Injury and Mischief versus the Public Interest

In Canada, section 181 of the Criminal Code (or “the Code”) makes willfully publishing a knowingly false statement that causes injury or mischief to the public interest an offence that can result in imprisonment for up to 2 years—known as the “Spreading False News” provision. This law is currently on course to be repealed in Canadian Parliament (Bill C-39), meaning that if s. 181 is stricken from the Code, a person may no longer be charged with publishing fake news.

The Code outlines all laws that can be charged and prosecuted in Canada—many of which are regularly repealed (i.e., removed from the Code) through the Parliamentary process. Often this is because the laws are obsolete, redundant with other similar laws, or contrary to the Canadian Charter of Rights and Freedoms (e.g., witchcraft; challenging a person to a duel; producing crime comics; consensual anal intercourse between same-sex partners; sexually assaulting a woman only if she was not married to the perpetrator). In Canada, individuals have been prosecuted in criminal court under s. 181 since the early 20^th century, although the issue was largely settled in 1992 when the Supreme Court of Canada declared the law unconstitutional (more on this, below). Perhaps it is because of the climate of fake news that this particular law is now being brought to the attention of the Canadian legislature.

The law has its roots in 13^th Century England, where its purpose was to preserve political obedience:

It is commanded, that from henceforth, none be so hardly to tell or publish any false News or Tales, whereby discord, or occasion of discord or slander may grow between the King and his People.

(“De Scandalis Magnatum” enacted in 1275)

That is, reciting or printing false information was forbidden in order to protect the monarch from opposition. The essence of this law intends to maintain the public interest; albeit, what is considered “public interest” naturally changes with both time and context.

For example, in 1907 (Canada’s first successful prosecution under s. 181), a merchant was found guilty when he printed a notice for his store’s closing-out sale, stating: “Americans not wanted in Canada.” Canada’s position at this time was a national effort to encourage settlers to come to Canada to support the economy; stating otherwise was deliberate opposition to “the public interest.” To prove its case, the prosecution’s counsel (known as the Crown in criminal law) had to show three main elements:

1. That the statements were factually untrue;
2. That the individual intentionally made the statements knowing they were false; and
3. Making such statements could harm the public interest.

To better articulate the law, the Courts have offered insights on the three elements:

Asserting False Facts

Asserting a false fact is not just an unpopular expression of opinion. To distinguish fact from opinion, the Courts consider the falsifiability of the statement in question: if it can be proved or disproved it is a fact; if it’s an interpretation that can be embraced or rejected depending on its “normative appeal” then it is an opinion. To further help distinguish fact from opinion, four considerations are recommended based on how a “reasonable reader” would interpret the statement: how specific are the statements, is the statement verifiable, what is the linguistic context, and what is the social context? False facts are defined further as diverging from the “prevailing or officially accepted beliefs” that are generally accepted as true; that is, a false fact is the incorrect version of a generally accepted statement.

Intent

Understandably, the circular vagueness in defining “false facts” has been controversial; but the Courts have pushed back against such a sentiment, responding that the offence is limited by its intent, and clarifying that it cannot apply to statements made honestly, or even recklessly or negligently. To qualify under s. 181, it is not sufficient that an accused simply believe something that happens to be false; the individual must recognize the statements are not true, and then knowingly spread the information that is known to be false.

Potential Harm to Public Interest

Another critique about the law commonly comes about because of the flexible meaning of the term “public interest;” yet, on numerous occasions the Courts have defined public interest within the specific and unique circumstances of the cases that arise. Because of the numerous and varied contexts involving the public interest, it might not be useful to provide a single definition that is unlikely to appropriately describe all situations. Ultimately, however, any crime might be considered “harm to the public interest” insofar as the actions offend the rule of law by threatening public peace, order, security, health, or morality.

Consider an individual who shouts “Fire!” in a crowded theatre: It is reasonable to expect that the person who does so knowing that there is no fire (1) has made false statements (it is feasible to prove that there was no fire and that a particular person had made such statements), (2) knew that there wasn’t any fire, and (3) that these actions had the possibility if not likelihood of causing injury (would a crowded room rush to an exit?) or mischief (would there be mass confusion, distress, disorder?) to the public interest (keeping safety and order in public places). The Courts have used this “Fire!” example to demonstrate one manner in which “spreading false news” may manifest.

The Battle for Freedom (of Expression)

In 1992, the constitutionality of s. 181 was challenged on the basis that it violated the fundamental right to freedom of expression, as guaranteed by s. 2(b) of the Charter. Here’s what happened:

Ernst Zundel had put forward a publication that claimed the Holocaust was an international Jewish conspiracy. The onus was on the Crown to prove:

1. The Holocaust had occurred (i.e., the defendant asserted false facts)

   Part of the Crown’s evidence to this element was the testimony of several survivors of Nazi concentration camps, and the expert testimonies of two historians.

2. The defendant did not genuinely believe the Holocaust had not occurred

   The Crown did not call any direct evidence as to Zundel’s honest disbelief in the Holocaust, although Zundel had testified and under cross-examination Zundel admitted to knowing of some errors in the publication.

3. The defendant’s actions could or did harm the public interest

   The Crown argued that the accused’s actions were racially and religiously intolerant, and that maintaining racial and religious harmony was certainly a matter of Canada’s public interest.

In the original trial, the judge instructed a jury to determine whether Zundel was guilty of spreading false news, given that the mass murder and extermination of Jews was a historical fact to which “no reasonable person” could dispute (the first element) and that it caused injury and mischief to social and racial tolerance (the third element). Ultimately, the main question the jury needed to determine was whether they believed beyond a reasonable doubt that Zundel knew the information he published was false (the second element). The jury determined that Zundel had willfully published the content knowing it was untrue and he was sentenced to 15 months in jail + 3 years probation.

After numerous unsuccessful appeals of his conviction, Zundel was granted appeal to Canada’s highest court—the Supreme Court—on the basis that the provision was unconstitutional, infringing on an individual’s right to freedom of expression. The rights and freedoms guaranteed by the Charter are not unrestricted. Some freedoms have limits that are justified in order to protect things like public safety and the rights and freedoms of others. This includes the freedom of expression, which is not absolute (e.g., other laws impose restrictions on what can be discussed in public). Up for debate, then, was whether rights were infringed, and whether an infringement was justifiable.

The freedom of expression is said to exist for 3 purposes:

1. Because the best way to obtain truth is through free exchange of ideas
2. Because free expression furthers self-fulfillment
3. And because freely expressing opinion is necessary for the success of a parliamentary democracy

It is the third purpose Canadian courts have agreed is most fundamental and needs protection by guaranteeing an individual’s right to freedom of expression.

[Freedom of expression] has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.

(RWDSU v. Dolphin Delivery Ltd., 1986)

Our democratic system is deeply rooted in, and thrives on, free and robust public discussion of public issues. As a general rule, all members of society should be permitted, indeed encouraged, to participate in that discussion.

(Committee for the Commonwealth of Canada v. Canada, 1991)

The 7 members of the Supreme Court who heard the case did not come to a unanimous conclusion about whether s. 181 (unjustifiably) infringed on the rights of free expression. The 4-person majority concluded that such a prohibition affects individuals caught and prosecuted, but also “those who may refrain from saying what they would like to because of the fear that they will be caught.” They had these key messages alongside their conclusion that s. 181 violated freedom of expression:

1. The way that a “true” versus “false” fact is determined is flawed

   What is considered “true” or “right” is based on an authoritative majority view; this directly opposes the unpopular minority view. The two are in competition with one another, although, for the reasons described next, the unpopular view does not have the same ability to meaningfully compete with what is already considered fact.

2. Freedom of expression is central to fostering a democratic society

The purpose of the guaranteed fundamental right to freedom of thought, belief, opinion, and expression is to promote truth, political or social participation, and self-fulfilment. That purpose includes the protection of minority beliefs that the majority regard as wrong.

It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed, a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions.

(per Justice McLachlin for the majority, quoting Justice Cory)

3. Minority views need protection

   Constitutional protections provided by the Charter are intended to protect vulnerable individuals. In this specific context, the Charter is needed to protect the right of the minority to express its view, “however unpopular it may be.” In contrast, the majority view needs no special protection because it will nonetheless be tolerated in society. However, a law that forbids expression of a minority view with threats of criminal prosecution “offends the purpose of the guarantee of free expression.”

In their dissent, the other 3 Justices focused their reasons for upholding the law on the need to protect vulnerable social groups and the multicultural values of Canada.

[T]he prohibition of the wilful publication of what are known to be deliberate lies is proportional to the importance of protecting the public interest in preventing the harms caused by false speech and thereby promoting racial and social tolerance in a multicultural democracy.

(per Justices Cory and Iacobucci for the dissent)

Ultimately, both the majority and dissent of Supreme Court Justices had similar views in that prohibiting the spreading of false news infringed upon the right to free expression. The important difference, however, was that the dissent believed an infringement was proportional to its protections of social groups, or justifiable in terms of the public interest; the majority did not view this infringement as justifiable, declaring s. 181 an unconstitutional provision.

The Aftermath of the Strike

There are two ways for laws to exist in Canada. The first is as written legislation that is “codified” in the Criminal Code. This means one could open up the Code to find the law literally printed—this is currently how the Spreading False News law exists. The other way a law is enacted is through common law, where cases are decided in court by a judge or jury; decisions upheld by the Courts are taken as rule, with Supreme Court decisions (specifically) treated as gold. This does, however, make it confusing as to what is and is not legal in Canada. Like Schrödinger’s cat, Spreading False News both exists and does not exist: it exists as codified legislation in s. 181; at the same time, it does not exist in that it’s been declared unconstitutional and invalid by the Supreme Court in R. v. Zundel (1992).

Should I stay:

The Supreme Court has, very clearly, “laid down the law” saying that to prosecute any person under s. 181 is unconstitutional (and therefore should not happen). With this clear direction, is it necessary to formally repeal the law? If one were to take the Supreme Court’s rule as gold, no new prosecutions of s. 181 would occur; the law should be ineffective.

Perhaps a more compelling reason to retain a version of the law is that the dissent in Zundel, in no small part, draws attention to serious public concerns that s. 181 seeks to protect. The Supreme Court was split 4-3 with only a single vote making the majority decision rule. There are other examples in Canada’s legal history (e.g., R. v. Noble, 1997: inferring guilt from an accused’s silence) where a divided Supreme Court case has continued to go through appeals when the final decision has been a close one. So rather than removing the law, we might use this opportunity to clarify the law’s purpose and to make amendments to the legislation so that the provision is consistent with Charter rights.

Or should I go now:

In repealing Bill C-39, the position of the Government of Canada is to ensure that the criminal justice system protects Canadians and upholds the Canadian Charter of Rights and Freedoms. Without removing the law from the Code, there is risk that a person may be, inadvertently, charged and convicted under an unconstitutional law. For example, there was a murder case in which the judge incorrectly relied on a Criminal Code provision previously declared unconstitutional. In order to remedy the verdict, the suffering of all parties involved was prolonged, and additional resources of the courts were consumed. These extra expenses were necessary because, otherwise, “to proceed to sentence [the accused] on the basis of legally unsustainable verdicts and related convictions would bring the administration of justice into disrepute” (R. v. Vader, 2016). To avoid situations like these in the future, it is expected that the Code stay up-to-date with developments in Canada’s common law.

A Totally Non-Factual Expression of Interpretation

In my opinion, there are two primary considerations that have yet to be reflected in the question of whether or not to repeal s. 181. The first concerns the nature of the potential harm that the provision seeks to protect. The Courts and legislature have argued that there are other provisions that exist in the Code that better protect citizens against the dangers of false news (e.g., ss. 318 & 319 on hate propaganda). I wonder whether these provisions are appropriate in all situations. To further the “Fire!” example discussed earlier, if a person knowingly yells “Bomb!” on an airplane, particularly in a post-9/11 world, is there another law that better captures the offence being committed (e.g., s. 175 on disturbing the peace)? If a researcher were to fabricate data and share the falsified findings, would a fraud charge (s. 380), or anything else, be a suitable alternative to enforce the deterrence of crime and the protection of the public interest?

The second consideration I have is about the nature of what declaring s. 181 as “unconstitutional” protects. Freedom of expression, as discussed by the Courts, seems to me to concern the protection of opinion and beliefs (for one purpose of ultimately promoting truth). I do not dispute the importance of this; however, given the very clear direction and interpretation that s. 181 does not concern mere opinion but rather statements put forward as fact (i.e., the individual does not genuinely believe the statements), I wonder whether this argument is enough to remove the provision from further discussion—especially given that the Supreme Court was teetering between opposing decisions by only a single vote.

Considering the potential opportunities to revisit and amend s. 181 insofar as it still exists in the Criminal Code, the questions I end with are these: Will removing s. 181 from the Code also remove protections against the malicious spread of misinformation? Will repealing this law place all responsibility on the consumer as to what knowledge is consumed? And with the ease of transmitting information nowadays, are there any protections that can or should be enacted to help protect the public from the deliberate spread of false facts? When information is suggested as fact without any legal sanctioning or deterrence, media literacy will surely be a needed skill to help support the pillar of democracy that freedom of expression seeks to protect.