The Canadian Charter of Rights and Freedoms is being cited more frequently as a basis for Canadian lawsuits. One such case that has received much attention in the Canadian, as well as International spotlight is that of Ernst Zundel. Mr. Zundel contends that Government parties denied him his freedom of speech as protected under the Charter . The purpose of this paper is to evaluate Mr. Zundel s claim by exploring the contrasting principles that apply to his case. Furthermore, this paper will evaluate the societal implications that have been brought forward with respect to freedom of speech. Finally, this paper will determine whether or not section 2(b) of the Charter should be amended or left as is.
Mr. Zundel is a familiar face to the Canadian Courts. Mr. Zundel, who calls himself a German-Canadian Human Rights Activist , is now attempting to sue Members of Parliament as well as the Prime Minister for depriving him of his constitutional right to freedom of speech . All political parties of Parliament joined together and unanimously agreed to bar him from speaking in Parliament. Section 2(b) of the Charter provides that everyone has the following fundamental freedoms: freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication.
It is true that free expression is indispensable to successful democracy , however, should free speech be allotted to those who choose to abuse it by promoting hatred, spew racist remarks, degrade and insult others? Section 181 of the Canadian Criminal Code staunchly contrasts Section 2(b) of the Charter as it states everyone who willfully publishes a statement, tale, or news that he knows is false and that is likely to cause injury or mischief to public interest is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
How now could Canadians have a section which protects free speech and another that prohibits it if it known to be false? This contradiction of sections can be eliminated if section1 of the Charter is applied, which sets reasonable limits to sections of the Charter. Should Mr. Zundel s rights of freedom of speech be limited? Mr. Zundel s rights should be infringed upon so as to protect society s rights as a whole. The issue is not whether Mr. Zundel is permitted to hold his beliefs (which he is) or whether he may express these beliefs to those who are willing to listen (which he is permitted). The issue is that when he attempts to hold a press conference about his views he is now infringing on society s rights. He is attempting to sway public opinion while at the same time injuring those who are the targets of his racist speech. Although his views may not promote violence and hate per se, racist views may be harmful even when expressed calmly, without anger and animosity. Indeed, their influence (their silencing effect) may be greater when they are presented as thoughtful contributions to public opinion.
Mr. Zundel s case is sure to raise objections from both ends of the spectrum. Critics who oppose the restriction of speech, even speech in the form of racism and hatred, argue that the government is the presumptive enemy of free speech and should not be authorized to choose between speech it likes and speech it despises . Another argument against the restriction of speech is the Slippery Slope argument. This states that any restrictions on speech, once permitted, have a sinister and nearly inevitable tendency to expand , meaning that once one form of speech is restricted it is certain that other types of speech will soon be restricted as well.
Advocates of the restriction of certain forms of speech claim that racist speech provokes harmful consequences. Racist speech is harmful three times over: to the targets of racist speech, who feel degraded and powerless, to the perpetrators, whose moral sense is thereby diminished, and to society as a whole . Racial speech may also set a precedent to other would-be racist activists, who will be permitted to spread their harmful views because others before him/her were permitted to do so.
It is quite obvious from this most recent case involving Mr. Zundel that the Charter is often abused. Although the majority of society has no problems with it, there are a few members of society, such as Mr. Zundel, who claim their rights, which are protected under the Charter, are being restricted. It therefore raises the question if that certain sections of the Charter, such as section 2(b), are misleading, should they be amended? The answer is no. Mr. Zundel contends that his rights are being restricted, but in fact, they are not. Mr. Zundel is free to believe whatever he chooses to believe and he is free to express his opinions to those who are willing to listen to his beliefs. What he is complaining about is that he is restricted from promoting hate speech on Parliament Hill where everyone will, no doubt, be exposed to his racist views. Amending section 2(b) to include all forms of speech would not change it all that much since it already protects all forms of speech. Amending the section to restrict certain types of speech would then be denying people their freedom of speech. No matter how the Charter is laid out, there will always be certain members of society, such as Mr. Zundel, who claim that they are being deprive of their constitutional rights.
The Charter of Rights and Freedoms was enacted in 1982 for all Canadian Citizens. It was legislated so that all members of society would be protected by the Charter to prevent their rights from being abused or denied. However, it is unfortunate to see that certain members also use it to there own advantage by spreading racist speech and then claiming that it is within their constitutional rights to do so, as is the case of Mr. Zundel. Luckily, we have members within our society who would like to stop this type of abuse from occurring. This is where Mr. Zundel s lawsuit against the Members of Parliament and the Canadian Jewish Council arises. Mr. Zundel s right to freedom of speech was not denied when Parliament denied him access to speak at Parliament Hill. Sections of the Charter, such as s.2(b), should not be amended as it quite straightforward and fair as it is. Although Mr. Zundel s rights are being violated, Parliament should have the power to legislate certain restrictions on speech (such as hate speech) so as to protect society as a whole.
Nahlah Ayed, Zundel s lawsuit, press conference spiked, Globe and Mail, 23 January 1999
Peter Hum, All parties agree Zundel should not sue, National Post, 19 January 1999
19 January 1999
Peter Hum, Judge tosses Zundel lawsuit, Ottawa Citizen, 23 January 1999, p. C3
Peter Hum, Judge throws out Zundel s case against federal parties National Post,
23 January 1999
Paul Lungen, Zundel lawsuit includes PM, Canadian Jewish News, 19 November 1998,