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Criminalising Racial Hatred - Luke McNamara Australian Human Rights Information Centre

Australian Journal of Human Rights Vol 1 No 1

Criminalising Racial Hatred:

Learning from the Canadian Experience

Luke McNamara


As Australian jurisdictions begin to come to terms with the role of and impact of racial vilification legislation, an assessment of the operation of similar statutory provisions in Canada is likely to produce valuable results. Indeed, when considering the policy implications of multiculturalism, there is much to be learned from the experience of other multicultural societies such as Canada, where parallel legal institutions and principles operate and similar statutory provisions are in force.[1] As in Australia, multiculturalism is official government policy in Canada.[2] Associated protections have been enshrined in the Canadian Charter of Rights and Freedoms 1982[3]. On the specific issue of laws dealing with racial hatred, Canada provides a very useful comparative reference, particularly in light of recent decisions of the Supreme Court of Canada which address the constitutional status of prohibitions on expressions of racial hatred. As Cotler has observed, Canada has become a world centre for hate propaganda litigation.... Moreover, the Canadian experience is now perhaps the most compelling legal precedent respecting [racist incitement and free speech].[4]

The purpose of this paper is to provide an overview of anti-vilification or `hate propaganda'[5] laws in Canada, and to identify areas of guidance for those Australian jurisdictions where racial vilification provisions are currently operating or proposed.[6] This analysis is placed within the context of the ongoing debate about the merits of including criminal sanctions within the range of available legal responses.



In Canada, public expressions of racial hatred are the subject of a combination of federal and provincial statutes, involving both civil and criminal sanctions. The provisions which have attracted the most attention are those contained in the Canadian Criminal Code.[7] The Code contains three offences that deal with hate propaganda. The most important of these provisions is section 319(2):[8]

Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for two years; or

(b) an offence punishable on summary conviction.

Section 319(3) provides for certain defences based on the desire to protect freedom of expression, including truth, religious opinion in good faith, and the public interest. The consent of the relevant provincial Attorney General is required for prosecution under this section.[9]

Various forms of hate propaganda are also unlawful and a basis for complaint under the federal Human Rights Act 1977, and anti-discrimination legislation in several provinces.

Section 13 of the Canadian Human Rights Act 1977 identifies as a "discriminatory practice" the repeated communication by telephone of `hate messages', that is, "any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination."

Provincial legislation dealing with aspects of hate propaganda ranges form the broadf to the very limited. An example of the former is section 14(1) of the Saskatchewan Human Rights Code[10]

No person shall publish or display ... any representation ...:

(a) tending or likely to tend to deprive, abridge or otherwise restrict the enjoyment by any person or class of persons of any right to which he is or they are entitled under law; or

(b) which exposes, or tends to expose, to hatred, ridicules, belittles, or otherwise affronts the dignity of any person, any class of persons or a group of persons;

because of his or their race, creed, religion, colour, sex, sexual orientation, family status, marital status, disability, age, nationality, ancestry, place of origin or receipt of public assistance.

In Ontario the Human Rights Code, 1981 includes a rather more limited provision which focuses on the issue of discrimination rather than dealing specifically with hate propaganda.[11] In this respect Ontario's legislation is similar in scope to the narrow racial vilification provisions contained in the Queensland Anti-Discrimination Act 1991.[12]

Section 13(1) of the Ontario Code states:

A right under [the Code] is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under [the Code] or that is intended by the person to incite the infringement of [such] a right.

Section 13 has been described as "only useful in addressing a narrow range of circumstances that might fall within the general category of hate motivated activities" with the result that the Ontario Human Rights Code "... has a very limited capacity for dealing with hate propaganda."[13]

An important practical consequence of the Code's limited anti-hate laws is that complaints concerning hate propaganda are "typically referred by [Ontario Human Rights Commission] staff to the Ministry of Attorney General" for handling under the Canadian Criminal Code provisions.[14] This practice contrasts with the treatment of racial vilification complaints in New South Wales, where matters are rarely referred to the Attorney General for processing under the available criminal laws.[15] This difference illustrates a distinguishing feature of the Canadian legal system's response to hate propaganda - a reliance on infrequently enforced criminal sanctions rather than widely employed conciliation-based approaches. This emphasis clearly has significant implementation and enforcement implications.

The most recent addition to the list of anti-hate laws in Canada has attracted considerable attention.[16] On 30 June 1993 the Human Rights Amendment Act, 1993[17] came into effect in the province of British Columbia. Section 2 of the Human Rights Act[18] now states:

(1) No person shall publish, issue or display or cause to be published, issued or displayed any statement, publication, notice, sign, symbol, emblem or other representation that

(a) indicates discrimination or an intention to discriminate against a person or a group or class of persons,

(b) is likely to expose a person or a group or class of persons to hatred or contempt because of the race, colour ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or that group or class of persons.

(2) Subsection (1) does not apply to a private communication or to a communication intended to be private.

Perhaps the most striking feature of the new British Columbia legislation is its breadth. The list of `categories' on the basis of which vilification is now unlawful includes, but extends far beyond, the category of `race', to which vilification laws have commonly been limited.[19]

The enactment of the legislation was greeted with strong media criticism. The targets of criticism were numerous, including British Columbia's New Democratic Party government, the British Columbia Human Rights Commission, human rights tribunals generally, and the very notion of `human rights' law (as well as the Supreme Court of Canada). The legislation was described in a Globe and Mail editorial as an example of human rights law "being twisted, distorted and stood on its head in a bid to ... stifle free speech."[20] Such comments provide a vivid illustration of the intense and ongoing debate in Canada about the legitimacy of legislative prohibitions on hate speech.



In recent years a number of cases dealing with hate propaganda legislation have become before the Canadian courts, including the Supreme Court of Canada.[21] These judicial decisions have played an important role in the process of defining the justification for, and impact of, laws which proscribe the incitement of racial hatred. A detailed review of these cases is not possible here. Attention will be focused on the decision of the Supreme Court of Canada in R. v. Keegstra which involved a detailed consideration of the difficulties of formulating an effective legal response to racist speech and hate propaganda.[22]

The 1990 decision of the Supreme Court of Canada in R v Keegstra[23] may prove to be an important turning point in the search for an appropriate accommodation between the protection of individual civil rights and the regulation of expressions of racial hatred. The Court heard an appeal from a decision of the Alberta Court of Appeal which had overturned the conviction of Jim Keegstra under section 319(2) of the Criminal Code.

Keegstra was a high school teacher in Eckville, Alberta from the early 1970s until 1982, when he was dismissed. In 1984 Keegstra was charged with unlawfully promoting hatred against an identifiable group by communicating racist and anti-Semitic statements to his students.[24] According to Bercuson and Wertheimer, "For twelve years, he indoctrinated his students with Jewish conspiracy explanations of history ... biased statements principally about Jews, but also about Catholics, Blacks, and others."[25]

Keegstra was convicted in 1985 in the Court of Queen's Bench, sentenced to five months imprisonment and fined $5,000. He appealed successfully to the Alberta Court of Appeal on the basis that section 319 offended the rights guaranteed by section 2(b)--freedom of expression--and section 11(d)--presumption of innocence--of the Canadian Charter of Rights and Freedoms.[26]

In an important affirmation of the legal regulation of expressions of hatred, the Supreme Court of Canada upheld the constitutional validity of the prohibitions on the promotion of hatred contained in the Canadian Criminal Code.[27] By a four-three majority the Court concluded that while section 319(2) of the Criminal Code did contravene the freedom of expression protected by section 2(b) of the Charter this infringement was justifiable under section 1 of the Charter.[28] Section 1 of the Charter states that

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

At the core of Dickson C.J.C.'s analysis[29] is a conviction that the conduct at which section 319(2) is directed has only a tenuous connection with the values underlying the protection offered by section 2(b) of the Charter.[30] The Chief Justice concluded that the Criminal Code's provisions constituted an appropriate and acceptable means for furthering the important objective of preventing the dissemination of hate propaganda.[31] According to Dickson C.J.C.

Few concerns can be as central to the concept of a free and democratic society as the dissipation of racism, and the especially strong value which Canadian society attaches to this goal must never be forgotten in assessing the effects of an impugned legislative measure. When the purpose of s. 319(2) is thus recognized, I have little trouble in finding that its effects, involving as they do the restriction of expression largely removed from the heart of free expression values, are not of such a deleterious nature as to outweigh any advantage gleaned from the limitation of s. 2(b).[32]

The Chief Justice acknowledged the limitations of criminal legislation as a mechanism for "advancing the goals of equality and multicultural tolerance in Canada...",[33] observing that "[i]t is important in my opinion, not to hold any illusions about the ability of this one provision [s 319(2)] to rid our society of hate propaganda and its associated harms."[34] However, he concluded that the objective behind the enactment of anti-hate laws such as section 319(2) of the Criminal Code was "... of such magnitude as to support even the severe response of criminal prohibition."[35]

In the dissenting judgment,[36] McLachlin J. was particularly concerned by what she saw as the breadth, vagueness and subjectivity inherent in section 319(2). According to McLachlin J.

... [T]he broad criminalization of virtually all expression which might be construed as promoting hatred effected by s. 319(2) of the Criminal Code is not, in my view, a proportionate and appropriate means of achieving the end to which the legislation is directed. The breadth of the category of speech it catches, the absolute nature of the prohibition it applies to such speech, the draconian criminal consequences it imposes coupled with the availability of preferable remedies, and finally, the counterproductive nature of its actual effects -- all these features of s. 319(2) of the Criminal Code combine to make it an inappropriate means of protecting our society against the evils of hate propaganda.[37]

McLachlin J.'s concern about the breadth of section 319(2) is not supported by the section's history, which has seen very few prosecutions even initiated.[38] The requirement, under section 319(6) of the Code, that no prosecution take place without the consent of the relevant provincial Attorney General, has clearly had the effect of placing significant limits on the scope of the Code's hate propaganda provisions.

The Supreme Court of Canada's split on the issue of the constitutionality of criminal hate propaganda laws reflects two fundamentally different conceptions of the value underlying the constitutional guarantee of free expression. According to Weinrib, the minority approach is based on McLachlin J.'s conception of freedom of expression as the "`pivotal Charter right"[39] along the lines of the American model,[40] while for Dickson C.J.C., the extent of the free speech guarantee must be considered within the context of "the Charter's general concern for individual dignity and equality."[41]

Apart from its contribution to Canadian Charter jurisprudence, the decision of the Supreme Court of Canada in Keegstra, can be considered to have effected a subtle change in the terms of the debate about the role of statutory regulation as an instrument of anti-racism. While the decision focuses on the fundamental issue of the scope of the right to free expression guaranteed by section 2(b) of the Charter of Rights and Freedoms, the majority judgment in particular, places this debate within the broader context of an examination of the relationship between law, multiculturalism and the achievement of social harmony. This attempt at contextualisation represents a limited, but important, advance in the analysis of hate propaganda laws in Canada.

There is, however, an interesting twist to the Keegstra story which has the potential to short-circuit the gains of Keegstra in this respect. Following his conviction at a retrial in 1992, Jim Keegstra appealed to the Alberta Court of Appeal. On 7 September 1994 the Court accepted the apppeal, overturning Keegstra's conviction and ordering a new trial. The successful ground of appeal was that the judge had made certain errors during the conduct of the trial. However, Keegstra had also asked the Court, inter alia, to reconsider the constitutional validity of section 319(2) in light of the recent decisions of the Supreme Court of Canada in R. v. Zundel,[42] and the United States Supreme Court in R.A.V. v. City of St. Paul,[43] In both cases, statutory provisions employed in the prosecution of hate propagandists were struck down as unconstitutional.

In the event that the case comes before the Supreme Court of Canada a second time,[44] it will be interesting to see whether the Keegstra analysis will survive recent changes in the constitution of the Court.[45]



Canada's reliance, in practice, on a criminalisation model of anti-vilification laws has prompted judicial scrutiny of Canadian hate propaganda laws for constitutional validity to an extent which has simply not yet occurred in Australia.[46] As Keegstra illustrates, a fundamental theme of criticisms of hate propaganda laws in Canada, has been debate over the extent to which such provisions infringe on the right to freedom of expression. In fact, as in the United States,[47] this issue has tended to dominate the Canadian jurisprudence and the wider debate. That this issue is far from settled in Canada, is indicated by the aggressive response of free speech advocates to the recent amendments to the British Columbia Human Rights Act, and the ongoing litigation in Keegstra's case.

The absence of an express constitutional recognition of the right to free expression in Australia marks a significant point of departure with the Canadian legal context where the Charter of Rights and Freedoms has had an enormous impact on the debate over hate propaganda laws. While this significant difference should be kept in mind, it need not diminish the value of Canada as a point of comparative reference. The Canadian jurisprudence does illustrate that it is not inevitable that anti-vilification laws be considered to be incompatible with the right to free expression, whether expressly or impliedly protected.[48]

It is somewhat ironic, given the recent high profile of hate propaganda laws in Canada, that little formal use has been made of the anti-hate provisions contained in the Criminal Code. Despite a high level of concern about the incidence of `hate crimes' in Canada,[49] provincial Attorneys General have commonly demonstrated a reluctance to institute criminal proceedings.[50] This reluctance may, at least partly, be attributable to concerns about the implications of providing racists with a forum for their views. As Kallen has commented The extensive publicity afforded the hate propagandizing activities of Keegstra and Zundel through the considerable media coverage of their trials provoked heated controversy over the appropriateness of a criminal charge and a public trial as a means of deterring hate propagandists.[51]

It is difficult to determine whether `trial publicity' does advance the cause of vocal racists, but clearly there is something unpalatable about the profile and notoriety achieved by defendants in such case. It is disturbing to note that more than 10 years after Jim Keegstra was charged under the hate propaganda provisions of the Criminal Code, his case is still before the Canadian courts, and still of considerable media interest.[52] This high profile is particularly troubling in light of the `revisionism' in which some judges have allegedly engaged in the course of their judgments in hate propaganda cases.[53]

The limited use of anti-hate laws in Canada does suggest that there may be a significant weakness in the capacity of existing legal procedures to respond effectively to the impact of hate propaganda and racial vilification. Citing the very small number of convictions in Canadian courts and tribunals, Raymaker and Kilgour have argued that the impact of the current legislation as a curb on the promotion of hate against identifiable groups is severely limited.[54] This may suggest that criminal sanctions, while commonly criticised as a heavy handed approach from the point of view of the legal system's treatment of offenders, may in fact be an inadequate legal response from the point of view of victims of hate propaganda and the wider community.

The threshold for intervention is clearly higher under a criminalisation model of hate propaganda laws than under a system based on conciliation by human rights agencies. The conciliation model of racial vilification laws which operates in New South Wales under section 20(C) of the Anti-Discrimination Act 1977 may offer a greater capacity for dealing with the full range of acts which constitute racial vilification.[55] This approach may be more attuned to the needs of target groups. At the very least, the contrast suggests that a legal response based exclusively, or even primarily, on the criminalisation model, is inadequate.

Perhaps the most serious flaws of the criminalisation model are its individualising and marginalising effects. Criminal prosecutions of individuals like Jim Keegstra have the effect of removing racial vilification from its social context, and deflecting attention from the harm suffered by members of the relevant group and the wider community.[56] In the context of such cases, the legal system's attention is focused almost exclusively on the specific conduct of the accused which is the basis of the charge.

This focus seems somewhat misplaced, or at least, too narrow. As Moon has argued, "... it is impossible to isolate clearly the offensive claims of Keegstra ... from ordinary public discourse. Racial and other stereotyping in different degrees is pervasive in our community."[57]

The type of matters selected for prosecution contributes to this dislocation of `unlawful' acts of racial vilification from the more prevalent current of racist violence, racial harassment and racial intimidation. As only the most `serious' cases are prosecuted under criminal statutes, the defendants actions can be marginalised and considered to be distinct from the attitudes and conduct of others in a given society.

McKenna has argued that the effectiveness of existing anti-hate laws is seriously impaired because they are based on a defective analysis of the nature of hate propaganda and racial hatred in Canada.[58] Specifically, exisiting laws reflect the assumption that racial hate propaganda is "firmly rooted in the anti-social conduct of extremist groups marginal to Canadian society."[59] McKenna challenges this conventional analysis.

[A]lthough the organized public expression of racial hatred appears to be confined to a relatively small number of extremists, attitudes of racial hatred have existed and been officially promoted and condoned throughout Canadian history as ideological support for the racial oppression and discrimination inherent in colonial capitalism.[60]

Clearly, in Australia as in Canada, there is a need to challenge the myth that racist conduct is characterised only by the activities of right-wing extremists. Equally, the assumption that racist conduct is "... a manifestation of deviant, aberrant, pathological behaviour"[61] must be challenged. Jayasuriya has argued that this assumption, which underlies the recourse to specific legal remedies for the problems of racial conflict ... is of limited value in combating racism as a social problem. It needs to be complemented by locating the so-called individual pathological behaviour or racism in its broader social, historical context.[62]

To the extent that racial vilification laws endorse or perpetuate this assumption they may in fact be counterproductive. This problem is most acute in relation to criminal laws (which draw on principles of individual responsibility) but needs also to be addressed in relation to legal regulation generally. An individualised approach to the problem of racial vilification risks failing to adequately assess the harm caused by such conduct. As McKenna has noted,

... the pervasive, rather than peripheral character of attitudes of racial hatred in Canadian [or Australian] society extends the dimension of the social harm caused by the public expression of racial hatred.[63]

In this light, the priorities of anti-vilification laws may need to be adjusted. For example, assessing the nature and extent of harm caused to the target group by the offending conduct may be more important than technical legal requirements concerning the need to prove intent on the part of the accused, or the need to establish that his/her conduct did or was likely to encourage others in the community to 'hate' a particular racial or ethno-religious group.[64]



The continuing expansion, in both Australia and Canada, of the range of anti-vilification laws, despite inadequate analysis of existing statutory provisions is a cause for concern. There is a clear need for greater critical examination of the objectives and the practical consequences of laws designed (perhaps poorly designed) to counter the deleterious effects of racial vilification and hate propaganda. While consideration of the Canadian experience is most instructive as a guide to assessing the merits of criminalisation, it may also play an important role in broadening the terms of the wider debate about the role of law as an instrument for dealing with racist violence, racial harassment and racial vilification (and vilification of other identifiable groups).

The relationship between anti-vilification laws and official policies of multi-culturalism also needs to be articulated more effectively. In the course of her dissenting judgment in R v Keegstra,[65] McLachlin J. commented that "... there is no evidence that the impugned legislation [section 319(2) of the Criminal Code] in fact contributes to the enhancement and preservation of multi-culturalism in Canada."[66] While McLachlin J.'s failure to accept that there may well be an important relationship between official multiculturalism and effective anti-vilification laws is disappointing, her position does highlight the need to clearly articulate this relationship, if the case for effective statutory reform is to be made persuasively.

The debate would be rather more productive if it was able to extend beyond the boundaries of rights discourse, and a preoccupation with abstract free speech issues. Other matters--including the suitability of conciliation as a dispute resolution mechanism, and the implications of criminalisation--also require attention. Analysis of such matters would be advanced if it drew on other theoretical perspectives as well as empirical evidence. An examination of the operation of existing racial vilification provisions will facilitate a more broadly constructed debate, which in turn, can more effectively inform decisions on further law reform.

Effective examination and articulation of the relationship between the operation of anti-racial vilification legislation, the varied experiences of racial harassment, intimidation and violence, and multiculturalism, will also be facilitated by quantitative research on existing legislative schemes in Australia. Appropriate methodologies might include the employment of narrative/story-telling techniques,[67] and further comparative analysis. In this way, Australia may be able to avoid repeating the Canadian pattern of an ongoing, but ultimately unsatisfactory debate, for which rights discourse provides the narrow parameters and freedom of expression constitutes the dominant agenda item.



[*] BA LLB (UNSW), LLM (Manitoba); Lecturer, Faculty of Law, University of Wollongong. The research on which this article is based was supported by a grant from the Law Foundation of New South Wales Legal Scholarship Support Fund. Thanks to Andrea Thomson and Samantha Lloyd for research assistance, and to Scott Grattan, Richard Moon and Bruce Elman for comments on an earlier draft of this article.

[1]. There is a significant body of comparative literature dealing with various aspects of multiculturalism in Australia and Canada. See, for example, S. Gunew, "Multicultural Multiplicities: US, Canada, Australia" (1993) 52 Meanjin 447; and R. Patterson, "Two Nations, Many Cultures: The Development of Multicultural Broadcasting in Australia and Canada" (1993) 11 Australian-Canadian Studies 17.

[2]. Multiculturalism Act 1988.

[3]. s.27 states that: "This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians."

[4]. I. Cotler, "Racist Incitement: Giving Free Speech a Bad Name" in D. Schneiderman (ed), Freedom of Expression and the Charter (Calgary: Thomson Professional Publishing Company, 1991) 249 at 251.

[5]. In Canada, the term hate propaganda is widely used to describe the conduct referred to in Australia as vilification. Hate propaganda has been described by Dickson C.J.C. as "... expression intended or likely to create or circulate extreme feelings of opprobrium and enmity against a racial or religious group..."R. v. Keegstra [1991] 2 W.W.R. 1 at 23, per Dickson C.J.C. See also, Law Reform Commission of Canada, Hate Propaganda. Working Paper 50 (Ottawa: Law Reform Commission of Canada, 1986).

[6]. This paper forms part of a comparative research project which aims to evaluate the response of the Australian and Canadian legal systems to expressions of racial hatred, with particular emphasis on the implications of the trend towards the extension of the criminal justice system into this area.

[7]. R.S.C. 1985, c. C-46.

[8]. The others are advocating genocide (s.318); and public incitement of hatred (s.319(1)).

[9]. Criminal Code, s.319(6).

[10]. 1979, c.S-24.1, s.14; 1989-90, c.23, s.10; 1993, c.61, s.9.

[11]. Similar provisions operate in Alberta: Individual's Rights Protection Act, 1980, c. I-2, s.2; 1985, c.33. s.2; 1990, c.23, ss.2-3; and and Newfoundland: Human Rights Code, 1988, c. H-14, s.14.

[12]. Section 126 of the Queensland Anti-Discrimination Act states that: "A person must not, by advocating racial or religious hatred or hostility, incite unlawful discrimination or another contravention of the Act".

[13]. Letter to author, Calvin Bernard, Acting Director, Ontario Human Rights Commission, 18 February 1994.

[14]. Ibid.

[15]. Between October 1989 and 30 June 1993 the New South Wales Anti-Discrimination Board received 356 formal complaints dealing with racial vilification. The vast majority of the matters handled by the Board have been dealt with by private conciliation. At May 1994. three matters had been referred to the Attorney General, but the Director of Public Prosecutions has decided not to prosecute any of these cases. See New South Wales Anti-Discrimination Board, Balancing the Act. A Submission to the NSW Law Reform Commission's Review of the Anti-Discrimination Act 1977 (NSW) (Sydney: ADB, May 1994) at 54.

[16]. See, for example, R. Matas, "Hate-law changes to proceed in B.C.: Concern raised about rights", The [Toronto] Globe and Mail, 16 June 1993, A5.

[17]. S.B.C. 1993, c.27.

[18]. S.B.C. 1984, c.22.

[19]. The recent addition of homosexual vilification provisions to the New South Wales Anti-Discrimination Act 1977--Anti-Discrimination (Homosexual Vilification) Amendment Act 1993--along with the inclusion of expansive sexual harassment provisions in the Queensland Anti-Discrimination Act 1991, may signal the start of a similar extension of the notion of unlawful vilification in Australia. The implications of this expansion of Australian anti-vilification laws are discussed in L. McNamara, "Anti-Vilification Laws: Protecting Who From What?" Socio-Legal Bulletin (forthcoming).

[20]. Editorial, "A criminal abuse of human rights", The [Toronto] Globe and Mail, 19 June 1993, pD6.

[21]. Apart from the leading case of R v Keegstra [1991] 2 W.W.R. 1, (discussed below), the Supreme Court of Canada also considered the role of various hate propaganda laws in R. v. Zundel (1992), 16 C.R. (4th) 1; and Taylor v. Canadian Human Rights Commission (1990), 75 D.L.R. (4th) 577.

[22]. For a discussion of other Canadian decisions, see J. Ross, "Hate Crime in Canada: Growing Pains in New Legislation" in M. Hamm (ed), Hate Crime: International Perspectives on Causes and Control (Cincinnati: ACJS/Anderson, 1994) at 159-165; and B.P. Elman, "Combatting Racist Speech: The Canadian Experience" (1994) 32 Alberta Law Review 623.

[23]. R. v. Keegstra [1991] 2 W.W.R. 1; [1990] 2 S.C.R. 697; (1991), 1 C.R. (4th) 129.

[24]. R v Keegstra [1991] 2 W.W.R. 1 at 17 per Dickson C.J.C.

[25]. Cited in Ross, supra note 22 at 161. See D. Bercuson & D. Wertheimer, A Trust Betrayed: The Keegstra Affair (Toronto: Doubleday Canada, 1985).

[26]. Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11.

[27]. The Keegstra appeal was heard in conjunction with two other appeals: R v Andrews, S.C.C., No. 21034, and Canada (Human Rights Commission) v Taylor, S.C.C., No. 20462. In Taylor the Court upheld the hate provisions contained in section 13 of the Canadian Human Rights Act, R.S.C. 1985, c.H-6. See Taylor v. Canadian Human Rights Commission (1990), 75 D.L.R. (4th) 577.

[28]. The Court adopted the same analysis in response to Keegstra'a claim that the defence of truth contained in s. 319(3)(a), which involved a reverse onus of proof, was inconsistent with the presumption of innocence guaranteed by s. 11(d) of the Charter.

[29]. Wilson, L'Heureux-Dube, and Gonthier JJ. concurring.

[30]. R. v. Keegstra [1991] 2 W.W.R. 1 at 73.

[31]. Ibid at 79.

[32]. Ibid at 73.

[33]. Ibid at 71.

[34]. Ibid.

[35]. Ibid at 73.

[36]. La Forest and Sopinka JJ. concurring.

[37]. R. v. Keegstra [1991] 2 W.W.R. 1 at 134. For McLachlin J., human rights instruments, which do not involve the possibility of criminal sanctions, may offer a more acceptable means of giving effect to Parliament's objective in enacting hate propaganda laws: ibid at 130.

[38]. See L. Weinrib, "Hate Promotion in a Free and Democratic Society: R. v. Keegstra" (1991) 36 McGill Law Journal 1416 at 1446.

[39]. Ibid at 1434.

[40]. Ibid at 1436.

[41]. Ibid at 1448. I have provided only a brief overview of the issue and arguments contained in the Court's decision. For further analysis, see Weinrib, supra note 36; R. Moon, "Drawing Lines in a Cultural of Prejudice: R v Keegstra and the Restriction of Hate Propaganda" (1992) U.B.C. Law Review 98; and B. Elman, "Her Majesty the Queen v. James Keegstra: The Control of Racism in Canada: in L. Greenspan & C. Levitt (eds), Under the Shadow of Weimar: Democracy, Law and Racial Incitement in Six Countries (Westport: Praeger, 1993).

[42]. (1992), 16 C.R. (4th) 1.

[43]. 112 S.C. 2538 (1992). See infra note 47.

[44]. At the time of writing a the Attorney General of Alberta had not yet decided whether to appeal to the Supreme Court of Canada, or whether it would be appropriate to embark on a third trial.

[45]. The changed composition of the Court is one explanation for the decision of the Supreme Court of Canada in R. v. Zundel (1992), 16 C.R. (4th) 1. In Zundel, the Court (McLachlin J. for the majority) struck down s. 181 of the Criminal Code (wilfully spreading false news) on the basis that it was an unacceptable infringement of s. 2(b) of the Charter. Significantly, the accused (who had published anti-Semitic Holocaust denial literature) was charged under s, 181 because the Attorney General of Onatrio had refused to consent to the laying of charges under the more appropriate s. 319(2). For a discussion of the different outcomes reached by the Supreme Court of Canada in Keegstra and Zundel, see B.P. Elman & E. Nelson, "Distinguishing Zundel and Keegstra" (1993) 4 Constitutional Forum 71; and T. Solomon, "Antisemitism as Free Speech: Judicial Responses to Hate Propaganda in Zundel and Keegstra", Australian-Canadian Studies (forthcoming).

[46]. To date there has been only one adjudicated racial vilification case in Australia: the decision of the New South Wales Equal Opportunity Tribunal in Harou-Sourdon v TCN Channel Nine Pty Ltd (unreported, 23 June 1994). The Tribunal dismissed the complaint under section 111 of the Anti-Discrimination Act 1977 (NSW) on the basis that it was misconceived and lacking in substance.

[47]. In R.A.V. v. City of St. Paul, 112 SC 2538 (1992), the United States Supreme Court struck down as an unconstitutional prohibition of speech the St. Paul Bias Motivated Crime Ordinance which had made it a crime for a person to place any symbol, object, or graffiti on public or private property with the knowledge that it would arouse anger or resentment in others on the basis of race, color, religion or gender. For a discussion of this case, see G Preves, "The Death Knell for Hate-Crime Laws? The Supreme Court Protects Unpopular Speech in R.A.V. v. City of St. Paul" (1993) 24 Loyola University Law Journal 309.

[48]. It is important to note that the High Court of Australia has recently begun to explore the possibility of an implied constitutional right to free speech. See Australian Capital Television Pty Ltd v Commonwealth(1992) 108 A.L.R. 577; and Nationwide News Pty Ltd v Wills(1992) 108 A.L.R. 681; and the discussion in N.F. Douglas, "Freedom of Expression Under the Australian Constitution" (1993) 16 University of New South Wales Law Journal 315; and W. Sadurski, "Offending With Impunity: Racial Vilification and Freedom of Expression" (1992) 14 Sydney Law Review 163.

[49]. See R. v. Keegstra [1991] 2 W.W.R. 1 at 41-42, per Dickson C.J.C., where his Honour discusses the findings of the Report of the Special Committee on Hate Propaganda in Canada (1965) and the Report of the House of Commons Special Committee on Participation of Visible Minorities in Canada Society, Equality Now! (1984). The Chief Justice concluded that "... the presence of hate propaganda in Canada is sufficiently substantial to warrant concern": ibid at 42.

[50]. For example, the anti-Semitic activities of Malcolm Ross, a school teacher from Moncton, New Brunswick, were examined in 1991 by the New Brunswick Human Rights Commission under the general race discrimination provisions contained in s5(1) of the New Brunswick Human Rights Act, 1973. No provincial anti-hate laws had been enacted in New Brunswick, and successive Attorneys General had refused to consent to the prosecution of Ross under the relevant provisions of the Canadian Criminal Code: see D. Raymaker & D. Kilgour, "The Freedom to Promote Hate: What We Learned from Jim Keegstra and Malcolm Ross" (1992) University of New Brunswick Law Journal 327 at 330. A similar reluctance on the part of the Attorney General of Ontario led to the prosecution of Ernst Zundel under s. 181 of the Criminal Code rather than the more appropriate s. 319(2): see supra note 45. These examples highlight the restrictive nature of consent provisions such as those contained in the Canadian Criminal Code (mirrored in section 20D of the New South Wales Anti-Discrimination Act 1977). According to New Brunswick's Director of Public Prosecutions "Federal policy-makers are now examining the current Code provisions to determine if the laws can be strengthened to facilitate prosecutions": letter to author, R.A. Murray, Director of Public Prosecutions, New Brunswick, 19 January 1994.

[51]. E. Kallen, "Never Again: Target Group Responses to the Debate Concerning Anti-Hate Propaganda Legislation" (1991) 11 Windsor Yearbook of Access to Justice 46 at 52.

[52]. See, for example, David Climenhaga, "Keegstra appeals hate conviction", The Calgary Herald, 3 February 1994; "Lawyer argues for Keegstra's `rights'", The Edmonton Sun, 3 February 1994.

[53]. Solomon, supra note 45.

[54]. Raymaker and Kilgour, supra note 50 at 329.

[55]. Criminal prosecution for serious racial vilification is possible under s. 20(d) of the Anti-Discrimination Act 1977 (NSW), but to date there have been no prosecutions under this section.

[56]. Moon, supra note 41 at 139.

[57]. Ibid at 135.

[58]. I. McKenna, "Canada's Hate Propaganda Laws--A Critique" (1994) 9 British Journal of Canadian Studies 15.

[59]. Ibid at 15.

[60]. Ibid at 20.

[61]. L. Jayasuriya, Legislating Against Racial Incitement: Strategies and Rationales (Perth: University of Western Australia, June 1989) at 16.

[62]. Ibid.

[63]. McKenna, supra note 58 at 20.

[64]. The need to establish "wilful promotion" (Canadian Criminal Code, s319(2)) or "incitement" (NSW Anti-Discrimination Act, s20C) on the part of the accused is indicative of a line of inquiry which is not particularly concerned with the issue of the harm suffered by the target group. For a discussion of the extent to which recent Canadian decisions have dealt with evidence of harm, see Solomon, note 46 supra.

[65]. R v Keegstra [1991] 2 W.W.R. 1.

[66]. Ibid at 111.

[67]. For an introduction to the use of "outsider jurisprudence" in the context of considering the legal regulation of racist speech or hate propaganda, see M.J. Matsuda, "Public Response to Racist Speech: Considering the Victim's Story" (1989) 87 Michigan Law Review 2320, part II.


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