The fact that the section is seldom used, however, should not militate against its usefulness. Further, s. 181 is not overly broad. An application of the appropriate criteria makes it possible to draw a coherent distinction between statements of opinion and assertions of fact. The jury, as instructed by the trial judge, was clearly capable of drawing that distinction. While it is true that no theory of history can be proved or disproved, the accused has not been convicted for misinterpreting factual material but for entirely and deliberately misrepresenting its contents, manipulating and fabricating basic facts in order to support his theories.
Courts deal with the question of truth and falsity of statements on a daily basis.
Finally, the fact that Parliament has enacted hate propaganda legislation does not invalidate s. 181. The government may legitimately employ a variety of measures in order to achieve its objective. Human rights legislation may, in certain circumstances, be sufficient to deal with a particular problem in this area, but the strength of the criminal law is needed and reserved for the extreme cases, such as the case at hand, to send a clear message and to discourage and punish those who knowingly publish falsehoods that are likely to injure a public interest. Third, the 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. The falsehoods of the type caught by s. 181 serve only to hinder and detract from democratic debate.