First trial

Zündel was initially found guilty at trial before Justice Hugh Russell Locke and subsequently sentenced to fifteen months of imprisonment and three years of probation. As part of the probation, Zündel was not permitted to publish any material pertaining to the Holocaust.^[5] Throughout the trial, Zündel's defence rested on his honest belief of the truth of the pamphlet.^[5]

Zündel filed an appeal, and on January 23, 1987, a unanimous decision of the Court of Appeal for Ontario overturned the decision and ordered a new trial. The panel composed of Chief Justice of Ontario William Goldwin Carrington Howland, and Justices John Watson Brooke, G. Arthur Martin, Maurice Norbert Lacourcière, and Lloyd William Houlden, ordered a new trial because of errors in the conduct of the trial, particularly regarding jury selection and misdirection on elements of the offence.^[6] The Court of Appeal also considered the constitutionality of section 181 of the Criminal Code and found it did not violate section 2(b) Charter rights, and even if it did, the provision would be justified under section 1 of the Charter.^[7][8]

Second trial

On May 13, 1988, Zündel was convicted in the subsequent trial, and was sentenced to nine months in prison.^[7] District Court Judge Thomas noted that his sentence was less severe than the sentence in the first trial, as he could not find evidence that Zündel was able to have a "significant part of the community react to his beliefs".^[7] On February 5, 1990, a panel of the Court of Appeal composed of Justices John Watson Brooke, John Wilson Morden, and Patrick Thomas Galligan unanimously upheld both the judgment and the sentence.^[9] In response, Zündel pursued an appeal to the Supreme Court.^[4][7]

The issue before the Supreme Court was whether section 181 (formerly section 177) of the Code infringed "the guarantee of freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms and, if so, whether section 181 is justifiable under section 1 of the Charter".^[10]

Majority decision

Justice Beverley McLachlin, writing for a narrow majority of the Court, concluded that Zündel had indeed violated section 181. The Court thoroughly examined the book in question and determined that it "misrepresented the work of historians, misquoted witnesses, fabricated evidence, and cited non-existent authorities".

When assessing section 181 against the backdrop of section 2(b) of the Charter, the court applied the test established in Irwin Toy Ltd v Quebec (AG). The Court found section 181 met both elements of this test. In the first element of the test, the Court observed that all form of speech is protected unless it is violent, a criterion which Zündel's speech did not meet. The second element of the test, the Court acknowledged that government action aimed at curbing such expression was undeniably present, given that section 181 sought to suppress this type of speech.^[11][10]

In the context of determining whether section 181 could be justified under section 1 of the Charter, the Court found there was no evidence to the purpose or objective underlying section 181. The Court also rejected the Crown's assertion of a "shifting purpose" of the provision towards promoting "social harmony".^[11] In Justice McLachlin's perspective, the Court "cannot assign objectives, nor invent new ones according to the perceived current utility of the impugned provision".^[12] Furthermore, Justice McLachlin asserted that section 181 could not be justified under section 1 of the Charter, as the restriction on all expressions "likely to cause injury or mischief to a public interest" was far too broad.^[12] Consequently, the ultimate outcome of the Court's decision was that section 181 was struck down and rendered null and void.^[13]

Dissenting opinion

The dissenting opinion noted that section 2(b) safeguards all forms of non-violent expression, rendering the content itself irrelevant (section 2(b) is content neutral). The dissenting justices employed section 15 (equal protection) and section 27 (enhancement of multicultural heritage) of the Charter as support to the objective of section 181 of the Criminal Code.^[13] The objective of section 181 was deemed the promotion of "social harmony", and therefore met the "rational connection" element of the proportionality test.^[14] The dissent also found that section 181 had minimal impairment on freedom of expression as the Crown was required to prove the accused willfully published false materials, and the statement was likely to cause injury to the public interest.^[14]