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                      Copyright 1993 Canada Law Book Inc. 
  
                            Regina v. Keegstra et al. 
  
                           Indexed as: R. v. Keegstra 
  
                            Supreme Court of Canada 
  
                       61 C.C.C. 3d 1; 11 W.C.B. (2d) 352 
  
                               December 13, 1990 
  
PRIOR-HISTORY: Appeal by the Crown from a judgment of the  
Alberta Court of Appeal, 43 C.C.C. (3d) 150, 65 C.R. (3d)  
289, 60 Alta. L.R. (2d) 1, [1988] 5 W.W.R. 211, 87 A.R. 177,  
39 C.R.R. 5, 15 W.C.B. (2d) 48, allowing an appeal by the  
accused from his conviction for wilfully promoting hatred  
contrary to s. 319 of the Criminal Code. 
  
KEYWORDS: Charter of Rights -- Freedom of expression --  
Criminal Code prohibiting wilful promotion of hatred --  
Provision also providing for number of defences including  
proof that statements true -- Provision aimed at content of  
expression and thus violating guarantee to freedom of  
expression -- Legislation however constituting reasonable  
limit and therefore valid -- Cr. Code, s. 319 -- Canadian  
Charter of Rights and Freedoms, ss. 1, 2(b), 15, 27. 
  
   Charter of Rights -- Presumption of innocence -- Reverse  
onus provision -- Charge of wilful promotion of hatred --  
Defence if accused establishes on balance of probabilities  
that statements communicated were true -- Provision  
offending presumption of innocence -- In application of  
guarantee to presumption of innocence no distinction between  
elements of offence and defences -- If accused required to  
prove some fact on balance of probabilities to avoid  
conviction then provision violating presumption of innocence  
-- Provision however constituting reasonable limit on  
guarantee -- Provision valid -- Cr. Code, s. 319 -- Canadian  
Charter of Rights and Freedoms, ss. 1, 11(d). 
  
   Hate propaganda -- Wilful promotion of hatred -- Elements  
of offence -- Provision not covering statements made in  
private conversation -- Provision not applying to  
conversations which through accident or negligence made  
public if intended to be private -- Term ''wilfully''  
requiring that promotion of hatred be intended or foreseen  
as substantially certain -- Term ''hatred'' connoting  
emotion of intense and extreme nature associated with  
vilification and detestation -- Jury to be instructed that  
accused should not be found guilty merely because expression  
was distasteful -- Cr. Code, s. 319. 
  
SUMMARY: The accused was charged with the offence contrary  
to s. 319(2) of the Criminal Code of wilfully promoting  
hatred against an identifiable group. Section 319(2)  
provides that everyone who, by communicating statements,  
other than in private conversation wilfully promotes hatred  
against any identifiable group is guilty of an offence.  
Subsection (3) provides for a number of defences and in  
particular in para. (a) provides that the accused shall not  
be convicted ''if he establishes that the statements  
communicated were true''. Other defences in paras. (b) to  
(d) refer to good faith expression of arguments on a  
religious subject, statements relevant to any subject of  
public interest for the public benefit and where the accused  
in good faith intended to point out, for the purpose of  
removal, matters producing or tending to produce feelings of  
hatred. The charges against the accused arose out of his  
anti-semitic teachings in a classroom. The accused was  
convicted at trial but on appeal argued that s. 319(2)  
violated the guarantee to freedom of expression and argued  
that the reversal of the burden of proof for the truth  
defence in s. 319(3)(a) violated the presumption of  
innocence. The Alberta Court of Appeal held that the  
legislation was unconstitutional and the accused's appeal  
was allowed. In the result the court did not consider  
several other grounds of appeal raised by the accused  
against his conviction.  
  
   On appeal by the Crown from the accused's acquittal,  
held, La Forest, McLachlin and Sopinka JJ. dissenting, the  
appeal should be allowed and the case remitted to the  
Alberta Court of Appeal.  
  
   Freedom of expression  
  
   Per Dickson C.J.C., Wilson, L'Heureux-Dube and Gonthier  
JJ. concurring: The term ''expression'' as used in s. 2(b)  
of the Canadian Charter of Rights and Freedoms embraces all  
content of expression irrespective of the particular meaning  
or message sought to be conveyed. If the purpose of the  
impugned government action is to restrict freedom of  
expression then the provision infringes s. 2(b). If,  
however, it is only the effect of the government action  
rather than its purpose which restricts an activity then s.  
2(b) does not apply unless it can be demonstrated by the  
party alleging an infringement that the activity supports  
rather than undermines the principles and values upon which  
freedom of expression is based. Thus in considering whether  
legislation infringes freedom of expression it is irrelevant  
whether the expression is invidious and obnoxious.  
Communications which wilfully promote hatred against an  
identifiable group convey a meaning and are thus expression  
within the meaning of s. 2(b). The prohibition in s. 319(2)  
of the Criminal Code is aimed directly at words that have as  
their content and objective the promotion of racial or  
religious hatred. The purpose of s. 319(2) is clearly to  
restrict the content of expression by singling out  
particular meanings that are not to be conveyed and  
accordingly infringes the guarantee to freedom of expression  
in s. 2(b). Hate propaganda cannot be excluded from the  
ambit of s. 2(b) on the basis that it is violence. At its  
highest an exception has been suggested where meaning is  
communicated directly through physical violence. Any  
exclusion of expression from the ambit of s. 2(b) on the  
basis that it is violence must refer to expression  
communicated directly through physical harm. Hate propaganda  
is not analogous to violence. Section 319(2) prohibits the  
communication of meaning that is repugnant, but the  
repugnance stems from the content of the message as opposed  
to its form. Not even threats of violence are excluded from  
the definition of expression envisaged by s. 2(b). The fact  
that the Charter in s. 15 protects equality rights and in s.  
27 seeks to promote multi-culturalism cannot be used to cut  
down on the ambit of freedom of expression in s. 2(b). Any  
balancing of various Charter rights must be done through s.  
1.  
  
   Section 319(2) of the Criminal Code does, however,  
constitute a reasonable limit on the guarantee to freedom of  
expression, within the meaning of s. 1 of the Charter. The  
presence of hate propaganda in Canada is sufficiently  
substantial to warrant concern. There are two types of  
injury caused by hate propaganda. First there is the harm  
done to members of the target group. Persons belonging to a  
racial or religious group under attack are humiliated and  
degraded. The derision, hostility and abuse encouraged by  
hate propaganda have a severely negative impact on the  
individual's sense of self-worth and acceptance. This impact  
may cause target group members to take drastic measures in  
reaction, perhaps avoiding activities which bring them into  
contact with non-group members or adopting attitudes and  
postures directed towards blending in with the majority. The  
other harmful effect of hate propaganda which is of pressing  
and substantial concern is its influence upon society at  
large. The act of dissemination of hate propaganda can  
attract individuals to its cause and in the process create  
serious discord between various cultural groups and society.  
Even if the message of hate propaganda is outwardly  
rejected, the premise of racial or religious inferiority  
upon which the message is based may persist in a recipient's  
mind as an idea that holds some truth. Canada along with  
other members of the international community has indicated a  
commitment to prohibiting hate propaganda and the Court must  
have regard to that commitment in investigating the nature  
of the government objective behind s. 319(2). Significant  
indicia of the strength of the objective behind s. 319(2)  
are also gleaned from other provisions of the Charter, most  
importantly ss. 15 and 27. The Charter commitment to  
equality as guaranteed in s. 15 enhances the objective of s.  
319(2) of the Criminal Code as it seeks to ensure the  
equality of all individuals in Canadian society. The  
recognition in s. 27 of a commitment to the preservation and  
enhancement of the multicultural heritage of Canadians is  
also significant in emphasizing the importance of the  
objective of eradicating hate propaganda from society. Hate  
propaganda seriously threatens both the enthusiasm with  
which the value of equality is accepted and acted upon by  
society and the connection of target group members to their  
community. Section 319(2) therefore relates to objectives of  
pressing and substantial concern sufficient to warrant  
overriding the constitutional guarantee to freedom of  
expression.  
  
   Section 319(2) also meets the proportionality test. In  
consideration of the proportionality test it is to be  
recognized that not all expression and activity is equally  
crucial to the principles at the core of s. 2(b) of the  
Charter and thus restrictions on expression such as that  
prohibited by s. 319(2) which is only tenuously connected to  
the values underlying s. 2(b) may be easier to justify than  
other infringements. Expression intended to promote the  
hatred of identifiable groups is of limited importance when  
measured against free expression of values. There is little  
chance that statements intended to promote hatred against an  
identifiable group are true or that their vision of society  
will lead to a better world. While s. 319(2) inhibits the  
role of freedom of expression as a means of ensuring  
individuals the ability to gain self-fulfilment by  
developing and articulating thoughts and ideas, the message  
put forth by individuals who fall within the ambit of s.  
319(2) represents a most extreme opposition to the idea that  
members of identifiable groups should enjoy this aspect of  
the s. 2(b) benefit. Finally, while suppression of hate  
propaganda restricts the participation of a few individuals  
in the democratic process the degree of this limitation is  
not substantial. In fact expression can work to undermine  
our commitment to democracy where employed to propagate  
ideas anathema to democratic values. Section 319(2) meets  
the rational connection requirement for the proportionality  
test. Suppression of hate propaganda reduces the harm such  
expression does to individuals who belong to identifiable  
groups and to relations between various cultural and  
religious groups in Canadian society. While the effect of s.  
319(2) is impossible to define with exact precision, the  
argument that there is no strong and evident connection  
between the criminalization of hate propaganda and its  
suppression is unconvincing. Hate propaganda legislation and  
trials of persons charged with the offence are means by  
which the values beneficial to a free and democratic society  
can be publicized. Section 319(2) also meets the minimal  
impairment requirement. The section is a measured and  
appropriate response to the phenomena of hate propaganda and  
does not overly circumscribe the guarantee in s. 2(b).  
Section 319(2) by its terms does not apply to statements  
made in private conversation. Moreover it is reasonable to  
infer a subjective mens rea requirement regarding the type  
of conversation covered by s. 319(2) and thus a conversation  
or communication intended to be private does not satisfy the  
requirements of the provision if through accident or  
negligence the accused's expression of hatred for an  
identifiable group is made public. The requirement that the  
promotion of hatred must be wilful requires proof that  
promotion of hatred was intended or foreseen as  
substantially certain. The failure of the offence to require  
proof of actual hatred resulting from a communication is not  
a sufficient reason to hold that the section is not a  
reasonable limit. To predicate the limitation of freedom of  
expression upon proof of actual hatred gives insufficient  
attention to the severe psychological trauma suffered by  
members of those identifiable groups targeted by hate  
propaganda. In addition it would be difficult to prove a  
causative link between a specific statement and hatred of an  
identifiable group. It is well accepted that Parliament can  
use the criminal law to prevent the risk of serious harms.  
The use of the term ''promotes'' in s. 319(2) signifies  
conduct which is more than simple encouragement or  
advancement. The hate monger must intend or foresee as  
substantially certain direct and active stimulation of  
hatred against an identifiable group. In addition, the term  
''identifiable group'' is defined in s. 318(4) as any  
section of the public distinguished by colour, race,  
religion or ethnic origin. The Act is thus targeted to the  
intentional fostering of hatred against particular members  
of society as opposed to any individual. Finally, the term  
''hatred'' connotes emotion of an intense and extreme nature  
that is clearly associated with vilification and  
detestation. As used in s. 319(2) the term ''hatred'' does  
not denote a wide range of diverse emotions but rather  
covers only the most intense form of dislike. It is an  
extreme emotion that belies reason; an emotion that, if  
exercised against members of an identifiable group, implies  
that those individuals are to be despised, scorned, denied  
respect and made subject to ill treatment on the basis of  
group affiliation. Thus in directing a jury the trial judge  
should include express mention of the need to avoid finding  
that the accused intended to promote hatred merely because  
the expression is distasteful. Thus s. 319(2) possesses the  
definitional limits which act as safeguards to ensure that  
it will capture only expressive activity which is the target  
of the legislation. In addition the defences provided by s.  
319(3) aid in making the scope of the wilful promotion of  
hatred more explicit and thus significantly reduce any  
danger that s. 319(2) is over broad or unduly vague or will  
be perceived as such. To the extent that s. 319(3) provides  
justification for an accused who would otherwise fall within  
the parameters of the offence in s. 319(2), it reflects a  
commitment to the idea that an individual's freedom of  
expression will not be curtailed in borderline cases. As  
regards the truth defence in s. 319(3)(a) it is doubtful  
whether the Charter mandates that truthful statements  
communicated with an intention to promote hatred need be  
excepted from criminal condemnation in order to meet  
constitutional standards. It was, however, open to  
Parliament to make a concession to free expression values by  
providing the defence of truth. The fact that the defence in  
s. 319(3)(a) would not cover negligent or innocent error  
does not mean that the provision excessively impairs freedom  
of expression. Further, s. 1 does not operate in every  
instance so as to require the government to rely only upon  
the mode of intervention least intrusive of a Charter right  
or freedom. It may be that a number of courses of action are  
available in the furtherance of a pressing and substantial  
objective, each imposing a varying degree of restriction  
upon a right or freedom. The government may thus  
legitimately employ a more restrictive measure provided that  
measure is not redundant. The harm done through hate  
propaganda may require that especially stringent responses  
be taken to suppress and prohibit some expression.  
  
   Finally, the effects of limiting freedom of expression do  
not outweigh the importance of the state objective in s.  
319(2). The infringement of s. 2(b) by s. 319(2) is not a  
serious restriction. The activity at which the provision is  
aimed is in a category only tenuously connected with the  
values underlying the guarantee of freedom of speech. The  
section is narrowly drawn and deals with objectives of  
enormous importance and of such magnitude as to justify the  
severe response of the criminal prohibition.  
  
   Per McLachlin J., La Forest and Sopinka JJ. concurring,  
dissenting: Freedom of expression as guaranteed by s. 2(b)  
of the Charter is a broadly defined and fundamental right.  
All activities which convey or attempt to convey meaning  
prima facie fall within the scope of the guarantee. The  
content of a statement cannot deprive it of protection under  
s. 2(b), no matter how offensive it may be. Thus statements  
violating s. 319(2) fall within the sphere of protection  
accorded to freedom of expression by s. 2(b) of the Charter.  
While it was argued that promoting hatred is equivalent to  
threats of violence and thus assumes a form of expression  
which falls outside the protected sphere of s. 2(b), the  
communications covered by s. 319(2) although offensive and  
propagandistic do not constitute threats in the usual sense  
of that word. Nor are those statements violence. Any  
exemption from the protection of s. 2(b) on the basis that  
the expression is violence refers to actual or threatened  
physical interference with the activities of others.  
Statements promoting hatred are not akin to violence or  
threats of violence and thus cannot for that reason be  
excluded from the protection of s. 2(b). Nor is it open to  
the court to reduce the scope of expression protected by s.  
2(b) of the Charter because of the equality guarantees in s.  
15 of the Charter or the commitment to multi-culturalism  
recognized by s. 27 of the Charter. Similarly, the court  
cannot cut back on the scope of s. 2(b) on the ground that  
Canada has signed treaties which are inconsistent with  
affording protection to racial propaganda. To do so would  
require cutting down the protection offered by s. 2(b) of  
the Charter on the basis of the content of expression sought  
to be protected. It would deny certain statements  
constitutional protection because their content was intended  
to promote discrimination and hatred of certain groups in  
society. This is not a permissible approach to the  
interpretation of s. 2(b). Finally, it is not open to the  
court to confine the guarantee of freedom of expression only  
to contact which is judged to possess redeeming value or to  
accord with the accepted values. To do so strikes at the  
very essence of the value of freedom of expression by  
reducing the realm of protected discussion to that which is  
comfortable and compatible with current conceptions. If the  
guarantee of freedom of expression is to be meaningful it  
must protect expression which challenges even the very basic  
conceptions of society. Section 319(2) accordingly violates  
freedom of expression as guaranteed by s. 2(b).  
  
   Nor can s. 319(2) be justified as a reasonable limit on  
freedom of expression under s. 1 of the Charter. The  
objectives of s. 319(2), to prevent the promotion of hatred  
towards identifiable groups within our society, to prevent  
the spread of hatred and the breakdown of racial and social  
harmony and to prevent the disruption of our multicultural  
society are objectives of a substantial nature and may be  
said to be pressing even though it is not asserted that any  
emergency exists in Canada. While these objectives are of  
sufficient gravity to be capable of justifying the  
limitations on constitutionally protected rights and  
freedoms, the criminal prohibition of wilful promotion of  
hatred cannot meet the proportionality test. The balancing  
of values under the proportionality test must take account  
of the unique nature of freedom of expression. The right to  
fully and openly express one's views on social and political  
issues is fundamental to democracy and hence to all the  
other rights and freedoms guaranteed by the Charter. While  
some restrictions on freedom of expression may be necessary  
and justified and entirely compatible with a free and  
democratic society, restrictions which touch the critical  
core of social and political debate require particularly  
close consideration because of the dangers inherent in state  
censorship of such debate. Freedom of expression is also  
unique in that limitations on expression tend to have an  
effect on expression other than that which is their target.  
This chilling effect requires that any limitation be drafted  
with great precision otherwise there will always be a doubt  
about whether a particular form of expression offends the  
prohibition which may deter not only the expression to which  
the prohibition is aimed but legitimate expression. This  
chilling effect must be taken into account in performing the  
balancing required by the s. 1 analysis. In weighing the  
intrusiveness of a limitation on freedom of expression the  
court's consideration cannot be confined to those who may  
ultimately be convicted under the limit but must also extend  
to those who may be deterred from legitimate expression by  
uncertainty as to whether they may be convicted. On all  
three criteria for the proportionality test s. 319(2) is  
wanting. As regards the rational connection test,  
prosecutions may bolster the beliefs of members of a target  
group that they are valued and respected in their community  
and that the views of a malicious few do not reflect those  
of the population as a whole. Thus the purpose of the  
legislation is rationally connected to the objective. In  
actual effect however it was not shown that the rational  
connection between the legislation and its objectives  
exists. A measure which takes away a constitutionally  
protected freedom cannot be reasonably and demonstrably  
justified unless there is a likelihood that it will further  
the objective upon which its justification rests. If there  
is an indication that the measure may in fact detract from  
the objectives it is designed to promote, then the absence  
of a rational connection between the measure and the  
objective is clear. Section 319(2) falls into this class.  
The section may well have a chilling effect on defensible  
expression by law abiding citizens and at the same time it  
is far from clear that it provides any effective way of  
curbing hate mongers. It may even promote their cause.  
Prosecutions under the Criminal Code for racist expression  
have attracted an extensive media coverage. The criminal  
process confers on the accused publicity and may even bring  
him sympathy. The rational connection between s. 319(2) and  
its goals is tenuous. Further despite the limitations found  
in s. 319(2) it is over broad in that its definition of  
offending speech may catch many expressions which should be  
protected. It therefore cannot meet the minimal impairment  
test. The term ''hatred'' in s. 319(2) is a broad term  
capable of catching a wide variety of emotion. The  
subjective and emotional nature of the concept of promoting  
hatred compounds the difficulty of ensuring that only cases  
meriting prosecution are pursued and that only those whose  
conduct is calculated to dissolve the social bonds of  
society are convicted. The absence of any requirement that  
actual harm or incitement to hatred be shown further  
broadens the scope of s. 319(2). The provision makes a crime  
not only of actually inciting others to hatred, but also of  
attempting to do so. The defences provided in s. 319(3) do  
not in practice significantly narrow the ambit of s. 319(2).  
Even where investigations are not initiated or prosecutions  
pursued, the vagueness and subjectivity inherent in s.  
319(2) gives ground for concern that the chilling effect of  
the law may be substantial. The section catches a broad  
range of speech and prohibits it in a broad manner, allowing  
only private conversations to escape scrutiny. Finally, it  
was not shown that the infringement of freedom of expression  
is proportionate to the ends sought to be achieved. The  
infringement of the guarantee of freedom of expression in s.  
319(2) is a serious one. It does not merely regulate the  
form or tone of expression but strikes directly at its  
content and at the viewpoints of individuals. It strikes,  
moreover, at viewpoints in widely diverse domains whether  
artistic, social or political. It is capable of catching not  
only statements to which it may be targeted but works of art  
and the intemperate statement made in the heat of social  
controversy. An infringement of this seriousness can only be  
justified by a countervailing state interest of the most  
compelling nature. While the objectives underlying the  
legislation are of a most worthy nature the claims of gains  
to be achieved at the cost of the infringement of freedom of  
expression are tenuous. It is far from clear that the  
legislation does not promote the cause of hate mongering  
extremists and hinder the possibility of voluntary amendment  
of conduct more than it discourages the spread of hate  
propaganda. Any questionable benefit of the legislation is  
outweighed by the significant infringement on the  
constitutional guarantee of freedom of expression.  
Accordingly s. 319(2) of the Criminal Code is  
unconstitutional.  
  
   The presumption of innocence (s. 319(3)(a))  
  
   Per Dickson C.J.C., Wilson, L'Heureux-Dube and Gonthier  
JJ. concurring: Requiring the accused to prove on a balance  
of probabilities that the statements communicated were true  
in order to amount to a defence under s. 319(3)(a) of the  
Criminal Code infringes the presumption of innocence. The  
question is not whether a factual finding is an element of  
the offence or defence. The presumption of innocence in s.  
11(d) of the Charter is infringed whenever the accused is  
liable to be convicted despite the existence of a reasonable  
doubt as to the guilt in the mind of the trier of fact. Thus  
as regards s. 319(3)(a) since the trier of fact must convict  
even where there is a reasonable doubt as to the truth of an  
accused's statements, because the accused has been unable to  
establish the defence on a balance of probabilities, there  
is a violation of s. 11(d). That violation however is a  
reasonable limit. The objective behind the reverse onus in  
s. 319(3)(a) is closely connected with the purpose behind  
the offence in 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 were too easily available then the pressing  
and substantial objectives of Parliament in preventing such  
harm would suffer unduly. Parliament's objective in  
employing a reverse onus in s. 319(3)(a) is pressing and  
substantial. Section 319(3)(a) clearly shows a rational  
connection to the purpose of preventing the harm caused by  
hate-promoting expression. The reverse onus in the truth  
defence operates to make it more difficult to avoid  
conviction where the wilful promotion of hatred has been  
proven beyond a reasonable doubt. As the wilful promotion of  
hatred is hostile to Parliament's objectives, placing such a  
burden on the accused is rationally connected to a valid  
objective under s. 1. The reverse onus also can meet the  
requirement that it impair the freedom as little as  
possible. The defence of truth is in some ways at odds with  
Parliament's purpose of preventing the damage to target  
group members and inter group harmony caused by hate  
propaganda since it works to excuse the actions of an  
accused even though the harm sought to be prevented is  
present. Parliament has made a concession to the importance  
of truth and freedom of expression values but has used the  
reverse onus provision to strike a balance between the two  
legitimate concerns. Requiring the accused to prove on the  
civil standard that his statements are true is an integral  
part of this balance, and any less onerous burden would  
severely skew the equilibrium. To provide that the accused  
need only raise a reasonable doubt as to the truthfulness of  
the statements would excessively compromise the  
effectiveness of the offence in achieving its purpose.  
Finally, the importance of preventing the harm caused by  
hate-promoting expression is not outweighed by Parliament's  
infringement of s. 11(d).  
  
   Per McLachlin J., Sopinka J. concurring, dissenting:  
Section 319(3)(a) of the Criminal Code infringes the  
presumption of innocence in s. 11(d) of the Charter.  
Parliament has expressly made falsity an element of the  
offence by providing that truth constitutes a defence. By  
placing the burden of proof on the accused Parliament has  
contravened the basic principle that the accused need not  
prove a defence. It was not shown that the reversal of the  
burden of proof was a reasonable limit. It was difficult to  
discern any rational connection between the aims of s.  
319(3)(a) and its requirement that the accused prove the  
truth of his statements. While it is argued that without the  
reverse onus it would be difficult if not impossible to  
obtain convictions for much speech which promotes hatred,  
this merely argues for the burden being on the state because  
of its superior resources. If the objection is that it is  
impossible to know if the statements are true or false  
because for example they are merely opinion, then the answer  
is that it cannot be ruled out that statements may be more  
valuable than harmful. The 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. Similarly it could not be said that s. 319(3)(a)  
impairs the presumption of innocence as little as possible.  
Finally, as regards the effects of the infringement as  
weighed against the objectives it promotes, since falsehood  
is an important element of the offence and in view of the  
centrality of the presumption of innocence in criminal law,  
only a countervailing state interest of the most compelling  
kind could justify the infringement. It is difficult to see  
what benefits however the section produces in terms of  
stemming hate propaganda and promoting social harmony and  
individual dignity. Accordingly, s. 319(3)(a) is not saved  
by s. 1 of the Charter.  
  
   Per La Forest J. dissenting: As s. 319(2) of the Criminal  
Code is unconstitutional it was unnecessary to consider  
issues respecting the presumption of innocence.  
  
   R. v. Oakes (1986), 24 C.C.C. (3d) 321, 26 D.L.R. (4th)  
200, [1986] 1 S.C.R. 103, 50 C.R. (3d) 1, 19 C.R.R. 308, 65  
N.R. 87, 53 O.R. (2d) 719n, 16 W.C.B. 73; R. v. Whyte  
(1988), 42 C.C.C. (3d) 97, 51 D.L.R. (4th) 481, [1988] 2  
S.C.R. 3, 64 C.R. (3d) 123, [1988] 5 W.W.R. 26, 29 B.C.L.R.  
(2d) 273, 35 C.R.R. 1, 6 M.V.R. (2d) 138, 86 N.R. 328, 5  
W.C.B. (2d) 141 apld;  R. v. Buzzanga and Durocher (1979),  
49 C.C.C. (2d) 369, 101 D.L.R. (3d) 488, 25 O.R. (2d) 705  
folld;  R.W.D.S.U., Local 580 v. Dolphin Delivery Ltd.  
(1986), 33 D.L.R. (4th) 174, [1986] 2 S.C.R. 573, [1987] 1  
W.W.R. 577, 38 C.C.L.T. 184, 87 C.L.L.C. 14,002, 25 C.R.R.  
321, 9 B.C.L.R. (2d) 273, 71 N.R. 83, 2 A.C.W.S. (3d) 243;  
Ford v. Quebec (Attorney-General) (1988), 54 D.L.R. (4th)  
577, [1988] 2 S.C.R. 712, 10 C.H.R.R. D/5559, 36 C.R.R. 1,  
19 Q.A.C. 69, 90 N.R. 84, 6 W.C.B. (2d) 186, 13 A.C.W.S.  
(3d) 7; Irwin Toy Ltd. v. Quebec (Attorney-General) (1989),  
58 D.L.R. (4th) 577, 25 C.P.R. (3d) 417, [1989] 1 S.C.R.  
927, 39 C.R.R. 193, 24 Q.A.C. 2, 94 N.R. 167, 15 A.C.W.S.  
(3d) 121; Reference re ss. 193 and 195.1(1)(c) of Criminal  
Code (1990), 56 C.C.C. (3d) 65, [1990] 1 S.C.R. 1123, 77  
C.R. (3d) 1, [1990] 4 W.W.R. 481, 48 C.R.R. 1, 68 Man. R.  
(2d) 1, 109 N.R. 
  
81, 10 W.C.B. (2d) 191; Beauharnais v. Illinois, 343 U.S.  
250 (1952); Collin v. Smith, 578 F. 2d 1197 (1978),  
certiorari denied 439 U.S. 916; Singh v. Canada (Minister of  
Employment and Immigration) (1985), 17 D.L.R. (4th) 422,  
[1985] 1 S.C.R. 177, 14 C.R.R. 13, 58 N.R. 1 consd;  Cases  
referred to:  R. v. Zundel (1987), 31 C.C.C. (3d) 97, 35  
D.L.R. (4th) 338, 58 O.R. (2d) 129, 56 C.R. (3d) 1, 29  
C.R.R. 349 [leave to appeal to S.C.C. refused 61 O.R. (2d)  
588n, 80 N.R. 317n]; R. v. Carrier (1951), 104 C.C.C. 75, 16  
C.R. 18; Boucher v. The King (1951), 99 C.C.C. 1, 96 C.C.C.  
48, [1951] 2 D.L.R. 369, [1951] S.C.R. 265, 11 C.R. 85;  
Edmonton Journal v. Alberta (Attorney-General) (1989), 64  
D.L.R. (4th) 577, [1989] 2 S.C.R. 1326, [1990] 1 W.W.R. 577,  
71 Alta. L.R. (2d) 273, 103 A.R. 321, 41 C.P.C. (2d) 109, 45  
C.R.R. 1, 102 N.R. 321, 18 A.C.W.S. (3d) 894; Rocket v.  
Royal College of Dental Surgeons of Ontario (1990), 71  
D.L.R. (4th) 68, 73 O.R. (2d) 128, [1990] 2 S.C.R. 232, 47  
C.R.R. 193, 40 O.A.C. 241, 111 N.R. 161, 21 A.C.W.S. (3d)  
958; Reference re Alberta Legislation, [1938] 2 D.L.R. 81,  
[1938] S.C.R. 100, [affd [1938] 4 D.L.R. 433, [1938] 3  
W.W.R. 337, [1938] W.N. 349, [1939] A.C. 117]; Switzman v.  
Elbling and A.-G. Que. (1957), 117 C.C.C. 129, 7 D.L.R. (2d)  
337, [1957] S.C.R. 285; Slaight Communications Inc. v.  
Davidson (1989), 59 D.L.R. (4th) 416, [1989] 1 S.C.R. 1038,  
26 C.C.E.L. 85, 89 C.L.L.C. 14,031, 93 N.R. 183, 15 A.C.W.S.  
(3d) 132; United States of America v. Cotroni (1989), 48  
C.C.C. (3d) 193, [1989] 1 S.C.R. 1469, 42 C.R.R. 101, 23  
Q.A.C. 182, 96 N.R. 321, 7 W.C.B. (2d) 301; R. v. Jones  
(1986), 28 C.C.C. (3d) 513, 31 D.L.R. (4th) 569, [1986] 2  
S.C.R. 284, [1986] 6 W.W.R. 577, 47 Alta. L.R. (2d) 97, 73  
A.R. 133, 69 N.R. 241, 25 C.R.R. 63; R. v. Edwards Books &  
Art Ltd. (1986), 30 C.C.C. (3d) 385, 35 D.L.R. (4th) 1,  
[1986] 2 S.C.R. 713, 55 C.R. (3d) 193, 86 C.L.L.C. 14,001,  
28 C.R.R. 1, 71 N.R. 161, 58 O.R. (2d) 442n; Garrison v.  
Louisiana, 379 U.S. 64 (1964); Ashton v. Kentucky, 384 U.S.  
195 (1966); New York Times Co. v. Sullivan, 376 U.S. 254  
(1964); Brandenburg v. Ohio, 395 U.S. 444 (1969); 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); Tollet v. united States, 485 F. 2d 1087 (1973);  
American Booksellers Ass'n, Inc. v. Hudnut, 771 F. 2d 323  
(1985); Doe v. University of Michigan, 721 F. Supp. 852  
(1989); R. v. Rahey (1987), 33 C.C.C. (3d) 289, 39 D.L.R.  
(4th) 481, [1987] 1 S.C.R. 588, 57 C.R. (3d) 289, 33 C.R.R.  
275, 78 N.S.R. (2d) 183, 75 N.R. 81; 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  
Defence and Educ. Fund, Inc., 473 U.S. 788 (1985); Reference  
re s. 94(2) of Motor Vehicle Act (1985), 23 C.C.C. (3d) 289,  
24 D.L.R. (4th) 536, [1985] 2 S.C.R. 486, 48 C.R. (3d) 289,  
[1986] 1 W.W.R. 481, 69 B.C.L.R. 145, 18 C.R.R. 30, 36  
M.V.R. 240, 63 N.R. 266, 15 W.C.B. (2d) 343; Janzen v. Platy  
Enterprises Ltd. (1989), 59 D.L.R. (4th) 352, [1989] 1  
S.C.R. 1252, [1989] 4 W.W.R. 39, 25 C.C.E.L. 1, 10 C.H.R.R.  
D/6205, 89 C.L.L.C. 17,011, 47 C.R.R. 274, 58 Man. R. (2d)  
1, 94 N.R. 81; Reference re Public Service Employee  
Relations Act (1987), 38 D.L.R. (4th) 161, [1987] 1 S.C.R.  
313, [1987] 3 W.W.R. 577, 87 C.L.L.C. 14,021, 28 C.R.R. 305,  
51 Alta. L.R. (2d) 97, 78 A.R. 1, 74 N.R. 99, 4 A.C.W.S.  
(3d) 138; Taylor and Western Guard Party v. Canada (1983), 5  
C.H.R.R. D/2097; Felderer v. Sweden (1986), 8 E.H.R.R. 91;  
X. v. Federal Republic of Germany, App. No. 9235/81, D.R.  
29, July 16, 1982; Lowes v. United Kingdom, App. No.  
13214/87, December 9, 1988; Glimmerveen v. Netherlands  
(1979), 4 E.H.R.R. 260; R. v. Big M Drug Mart Ltd. (1985),  
18 C.C.C. (3d) 385, 18 D.L.R. (4th) 321, [1985] 1 S.C.R.  
295, [1985] 3 W.W.R. 481, 85 C.L.L.C. 14,023, 13 C.R.R. 64,  
37 Alta. L.R. (2d) 97, 60 A.R. 161, 58 N.R. 81; Andrews v.  
Law Society of British Columbia (1989), 56 D.L.R. (4th) 1,  
[1989] 1 S.C.R. 143, [1989] 2 W.W.R. 289, 25 C.C.E.L. 255,  
10 C.H.R.R. D/5719, 36 C.R.R. 193, 34 B.C.L.R. (2d) 273, 91  
N.R. 255, 13 A.C.W.S. (3d) 347; R. v. Andrews (1988), 43  
  
C.C.C. (3d) 193, 65 O.R. (2d) 161, 65 C.R. (3d) 320, 39  
C.R.R. 36, 5 W.C.B. (2d) 24 [affd 75 O.R. (2d) 481n, 36  
O.A.C. 320n, 11 W.C.B. (2d) 353; R. v. Morgentaler (1988),  
37 C.C.C. (3d) 449, 44 D.L.R. (4th) 385, [1988] 1 S.C.R. 30,  
62 C.R. (3d) 1, 31 C.R.R. 1, 82 N.R. 1, 63 O.R. (2d) 281n, 3  
W.C.B. (2d) 332; R. v. Holmes (1988), 41 C.C.C. (3d) 497, 50  
D.L.R. (4th) 680, [1988] 1 S.C.R. 914, 64 C.R. (3d) 97, 34  
C.R.R. 193, 85 N.R. 21, 65 O.R. (2d) 639n, 4 W.C.B. (2d)  
218; Abrams v. United States, 250 U.S. 616 (1919); Saumur v.  
City of Quebec and A.-G. Que. (1953), 106 C.C.C. 289, [1953]  
4 D.L.R. 641, [1953] 2 S.C.R. 299; Cherneskey v. Armadale  
Publishers Ltd. (1978), 90 D.L.R. (3d) 321, [1979] 1 S.C.R.  
1067, [1978] 6 W.W.R. 618, 7 C.C.L.T. 69, 24 N.R. 271; A.-G.  
Can. v. Dupond (1978), 84 D.L.R. (3d) 420, [1978] 2 S.C.R.  
770, 5 M.P.L.R. 4, 19 N.R. 478; Canada (Attorney-General) v.  
Law Society of British Columbia (1982), 137 D.L.R. (3d) 1,  
66 C.P.R. (2d) 1, [1982] 2 S.C.R. 307, [1982] 5 W.W.R. 289,  
37 B.C.L.R. 145, 19 B.L.R. 234, 43 N.R. 451; 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); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942);  
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);  
Handyside v. United Kingdom (1976), 1 E.H.R.R. 737; Re  
Warren and Chapman (1984), 11 D.L.R. (4th) 474, [1984] 5  
W.W.R. 454, 29 Man. R. (2d) 172 [affd 17 D.L.R. (4th) 261,  
[1985] 4 W.W.R. 75, 31 Man. R. (2d) 231; Saskatchewan (Human  
Rights Commission v. Engineering Students' Society (1989),  
56 D.L.R. (4th) 604, 10 C.H.R.R. D/5636, 72 Sask. R. 161, 13  
A.C.W.S. (3d) 423; leave to appeal to S.C.C. refused 57  
D.L.R. (4th) viii, 81 Sask. R. 160n, 102 N.R. 320n; Hunter  
v. Southam Inc. (1984), 14 C.C.C. (3d) 97, 11 D.L.R. (4th)  
641, 2 C.P.R. (3d) 1, [1984] 2 S.C.R. 145, 41 C.R. (3d) 97,  
[1984] 6 W.W.R. 577, sub nom. Director of Investigation &  
Research of Combines Investigation Branch v. Southam Inc.,  
55 A.R. 291, 33 Alta. L.R. (2d) 193, 27 B.L.R. 297, 9 C.R.R.  
355, 84 D.T.C. 6467, 55 N.R. 241; R. v. Schwartz (1988), 45  
C.C.C. (3d) 97, 55 D.L.R. (4th) 1, [1988] 2 S.C.R. 443, 66  
C.R. (3d) 251, [1989] 1 W.W.R. 289, 39 C.R.R. 260, 56 Man.  
R. (2d) 92, 88 N.R. 90; Canada (Canadian Human Rights  
Commission) v. Taylor (1990), 24 A.C.W.S. (3d) 311  
  
   Statutes referred to:  Canadian Bill of Rights, s. 1  
Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 8,  
11(d), 15(1), 16 to 23, 25, 27, 28, 29 Canadian Human Rights  
Act, S.C. 1976-77, c. 33, s. 13--now R.S.C. 1985, c. H-6  
Constitution Act, 1867 Criminal Code, ss. 2, 59, 181, 183,  
definition ''private communication'' 318(4), definition  
''identifiable group'', 319 [formerly s. 281.2], 338  
[formerly s. 298], 340 [formerly s. 300] Customs Tariff,  
S.C. 1987, c. 49, s. 114 & Sch. VIII, Code 9956(b)  
Defamation Act, R.S.M. 1987, c. D-20, s. 19(1) Libel Act,  
R.S.M. 1913, c. 113, s. 13A [enacted 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.), c. 64, ss. 17 to 23  
Race Relations Act, 1971 (N.Z.), s. 25 Racial Discrimination  
Act, S.O. 1944, c. 51, s. 1 Conventions and treaties  
referred to European Convention for the Protection of Human  
Rights and Fundamental Freedoms, 1950, 213 U.N.T.S. 221,  
art. 10(1), (2) International Convention on the Elimination  
of All Forms of Racial Discrimination, 1970, Can. T.S. 1970,  
No. 28, arts. 4, 5 International Covenant on Civil and  
Political Rights (1966), 999 U.N.T.S. 171 Universal  
Declaration of Human Rights, 1948   
  
COUNSEL: B.R. Fraser, Q.C., for the Crown, appellant. D.H.  
Christie, for accused, respondent. D.M. Low, Q.C., S.B.  
Sharzer and I. Weiser, for intervener, Attorney-General of  
Canada.  G.J. Fitch, for intervener, Attorney-General of  
Ontario. J. Bouchard and M. Visocchi, for intervener,  
Attorney-General of Quebec. B. Judah, for intervener,  
Attorney-General of New Brunswick. A.L. Berg and D. Carlson,  
for intervener, Attorney-General of Manitoba.  J.I. Laskin,  
for intervener, Canadian Jewish Congress. M.J. Sandler, for  
intervener, League for Human Rights of B'Nai Brith, Canada.  
J. Nuss, Q.C., I. Cotler and A. Crawford, for Interamicus.  
K.E. Mahoney and L.A. Taylor, for Women's Legal Education  
and Action Fund. Marc Rosenberg, for Canadian Civil  
Liberties Association. 
  
JUDGES: Dickson C.J.C.,*Wilson, La Forest, L'Heureux-Dube,  
Sopinka, Gonthier and McLachlin JJ.  [ See Note: * Chief  
Justice at the time of hearing.] 
  
OPINION: Dickson C.J.C.: This appeal was heard in  
conjunction with the appeals in R. v. Andrews, S.C.C., No.  
21034 [reported 75 O.R. (2d) 481n, 36 O.A.C. 320n, 11 W.C.B.  
(2d) 353], and Canada (Canadian Human Rights Commission) v.  
Taylor, S.C.C., No. 20462 [summarized 24 A.C.W.S. (3d) 311].  
Along with Andrews it raises a delicate and highly  
controversial issue as to the constitutional validity of s.  
319(2) of the Criminal Code, R.S.C., 1985, c. C-46, a  
legislative provision which prohibits the wilful promotion  
of hatred, other than in private conversation, towards any  
section of the public distinguished by colour, race,  
religion or ethnic origin. In particular, the court must  
decide whether this section infringes the guarantee of  
freedom of expression found in s. 2(b) of the Canadian  
Charter of Rights and Freedoms in a manner that cannot be  
justified under s. 1 of the Charter. A secondary issue  
arises as to whether the presumption of innocence protected  
in the Charter's s. 11(d) is unjustifiably breached by  
reason of s. 319(3)(a) of the Code, which affords a defence  
of ''truth'' to the wilful promotion of hatred, but only  
where the accused proves the truth of the communicated  
statements on the balance of probabilities. 
  
   I. Facts 
  
   Mr. James Keegstra was a high school teacher in Eckville,  
Alberta, from the early 1970's until his dismissal in 1982.  
In 1984, Mr. Keegstra was charged under s. 319(2) (then  
281.2(2)) of the Criminal Code with unlawfully promoting  
hatred against an identifiable group by communicating  
anti-Semitic statements to his students. He was convicted by  
a jury in a trial before McKenzie J. of the Alberta Court of  
Queen's Bench. 
  
   Mr. Keegstra's teachings attributed various evil  
qualities to Jews. He thus described Jews to his pupils as  
''treacherous'', ''subversive'', ''sadistic'',  
''money-loving'', ''power hungry'' and ''child killers''. He  
taught his classes that Jewish people seek to destroy  
Christianity and are responsible for depressions, anarchy,  
chaos, wars and revolution. According to Mr. Keegstra, Jews  
''created the Holocaust to gain sympathy'' and, in contrast  
to the open and honest Christians, were said to be  
deceptive, secretive and inherently evil. Mr. Keegstra  
expected his students to reproduce his teachings in class  
and on exams. If they failed to do so, their marks suffered. 
  
   Prior to his trial, Mr. Keegstra applied to the Court of  
Queen's Bench in Alberta for an order quashing the charge on  
a number of grounds, the primary one being that s. 319(2) of  
the Criminal Code unjustifiably infringed his freedom of  
expression as guaranteed by s. 2(b) of the Charter. Among  
the other grounds of appeal was the allegation that the  
defence of truth found in s. 319(3)(a) of the Code violates  
the Charter's presumption of innocence. The application was  
dismissed by Quigley J., and Mr. Keegstra was thereafter  
tried and convicted. He then appealed his conviction to the  
Alberta Court of Appeal, raising the same Charter issues.  
The Court of Appeal unanimously accepted his argument, and  
it is from this judgment that the Crown appeals. 
  
   The Attorneys-General of Canada, Quebec, Ontario,  
Manitoba and New Brunswick, the Canadian Jewish Congress,  
Interamicus, the League for Human Rights of B'nai Brith,  
Canada, and the Women's Legal Education and Action Fund  
(L.E.A.F.) have intervened in this appeal in support of the  
Crown. The Canadian Civil Liberties Association has  
intervened in support of striking down the impugned  
legislation. 
  
   II Issues 
  
   The following constitutional questions were stated on  
August 11, 1989: 
  
   1. Is s. 281.2(2) of the Criminal Code of Canada, R.S.C.  
1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada,  
R.S.C., 1985, c. C-46) an infringement of freedom of  
expression as guaranteed under s. 2(b) of the Canadian  
Charter of Rights and Freedoms? 
  
   2. If s. 281.2(2) of the Criminal Code of Canada, R.S.C.  
1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada,  
R.S.C., 1985, c. C-46) is an infringement of s. 2(b) of the  
Canadian Charter of Rights and Freedoms, can it be upheld  
under s. 1 of the Charter as a reasonable limit prescribed  
by law and demonstrably justified in a free and democratic  
society? 
  
   3. Is s. 281.2(3)(a) of the Criminal Code of Canada,  
R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code  
of Canada, R.S.C., 1985, c. C-46) an infringement of the  
right to be presumed innocent, as guaranteed under s. 11(d)  
of the Canadian Charter of Rights and Freedoms? 
  
   4. If s. 281.2(3)(a) of the Criminal Code of Canada,  
R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code  
of Canada, R.S.C., 1985, c. C-46) is an infringement of s.  
11(d) of the Canadian Charter of Rights and Freedoms, can it  
be upheld under s. 1 of the Charter as a reasonable limit  
prescribed by law and demonstrably justified in a free and  
democratic society? 
  
   III Relevant Statutory and Constitutional Provisions 
  
   The relevant legislative and Charter provisions are set  
out below: 
  
   Criminal Code 
  
   319(2) 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 a term not exceeding two years; or 
  
   (b) an offence punishable on summary conviction. 
  
   (3) No person shall be convicted of an offence under  
subsection (2)  
  
   (a) if he establishes that the statements communicated  
were true; 
  
   (b) if, in good faith, he expressed or attempted to  
establish by argument an opinion upon a religious subject; 
  
   (c) if the statements were relevant to any subject of  
public interest, the discussion of which was for the public  
benefit, and if on reasonable grounds he believed them to be  
true; or 
  
   (d) if, in good faith, he intended to point out, for the  
purpose of removal, matters producing or tending to produce  
feelings of hatred towards an identifiable group in Canada. 
  
   (6) No proceeding for an offence under subsection (2)  
shall be instituted without the consent of the Attorney  
General. 
  
   (7) In this section, 
  
   ''communicating'' includes communicating by telephone,  
broadcasting or other audible or visible means; 
  
   ''identifiable group'' has the same meaning as in section  
318; 
  
   ''public place'' includes any place to which the public  
have access as of right or by invitation, express or implied; 
  
   ''statements'' includes words spoken or written or  
recorded electronically or electro-magnetically or  
otherwise, and gestures, signs or other visible  
representations. 
  
   318(4) In this section, ''identifiable group'' means any  
section of the public distinguished by colour, race,  
religion or ethnic origin. 
  
   Canadian Bill of Rights, R.S.C. 1985, App. III 
  
   [Preamble] 
  
   The Parliament of Canada, affirming that the Canadian  
Nation is founded upon principles that ackowledge the  
supremacy of God, the dignity and worth of the human person  
and the position of the family in a society of free men and  
free institutions; 
  
   Affirming also that men and institutions remain free only  
when freedom is founded upon respect for moral and spiritual  
values and the rule of law; 
  
   And being desirous of enshrining these principles and the  
human rights and fundamental freedoms derived from them, in  
a Bill of Rights which shall reflect the respect of  
Parliament for its constitutional authority and which shall  
ensure the protection of these rights and freedoms in Canada. 
  
   Therefore Her Majesty, by and with the advice and consent  
of the Senate and House of Commons of Canada, enacts as  
follows: 
  
   1. It is hereby recognized and declared that in Canada  
there have existed and shall continue to exist without  
discrimination by reason of race, national origin, colour,  
religion or sex, the following human rights and fundamental  
freedoms, namely, 
  
   (d) freedom of speech; 
  
   Canadian Charter of Rights and Freedoms 
  
   1. 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. 
  
   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; 
  
   11. Any person charged with an offence has the right 
  
   (d) to be presumed innocent until proven guilty according  
to law in a fair and public hearing by an independent and  
impartial tribunal; 
  
   15(1) Every individual is equal before and under the law  
and has the right to the equal protection and equal benefit  
of the law without discrimination and, in particular,  
without discrimination based on race, national and ethnic  
origin, colour, religion, sex, age or mental or physical  
disability. 
  
   27. This Charter shall be interpreted in a manner  
consistent with the preservation and enhancement of the  
multicultural heritage of Canadians. 
  
   IV Judgments of the Alberta Courts 
  
   A. Alberta Court of Queen's Bench, 19 C.C.C. (3d) 254, 87  
A.R. 200 
  
   In the Court of Queen's Bench, only the s. 2(b) issue was  
given substantial consideration, the argument on s. 11(d)  
not being entertained for lack of proper notice to the  
Crown. In dismissing Mr. Keegstra's s. 2(b) submission,  
Quigley J. was of the view that there exists a discernible  
Canadian concept of freedom of expression, a concept  
emanating from four principles found in the preamble to the  
Canadian Bill of Rights and the introductory words to s. 1  
of the Bill, namely, (i) an acknowledgment of the supremacy  
of God; (ii) the dignity and worth of the human person;  
(iii) respect for moral and spiritual values, and (iv) the  
rule of law. Quigley J. saw the affirmation of these  
principles in s. 15 of the Charter, that section enshrining  
as it does the dignity and worth of every individual (p.  
268). Of further interpretive use was the Charter's s. 27,  
which he felt required a view of freedom of expression which  
is compatible with the preservation and enhancement of  
Canada's multicultural heritage (p. 268). 
  
   Using the principles provided by the Canadian Bill of  
Rights and affirmed in ss. 15 and 27 of the Charter, Quigley  
J. observed that the wilful promotion of hatred against a  
section of the Canadian public distinguished by colour,  
race, religion or ethnic origin is antithetical to the  
dignity and worth of the members of an identifiable group.  
As such, it negates their rights and freedoms, in particular  
denying them the right to the equal protection and benefit  
of the law without discrimination. Quigley J. thus decided  
that s. 319(2) does not infringe s. 2(b) of the Charter,  
stating (at p. 268):  
  
   ... it is my opinion that s. 281.2(2) [now s. 319(2)] of  
the Code cannot rationally be considered to be an  
infringement which limits ''freedom of expression'', but on  
the contrary it is a safeguard which promotes it. The  
protection afforded by the proscription tends to banish the  
apprehension which might otherwise inhibit certain segments  
of our society from freely expressing themselves upon the  
whole spectrum of topics, whether social, economic,  
scientific, political, religious, or spiritual in nature.  
The unfettered right to express divergent opinions on these  
topics is the kind of freedom of expression the Charter  
protects. 
  
   In the event that he was wrong in this conclusion,  
Quigley J. went on to ask whether s. 319(2) was justified  
under s. 1 of the Charter. He noted that persons maligned by  
hate propaganda may respond aggressively and be stripped of  
their sense of personal dignity and self-worth, while those  
whom the hate-monger seeks to influence are harmed because  
''it is beyond doubt that breeding hate is detrimental to  
society for psychological and social reasons and that it can  
easily create hostility and aggression which leads to  
violence'' (p. 273). In light of these harms, Quigley J. saw  
s. 319(2) as a rational means of preventing real and serious  
damage to both individuals and society generally. Moreover,  
he felt that the various restrictions and defences built  
into s. 319(2) ensure that it has ''a very minimal effect on  
the over-all right of freedom of expression'' (p. 274). In  
Quigley J.'s view, the balance struck between free  
expression and the broader interests of social cohesion and  
the common good thus justified s. 319(2) as a reasonable  
limit to s. 2(b) under s. 1. 
  
   B. Alberta Court of Appeal (per Kerans J.A., Stevenson  
and Irving JJ.A. concurring), 43 C.C.C. (3d) 150, 65 C.R.  
(3d) 289, [1988] 5 W.W.R. 211 
  
   In the Alberta Court of Appeal, two Charter provisions  
were invoked by Mr. Keegstra. First, s. 2(b) was used as it  
had been in the pre-trial application before the Court of  
Queen's Bench, and secondly, the presumption of innocence  
protected in s. 11(d) was used to attack the reverse onus  
placed upon an accused by the defence of truth in s.  
319(3)(a). On both issues Kerans J.A., writing for a  
unanimous court, found that the Charter had been violated.  
As a result, the appeal was allowed and the impugned  
provision struck down, and it became unnecessary to deal  
with a number of other grounds of appeal raised by Mr.  
Keegstra. 
  
   Kerans J.A. began by noting that under s. 319(3)(a) an  
accused could be convicted of wilfully promoting hatred upon  
failure to prove on a balance of probabilities the truth of  
his or her statements. In this way, the onus of proving  
innocence was on the accused, and s. 319(3)(a) therefore  
violated s. 11(d). Under s. 1, Kerans J.A. could only  
envision one justification for a reverse onus, namely,  
''where the inference commanded by the statutory presumption  
is so persuasive that only a perverse jury would have a  
doubt'' (p. 160). In his opinion, statements intended to  
promote hatred could quite conceivably be true, and he  
consequently ruled that the reverse onus in s. 319(3)(a) was  
not saved under s. 1. 
  
   Turning next to the freedom of expression issue, Kerans  
J.A. was willing to accept that knowingly false expression  
was not covered by s. 2(b). Section 319(2) extended beyond  
knowingly false communications, however, covering all  
falsehoods, including those innocently and negligently made.  
The relevant question under s. 2(b) was therefore whether  
falsehoods unknowingly made were protected by the Charter.  
Invoking John Stuart Mill's ''marketplace of ideas'', Kerans  
J.A. decided in the affirmative, stating that ''s. 2(b)  
should be understood as protecting both innocent error and  
imprudent speech'' (p. 164). As s. 319(2) did neither, he  
held that it infringes s. 2(b) of the Charter. 
  
   Moving on to the s. 1 analysis, Kerans J.A. first  
considered whether the challenged legislation bore a  
rational relationship to a valid legislative objective. He  
accepted that preventing harm to the reputation and  
psychological well-being of target-group members was a valid  
s. 1 objective, stating that the making of unjust or  
capricious distinctions is ''an attack on the dignity of the  
victim, and can result in a debilitating sense of alienation  
from society'' (p. 169). Kerans J.A. nevertheless saw a  
difference between pain suffered by the target of isolated  
abuse and the crushing effect of systemic discrimination. He  
remarked that feelings of outrage and frustration caused by  
name-calling may be bearable if the abuse is rejected by the  
community as a whole, while in contrast name-calling becomes  
unbearable when, ''it indeed cools one's friends and heats  
one's enemies'' (p. 169). Consequently, he viewed injury  
stemming from hate propaganda as serious enough to require  
the sanction of the criminal law only where people actually  
hate a group as a result of abuse. 
  
   The protection of individuals from actual hatred being  
alone sufficient reason to limit imprudent speech, Kerans  
J.A. found that s. 319(2) fails the proportionality test  
through overbreadth, permitting as it does the conviction of  
a person who merely intends to cause hatred. In coming to  
this result, Kerans J.A. viewed as insufficient, safeguards  
said to prevent the use of s. 319(2) to prosecute ''harmless  
cranks'' or persons in the public eye who utter an  
''unfortunate'' remark that is picked up by the media. He  
also dismissed the Crown's contention that it would be  
impossible to prove actual harm from a particular  
hate-promoting communication, and refused to see  
prosecutorial discretion in s. 319(6) as a sufficient  
antidote to the offence's overbreadth. Finally, he did not  
view ss. 15 and 27 of the Charter as working to justify s.  
319(2) under s. 1. In Kerans J.A.'s opinion, these Charter  
provisions do not forbid Canadians from criticizing the  
values of equality and multiculturalism, and while accepting  
that no Canadian should be asked to suffer simply because of  
his or her racial or ethnic heritage, he concluded that the  
challenged law ''catches more than that'' (p. 178). In the  
result, he found that the impugned legislative provision was  
not saved under s. 1. 
  
   V The History of Hate Propaganda Crimes in Canada 
  
   The history of attempts to prevent the propagation of  
scurrilous statements about particular groups is, not  
surprisingly, extremely old. The earliest instance where  
such expression was made criminal occurred in 1275, when the  
offence of De Scandalis Magnatum was created, prohibiting  
''any false News or Tales, whereby discord, or occasion of  
discord or slander may grow between the King and his People,  
or the Great Men of the Realm''. As Sir William Holdsworth  
noted, the aim of the statute was to prevent false  
statements which, in a society dominated by extremely  
powerful landowners, could threaten the security of the  
state: see A History of English Law, 5th ed. (1942), vol.  
III, at p. 409. 
  
   De Scandalis Magnatum was rarely employed, and was  
abolished in England in 1887, but its legacy survives in s.  
181 of our Criminal Code, which makes it an offence to  
spread knowingly false news that is likely to cause injury  
or mischief to a public interest. Section 181 does not on  
its face address the problem of ''hate propaganda'', a term  
which I use for convenience to denote expression intended or  
likely to create or circulate extreme feelings of opprobrium  
and enmity against a racial or religious group, but it has  
been used recently to prosecute an individual for the  
distribution of anti-Semitic material: see R. v. Zundel  
(1987), 31 C.C.C. (3d) 97, 35 D.L.R. (4th) 338, 58 O.R. (2d)  
129 (C.A.). In the more distant past, a forerunner of s. 181  
was employed against the disseminator of a pamphlet decrying  
the plight of Jehovah's Witnesses in Quebec. This earlier  
case, R. v. Carrier (1951), 104 C.C.C. 75, 16 C.R. 18 (Que.  
K.B.), interpreted the provision narrowly, holding that the  
requirement of injury or the likelihood of injury to the  
public interest was not satisfied by simply a desire to fan  
hatred and ill-will between different groups, but rather  
needed something more in the nature of an intention to  
disobey openly or to act violently against the established  
authority. 
  
   Prior to 1970, s. 181 was the only provision of the  
Criminal Code with links (albeit mainly historical) to an  
offence of group defamation. Our common law has long seen  
defamation as a tortious action, but only where a litigant  
can show that reputation has been damaged by offending  
statements directed towards him or her as an individual.  
Similarly, until the amendments creating s. 319(2), Canadian  
criminal law made defamation an offence only in the case of  
attacks upon a person, as is evident from the combined  
effect of what are now ss. 298 and 300 of the Criminal Code.  
The scope of ''person'' set out in s. 2 of the Code extends  
somewhat beyond the individual, covering additionally public  
bodies, corporations, societies and companies, but groups  
having common characteristics such as race, religion, colour  
and ethnic origin are not included in the definition. 
  
   Section 300 was not, before 1970, the only Criminal Code  
offence prohibiting a type of libel. There also existed the  
crime of seditious libel, now found in s. 59, prohibiting  
the speaking or publishing of seditious words. This offence  
required the existence of a ''seditious intention'', a state  
of mind which, without limiting the scope of the phrase, was  
statutorily presumed to be present in those advocating the  
unlawful use of force as a means of accomplishing a  
governmental change within Canada. In Boucher v. The King  
(1951), 91 C.C.C. 1, [1951] 2 D.L.R. 369, [1951] S.C.R. 265,  
this court interpreted ''seditious intention''  
restrictively, however, finding the term to require proof of  
an intention to incite acts of violence or public disorder.  
The decision in Boucher has been long regarded as a strong  
defence of the merits of freedom of expression. Not  
surprisingly, for this reason it was relied upon in Carrier  
for the narrow interpretation of the offence of spreading  
false news. 
  
   While the history of attempts to prosecute criminally the  
libel of groups is lengthy, the Criminal Code provisions  
discussed so far do not focus specifically upon expression  
propagated with the intent of causing hatred against racial,  
ethnic or religious groups. Even before the Second World  
War, however, fears began to surface concerning the  
inadequacy of Canadian criminal law in this regard. In the  
1930's, for example, Manitoba passed a statute combatting a  
perceived rise in the dissemination of Nazi propaganda: the  
Libel Act, R.S.M. 1913, c. 113, s. 13A (added S.M. 1934, c.  
23, s. 1), now the Defamation Act, R.S.M. 1987, c. D20, s.  
19(1). Following the Second World War and revelation of the  
Holocaust, in Canada and throughout the world a desire grew  
to protect human rights, and especially to guard against  
discrimination. Internationally, this desire led to the  
landmark Universal Declaration of Human Rights in 1948, and,  
with reference to hate propaganda, was eventually manifested  
in two international human rights instruments. In Canada,  
the post-war mood saw an attempt to include anti-hate  
propaganda provisions in the 1953 revision of the Criminal  
Code, but most influential in changing the criminal law in  
order to prohibit hate propaganda was the appointment by  
Justice Minister Guy Favreau of a special committee to study  
problems associated with the spread of hate propaganda in  
Canada. 
  
   The Special Committee on Hate Propaganda in Canada,  
usually referred to as the Cohen Committee, was composed of  
the following members: Dean Maxwell Cohen, Q.C., Dean of the  
Faculty of Law, McGill University, chair; Dr. J.A. Corry,  
Principal, Queen's University; L'Abbe Gerard Dion, Faculty  
of Social Sciences, Laval University; Mr. Saul Hayes, Q.C.,  
Executive Vice-President, Canadian Jewish Congress;  
Professor Mark R. MacGuigan, Associate Professor of Law,  
University of Toronto; Mr. Shane MacKay, Executive Editor,  
Winnipeg Free Press; and Professor Pierre E. Trudeau,  
Associate Professor of Law, University of Montreal. This was  
a particularly strong committee, and in 1966, it released  
the unanimous Report of the Special Committee on Hate  
Propaganda in Canada. 
  
   The tenor of the report is reflected in the opening  
paragraph of its preface, which reads: 
  
   This Report is a study in the power of words to maim, and  
what it is that a civilized society can do about it. Not  
every abuse of human communication can or should be  
controlled by law or custom. But every society from time to  
time draws lines at the point where the intolerable and the  
impermissible coincide. In a free society such as our own,  
where the privilege of speech can induce ideas that may  
change the very order itself, there is bias weighted heavily  
in favour of the maximum of rhetoric whatever the cost and  
consequences. But that bias stops this side of injury to the  
community itself and to individual members or identifiable  
groups innocently caught in verbal cross-fire that goes  
beyond legitimate debate. 
  
   In keeping with these remarks, the recurrent theme  
running throughout the report is the need to prevent the  
dissemination of hate propaganda without unduly infringing  
the freedom of expression, a theme which led the committee  
to recommend a number of amendments to the Criminal Code.  
These amendments were made, essentially along the lines  
suggested by the committee, and covered the advocation of  
genocide (s. 318), the public incitement of hatred likely to  
lead to a breach of peace (s. 319(1)) and the provision  
challenged in this appeal and presently found in s. 319(2)  
of the Code, namely, the wilful promotion of hatred. 
  
   VI Section 2(b) of the Charter--Freedom of Expression 
  
   Having briefly set out the history of attempts to  
prohibit hate propaganda, I can now address the  
constitutional questions arising for decision in this  
appeal. The first of these concerns whether the Charter  
guarantee of freedom of expression is infringed by s. 319(2)  
of the Criminal Code. In other words, does the coverage of  
s. 2(b) extend to the public and wilful promotion of hatred  
against an identifiable group. Before looking to the  
specific facts of this appeal, however, I would like to  
comment upon the nature of the s. 2(b) guarantee. Obviously,  
one's conception of the freedom of expression provides a  
crucial backdrop to any s. 2(b) inquiry; the values promoted  
by the freedom help not only to define the ambit of s. 2(b),  
but also come to the forefront when discussing how competing  
interests might co-exist with the freedom under s. 1 of the  
Charter. 
  
   In the recent past, this court has had the opportunity to  
hear and decide a number of freedom of expression cases,  
among them R.W.D.S.U., Local 580 v. Dolphin Delivery Ltd.  
(1986), 33 D.L.R. (4th) 174, [1986] 2 S.C.R. 573, [1987] 1  
W.W.R. 577; Ford v. Quebec (Attorney-General) (1988), 54  
D.L.R. (4th) 577, [1988] 2 S.C.R. 712, 10 C.H.R.R. D/5559;  
Irwin Toy Ltd. v. Quebec (Attorney-General) (1989), 58  
D.L.R. (4th) 577, 25 C.P.R. (3d) 417, [1989] 1 S.C.R. 927;  
Edmonton Journal v. Alberta (Attorney-General) (1989), 64  
D.L.R. (4th) 577, [1989] 2 S.C.R. 1326, [1990] 1 W.W.R. 577;  
Reference re ss. 193 and 195.1(1)(c) of Criminal Code  
(1990), 56 C.C.C. (3d) 65, [1990] 1 S.C.R. 1123, 77 C.R.  
(3d) 1, and Rocket v. Royal College of Dental Surgeons of  
Ontario (1990), 71 D.L.R. (4th) 68, 73 O.R. (2d) 128, [1990]  
2 S.C.R. 232. Together, the judgments in these cases provide  
guidance as to the values informing the freedom of  
expression, and additionally indicate the relationship  
between ss. 2(b) and 1 of the Charter. 
  
   That the freedom to express oneself openly and fully is  
of crucial importance in a free and democratic society was  
recognized by Canadian courts prior to the enactment of the  
Charter. The treatment of freedom of expression by this  
court in both division of powers and other cases was  
examined in Dolphin Delivery Ltd., supra, at pp. 183-7, and  
it was noted that well before the advent of the Charter --  
before even the Canadian Bill of Rights was passed by  
Parliament in 1960, S.C. 1960, c. 44 -- freedom of  
expression was seen as an essential value of Canadian  
parliamentary democracy. This freedom was thus protected by  
the Canadian judiciary to the extent possible before its  
entrenchment in the Charter, and occasionally even appeared  
to take on the guise of a constitutionally protected  
freedom: see, e.g., Reference re Alberta Legislation, [1938]  
2 D.L.R. 81 at pp. 106-7, [1938] S.C.R. 100, per Duff C.J.,  
and Switzman v. Elbling and A.-G. Que. (1957), 117 C.C.C.  
129 at p. 164, 7 D.L.R. (2d) 337, [1957] S.C.R. 285, per  
Abbott J. 
  
   Without explicit protection under a written constitution,  
however, the freedom of expression was not always accorded  
careful consideration in pre- Charter cases: see Clare  
Beckton, ''Freedom of Expression'' in G.-A. Beaudoin and E.  
Ratushny, eds., The Canadian Charter of Rights and Freedoms,  
2nd ed. (1989), p. 195 at pp. 197-8). Moreover, pre- Charter  
jurisprudence used freedom of expression primarily in  
relation to political expression, a context which restricted  
somewhat the content of the freedom and led this court to  
remark in Ford, supra, at p. 616: 
  
   The pre- Charter jurisprudence emphasized the importance  
of political expression because it was a challenge to that  
form of expression that most often arose under the division  
of powers and the ''implied bill of rights'', where freedom  
of political expression could be related to the maintenance  
and operation of the institutions of democratic government.  
But political expression is only one form of the great range  
of expression that is deserving of constitutional protection  
because it serves individual and societal values in a free  
and democratic society. 
  
   While the pre- Charter era saw a role for the freedom of  
expression, then, with the Charter came not only its  
increased importance, but also a more careful and generous  
study of the values informing the freedom. 
  
   As is evident from the quotation just given, the reach of  
s. 2(b) is potentially very wide, expression being deserving  
of protection if ''it serves individual and societal values  
in a free and democratic society''. In subsequent cases, the  
court has not lost sight of this broad view of the values  
underlying the freedom of expression, though the majority  
decision in Irwin Toy perhaps goes further towards stressing  
as primary the ''democratic commitment'' said to delineate  
the protected sphere of liberty (p. 608). Moreover, the  
court has attempted to articulate more precisely some of the  
convictions fueling the freedom of expression, these being  
summarized in Irwin Toy (at p. 612) as follows: (1) seeking  
and attaining truth is an inherently good activity; (2)  
participation in social and political decision-making is to  
be fostered and encouraged, and (3) diversity in forms of  
individual self-fulfillment and human flourishing ought to  
be cultivated in a tolerant and welcoming environment for  
the sake of both those who convey a meaning and those to  
whom meaning is conveyed. 
  
   Although Ford commented upon the values generally seen to  
support the freedom of expression, the decision was also  
sensitive of the need to consider these values within the  
textual framework of the Charter. Consequently, the court  
stated at p. 617 that, 
  
   While ... attempts to identify and define the values  
which justify the constitutional protection of freedom of  
expression are helpful in emphasizing the most important of  
them, they tend to be formulated in a philosophical context  
which fuses the separate questions of whether a particular  
form or act of expression is within the ambit of the  
interests protected by the value of freedom of expression  
and the question whether that form or act of expression, in  
the final analysis, deserves protection from interference  
under the structure of the Canadian Charter and the Quebec  
Charter. These are two distinct questions and call for two  
distinct analytical processes. 
  
   It is the presence of s. 1 which makes necessary this  
bifurcated approach to Canadian freedom of expression cases.  
Indeed, the application of this approach in Ford in part  
permitted the court to give a large and liberal  
interpretation to s. 2(b), on the facts of the case leading  
to the inclusion of commercial expression within its ambit,  
and to state that the weighing of competing values would  
''in most instances'' take place in s. 1 (p. 618). 
  
   Irwin Toy can be seen as at once clarifying the  
relationship between ss. 2(b) and 1 in freedom of expression  
cases and reaffirming and strengthening the large and  
liberal interpretation given the freedom in s. 2(b) by the  
court in Ford. These aspects of the decision flow largely  
from a two-step analysis used in determining whether s. 2(b)  
has been infringed, an approach affirmed by this court in  
subsequent cases, for example Reference re ss. 193 and  
195.1(1)(c) of the Criminal Code, supra, and Royal College  
of Dental Surgeons, supra. 
  
   The first step in the Irwin Toy analysis involves asking  
whether the activity of the litigant who alleges an  
infringement of the freedom of expression falls within the  
protected s. 2(b) sphere. In outlining a broad, inclusive  
approach to answering this question, the following was said  
(at p. 606): 
  
   ''Expression'' has both a content and a form, and the two  
can be inextricably connected. Activity is expressive if it  
attempts to convey meaning. That meaning is its content.  
Freedom of expression was entrenched in our Constitution and  
is guaranteed in the Quebec Charter so as to ensure that  
everyone can manifest their thoughts, opinions, beliefs,  
indeed all expression of the heart and mind, however  
unpopular, distasteful or contrary to the mainstream. Such  
protection is, in the words of both the Canadian and Quebec  
Charters, ''fundamental'' because in a free, pluralistic and  
democratic society we prize a diversity of ideas and  
opinions for their inherent value both to the community and  
to the individual. 
  
   Apart from rare cases where expression is communicated in  
a physically violent form, the court thus viewed the  
fundamental nature of the freedom of expression as ensuring  
that ''if the activity conveys or attempts to convey a  
meaning, it has expressive content and prima facie falls  
within the scope of the guarantee'' (p. 607). In other  
words, the term ''expression'' as used in s. 2(b) of the  
Charter embraces all content of expression irrespective of  
the particular meaning or message sought to be conveyed:  
Reference re ss. 193 and 195.1(1)(c) of the Criminal Code,  
supra, at pp. 107-8 per Lamer J. 
  
   The second step in the analysis outlined in Irwin Toy is  
to determine whether the purpose of the impugned government  
action is to restrict freedom of expression. The guarantee  
of freedom of expression will necessarily be infringed by  
government action having such a purpose. If, however, it is  
the effect of the action, rather than the purpose, that  
restricts an activity, s. 2(b) is not brought into play  
unless it can be demonstrated by the party alleging an  
infringement that the activity supports rather than  
undermines the principles and values upon which freedom of  
expression is based. 
  
   Having reviewed the Irwin Toy test, it remains to  
determine whether the impugned legislation in this appeal --  
s. 319(2) of the Criminal Code -- infringes the freedom of  
expression guarantee of s. 2(b). Communications which  
wilfully promote hatred against an identifiable group  
without doubt convey a meaning, and are intended to do so by  
those who make them. 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, and it must  
therefore be concluded that the first step of the Irwin Toy  
test is satisfied. 
  
   Moving to the second stage of the s. 2(b) inquiry, one  
notes that the prohibition in s. 319(2) aims directly at  
words -- in this appeal, Mr. Keegstra's teachings -- that  
have as their content and objective the promotion of racial  
or religious hatred. The purpose of s. 319(2) can  
consequently be formulated as follows: to restrict the  
content of expression by singling out particular meanings  
that are not to be conveyed. Section 319(2) therefore  
overtly seeks to prevent the communication of expression,  
and hence meets the second requirement of the Irwin Toy test. 
  
   In my view, through s. 319(2) Parliament seeks to  
prohibit communications which convey meaning, namely, those  
communications which are intended to promote hatred against  
identifiable groups. I thus find s. 319(2) to constitute an  
infringement of the freedom of expression guaranteed by s.  
2(b) of the Charter. Before moving on to see whether the  
impugned provision is none the less justified under s. 1,  
however, I wish to canvas two arguments made in favour of  
the position that communications intended to promote hatred  
do not fall within the ambit of s. 2(b). The first of these  
arguments concerns an exception mentioned in Irwin Toy  
concerning expression manifested in a violent form. The  
second relates to the impact of other sections of the  
Charter and international agreements in interpreting the  
scope of the freedom of expression guarantee. 
  
   Beginning with the suggestion that expression covered by  
s. 319(2) falls within an exception articulated in Irwin  
Toy, it was argued before this court that the wilful  
promotion of hatred is an activity the form and consequences  
of which are analogous to those associated with violence or  
threats of violence. This argument contends that Supreme  
Court of Canada precedent excludes violence and threats of  
violence from the ambit of s. 2(b), and that the reason for  
such exclusion must lie in the fact that these forms of  
expression are inimical to the values supporting freedom of  
speech. Indeed, in support of this view it was pointed out  
to us that the court in Irwin Toy stated that ''freedom of  
expression ensures that we can convey our thoughts and  
feelings in non-violent ways without fear of censure'' (p.  
607). Accordingly, we were urged to find that hate  
propaganda of the type caught by s. 319(2), in so far as it  
imperils the ability of target group members themselves to  
convey thoughts and feelings in non-violent ways without  
fear of censure, is analogous to violence and threats of  
violence and hence does not fall within s. 2(b). 
  
   The proposition in Irwin Toy that violent expression is  
not afforded protection under s. 2(b) has its origin in a  
comment made by McIntyre J. in Dolphin Delivery Ltd., in  
which he stated that the freedom of expression guaranteed  
picketers would not extend to protect violence or threats of  
violence (p. 187). Restricting s. 2(b) in this manner has  
also been mentioned in more recent Supreme Court of Canada  
decisions, in particular by Lamer J. in Reference re ss. 193  
and 195.1(1)(c) of Criminal Code and by a unanimous court in  
Royal College of Dental Surgeons. It should be emphasized,  
however, that no decision of this court has rested on the  
notion that expressive conduct is excluded from s. 2(b)  
where it involves violence. 
  
   Turning specifically to the proposition that hate  
propaganda should be excluded from the coverage of s. 2(b),  
I begin by stating that the communications restricted by s.  
319(2) cannot be considered as violence, which on a reading  
of Irwin Toy I find to refer to expression communicated  
directly through physical harm. Nor do I find hate  
propaganda to be analogous to violence, and through this  
route exclude it from the protection of the guarantee of  
freedom of expression. As I have explained, the starting  
proposition in Irwin Toy is that all activities conveying or  
attempting to convey meaning are considered expression for  
the purposes of s. 2(b); the content of expression is  
irrelevant in determining the scope of this Charter  
provision. Stated at its highest, an exception has been  
suggested where meaning is communicated directly via  
physical violence, the extreme repugnance of this form to  
free expression values justifying such an extraordinary  
step. Section 319(2) of the Criminal Code prohibits the  
communication of meaning that is repugnant, but the  
repugnance stems from the content of the message as opposed  
to its form. For this reason, I am of the view that hate  
propaganda is to be categorized as expression so as to bring  
it within the coverage of s. 2(b). 
  
   As for threats of violence, Irwin Toy spoke only of  
restricting s. 2(b) to certain forms of expression, stating  
a p. 607 that, 
  
   While the guarantee of free expression protects all  
content of expression, certainly violence as a form of  
expression receives no such protection. It is not necessary  
here to delineate precisely when and on what basis a form of  
expression chosen to convey a meaning falls outside the  
sphere of the guarantee. But it is clear, for example, that  
a murderer or rapist cannot invoke the freedom of expression  
in justification of the form of expression he has chosen. 
  
   While the line between form and content is not always  
easily drawn, in my opinion threats of violence can only be  
so classified by reference to the content of their meaning.  
As such, they do not fall within the exception spoken of in  
Irwin Toy, and their suppression must be justified under s.  
1. As I do not find threats of violence to be excluded from  
the definition of expression envisioned by s. 2(b), it is  
unnecessary to determine whether the threatening aspects of  
hate propaganda can be seen as threats of violence, or  
analogous to such threats, so as to deny it protection under  
s. 2(b). 
  
   The second matter which I wish to address before leaving  
the s. 2(b) inquiry concerns the relevance of other Charter  
provisions and international agreements to which Canada is a  
party in interpreting the coverage of the freedom of  
expression guarantee. It has been argued in support of  
excluding hate propaganda from the coverage of s. 2(b) that  
the use of ss. 15 and 27 of the Charter -- dealing  
respectively with equality and multiculturalism -- and  
Canada's acceptance of international agreements requiring  
the prohibition of racist statements make s. 319(2)  
incompatible with even a large and liberal definition of the  
freedom: see, e.g., Irwin Cotler, ''Hate Literature'', in  
Rosalie S. Abella and Melvin L. Rothman, eds., Justice  
Beyond Orwell (1985), p. 117 at pp. 121-2. The general tenor  
of this argument is that these interpretive aids  
inextricably infuse each constitutional guarantee with  
values supporting equal societal participation and the  
security and dignity of all persons. Consequently, it is  
said that s. 2(b) must be curtailed so as not to extend to  
communications which seriously undermine the equality,  
security and dignity of others. 
  
   Because I will deal extensively with the impact of  
various Charter provisions and international agreements when  
considering whether s. 319(2) is a justifiable limit under  
s. 1, I will keep my comments here to a minimum. Suffice it  
to say that I agree with the general approach of Wilson J.  
in Edmonton Journal, supra, where she speaks of the danger  
of balancing competing values without the benefit of a  
context. This approach does not logically preclude the  
presence of balancing within s. 2(b) -- one could avoid the  
dangers of an overly abstract analysis simply by making sure  
that the circumstances surrounding both the use of the  
freedom and the legislative limit were carefully considered.  
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. 
  
   I thus conclude on the issue of s. 2(b) by finding that  
s. 319(2) of the Criminal Code constitutes an infringement  
of the Charter guarantee of freedom of expression, and turn  
to examine whether such an infringement is justifiable under  
s. 1 as a reasonable limit in a free and democratic society. 
  
   VII Section 1 Analysis of s. 319(2) 
  
   A. General approach to s. 1 
  
   Though the language of s. 1 appears earlier in these  
reasons, it is appropriate to repeat its words: 
  
   1. 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. 
  
   In R. v. Oakes (1986), 24 C.C.C. (3d) 321, 26 D.L.R.  
(4th) 200, [1986] 1 S.C.R. 103, this court offered a course  
of analysis to be employed in determining whether a limit on  
a right or freedom can be demonstrably justified in a free  
and democratic society. Under the approach in Oakes, it must  
first be established that impugned state action has an  
objective of pressing and substantial concern in a free and  
democratic society. Only such an objective is of sufficient  
stature to warrant overriding a constitutionally protected  
right or freedom (p. 348). The second feature of the Oakes  
test involves assessing the proportionality between the  
objective and the impugned measure. The inquiry as to  
proportionality attempts to guide the balancing of  
individual and group interests protected in s. 1, and in  
Oakes was broken down into the following three segments (at  
p. 348): 
  
   First, the measures adopted must be carefully designed to  
achieve the objective in question. They must not be  
arbitrary, unfair or based on irrational considerations. In  
short, they must be rationally connected to the objective.  
Secondly, the means, even if rationally connected to the  
objective in this first sense, should impair ''as little as  
possible'' the right or freedom in question...Thirdly, there  
must be a proportionality between the effects of the  
measures which are responsible for limiting the Charter  
right or freedom, and the objective which has been  
identified as of ''sufficient importance''. 
  
   The analytical framework of Oakes has been continually  
reaffirmed by this court, yet it is dangerously misleading  
to conceive of s. 1 as a rigid and technical provision,  
offering nothing more than a last chance for the state to  
justify incursions into the realm of fundamental rights.  
>From a crudely practical standpoint, Charter litigants  
sometimes may perceive s. 1 in this manner, but in the body  
of our nation's constitutional law it plays an immeasurably  
richer role, one of great magnitude and sophistication.  
Before examining the specific components of the Oakes  
approach as they relate to this appeal, I therefore wish to  
comment more generally upon the role of s. 1. 
  
   In the words of s. 1 are brought together the fundamental  
values and aspirations of Canadian society. As this court  
has said before, the premier article of the Charter has a  
dual function, operating both to activate Charter rights and  
freedoms and to permit such reasonable limits as a free and  
democratic society may have occasion to place upon them (  
Oakes, at pp. 343-4). What seems to me to be of significance  
in this dual function is the commonality that links the  
guarantee of rights and freedoms to their limitation. This  
commonality lies in the phrase ''free and democratic  
society''. As was stated by the majority in Slaight  
Communications Inc. v. Davidson (1989), 59 D.L.R. (4th) 416  
at p. 427, [1989] 1 S.C.R. 1038, 26 C.C.E.L. 85: ''The  
underlying values of a free and democratic society both  
guarantee the rights in the Charter and, in appropriate  
circumstances, justify limitations upon those rights.'' 
  
   Obviously, a practical application of s. 1 requires more  
than an incantation of the words ''free and democratic  
society''. These words require some definition, an  
elucidation as to the values that they invoke. To a large  
extent, a free and democratic society embraces the very  
values and principles which Canadians have sought to protect  
and further by entrenching specific rights and freedoms in  
the Constitution, although the balancing exercise in s. 1 is  
not restricted to values expressly set out in the Charter  
(Slaight, supra, at p. 427). With this guideline in mind, in  
Oakes I commented upon some of the ideals that inform our  
understanding of a free and democratic society, saying (at  
p. 346): 
  
   The court must be guided by the values and principles  
essential to a free and democratic society which I believe  
embody, to name but a few, respect for the inherent dignity  
of the human person, commitment to social justice and  
equality, accommodation of a wide variety of beliefs,  
respect for cultural and group identity, and faith in social  
and political institutions which enhance the participation  
of individuals and groups in society. The underlying values  
and principles of a free and democratic society are the  
genesis of the rights and freedoms guaranteed by the Charter  
and the ultimate standard against which a limit on a right  
or freedom must be shown, despite its effect, to be  
reasonable and demonstrably justified. 
  
   Undoubtedly these values and principles are numerous,  
covering the guarantees enumerated in the Charter and more.  
Equally, they may well deserve different emphases, and  
certainly will assume varying degrees of importance  
depending upon the circumstances of a particular case. 
  
   It is important not to lose sight of factual  
circumstances in undertaking a s. 1 analysis, for these  
shape a court's view of both the right or freedom at stake  
and the limit proposed by the state; neither can be surveyed  
in the abstract. As Wilson J. said in Edmonton Journal,  
supra, referring to what she termed the ''contextual  
approach'' to Charter interpretation (at p. 584): 
  
   ... a particular right or freedom may have a different  
value depending on the context. It may be, for example, that  
freedom of expression has greater value in a political  
context than it does in the context of disclosure of the  
details of a matrimonial dispute. The contextual approach  
attempts to bring into sharp relief the aspect of the right  
or freedom which is truly at stake in the case as well as  
the relevant aspects of any values in competition with it.  
It seems to be more sensitive to the reality of the dilemma  
posed by the particular facts and therefore more conducive  
to finding a fair and just compromise between the two  
competing values under s. 1). 
  
   Though Wilson J. was speaking with reference to the task  
of balancing enumerated rights and freedoms, I see no reason  
why her view should not apply to all values associated with  
a free and democratic society. Clearly, the proper judicial  
perspective under s. 1 must be derived from an awareness of  
the synergetic relation between two elements: the values  
underlying the Charter and the circumstances of the  
particular case. 
  
   From the discussion so far, I hope it is clear that a  
rigid or formalistic approach to the application of s. 1  
must be avoided. The ability to use s. 1 as a gauge which is  
sensitive to the values and circumstances particular to an  
appeal has been identified as vital in past cases, and La  
Forest J. admirably described the essence of this flexible  
approach in United States of America v. Cotroni (1989), 48  
C.C.C. (3d) 193 at pp. 218-9, [1989] 1 S.C.R. 1469, 42  
C.R.R. 101: 
  
   In the performance of the balancing task under s. 1, it  
seems to me, a mechanistic approach must be avoided. While  
the rights guaranteed by the Charter must be given priority  
in the equation, the underlying values must be sensitively  
weighed in a particular context against other values of a  
free and democratic society sought to be promoted by the  
legislature. 
  


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