R. v. Keegstra (2)The accused, an Alberta high school teacher, was charged under s. 319(2) of the Criminal Code with wilfully promoting hatred against an identifiable group by communicating anti-semitic statements to his students. Prior to his trial, the accused applied to the Court of Queen's Bench for an order quashing the charge. The court dismissed the application on the ground that s. 319(2) of the Code did not violate freedom of expression as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The court, for want of proper notice to the Crown, did not entertain the accused's argument that s. 319(3)(a) of the Code violated the presumption of innocence protected by s. 11(d) of the Charter. Section 319(3)(a) affords a defence of "truth" to the wilful promotion of hatred but only where the accused proves the truth of the communicated statements on a balance of probabilities. The accused was thereafter tried and convicted. On appeal the accused's Charter arguments were accepted, the Court of Appeal holding that ss. 319(2) and 319(3)(a) infringed ss. 2(b) and 11(d) of the Charter respectively, and that the infringements were not justifiable under s. 1 of the Charter.

Held (La Forest, Sopinka and McLachlin JJ. dissenting): The appeal should be allowed. Sections 319(2) and 319(3)(a) of the Code are constitutional.

(1) Freedom of Expression

Per Dickson C.J. and Wilson, L'Heureux-Dubé and Gonthier JJ.:

Communications which wilfully promote hatred against an identifiable group are protected by s. 2(b) of the Charter. When an activity conveys or attempts to convey a meaning, through a non-violent form of expression, it has expressive content and thus falls within the scope of the word "expression" as found in the guarantee. The type of meaning conveyed is irrelevant. Section 2(b) protects all content of expression. In enacting s. 319(2) of the Code, Parliament sought to prohibit communications which convey meaning. Section 319(2), therefore, represents an infringement of s. 2(b).

Communications which are intended to promote hatred against identifiable groups do not fall within the ambit of a possible s. 2(b) exception concerning expression manifested in a violent form. This exception refers only to expression communicated directly through physical harm. Hate propaganda is not analogous to violence. It conveys a meaning that is repugnant, but the repugnance stems from the content of the message and not from its form. As for threats of violence, they are not excluded from the definition of expression envisioned by s. 2(b).

Sections 15 and 27 of the Charter, which deal with equality and multiculturalism, and the international agreements signed by Canada on the prohibition of racist statements, should not be used to interpret the scope of s. 2(b). It is inappropriate to attenuate the s. 2(b) freedom on the grounds that a particular context so requires. The large and liberal interpretation given to freedom of expression indicates that the preferable course is to weigh the various contextual values and factors in s. 1 of the Charter. This section both guarantees and limits Charter rights and freedoms by reference to principles fundamental in a free and democratic society.

Section 319(2) of the Code constitutes a reasonable limit upon freedom of expression. Parliament's objective of preventing the harm caused by hate propaganda is of sufficient importance to warrant overriding a constitutional freedom. Parliament has recognized the substantial harm that can flow from hate propaganda and, in trying to prevent the pain suffered by target group members and to reduce racial, ethnic and religious tension and perhaps even violence in Canada, has decided to suppress the wilful promotion of hatred against identifiable groups. Parliament's objective is supported not only by the work of numerous study groups, but also by our collective historical knowledge of the potentially catastrophic effects of the promotion of hatred. Additionally, the international commitment to eradicate hate propaganda and Canada's commitment to the values of equality and multiculturalism in ss. 15 and 27 of the Charter strongly buttress the importance of this objective.

Section 319(2) of the Code is an acceptably proportional response to Parliament's valid objective. There is obviously a rational connection between the criminal prohibition of hate propaganda and the objective of protecting target group members and of fostering harmonious social relations in a community dedicated to equality and multiculturalism. Section 319(2) serves to illustrate to the public the severe reprobation with which society holds messages of hate directed towards racial and religious groups. It makes that kind of expression less attractive and hence decreases acceptance of its content. Section 319(2) is also a means by which the values beneficial to a free and democratic society in particular, the value of equality and the worth and dignity of each human person can be publicized.

Section 319(2) of the Code does not unduly impair freedom of expression. This section does not suffer from overbreadth or vagueness; rather, the terms of the offence indicate that s. 319(2) possesses definitional limits which act as safeguards to ensure that it will capture only expressive activity which is openly hostile to Parliament's objective, and will thus attack only the harm at which the prohibition is targeted. The word "wilfully" imports into the offence a stringent standard of mens rea which significantly restricts the reach of s. 319(2) by necessitating the proof of either an intent to promote hatred or knowledge of the substantial certainty of such a consequence. The word "hatred" further reduces the scope of the prohibition. This word, in the context of s. 319(2), must be construed as encompassing only the most severe and deeply felt form of opprobrium. Further, the exclusion of private communications from the scope of s. 319(2), the need for the promotion of hatred to focus upon an identifiable group and the presence of the s. 319(3) defences, which clarify the scope of s. 319(2), all support the view that the impugned section creates a narrowly confined offence. Section 319(2) is not an excessive impairment of freedom of expression merely because the defence of truth in s. 319(3)(a) does not cover negligent or innocent error as to the truthfulness of a statement. Whether or not a statement is susceptible to classification as true or false, such error should not excuse an accused who has wilfully used a statement in order to promote hatred against an identifiable group. Finally, while other non-criminal modes of combatting hate propaganda exist, it is eminently reasonable to utilize more than one type of legislative tool in working to prevent the spread of racist expression and its resultant harm. To send out a strong message of condemnation, both reinforcing the values underlying s. 319(2) and deterring the few individuals who would harm target group members and the larger community by communicating hate propaganda, will occasionally require use of the criminal law.

The effects of s. 319(2) are not of such a deleterious nature as to outweigh any advantage gleaned from the limitation of s. 2(b). The expressive activity at which s. 319(2) is aimed constitutes a special category, a category only tenuously connected with the values underlying the guarantee of freedom of expression. Hate propaganda contributes little to the aspirations of Canadians or Canada in either the quest for truth, the promotion of individual self-development or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged. Moreover, the narrowly drawn terms of s. 319(2) and its defences prevent the prohibition of expression lying outside of this narrow category. Consequently, the suppression of hate propaganda represents an impairment of the individual's freedom of expression which is not of a most serious nature.

Per La Forest, Sopinka McLachlin JJ. (dissenting):

Section 319(2) of the Code infringes the guarantee of freedom of expression. Where, as in this case, an activity conveys or attempts to convey a meaning or message through a non-violent form of expression, this activity falls within the sphere of the conduct protected by s. 2(b). This section protects all content of expression irrespective of the meaning or message sought to be conveyed, no matter how offensive it may be. The government's purpose in enacting s. 319(2) was to restrict freedom of expression by curtailing what people may say. Section 319(2), therefore, imposes a limit on s. 2(b).

The promotion of hatred in this case does not assume a form which falls outside the protected sphere of s. 2(b). The accused's communications were offensive and propagandistic, but they do not constitute threats in the usual sense of that word. The accused's statements did not urge violence against the Jewish people. They were not made with the intention and do not have the effect of compelling Jewish people or anyone else to do one thing or another. Nor do the accused's statements constitute violence. Violence, as discussed in Dolphin Delivery and Irwin Toy, connotes actual or threatened physical interference with the activities of others. Moreover, statements promoting hatred are not akin to threats or violence. There is nothing in the form of such statements which subverts democracy or our basic freedoms in the way in which violence or threats of violence may. Finally, to suggest that speech, like hate propaganda, which undermines the credibility of speakers belonging to particular groups does not fall within s. 2(b) of the Charter, is to remove from the protection of the Charter an enormous amount of speech which has long been accepted as important and valuable.

Sections 15 and 27 of the Charter and the international convenants signed by Canada on the prohibition of racism do not reduce the scope of expression protected by s. 2(b) so as to exclude the accused's statements. First, to do so would be to exclude statements from the protection of s. 2(b) on the basis of their content, an approach which this Court has rejected. Second, given that the protection under s. 2(b) is aimed at protecting individuals from having their expression infringed by the government, it would be a misapplication of Charter values to thereby limit the scope of that individual guarantee with an argument based on s. 15, which is also aimed at circumscribing the power of the state. Third, it would be extremely difficult to balance in the abstract conflicting values such as equality and multiculturalism against freedom of expression. Assuming such balancing were to be done, it would be more appropriately made under s. 1 of the Charter than under s. 2(b). Fourth, Canada's international obligations, and the accords negotiated between international governments, may well be helpful in placing Charter interpretation in a larger context but these obligations are not determinative or limitative of the scope of the Charter guarantees. The provisions of the Charter, though drawing on a political and social philosophy shared with other democratic societies, are uniquely Canadian. As a result, considerations may point, as they do in this case, to a conclusion regarding a rights violation which is not necessarily in accord with those international covenants. Unlike the international covenants, which exclude hate propaganda from the guarantee of speech, the Charter posits a broad and unlimited right of expression under s. 2(b), a right which can only be cut back under s. 1.

Section 2(b) does not protect only justified or meritorious expression. Historical legal limitations on expression which conflict with the larger Canadian conception of free speech must be rejected. While in this case it may be easy to achieve near-unanimous consensus that the statements contribute nothing positive to our society, experience shows that in other cases it may be difficult to draw the line between speech which has value to democracy or social issues and speech which does not. Attempts to confine the guarantee of free expression only to content which is judged to possess redeeming value or to accord with the accepted values strike at the very essence of the value of the freedom, reducing the realm of protected discussion to that which is comfortable and compatible with current conceptions. If the guarantee of free expression is to be meaningful, it must protect expression which challenges even the very basic conceptions about our society. A true commitment to freedom of expression demands nothing less.

Section 319(2) of the Code does not constitute a reasonable limit upon freedom of expression. While the legislative objectives of preventing the promotion of hatred, of avoiding racial violence and of promoting equality and multiculturalism are of sufficient importance to warrant overriding the guarantee of freedom of expression, s. 319(2) fails to meet the proportionality test.

Section 319(2) does, to some degree, further Parliament's objective. However, the rational connection between s. 319(2) and its goals is tenuous as there is not a strong and evident connection between the criminalization of hate propaganda and its suppression. Section 319(2) may in fact detract from the objectives it is designed to promote by deterring legitimate expression. Law-abiding citizens, who do not wish to run afoul of the law, could decide not to take the chance in a doubtful case. Creativity and the beneficial exchange of ideas could be adversely affected. At the same time, it is unclear that s. 319(2) provides an effective way of curbing hate-mongers. Not only does the criminal process attract extensive media coverage and confer on the accused publicity for his dubious causes, it may even bring him sympathy.

Section 319(2) of the Code does not interfere as little as possible with freedom of expression. Section 319(2) is drafted too broadly, catching more expressive conduct than can be justified by the objectives of promoting social harmony and individual dignity. The term "hatred" in s. 319(2) is capable of denoting a wide range of diverse emotions and is highly subjective, making it difficult to ensure that only cases meriting prosecution are pursued and that only those whose conduct is calculated to dissolve the social bonds of society are convicted. Despite the requirement of "wilful promotion", people who make statements primarily for non-nefarious reasons may also be convicted under s. 319(2). A belief that what one says about a group is true and important to political and social debate is quite compatible with, and indeed may inspire, an intention to promote active dislike of that group. Such a belief is equally compatible with foreseeing that promotion of such dislike may stem from one's statements. The absence of any requirement that actual harm or incitement to hatred be shown further broadens the scope of s. 319(2), and it is unclear, in practice, if the s. 319(3) defences, including the defence of truth, significantly narrow the ambit of s. 319(2). Moreover, not only is the category of speech caught by s. 319(2) defined broadly, the application of the definition of offending speech i.e., the circumstances in which the offending statements are prohibited is virtually unlimited. Only private conversations are exempt from state scrutiny. Given the vagueness of the prohibition of expression in s. 319(2), there is again a danger that the legislation may have a chilling effect on legitimate activities important to our society by subjecting innocent persons to constraints born out of a fear of the criminal process. Finally, the process by which the prohibition is effected -- the criminal law -- is the severest our society can impose and is arguably unnecessary given the availability of alternate and more appropriate and effective remedies.

Any questionable benefit conferred by s. 319(2) of the Code is outweighed by the significant infringement on the guarantee of freedom of expression. Section 319(2) does not merely regulate the form or tone of expression, it strikes directly at its content. It is capable of catching not only statements like those at issue in this case, but works of art and the intemperate statement made in the heat of social controversy. While few may actually be prosecuted to conviction under s. 319(2) and imprisoned, many fall within the shadow of its broad prohibition. Section 319(2) touches on the vital values upon which s. 2(b) of the Charter rests: the value of fostering a vibrant and creative society through the marketplace of ideas; the value of the vigourous and open debate essential to democratic government and preservation of our rights and freedoms; and the value of a society which fosters the self-actualization and freedom of its members. An infringement of this seriousness can only be justified by a countervailing state interest of the most compelling nature. However, the claims of gains to be achieved at the cost of the infringement of free speech represented by s. 319(2) are tenuous. Indeed, it is difficult to see how s. 319(2) fosters the goals of social harmony and individual dignity.

(2) Presumption of Innocence

Per Dickson C.J. and Wilson, L'Heureux-Dubé and Gonthier JJ.:

Section 319(3)(a) of the Code, which provides that no person shall be convicted of wilfully promoting hatred "if he establishes that the statements communicated were true", infringes the presumption of innocence guaranteed in s. 11(d) of the Charter. The real concern under s. 11(d) is not whether the accused must disprove an element of the offence or prove a defence. What is decisive is the final effect of the impugned provision on the verdict. If, as in this case, an accused is required to prove some fact on a balance of probabilities to avoid conviction, the impugned provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.

Section 319(3)(a) of the Code constitutes a reasonable limit on the presumption of innocence. Parliament's objective in employing a reverse onus is pressing and substantial. The objective behind s. 319(3)(a) is closely connected with the purpose of s. 319(2). Harm is created whenever statements are made with the intention of promoting hatred, whether or not they contain an element of truth. If the defence of truth is too easily used, Parliament's objective under s. 319(2) will suffer unduly. It is therefore in the furtherance of that same objective that truthfulness must be proved by the accused on a balance of probabilities.

Section 319(3)(a) meets the proportionality test. First, the section has a rational connection to the purpose of preventing the harm caused by hate propaganda. The reverse onus in the truth defence operates so as to make it more difficult to avoid conviction where the wilful promotion of hatred has been proven beyond a reasonable doubt. Second, the section also represents a minimal impairment of the presumption of innocence. By requiring the accused to prove that his statements are true on a balance of probabilities, Parliament made a concession to the importance of truth in freedom of expression values without excessively compromising the effectiveness of s. 319(2). Any less onerous burden would severely skew the equilibrium. Third, the importance of preventing the harm caused by hate propaganda is not outweighed by Parliament's infringement of s. 11(d). The reverse onus found in the truth defence represents the only way in which the defence can be offered while still enabling Parliament to prohibit hate propaganda effectively through criminal legislation; to require that the state prove beyond a reasonable doubt the falsity of a statement would excuse much of the harmful expressive activity caught by s. 319(2) despite minimal proof as to its worth.

Per Sopinka and McLachlin JJ. (dissenting):

Section 319(3)(a) of the Code infringes s. 11(d) of the Charter. Under s. 319(2), where the Crown proves beyond a reasonable doubt that the accused wilfully promoted hatred against an identifiable group, the accused will escape liability if, under s. 319(3)(a), he "establishes that the statements communicated were true". By placing the burden of establishing the truth of the statements on the accused, Parliament has contravened the basic principle that the accused need not prove a defence. When an accused is required to prove some fact on a balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.

Section 319(3)(a) of the Code does not constitute a reasonable limit upon the right to be presumed innocent. The section lacks the required degree of proportionality. It is difficult to discern a rational connection between the aims of s. 319(3)(a) and its requirement that the accused prove the truth of his statements. Further, s. 319(3)(a) does not impair s. 11(d) as little as possible. Because of its superior resources, the state is in a better position than the accused to determine whether or not a statement is true or false. If such a determination is impossible, it should not be ruled out that the statements could be more valuable than harmful. These considerations suggest that s. 319(3)(a)'s infringement of the presumption of innocence is neither minimal nor, given the importance of the infringement in the context of prosecutions under s. 319(2), sufficient to outweigh the dubious benefit of such a provision. Parliament intended the truth to be a defence and falsehood to be an important element of the offence created by s. 319(2). That fact, coupled with the centrality of the presumption of innocence in our criminal law, indicates that only a countervailing state interest of the most compelling kind could justify the infringement. It is difficult to see, however, what benefits s. 319(2) in fact produces in terms of stemming hate propaganda and promoting social harmony and individual dignity.

Per La Forest J. (dissenting):

It is unnecessary to consider the issues respecting the right to be presumed innocent in s. 11(d) of the Charter.

Cases Cited

By Dickson C.J.

Applied: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Morgentaler, [1988] 1 S.C.R. 30; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; referred to: R. v. Holmes, [1988] 1 S.C.R. 914; Reference re Alberta Statutes, [1938] S.C.R. 100; Switzman v. Elbling, [1957] S.C.R. 285; Boucher v. The King, [1951] S.C.R. 265; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Beauharnais v. Illinois, 343 U.S. 250 (1952); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Brandenburg v. Ohio, 395 U.S. 444 (1969); Collin v. Smith, 578 F.2d 1197 (1978), certiorari denied, 439 U.S. 916 (1978); American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323 (1985); Glimmerveen v. Netherlands, Eur. Comm. H. R., Applications Nos. 8348/78 and 8406/78, October 11, 1979, D.R. 18, p. 187; Taylor and Western Guard Party v. Canada, Communication No. 104/1981, Report of the Human Rights Committee, 38 U.N. GAOR, Supp. No. 40 (A/38/40) 231 (1983), decision reported in part at (1983), 5 C.H.R.R. D/2097; R. v. Carrier (1951), 104 C.C.C. 75; R. v. Zundel (1987), 58 O.R. (2d) 129; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; R. v. Jones, [1986] 2 S.C.R. 284; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Garrison v. Louisiana, 379 U.S. 64 (1964); Ashton v. Kentucky, 384 U.S. 195 (1966); Cohen v. California, 403 U.S. 15 (1971); Anti-Defamation League of B'nai B'rith v. Federal Communications Commission, 403 F.2d 169 (1968); Tollett v. United States, 485 F.2d 1087 (1973); Doe v. University of Michigan, 721 F. Supp. 852 (1989); R. v. Rahey, [1987] 1 S.C.R. 588; Roth v. United States, 354 U.S. 476 (1957); New York v. Ferber, 458 U.S. 747 (1982); Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986); Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788 (1985); Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Janzen v. Platy Enterprises Ltd., >[1989] 1 S.C.R. 1252; Felderer v. Sweden (1986), 8 E.H.R.R. 91; X. v. Federal Republic of Germany, Eur. Comm. H. R., Application No. 9235/81, July 16, 1982, D.R. 29, p. 194; Lowes v. United Kingdom, Eur. Comm. H. R., Application No. 13214/87, December 9, 1988, unreported; Singh v. Minister of Employment and Immigration, >[1985] 1 S.C.R. 177; Andrews v. Law Society of British Columbia, >[1989] 1 S.C.R. 143; R. v. Andrews (1988), 65 O.R. (2d) 161, aff'd [1990] 3 S.C.R. 000; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 000.

By McLachlin J. (dissenting)

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Oakes, [1986] 1 S.C.R. 103; Abrams v. United States, 250 U.S. 616 (1919); Reference re Alberta Statutes, [1938] S.C.R. 100; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Switzman v. Elbling, [1957] S.C.R. 285; Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067; Attorney General for Canada and Dupond v. City of Montreal, [1978] 2 S.C.R. 770; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Boucher v. The King, [1951] S.C.R. 265; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943); Debs v. United States, 249 U.S. 211 (1919); Schenck v. United States, 249 U.S. 47 (1919); Whitney v. California, 274 U.S. 357 (1927); Dennis v. United States, 341 U.S. 494 (1951); Beauharnais v. Illinois, 343 U.S. 250 (1952); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Brandenburg v. Ohio, 395 U.S. 444 (1969); Collin v. Smith, 578 F.2d 1197 (1978), certiorari denied, 439 U.S. 916 (1978); American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323 (1985); Police Department of the City of Chicago v. Mosley, 408 U.S. 92 (1972); Boos v. Barry, 108 S. Ct. 1157 (1988); Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983); Coates v. City of Cincinnati, 402 U.S. 611 (1971); Glimmerveen v. Netherlands, Eur. Comm. H. R., Applications Nos. 8348/78 and 8406/78, October 11, 1979, D.R. 18, p. 187; Eur. Court H. R., Handyside case, Judgment of 7 December 1976, Series A No. 24; Taylor and Western Guard Party v. Canada, Communication No. 104/1981, Report of the Human Rights Committee, 38 U.N. GAOR, Supp. No. 40 (A/38/40) 231 (1983), decision reported in part at (1983), 5 C.H.R.R. D/2097; R. v. Carrier (1951), 104 C.C.C. 75; R. v. Zundel (1987), 58 O.R. (2d) 129; Saskatchewan Human Rights Commission v. Waldo (1984), 5 C.H.R.R. D/2074; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Holmes, [1988] 1 S.C.R. 914; R. v. Schwartz, [1988] 2 S.C.R. 443; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Andrews (1988), 65 O.R. (2d) 161, aff'd [1990] 3 S.C.R. 000; Re Warren and Chapman (1984), 11 D.L.R. (4th) 474; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 000; Saskatchewan (Human Rights Commission) v. Engineering Students' Society (1989), 56 D.L.R. (4th) 604; Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

Statutes and Regulations Cited

Canadian Bill of Rights, S.C. 1960, c. 44 [reprinted R.S.C., 1985, App. III], preamble, s. 1(d).

Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 8, 11(d), 15, 16 to 23, 25, 27, 28, 29.

Canadian Human Rights Act, S.C. 1976-77, c. 33 [now R.S.C., 1985, c. H-6], s. 13.

Criminal Code, R.S.C., 1985, c. C-46 , ss. 2, 181, 298, 300, 318(4), 319 [previously R.S.C. 1970, c. C-34 , s. 281.2 (en. 1st Supp., c. 11, s. 1)].

Customs Tariff, S.C. 1987, c. 49, s. 114 and Schedule VII, Code 9956(b).

Defamation Act, R.S.M. 1987, c. D20, s. 19(1).

European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 (1950), Art. 10.

International Convention on the Elimination of All Forms of Racial Discrimination, Can. T.S. 1970 No. 28, Art. 4.

International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966), Arts. 19, 20.

Libel Act, R.S.M. 1913, c. 113, s. 13A [ad. 1934, c. 23, s. 1].

Penal Code (India), ss. 153-A, 153-B.

Penal Code (Netherlands), ss. 137c, 137d, 137e.

Penal Code (Sweden), c. 16, s. 8.

Public Order Act 1986 (U.K.), 1986, c. 64, ss. 17 to 23.

Race Relations Act 1971 (N.Z.), No. 150, s. 25.

Racial Discrimination Act, 1944, S.O. 1944, c. 51, s. 1.

Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, s. 14.

Authors Cited

Aleinikoff, T. Alexander. "Constitutional Law in the Age of Balancing" (1987), 96 Yale L.J. 943.

Beckton, Clare. "Freedom of Expression". In Gérald-A. Beaudoin and Ed Ratushny eds., The Canadian Charter of Rights and Freedoms. Toronto: Carswells, 1989, 195.

Berlin, Isaiah. Four Essays on Liberty. New York: Oxford University Press, 1969.

Bessner, Ronda. "The Constitutionality of the Group Libel Offences in the Canadian Criminal Code" (1988), 17 Man. L.J. 183.

Bollinger, Lee C. The Tolerant Society: Freedom of Speech and Extremist Speech in America. New York: Oxford University Press, 1986.

Borovoy, A. Alan. "Freedom of Expression: Some Recurring Impediments". In Rosalie S. Abella and Melvin L. Rothman eds., Justice Beyond Orwell. Montréal: Éditions Yvon Blais Inc., 1985, 125.

Borovoy, A. Alan. When Freedoms Collide: The Case for our Civil Liberties. Toronto: Lester & Orpen Dennys, 1988.

Bottos, Dino. "Keegstra and Andrews: A Commentary on Hate Propaganda and the Freedom of Expression" (1989), 27 Alta. L. Rev. 461.

Braun, Stefan. "Social and Racial Tolerance and Freedom of Expression in a Democratic Society: Friends or Foes? Regina v. Zundel" (1987), 11 Dalhousie L.J. 471.

Canada. House of Commons. Special Committee on the Participation of Visible Minorities in Canadian Society. Equality Now! Ottawa: Supply and Services, 1984.

Canada. Law Reform Commission. Working Paper 50. Hate Propaganda. Ottawa: The Commission, 1986.

Canada. Special Committee on Hate Propaganda in Canada. Report of the Special Committee on Hate Propaganda in Canada. Ottawa: Queen's Printer, 1966.

Canadian Bar Association. Report of the Special Committee on Racial and Religious Hatred. By Ken Norman, John D. McAlpine and Hymie Weinstein, 1984.

Canadian Human Rights Commission. Annual Report 1989. Ottawa: Minister of Supply and Services Canada, 1990.

Cotler, Irwin. "Hate Literature". In Rosalie S. Abella and Melvin L. Rothman eds., Justice Beyond Orwell. Montréal: Éditions Yvon Blais Inc., 1985, 117.

Delgado, Richard. "Words that Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling" (1982), 17 Harv. C.R.-C.L. L. Rev. 133.

"Doe v. University of Michigan: First Amendment -- Racist and Sexist Expression on Campus -- Court Strikes Down University Limits on Hate Speech" (1990), 103 Harv. L. Rev. 1397.

Doskow, Ambrose and Sidney B. Jacoby. "Anti-Semitism and the Law in Pre-Nazi Germany" (1940), 3 Contemporary Jewish Record 498.

Emerson, Thomas I. "Toward a General Theory of the First Amendment" (1963), 72 Yale L.J. 877.

Fish, Arthur. "Hate Promotion and Freedom of Expression: Truth and Consequences" (1989), 11 Can. J.L. & Juris. 111.

Greenawalt, Kent. "Insults and Epithets: Are They Protected Speech?" (1990), 42 Rutgers L. Rev. 287.

Holdsworth, Sir William. A History of English Law, vol. III, 5th ed. London: Methuen & Co., 1942.

Horowitz, Irving Louis. "First Amendment Blues: On Downs, Nazis in Skokie", [1986] Am. B. Found. Res. J. 535.

Horowitz, Irving Louis and Victoria Curtis Bramson. "Skokie, the ACLU and the Endurance of Democratic Theory" (1979), 43 Law & Contemp. Probs. 328.

James McCormick Mitchell Lecture. "Language as Violence v. Freedom of Expression: Canadian and American Perspectives on Group Defamation" (1988-89), 37 Buffalo L. Rev. 337.

Kafka, Franz. The Trial. Translated by Willa and Edwin Muir. Middlesex, England: Penguin Books Ltd., 1976.

Lasson, Kenneth. "Racial Defamation As Free Speech: Abusing the First Amendment" (1985), 17 Colum. Hum. Rts. L. Rev. 11.

Lerner, Natan. The U.N. Convention on the Elimination of all Forms of Racial Discrimination. Rockville, Maryland: Sijthoff & Noordhoff, 1980.

MacKay, A. Wayne. "Freedom of Expression: Is it All Just Talk?" (1989), 68 Can. Bar Rev. 713.

Magnet, Joseph Eliot. "Multiculturalism and Collective Rights: Approaches to Section 27". In Gérald-A. Beaudoin and Ed Ratushny eds., The Canadian Charter of Rights and Freedoms. Toronto: Carswells, 1989, 739.

Matsuda, Mari J. "Public Response to Racist Speech: Considering the Victim's Story" (1989), 87 Mich. L. Rev. 2320.

McAlpine, John D. Report Arising Out of the Activities of the Ku Klux Klan in British Columbia, 1981.

Meiklejohn, Alexander. Free Speech and its Relation to Self-Government. New York: Harper, 1948.

Milton, John. Areopagitica. London, 1644.

Mozley & Whiteley's Law Dictionary, 10th ed. By E. R. Hardy Ivamy. London: Butterworths, 1988, "threat".

Neier, Aryeh. Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom. New York: Dutton, 1979.

Rauf, N. Naeem. "Freedom of Expression, the Presumption of Innocence and Reasonable Limits: An Analysis of Keegstra and Andrews" (1988), 65 C.R. (3d) 356.

Regel, Alan R. "Hate Propaganda: A Reason to Limit Freedom of Speech" (1984-85), 49 Sask. L. Rev. 303.

Schauer, Frederick. Free Speech: A Philosophical Enquiry. Cambridge: Cambridge University Press, 1982.

Schauer, Frederick. "The Aim and the Target in Free Speech Methodology" (1989), 83 Nw. U.L. Rev. 562.

Shorter Oxford English Dictionary, 3rd ed. Oxford: Clarendon Press, 1987, "hatred", "violence".

Sieghart, Paul. The International Law of Human Rights. New York: Oxford University Press, 1983.

Stein, Eric. "History Against Free Speech: The New German Law Against the `Auschwitz' -- and other --`Lies'" (1987), 85 Mich. L. Rev. 277.

Tribe, Laurence H. American Constitutional Law, 2nd ed. Mineola, N.Y.: Foundation Press Inc., 1988.

United Nations. Study on the Implementation of Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination. By Special Rapporteur José D. Inglés. A/CONF. 119/10, May 18, 1983.

APPEAL from a judgment of the Alberta Court of Appeal (1988), 60 Alta. L.R. (2d) 1, 87 A.R. 177, 43 C.C.C. (3d) 150, 65 C.R. (3d) 289, 39 C.R.R. 5, [1988] 5 W.W.R. 211, allowing the accused's appeal from his conviction on a charge of wilfully promoting hatred contrary to s. 319(2) of the Criminal Code. Appeal allowed, La Forest, Sopinka and McLachlin JJ. dissenting.

Bruce R. Fraser, Q.C., for the appellant.

Douglas H. Christie, for the respondent.

D. Martin Low, Q.C., Stephen B. Sharzer and Irit Weiser, for the intervener the Attorney General of Canada.

Gregory J. Fitch, for the intervener the Attorney General for Ontario.

Jean Bouchard and Marise Visocchi, for the intervener the Attorney General of Quebec.

Bruce Judah, for the internener the Attorney General for New Brunswick.

Aaron Berg and Deborah Carlson, for the intervener the Attorney General of Manitoba.

John I. Laskin, for the intervener the Canadian Jewish Congress.

Mark J. Sandler, for the intervener the League for Human Rights of B'nai Brith, Canada.

Joseph Nuss, Q.C., Irwin Cotler and Ann Crawford, for the intervener Interamicus.

Kathleen Mahoney and Linda A. Taylor, for the intervener the Women's Legal Education and Action Fund.

Marc Rosenberg, for the intervener the Canadian Civil Liberties Association.

keywords:

James Keegstra  Her Majesty The Queen  The Attorney General of Canada  Canadian Civil Liberties Association  League for Human Rights of B'nai Brith

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R. v. Keegstra (1)

R. v. Keegstra (2)

R. v. Keegstra (3) - Dickson C.J. (a) | (b) | (c)

R. v. Keegstra (4) - La Forest J.

R. v. Keegstra (5) - McLachlin J.(a) | (b)