In R. v. Zundel, the Supreme Court of Canada examined the constitutionality of Section 181 of the Criminal Code, the so-called “false news law,” which was initially designed to protect the reputations of politicians, but in this case was used against a Toronto-based publisher who prolifically and unrelentingly published material questioning the historically-accepted account of the Holocaust in Germany during World War II.
The majority of the Court ultimately overruled the Ontario Court of Appeal, concluding that even when the content of expression is demonstrated to be false, that is not in and of itself, sufficient to justify censorship through criminal law.
The majority opinion, written by Justice Beverly McLaughlin, pointed out that the existence of false speech can in some instances serve a socially-beneficial purpose in the process of determining truth:
Given the broad, purposive interpretation of the freedom of expression guaranteed by s. 2(b), those who deliberately publish falsehoods are not, for that reason alone, precluded from claiming the benefit of the constitutional guarantees of free speech. Before a person is denied the protection of s. 2(b), it must be certain that there can be no justification for offering protection. The criterion of falsity falls short of this certainty, given that false statements can sometimes have value and given the difficulty of conclusively determining total falsity.
This vindication of the right to free speech, even for unpopular and highly unpopular and questionable ideas, was a welcome divergence from the majority’s opinion in R. v. Keegstra, when Canada’s hate speech laws were deemed to be a “reasonable limit” on Section 2(b) of the Charter.
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