can., Charter of Rights and Freedoms, sec. 1
  • Can., Charter of Rights and Freedoms, sec. 2
  • Can., Criminal Code, 1985, sec. 181
  • Can., Criminal Code, 1985, sec. 319(2)
  • Can., Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927
  • Can., R. v. Keegstra, [1990] 3 S.C.R. 697
  • Can., Reference re Alberta Statutes, [1938] S.C.R. 100
  • Can., Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326
  • Can., Switzman v. Elbling, [1957] S.C.R. 285
  • Can., R v. Butler, [1992] 1 S.C.R. 452
  • Can., Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712
  • Can., R. v. Oakes, [1986] 1 S.C.R. 103
  • Can., R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295
  • Can., Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038
  • Can., R. v. Salituro, [1991] 3 S.C.R. 654
  • Can., Reference Re sec. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123
  • Can., R. v. Carrier, [1951] 104 C.C.C. 75
  • Can., R. v. Kirby (1970), 1 C.C.C. (2d) 286
  • Can., R. v. Hoaglin, [1907] 12 C.C.C. 226

Other national standards, law or jurisprudence

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

The decision of the Supreme Court establishes a binding precedent concerning freedom of expression and the spread of false statements. The decision declared unconstitutional Section 181 of the Criminal Code as it infringed the right to freedom of expression guaranteed under Section 2(b) of the Charter and was not a justifiable limit to freedom of expression under Section 1 of the Charter.

The decision was cited in:

Official Case Documents

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