B. Section 2(b) of the Charter

Section 2(b) of the Charter provides:

2. Everyone has the following fundamental freedoms:

...

(b) freedom of thought, belief, opinion and
expression, including freedom of the press and other
media of communication;

The fundamental importance of freedom of expression to a free and democratic society is beyond question. At issue is whether s. 181 contravenes that right.

The first step in the Charter analysis is to ascertain whether the activity of the litigant who alleges a s. 2(b) violation falls within the ambit of protected expression. The sphere of expression protected by the section has been very broadly defined to encompass all content of expression irrespective of the particular meaning sought to be conveyed unless the expression is communicated in a physically violent form (R. v. Keegstra, supra). The activity of Zundel involved the deliberate and wilful publication of lies which were extremely damaging to members of the Jewish community, misleading to all who read his words and antithetical to the core values of a multicultural democracy. The basis for determining whether this type of activity falls within the scope of protected expression was set out in Keegstra, supra. There Dickson C.J. found that hate propaganda satisfied the first step of the s. 2(b) of the Charter inquiry. He wrote (at p. 730):

Because Irwin Toy stresses that the type of meaning conveyed is irrelevant to the question of whether s. 2(b) is infringed, that the expression covered by s. 319(2) is invidious and obnoxious is beside the point. It is enough that those who publicly and wilfully promote hatred convey or attempt to convey a meaning ....

Similarly, constitutional protection under s. 2(b) must therefore be extended to the deliberate publication of statements known to be false which convey meaning in a non-violent form. Freedom of expression is so important to democracy in Canada that even those statements on the extreme periphery of the protected right must be brought within the protective ambit of s. 2(b).

The second step of the test is to determine whether the purpose of the impugned legislation is to restrict freedom of expression. Here, the purpose of s. 181 is to restrict, not all lies, but only those that are wilfully published and that are likely to injure the public interest. Although the targeted expression is extremely limited, the provision does have as its purpose the restriction of free expression. Accordingly, it must be found that s. 181 constitutes an infringement of the freedom of expression guaranteed under s. 2(b) of the Charter.

Before turning to s. 1 of the Charter, it is important to recall what has been written concerning the weight to be attached to other Charter provisions and the consideration of contextual factors. In Keegstra, supra, Dickson C.J., wrote at p. 734:

I believe, however, that s. 1 of the Charter is especially well suited to the task of balancing, and consider this Court's previous freedom of expression decisions to support this belief. It is, in my opinion, inappropriate to attenuate the s. 2(b) freedom on the grounds that a particular context requires such; the large and liberal interpretation given the freedom of expression in Irwin Toy indicates that the preferable course is to weigh the various contextual values and factors in s. 1. [Emphasis in original.]

The original plaintext version of this file is available via ftp.

[ Analysis Index | Index ]

Home ·  Site Map ·  What's New? ·  Search Nizkor