This is important:
The lawyers for Ernst Zündel have filed a historically significant notice of motion regarding the constitutionality of section 13(1) of the Canadian Human Rights Act with the Canadian Human Rights Tribunal.
The Zündel attorneys notified all the Attorneys General of Canada with a Notice of Constitutional Questions.
All parties to the Zundelsite Tribunal hearings were also notified of Mr. Zundel's intentions.
*****This is the first serious, fundamental challenge to the Orwellian legislation underlying Canada's repressive Hate Legislation and the spin-off consequences of its of quasi-judicial instruments of persecution and censorship.*****
This move comes at the closing stages of an almost five-year marathon legal battle Ernst Zundel and his lawyers have waged for freedom in the Internet!
Here is that motion:
CASE NO. T460/1596
CANADIAN HUMAN RIGHTS TRIBUNAL
BETWEEN:
SABINA CITRON AND TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND RACE RELATIONS
COMPLAINANTS
AND
CANADIAN HUMAN RIGHTS COMMISSION
AND
ERNST ZUNDEL
RESPONDENT
AND
CANADIAN JEWISH CONGRESS,
CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION,
LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA,
SIMON WIESENTHAL CENTRE,
CANADIAN ASSOCIATION FOR FREE EXPRESSION INC.
INTERVENORS
NOTICE OF MOTION
TAKE NOTICE THAT the Respondent (applicant) will make a motion to the Tribunal in writing.
THE MOTION is for:
1. an order that section 13 (1) of the Canadian Human Rights Act is a violation of subsections 2 (a) and (b) and section 7 of the Canadian Charter of Rights and Freedoms , is not saved by section 1 thereof, and as such, is of no force or effect pursuant to sections 24 (1) and 52(1) of the Constitution Act, 1982;
2. an order that section 13(1) of the Canadian Human Rights Act is a violation of subsections 1 (d) and (f) and section 2 of the Canadian Bill of Rights and is thereby rendered inoperative;
3. an order dismissing the complaints herein based on the above constitutional violations.
THE GROUNDS FOR THE MOTION ARE:
- that Section 13(1) of the Canadian Human Rights Act (hereinafter referred to as "the Act") was held to be in violation of the right to freedom of expression guaranteed under s. 2(b) of the Canadian Charter of Rights and Freedoms by the Supreme Court of Canada in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892. The Court upheld the constitutionality of section 13, however, on the grounds that it was a reasonable limit on that freedom prescribed by law that was demonstrably justified in a free and democratic society pursuant to section 1 of the Charter.
- that section 13 of the Act, if found applicable to the Internet by this Tribunal, is no longer a reasonable limit prescribed by law demonstrably justified in a free and democratic society pursuant to section 1 of the Charter. The Internet is not a telephone or a telephone system but is a computer network which allows global communications by numerous means, including sound, video, graphics, text, animation, and voice communications, by individuals as well as wealthy corporations and governments. Newspapers, journals, scholarly publications, TV shows, audio talk shows, on-line discussions, magazines, would all be subject to section 13 of the Act where truth is no defence and intent to expose to hatred is not required. This medium is revolutionary and provides to all groups an inexpensive and accessible means to a global audience for their views and opinions and grievances.
- Section 13 of the Act, whether found to apply to the Internet or not, is not rationally connected to the legislative objective of promoting social harmony and individual dignity, since there can be no true social harmony between groups when truth is not the basis of this harmony. Where social harmony is based on the power of one group to silence members of other groups using section 13, the only result is increased bitterness, distrust and hostility. The effect of the hate law has been to polarize public opinion and narrow acceptable public discourse on vital issues of national importance.
- The reliance of the Supreme Court of Canada in the cases of R. v.Keegstra (1990), 1 C.R. (4th) 129 and Taylor, supra, on the Special Committee on Hate Propaganda (the "Cohen Committee Report") to justify the importance of the objective of section 13 is erroneous because the conclusions of the Cohen Committee Report were based on deceptive, misleading and flawed evidence. Hate propaganda did not pose a serious threat to Canada then, nor does it pose a serious threat to Canada now.
- If applied to the Internet, there is no proportionality between the effect of the measures which limit the Charter right to freedom of speech and the legislative objective of section 13(1) of the Act. It is overbroad and fails to impair freedom of speech as little as possible, by failing to include the defences available under section 319 of the Criminal Code, thereby having a severe chilling effect on legitimate expression on the Internet which includes newspapers, journals, magazines, videos, radio, audio, and discussion rooms. Even if limited to voice communications, the practical workings of the law have shown a severe chilling effect on freedom of expression such that it is not saved by section 1.
- The definitions of "hatred" and "contempt" in practical effect are so vague as to include virtually any legitimate and verifiable criticism of the actions of an identifiable group. Groups which organize by race or ethnic origin claim freedom from criticism of their actions by cloaking themselves in an ethnic "teflon" wrap. The practical workings of the law shows that whether words are "hatred" and "contempt" depends on who says the words, not the words themselves. Hence, Jews such as Norman Finkelstein can freely write about a "Holocaust industry" and its actions as a "racket" and "shakedown" while Germans such as the Respondent cannot without being charged with "hatred."
- Section 13(1) of the Act, whether it applies to the Internet or not, is a violation of the freedom of conscience because it denies the individual the right to speak the truth if that truth is deemed to expose identifiable groups to hatred or contempt. The Canadian or Western Civilization's traditions as well as the Christian religion requires one to tell the truth, not to remain silent in the face of untruth and injustice. The judicial system, based upon the precepts of Christianity, has as its goal the attainment of truth even though it may expose persons or groups to hatred and contempt. Section 13 attempts to overturn this ancient principle of our laws and Christian religion, by subordinating truth to the right of an identifiable group to be free from truthful statements and thus be inured from criticism concerning it.
- By protecting actions of groups organized by identifiable group status, the section provides an unlimited protection for these groups to silence and destroy political enemies. It encourages the polarization or "Balkanization" of the populace into groupings of identifiable groups to increase political power and to enable them to use accusations of "hatred" to silence unwanted opinion and debate.
- Where truth is no defence to charges under section 13(1) of the Act, there is no objective standard for judging what is "hatred" or "contempt". The fact that ordinary historical polemics and essays could be made the subject of the complaints herein is prima facie evidence that there is no objective limit or definition of these terms and that their application is totally arbitrary, subjective and political and so vague as to be a violation of constitutional guarantees.
- The deleterious effects of section 13 of the Act on the right to freedom of expression far outweigh the benefits derived from the provision. Hatred and contempt against groups arises from everyday news events. For example, the murder of Palestinian children by Israelis has caused more recorded anti-Semitic acts and vandalism in the world in three weeks in the fall of 2000 than any words published by persons alleged to have published anti-Semitic works.
- The extension of section 13 (1) to text files on the Internet to a Website located in the United States extends the provisions of section 13 (1) beyond the scope of what would be justified under section 1 of the Charter, extends the jurisdiction of the Tribunal beyond the territory of any communications facility within the control of Parliament in such a way as to be a breach of sections 2 (a), (b), section 7 requiring relief under section 24(1) and 52 of the Charter and the Canadian Bill of Rights.
THE FOLLOWING EVIDENCE will be used at the hearing of the motion: the evidence heard before the Tribunal in this matter together with such further and other evidence as is called specifically on the motion by the Canadian Association for Free Expression and any such further and other evidence as counsel for the Respondent (applicant) may advise and the Tribunal permit.
DATED this 15th day of November, 2000.
______________
Douglas Christie
_______________
Barbara Kulaszka
Solicitors for the Respondent (Applicant)
To:
The Mayor's Committee on Community and Race Relations
Sabina Citron
The Canadian Human Rights Commission
The Canadian Jewish Congress
The Canadian Association for Free Expression
The Simon Wiesenthal Centre
The Canadian Holocaust Remembrance Association
The League for Human Rights of B'nai Brith