The Nizkor Project: Remembering the Holocaust (Shoah)

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put, namely, the promotion of hatred against an identifiable  
group. As for the argument that the courts and legislature  
should not involve themselves in the evaluation of  
''truth'', ''reasonable grounds for finding truth'' or  
''public interest'', the same response applies. Where the  
likelihood of truth or benefit from an idea diminishes to  
the point of vanishing, and the statement in question has  
harmful consequences inimical to the most central values of  
a free and democratic society, it is not excessively  
problematic to make a judgment that involves limiting  
expression. 
  
   Before looking at the effect which alternative responses  
to hate propaganda have upon the proportionality of s.  
319(2), I should comment on a final argument marshalled in  
support of striking down s. 319(2) because of overbreadth or  
vagueness. It is said that the presence of the legislation  
has led authorities to interfere with a diverse range of  
political, educational and artistic expression,  
demonstrating only too well the way in which overbreadth and  
vagueness can result in undue intrusion and the threat of  
persecution. In this regard, a number of incidents are cited  
where authorities appear to have been overzealous in their  
interpretation of the law, including the arrest of  
individuals distributing pamphlets admonishing Americans to  
leave the country and the temporary holdup at the border of  
a film, entitled Nelson Mandela, and Salman Rushdie's novel,  
Satanic Verses (1988): see, e.g., Borovoy, op. cit., at p.  
141; note that the latter two examples involve not s.  
319(2), but similar wording found in the Customs Tariff,  
S.C. 1987, c. 49, s. 114, and sch. VII, Code 9956(b)). 
  
   That s. 319(2) may in the past have led authorities to  
restrict expression offering valuable contributions to the  
arts, education or politics in Canada is surely worrying. I  
hope, however, that my comments as to the scope of the  
provision make it obvious that only the most intentionally  
extreme forms of expression will find a place within s.  
319(2). In this light, one can safely say that the incidents  
mentioned above illustrate not over-expansive breadth and  
vagueness in the law, but rather actions by the state which  
cannot be lawfully taken pursuant to s. 319(2). The  
possibility of illegal police harassment clearly has minimal  
bearing on the proportionality of hate propaganda  
legislation to legitimate parliamentary objectives, and  
hence the argument based on such harassment can be rejected. 
  
   c. Alternative modes of furthering Parliament's objective 
  
   One of the strongest arguments supporting the contention  
that s. 319(2) unacceptably impairs the s. 2(b) guarantee  
posits that a criminal sanction is not necessary to meet  
Parliament's objective. Thus, even though the terms of s.  
319(2) and the nature of the available defences expose an  
individual to conviction only in narrow and clearly defined  
circumstances, it is said that non-criminal responses can  
more effectively combat the harm caused by hate propaganda.  
Most generally, it is said that discriminatory ideas can  
best be met with information and education programmes  
extolling the merits of tolerance and co-operation between  
racial and religious groups. As for the prohibition of hate  
propaganda, human rights statutes are pointed to as being a  
less severe and more effective response than the criminal  
law. Such statutes not only subject the disseminator of hate  
propaganda to reduced stigma and punishment, but also take a  
less confrontational approach to the suppression of such  
expression. This conciliatory tack is said to be preferable  
to penal sanction because an incentive is offered the  
disseminator to co-operate with human rights tribunals and  
thus to amend his or her conduct. 
  
   Given the stigma and punishment associated with a  
criminal conviction and the presence of other modes of  
government response in the fight against intolerance, it is  
proper to ask whether s. 319(2) can be said to impair  
minimally the freedom of expression. With respect to the  
efficacy of criminal legislation in advancing the goals of  
equality and multicultural tolerance in Canada, I agree that  
the role of s. 319(2) will be limited. It is important, in  
my opinion, not to hold any illusions about the ability of  
this one provision to rid our society of hate propaganda and  
its associated harms. Indeed, to become overly complacent,  
forgetting that there are a great many ways in which to  
address the problem of racial and religious intolerance,  
could be dangerous. Obviously, a variety of measures need be  
employed in the quest to achieve such lofty and important  
goals. 
  
   In assessing the proportionality of a legislative  
enactment to a valid governmental objective, however, s. 1  
should not operate in every instance so as to force the  
government to rely upon only 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. In  
such circumstances, the government may legitimately employ a  
more restrictive measure, either alone or as part of a  
larger programme of action, if that measure is not  
redundant, furthering the objective in ways that alternative  
responses could not, and is in all other respects  
proportionate to a valid s. 1 aim. 
  
   Though the fostering of tolerant attitudes among  
Canadians will be best achieved through a combination of  
diverse measures, the harm done through hate propaganda may  
require that especially stringent responses be taken to  
suppress and prohibit a modicum of expressive activity. At  
the moment, for example, the state has the option of  
responding to hate propaganda by acting under either the  
Criminal Code or human rights provisions. In my view, having  
both avenues of redress at the state's disposal is justified  
in a free and democratic society. I see no reason to assume  
that the state will always utilize the most severe tool at  
hand, namely, the criminal law, to prevent the dissemination  
of hate propaganda. Where use of the sanction provided by s.  
319(2) is imprudent, employing human rights legislation may  
be the more attractive route to take, but there may equally  
be circumstances in which the more confrontational response  
of criminal prosecution is best suited to punish a  
recalcitrant hate-monger. To send out a strong message of  
condemnation, both reinforcing the values underlying s.  
319(2) and deterring the few individuals who would harm  
target group members and the larger community by  
intentionally communicating hate propaganda, will  
occasionally require use of the criminal law. 
  
   d. Conclusion as to minimal impairment 
  
   To summarize the above discussion, in light of the great  
importance of Parliament's objective and the discounted  
value of the expression at issue I find that the terms of s.  
319(2) create a narrowly confined offence which suffers from  
neither overbreadth nor vagueness. This interpretation stems  
largely from my view that the provision possesses a  
stringent mens rea requirement, necessitating either an  
intent to promote hatred or knowledge of the substantial  
certainty of such, and is also strongly supported by the  
conclusion that the meaning of the word ''hatred'' is  
restricted to the most severe and deeply-felt form of  
opprobrium. Additionally, however, the conclusion that s.  
319(2) represents a minimal impairment of the freedom of  
expression gains credence through the exclusion of private  
conversation from its scope, the need for the promotion of  
hatred to focus upon an identifiable group and the presence  
of the s. 319(3) defences. As for the argument that other  
modes of combatting hate propaganda eclipse the need for a  
criminal provision, it is eminently reasonable to utilize  
more than one type of legislative tool in working to prevent  
the spread of racist expression and its resultant harm. It  
will indeed be more difficult to justify a criminal statute  
under s. 1, but in my opinion the necessary justificatory  
arguments have been made out with respect to s. 319(2). 
  
   I thus conclude that s. 319(2) of the Criminal Code does  
not unduly impair the freedom of expression, and it remains  
only to examine whether its effects none the less present so  
grave a limitation upon the s. 2(b) guarantee so as to  
outweigh the benefits to be gained from a measure otherwise  
proportional to an important legislative objective. 
  
   (iv) Effects of the limitation 
  
   The third branch of the proportionality test entails a  
weighing of the importance of the state objective against  
the effect of limits imposed upon a Charter right or  
guarantee. Even if the purpose of the limiting measure is  
substantial and the first two components of the  
proportionality test are satisfied, the deleterious effects  
of a limit may be too great to permit the infringement of  
the right or guarantee in issue. 
  
   I have examined closely the significance of the freedom  
of expression values threatened by s. 319(2) and the  
importance of the objective which lies behind the criminal  
prohibition. It will by now be quite clear that I do not  
view the infringement of s. 2(b) by s. 319(2) as a  
restriction of the most serious kind. The expressive  
activity at which this provision aims is of a special  
category, a category only tenuously connected with the  
values underlying the guarantee of freedom of speech.  
Moreover, the narrowly drawn terms of s. 319(2) and its  
defences prevent the prohibition of expression lying outside  
of this narrow category. Consequently, the suppression of  
hate propaganda affected by s. 319(2) represents an  
impairment of the individual's freedom of expression which  
is not of a most serious nature. 
  
   It is also apposite to stress yet again the enormous  
importance of the objective fueling s. 319(2), an objective  
of such magnitude as to support even the severe response of  
criminal prohibition. Few concerns can be as central to the  
concept of a free and democratic society as the dissipation  
of racism, and the especially strong value which Canadian  
society attaches to this goal must never be forgotten in  
assessing the effects of an impugned legislative measure.  
When the purpose of s. 319(2) is thus recognized, I have  
little trouble in finding that its effects, involving as  
they do the restriction of expression largely removed from  
the heart of free expression values, are not of such a  
deleterious nature as to outweigh any advantage gleaned from  
the limitation of s. 2(b). 
  
   E. Analysis of s. 319(2) under s. 1 of the Charter:  
Conclusion 
  
   I find that the infringement of the respondent's freedom  
of expression as guaranteed by s. 2(b) should be upheld as a  
reasonable limit prescribed by law in a free and democratic  
society. Furthering an immensely important objective and  
directed at expression distant from the core of free  
expression values, s. 
  
319(2) satisfies each of the components of the  
proportionality inquiry. I thus disagree with the Alberta  
Court of Appeal's conclusion that this criminal prohibition  
of hate propaganda violates the Charter, and would allow the  
appeal in this respect. 
  
   VIII Section 319(3)(a) and the Presumption of Innocence 
  
   As already noted, s. 319(3)(a) of the Criminal Code  
provides that no person shall be convicted of wilfully  
promoting hatred ''if he establishes that the statements  
communicated were true''. This provision is challenged as  
breaching the presumption of innocence guaranteed in s.  
11(d) of the Charter. The court must therefore decide  
whether permitting an accused to raise the defence of truth  
on the balance of probabilities creates a reverse onus,  
thereby infringing s. 11(d). If s. 11(d) is so infringed,  
the focus of the inquiry shifts to examine the  
justifiability of the reverse onus under s. 1 of the Charter. 
  
   A. Section 319(3)(a) and infringement of s. 11(d) of the  
Charter 
  
   In a prosecution under s. 319(2), the Crown must prove  
beyond a reasonable doubt the various elements of the  
offence, namely, that the accused, by communicating  
statements other than in private conversation, wilfully  
promoted hatred against a group identifiable by colour,  
race, religion or ethnic origin. Determining whether an  
accused falls within the terms of s. 319(2) does not require  
that the trier of fact examine the truth or falsity of the  
statements. The defence of truth, to be established by the  
accused on the balance of probabilities, is thus only  
considered if the Crown proves the components of s. 319(2)  
beyond a reasonable doubt. 
  
   The judgments of the appeal courts in this case and in  
the accompanying appeal of Andrews reveal a divergence of  
opinion as to whether s. 11(d) of the Charter is infringed  
by the truth defence. In the Alberta Court of Appeal, Kerans  
J.A. viewed as crucial the possibility that an accused can  
be convicted of wilfully promoting hatred though there  
exists a reasonable doubt that the statements communicated  
are true. As the defence places an onus on the accused to  
prove truth on the balance of probabilities, he thus found  
it to infringe s. 11(d). In contrast to this conclusion, the  
Ontario Court of Appeal in R. v. Andrews, supra, found that  
s. 319(3)(a) does not place a true reverse onus upon the  
accused. Relying upon the majority judgment in R. v. Holmes  
(1988), 41 C.C.C. (3d) 497, 50 D.L.R. (4th) 680, [1988] 1  
S.C.R. 914, Grange J.A. felt that s. 319(3)(a) provides a  
defence which becomes applicable only after all elements of  
the offence have been proven beyond a reasonable doubt, a  
circumstance which was said to avoid infringing the  
presumption of innocence (p. 225). Grange J.A. distinguished  
this court's decision in R. v. Whyte (1988), 42 C.C.C. (3d)  
97, 51 D.L.R. (4th) 481, [1988] 2 S.C.R. 3, on the grounds  
that the statutory presumption challenged in that case  
related to the proof of an essential element of the offence. 
  
   It is not overly difficult to settle the disagreement  
between the Alberta and Ontario Appeal Courts. Though some  
confusion may have existed after the decision of this court  
in Holmes, since Whyte it is clear that the presumption of  
innocence is infringed whenever the accused is liable to be  
convicted despite the existence of a reasonable doubt as to  
guilt in the mind of the trier of fact. As was stated by a  
unanimous bench in Whyte (at p. 109):  
  
   ... the distinction between elements of the offence and  
other aspects of the charge is irrelevant to the s. 11(d)  
inquiry. The real concern is not whether the accused must  
disprove an element or prove an excuse, but that an accused  
may be convicted while a reasonable doubt exists. When that  
possibility exists, there is a breach of the presumption of  
innocence. 
  
   The exact characterization of a factor as an essential  
element, a collateral factor, an excuse, or a defence should  
not affect the analysis of the presumption of innocence. It  
is the final effect of a provision on the verdict that is  
decisive. If an accused is required to prove some fact on  
the balance of probabilities to avoid conviction, the  
provision violates the presumption of innocence because it  
permits a conviction in spite of a reasonable doubt in the  
mind of the trier of fact as to the guilt of the accused.  
The trial of an accused in a criminal matter cannot be  
divided neatly into stages, with the onus of proof on the  
accused at an intermediate stage and the ultimate onus on  
the Crown. 
  
   As is evident from the above quotation, the  
categorization of a factual finding as forming an element  
''essential'' to the offence is of no consequence when  
determining whether s. 11(d) has been breached. 
  
   Applying the approach taken in Whyte to this appeal, it  
is obvious that s. 319(3)(a) runs afoul of the presumption  
of innocence. Contrary to the arguments of those who would  
find s. 319(3)(a) compatible with s. 11(d), it matters not  
that the defence of truth may be intended to play a minor  
role in providing relief from conviction. What is of essence  
is not the ''essential nature'' of the crime, but that the  
trier of fact will have to convict even where there is a  
reasonable doubt as to the truth of an accused's statements.  
This result means that s. 11(d) is infringed, making  
necessary an inquiry as to whether s. 319(3)(a) can be  
justified under s. 1 of the Charter. 
  
   B. Justifiability of s. 319(3)(a) under s. 1 of the Charter 
  
   In seeing whether the truth defence is justifiable as a  
reasonable limit in a free and democratic society, my  
general comments regarding the role of s. 1 and the Oakes  
test obviously apply. As well, much of what has been said in  
discussing s. 319(2) is pertinent, though it remains  
necessary to undertake a separate inquiry into the validity  
of s. 319(3)(a)'s reverse onus. 
  
   The impetus behind s. 319(3)(a) represents somewhat of a  
caveat to the broad objectives underlying the offence in s.  
319(2). As explored earlier, domestic and international  
commitments to freedom of expression, equality, and respect  
for human dignity and multiculturalism lay the foundation  
for the offence of the wilful promotion of hatred. Without  
rejecting this broad foundational base, the objective of s.  
319(3)(a) is attributable to the importance given the  
expression of truth by Parliament: see the Cohen Committee,  
op. cit., at p. 66, and the Law Reform Commission of Canada,  
op. cit., at p. 36. Specifically, the truth defence allows  
an accused to escape liability based on the possibility that  
the statements made, while intended to promote hatred, none  
the less possess increased merit (in relation to free  
expression values) because of their truthful nature. 
  
   That a defence may be warranted by reason of the merit  
associated with truthful statements does not, however, make  
clear Parliament's objective in requiring that the accused  
prove truthfulness on a balance of probabilities. 
  
The objective behind the defence's reverse onus is closely  
connected with the purpose fueling 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 is too easily used, the  
pressing and substantial objective of Parliament in  
preventing such harm will suffer unduly, and it is therefore  
in the furtherance of that same objective that truthfulness  
must be proved by the accused on the balance of  
probabilities. For the reasons given in discussing the  
purpose behind s. 319(2), I consequently find that  
Parliament's objective in employing a reverse onus in s.  
319(3)(a) is pressing and substantial. 
  
   Moving on to examine the proportionality of the reverse  
onus measure to the legislative objective, the first  
question to ask is whether s. 319(3)(a) evinces a rational  
connection to the purpose of preventing the harm caused by  
hate-promoting expression. In my view, such a connection  
plainly exists. The reverse onus in the truth defence  
operates so as to make it more difficult to avoid conviction  
where the wilful promotion of hatred has been proven beyond  
a reasonable doubt. As the wilful promotion of hatred is  
hostile to Parliament's aims, placing such a burden upon the  
accused is rationally connected to a valid s. 1 objective. 
  
   The second component of the proportionality inquiry asks  
whether the impugned measure impairs the right or freedom as  
little as possible. Instrumental in reaching a conclusion as  
to minimal impairment is the nature of the defence in issue,  
and most especially its relation to the offence set out in  
s. 319(2). As I have stated in discussing the  
proportionality of s. 319(2), 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; it works to excuse the actions of  
an accused even though the harm sought to be prevented is  
present. To provide the accused with such an escape route  
may not be required under the Charter, but neither is it  
illogical. Out of caution Parliament has made a concession  
to the importance of truth in freedom of expression values,  
a concession designed to allow an accused person to benefit  
from the tangential possibility that his or her statements,  
though admittedly defamatory of targeted groups, may have  
some social utility as part of legitimate public dialogue. 
  
   In the over-all context of the s. 319(2) offence, it is  
therefore evident that Parliament has used the reverse onus  
provision to strike a balance between two legitimate  
concerns. Requiring the accused to prove on the civil  
standard that his or her statements are true is an integral  
part of this balance, and any less onerous burden would  
severely skew the equilibrium. To include falsity as a  
component of s. 319(2) for example, or even to require only  
that the accused raise a reasonable doubt as to the  
truthfulness of the statements, would excessively compromise  
the effectiveness of the offence in achieving its purpose.  
The former option would especially hinder Parliament's  
objective, for many statements are not susceptible to a  
true/false categorization. In either instance, however,  
where a reasonable doubt existed as to the falsity of an  
accused's statements an acquittal would be entered. To  
accept such a result it would have to be agreed that this  
relatively small possibility of truthfulness outweighs the  
harm caused through the wilful promotion of hatred. Yet to  
my mind the crucial objective of Parliament in this appeal  
justifies requiring a more convincing demonstration that a  
hate-monger's statements may be true, as a successful  
defence provides an excuse despite the presence of the harm  
sought to be eradicated: see Rauf, op. cit., at pp. 368-9).  
Having the accused prove truthfulness on the balance of  
probabilities is an understandable and valid precaution  
against too easily justifying such harm, and I hence  
conclude that the reverse onus provision in s. 319(3)(a)  
represents a minimal impairment of the presumption of  
innocence. 
  
   As for the final segment of the Oakes proportionality  
inquiry, I have no difficulty in finding that the importance  
of preventing the harm caused by hate-promoting expression  
is not outweighed by Parliament's infringement of s. 11(d)  
of the Charter. In reaching this conclusion I would refer to  
the approach taken by this court in Whyte. There, the  
accused challenged what is now s. 258(1)(a) of the Criminal  
Code, which creates the presumption that a person in the  
driver's seat of a vehicle has care or control of the  
vehicle for the purposes of the impaired driving provisions.  
This presumption can only be overcome if the accused proves  
that he or she occupied the driver's seat for some purpose  
other than setting the vehicle in motion. In upholding the  
statutory presumption under s. 1, this court stated the  
following regarding the proportionality between the effects  
of the measure and the objective (at p. 116): 
  
   ... [258(1)(a)] satisfies [the] final element in s. 1  
analysis. The threat to public safety posed by drinking and  
driving has been established by evidence in this case and  
recognized by this court in others. While [s. 258(1)(a)]  
does infringe the right guaranteed by s. 11(d) of the  
Charter, it does so in the context of a statutory setting  
which makes it impracticable to require the Crown to prove  
an intention to drive. The reverse onus provision, in  
effect, affords a defence to an accused which could not  
otherwise be made available. 
  
   In Whyte, the impugned statutory presumption was found to  
be justified despite its effect upon the presumption of  
innocence only after an examination of the history of  
drinking and driving legislation, and a recognition of both  
the serious societal danger of drinking and driving and the  
difficulties associated with requiring the Crown to prove an  
intention to drive. As already noted, similar factors  
operate to justify the reverse onus provision challenged in  
this appeal, in particular the significant importance  
attached to preventing the harm caused by hate-promoting  
expression and the fact that the truth defence operates  
despite the presence of such harm. The infringement of s.  
11(d) thus occurs in the context of a statutory and  
practical setting that makes it unworkable to require the  
Crown to prove the falsity of the statements in issue, and  
using the words of Whyte I conclude that the reverse onus  
provision in s. 319(3)(a), in effect, affords a defence to  
an accused which could not otherwise be made available. 
  
   C. Conclusion respecting s. 319(3)(a) 
  
   In sum, having followed this court's decision in Whyte in  
deciding that s. 319(3)(a) infringes s. 11(d) of the  
Charter, I none the less find the impugned provision to be  
justified under s. 1. The reverse onus found in the truth  
defence represents the only way in which the defence can be  
offered while still enabling Parliament to prohibit  
effectively hate-promoting expression through criminal  
legislation; to require that the state prove beyond a  
reasonable doubt the falsity of a statement would excuse  
much of the harmful expressive activity caught by s. 319(2)  
despite minimal proof as to its worth. In my opinion,  
justification for this reverse onus must therefore reside in  
the fact that it only applies where the Crown has proven  
beyond a reasonable doubt an intent to promote harm-causing  
hatred, and in the recognition that excessive deference to  
the possibility that a statement is true will undermine  
Parliament's objective. 
  
   IX Conclusion 
  
   In so far as its purpose is to prohibit the expression of  
certain meanings, s. 319(2) of the Criminal Code infringes  
the guarantee of freedom of expression found in s. 2(b) of  
the Charter. Given the importance of Parliament's purpose in  
preventing the dissemination of hate propaganda and the  
tenuous connection such expression has with s. 2(b) values,  
however, I have found the narrowly drawn parameters of s.  
319(2) to be justifiable under s. 1. Similarly, although the  
reverse onus provision contained in s. 319(3)(a) conflicts  
with the s. 11(d) presumption of innocence, it can be seen  
as a justifiable means of excusing truthful statements  
without undermining the objective of preventing harm caused  
by the intentional promotion of hatred. 
  
   Having come to these conclusions, I answer the  
constitutional questions in the following manner: 
  
   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? 
  
   Answer: Yes. 
  
   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? 
  
   Answer: Yes. 
  
   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? 
  
   Answer: Yes. 
  
   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? 
  
   Answer: Yes. 
  
   I would thus reverse the decision of the Alberta Court of  
Appeal and allow the appeal. This case should return to the  
Court of Appeal in order to resolve those issues left  
unexamined by reason of its decision to strike down the  
impugned provisions. 
  
   Wilson J. concurs with Dickson C.J.C. 
  
   La Forest J. (dissenting): 
  
   I agree with Madame Justice McLachlin on the issues  
respecting freedom of expression and I would accordingly  
dispose of the appeal and answer the first two  
constitutional questions as she does. I find it unnecessary  
to consider the issues respecting the right to be presumed  
innocent and, in consequence, to answer the other  
constitutional questions. 
  
   L'Heureux-Dube J. concurs with Dickson C.J.C. 
  
   Sopinka J. concurs with McLachlin J. 
  
   Gonthier J. concurs with Dickson C.J.C. 
  
   McLachlin J. (dissenting): 
  
   Introduction 
  
   The issue on this appeal is whether ss. 319(2) and 319(3)  
of the Criminal Code, R.S.C., 1985, c. C-46, creating the  
offence of unlawfully promoting hatred, should be struck  
down on the ground that they infringe the guarantees of free  
expression and the presumption of innocence embodied in the  
Canadian Charter of Rights and Freedoms. 
  
   Mr. Keegstra, a secondary school teacher in Eckville, a  
small town in Alberta, was convicted of unlawfully promoting  
hatred under s. 319(2). The evidence established that he had  
systematically denigrated Jews and Judaism in his classes.  
He described Jews by such epithets as ''revolutionists'',  
''treacherous'', ''imposters'', ''communists'', ''secret'',  
''sneaky'', ''manipulative'', and ''deceptive''. He taught  
that the Jewish people are ''barbaric'', ''subversive'',  
''sadistic'', ''materialistic'', ''money-loving'' and  
''power hungry''. He maintained that anyone Jewish must be  
evil and that anyone evil must be Jewish. Not only did he  
maintain these things; he advised the students that they  
must accept his views as true unless they were able to  
contradict them. Moreover, he expected his students to  
regurgitate these notions in essays and examinations. If  
they did so, they received good marks. If they did not,  
their marks were poor. 
  
   Prior to his trial, Mr. Keegstra had applied to a judge  
of the Alberta Court of Queen's Bench for an order quashing  
the charge on the ground that s. 319(2) of the Criminal Code  
violates the right of freedom of expression guaranteed by  
the Charter. Quigley J. rejected this contention: 19 C.C.C.  
(3d) 254, 87 A.R. 200. He regarded the section, not as a  
limit on freedom of expression, but rather as a safeguard  
promoting freedom of expression. In his view, ''freedom of  
expression'' in s. 2(b) of the Charter does not mean an  
absolute freedom conferring an unabridged right of speech or  
expression. He added that if he were wrong in concluding  
that s. 319(2) did not infringe s. 2(b), he would find that  
the limit was a reasonable one, demonstrably justified in a  
free and democratic society within s. 1 of the Charter. 
  
   The Court of Appeal, however, reversed this decision, and  
quashed the conviction entered at trial: 43 C.C.C. (3d) 150,  
65 C.R. (3d) 289, 39 C.R.R. 5. In its view, s. 319(2) of the  
Criminal Code violated the Charter in two ways. 
  
First, it infringed the presumption of innocence by making  
the truth of statements promoting hatred a defence, but  
placing the burden of proving them on the accused. Secondly,  
it violated the guarantee of free speech in s. 2(b) of the  
Charter. The court, per Kerans J.A., held that ''imprudent  
promotion of hatred falls within the definition of freedom  
of expression'' (p. 162) in that section, and that mistakes  
of fact by speakers -- even by speakers who have no  
reasonable grounds for the mistake -- are protected under  
the Charter. 
  
   Nor was the violation saved by s. 1 of the Charter, in  
the opinion of the Court of Appeal. ''This rule is overly  
broad,'' Kerans J.A. observed [at p. 176], pointing out that  
the section does not require that anyone actually come to  
hate a member of the protected group as a result of the  
promotion of hatred by the offender. He accepted that the  
spread of hatred against target groups might be justifiably  
regulated, but found the fact that the law criminalizes mere  
attempts to do so and leaves no room for the defence of  
honest mistake precluded its justification as a reasonable  
measure justified in a democratic society. Nor, in the view  
of Mr. Justice Kerans, did the values of multiculturalism  
and equality enshrined in the Charter make the limit imposed  
on free expression by s. 319(2) of the Criminal Code  
reasonable under s. 1. Section 15 is restricted to  
government action, while the concern of s. 319(2) is  
individual expression -- expression protected by s. 2(b) of  
the Charter. In Kerans J.A.'s view, nothing in the Charter  
suggests a legally enforceable orthodoxy in matters of  
expression. On the contrary, our commitment to the  
marketplace of ideas precludes us from presuming that those  
who promote hatred will be successful in fomenting it among  
the majority of Canadians. Moreover, freedom of expression  
is an individual liberty of such importance that it can be  
overridden only by an extraordinarily weighty public goal.  
In the end the Court of Appeal held that the Charter  
protected even imprudent promotion of hatred, up to the  
point where it actually caused listeners to hate target  
groups. 
  
   The Crown appeals to this court. 
  
   Statutory provisions 
  
   The respondent was charged under s. 319(2) of the  
Criminal Code, which provides: 
  
   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 on 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 toward 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, expressed or  
implied: 
  
   ''statements'' includes words spoken or written or  
recorded electronically or electro-magnetically or  
otherwise, and gestures, signs or other visible  
representations. 
  
   ''Identifiable group'' is defined as follows: 
  
   318(4) In this section, ''identifiable group'' means any  
section of the public distinguished by colour, race,  
religion or ethnic origin. 
  
   It will be observed that what is prohibited is the wilful  
promotion of hatred of identifiable groups. Casual slips of  
the tongue are not actionable. On the other hand, it is not  
necessary that the statements actually have the effect of  
promoting hatred. Truth is a defence, but the burden of  
establishing it lies on the accused. 
  
   This provision must be tested against the principles  
established in the Charter, and in particular, the following  
sections: 
  
   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 or 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. 
  
   Issues 
  
   The issues are the following: 
  
   1. Does s. 319(2) of the Criminal Code breach s. 2(b) of  
the Charter? 
  
   2. Do ss. 319(2) and 319(3) of the Criminal Code breach  
s. 11(d) of the Charter? 
  
   3. If the answer to either questions 1 or 2 is  
affirmative, can the infringements be justified under s. 1  
of the Charter? 
  
   The following constitutional questions stated by the  
Dickson C.J.C. reflect these issues: 
  
   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? 
  
   Analysis 
  
   I. Background 
  
   This case poses questions of great importance and  
difficulty. In order to situate them in their proper  
context, I preface my analysis of the issues with a brief  
philosophical and historical perspective of the role of free  
expression in our society, both in general terms and in  
relation to hate propaganda. 
  
   A. A Philosophical view of freedom of expression and the  
Charter 
  
   Various philosophical justifications exist for freedom of  
expression. Some of these posit free expression as a means  
to other ends. Others see freedom of expression as an end in  
itself. 
  
   Salient among the justifications for free expression in  
the first category is the postulate that the freedom is  
instrumental in promoting the free flow of ideas essential  
to political democracy and the functioning of democratic  
institutions. This is sometimes referred to as the political  
process rationale: see A. W. MacKay, ''Freedom of  
Expression: Is it All Just Talk?'', 68 Can. Bar Rev. 713  
(1989). The locus classicus of this rationale is A.  
Meiklejohn, Free Speech and its Relation to Self-Government  
(1948). 
  
   A corollary of the view that expression must be free  
because of its role in the political process is that only  
expression relating to the political process is worthy of  
constitutional protection. However, within these limits  
protection for expression is said to be absolute. The  
political process rationale has played a significant role in  
the development of First Amendment doctrine in the United  
States, and various justices of the U.S. Supreme Court  
(though never a majority) have embraced its theory that  
protection of speech is absolute within these restricted  
bounds. Its importance has also been affirmed by Canadian  
courts, both before and since the advent of the Charter. 
  
   A variant on the political process theory ascribes to  
freedom of expression a central role as the pivotal freedom  
on which all others depend. Without the freedom to comment  
and criticize, other fundamental rights and freedoms may be  
subverted by the state. This argument gives freedom of  
expression an enhanced status in relation to other rights. 
  
   The validity of the political process rationale for  
freedom of expression is undeniable. It is, however,  
limited. It justifies only a relatively narrow sector of  
free expression -- one much narrower than either the wording  
of the First Amendment or s. 2(b) of the Charter would  
suggest. 
  
   Another venerable rationale for freedom of expression  
(dating at least to Milton's Areopagitica in 1644) is that  
it is an essential precondition of the search for truth.  
Like the political process model, this model is instrumental  
in outlook. Freedom of expression is seen as a means of  
promoting a ''marketplace of ideas'', in which competing  
ideas vie for supremacy to the end of attaining the truth.  
The ''marketplace of ideas'' metaphor was coined by Justice  
Oliver Wendell Holmes, in his famous dissent in Abrams v.  
United States, 250 U.S. 616 (1919). This approach, however,  
has been criticized on the ground that there is no guarantee  
that the free expression of ideas will in fact lead to the  
truth. Indeed, as history attests, it is quite possible that  
dangerous, destructive and inherently untrue ideas may  
prevail, at least in the short run. 
  
   Notwithstanding the cogency of this critique, it does not  
negate the essential validity of the notion of the value of  
the marketplace of ideas. While freedom of expression  
provides no guarantee that the truth will always prevail, it  
still can be argued that it assists in promoting the truth  
in ways which would be impossible without the freedom. One  
need only look to societies where free expression has been  
curtailed to see the adverse effects both on truth and on  
human creativity. It is no coincidence that in societies  
where freedom of expression is severely restricted truth is  
often replaced by the coerced propagation of ideas that may  
have little relevance to the problems which the society  
actually faces. Nor is it a coincidence that industry,  
economic development and scientific and artistic creativity  
may stagnate in such societies. 
  
   Moreover, to confine the justification for guaranteeing  
freedom of expression to the promotion of truth is arguably  
wrong, because however important truth may be, certain  
opinions are incapable of being proven either true or false.  
Many ideas and expressions which cannot be verified are  
valuable. Such considerations convince me that freedom of  
expression can be justified at least in part on the basis  
that it promotes the ''market-place of ideas'', and hence, a  
more relevant, vibrant and progressive society. 
  
   But freedom of expression may be viewed as more than a  
means to other ends. Many assert that free expression is an  
end in itself, a value essential to the sort of society we  
wish to preserve. This view holds that freedom of expression  
''derives from the widely accepted premise of Western  
thought that the proper end of man is the realization of his  
character and potentialities as a human being''. It follows  
from this premise that all persons have the right to form  
their own beliefs and opinions, and to express them. ''For  
expression is an integral part of the development of ideas,  
of mental exploration and of the affirmation of self'': T.  
I. Emerson, ''Toward a General Theory of the First  
Amendment'' (1963), 72 Yale L.J. 877 at p. 879. It is  
demeaning of freedom of expression and wrong, the proponents  
of this view argue, to conceive the right only in terms of  
the ends it may assist in achieving. ''[]t is not a general  
measure of the individual's right to freedom of expression  
that any particular exercise of the right may be thought to  
promote or retard other goals of the society'' (p. 880).  
Freedom of expression is seen as worth preserving for its  
own intrinsic value. 
  
   Those who assert that freedom of expression is worth  
protecting for its intrinsic value to the self-realization  
of both speaker and listener tend to combine this rationale  
with others: see for example, Emerson, ibid., and L. Tribe,  
American Constitutional Law, 2nd ed. (1988), at pp. 785-9.  
On its own, this justification for free expression is  
arguably too broad and amorphous to found constitutional  
principle. Furthermore, it does not answer the question of  
why expression should be deserving of special constitutional  
status, while other self-fulfilling activities are not.  
Nevertheless, an emphasis on the intrinsic value of freedom  
of expression provides a useful supplement to the more  
utilitarian rationales, justifying, for example, forms of  
artistic expression which some might otherwise be tempted to  
exclude. 
  
   Arguments based on intrinsic value and practical  
consequences are married in the thought of E. Schauer (Free  
Speech: A Philosophical Enquiry (1982)). Rather than  
evaluating expression to see why it might be worthy of  
protection, Schauer evaluates the reasons why a government  
might attempt to limit expression. Schauer points out that  
throughout history, attempts to restrict expression have  
accounted for a disproportionate share of governmental  
blunders -- from the condemnation of Galileo for suggesting  
the earth is round to the suppression as ''obscene'' of many  
great works of art. Professor Schauer explains this peculiar  
inability of censoring governments to avoid mistakes by the  
fact that, in limiting expression, governments often act as  
judge in their own cause. They have an interest in stilling  
criticism of themselves, or even in enhancing their own  
popularity by silencing unpopular expression. These motives  
may render them unable to carefully weigh the advantages and  
disadvantages of suppression in many instances. That is not  
to say that it is always illegitimate for governments to  
curtail expression, but government attempts to do so must  
prima facie be viewed with suspicion. 
  
   Schauer's approach reminds us that no one rationale  
provides the last word on freedom of expression. Indeed, it  
seems likely that theories about freedom of expression will  
continue to develop. 
  
   How do these diverse justifications of freedom of  
expression relate to s. 2(b) of the Charter? First, it may  
be noted that the broad wording of s. 2(b) of the Charter is  
arguably inconsistent with a justification based on a single  
facet of free expression. This suggests that there is no  
need to adopt any one definitive justification for freedom  
of expression. Different justifications for freedom of  
expression may assume varying degrees of importance in  
different fact situations. However, each of the above  
rationales is capable of providing guidance as to the scope  
and content of s. 2(b). 
  
   The interpretation which has been placed on s. 2(b) of  
the Charter confirms the relevance of both instrumental and  
intrinsic justifications for free expression. This court has  
adopted a purposive approach in construing the rights and  
freedoms guaranteed by the Charter. When placed in the  
context of the judicial history of freedom of expression in  
Canada, it suggests that it is appropriate to consider the  
ends which freedom of speech may serve in determining its  
scope and the justifiability of infringements upon it. These  
ends include the maintenance of our democratic rights and  
the benefits to be gained from the pursuit of truth and  
creativity in science, art, industry and other endeavours.  
At the same time, the emphasis which this court has placed  
upon the inherent dignity of the individual in interpreting  
Charter guarantees, suggests that the rationale of  
self-actualization should also play an important part in  
decisions under s. 2(b) of the Charter. 
  
   In accordance with this eclectic approach, the court in  
Irwin Toy Ltd. v. Quebec (Attorney-General) (1989), 58  
D.L.R. (4th) 577, [1989] 1 S.C.R. 927, 25 C.P.R. (3d) 417,  
identified three values as underlying the guarantee of  
freedom of expression in s. 2(b) of the Charter: the value  
of seeking and attaining truth; the value of participation  
in social and political decision-making, and individual  
self-fulfillment and human flourishing. 
  
   Free expression is a fundamental value in our society for  
any and all of these reasons. Nevertheless, it is not an  
absolute value. Like other liberties which we prize so  
highly, freedom of expression must in certain circumstances  
give way to countervailing considerations. The question is  
always one of balance. Freedom of expression protects  
certain values which we consider fundamental -- democracy, a  
vital, vibrant and creative culture, the dignity of the  
individual. At the same time, free expression may put other  
values at risk. It may harm reputations, incite acts of  
violence. It may be abused to undermine our fundamental  
governmental institutions and undercut racial and social  
harmony. The law may legitimately trench on freedom of  
expression where the value of free expression is outweighed  
by the risks engendered by allowing freedom of expression. 
  
   The framers of the Charter recognized both the  
fundamental nature of freedom of expression and the  
necessity of sometimes limiting it where the risks it poses  
are too great for society to tolerate. Its importance is  
reflected in the broad and untrammelled definition of  
expression embodied in s. 2(b). The guarantee of free  
expression is not internally limited as are certain other  
Charter rights (e.g., s. 8 of the Charter) or as are the  
equivalent guarantees in the European Convention for the  
Protection of Human Rights and Fundamental Freedoms, 213  
U.N.T.S. 221 (1950), and the International Covenant on Civil  
and  
  
Political Rights, 999 U.N.T.S. 171 (1966). The guarantees of  
free expression in those documents explicitly permit a wide  
variety of limitations on free expression -- limitations  
which the person asserting the right of free expression must  
observe. By contrast, the Canadian guarantee of free  
expression is more comprehensive. The provision is a very  
broad guarantee, and all expression is prima facie  
protected. Any infringement must be justified by the state  
under s. 1. Moreover, as will be observed infra, freedom of  
expression had achieved a near-constitutional status in  
Canada long before its specific entrenchment by the Charter.  
All this suggests that the framers of the Charter envisaged  
freedom of expression as a comprehensive, fundamental right  
of great importance. 
  
   At the same time, the Charter permits freedom of speech  
to be restricted by law where this is justified by the need  
to protect more important countervailing values. Thus, the  
broad guarantee of freedom of expression in s. 2(b) of the  
Charter is made subject to s. 1 which permits such  
reasonable limitations on the right as may be justified in a  
free and democratic society. 
  
   B. The historical perspective 
  
   Freedom of speech and the press had acquired  
quasi-constitutional status well before the adoption of the  
Charter in 1982. In a series of cases dealing with  
legislation passed by repressive provincial regimes, the  
Supreme Court endorsed the proposition that the right to  
express political ideas could not be trammelled by the  
legislatures: see MacKay, op. cit., at pp. 715-6. 
  
   The focus of these decisions was the division of powers  
between the provinces and the federal government. The  
Alberta Press reference ( Reference Re Alberta Legislation,  
[1938] 2 D.L.R. 81, [1938] S.C.R. 100) provides a good  
example. At issue was a bill introduced by the Alberta  
legislature to compel newspapers to disclose their sources  
of news information and to print government statements  
correcting previous articles. The bill was struck down on  
the basis that the province had no jurisdiction over the  
free working of the political institutions of the state.  
Political expression, vital to the country as a whole, could  
not be limited by provincial legislation. 
  
   This approach to free expression was accepted and  
amplified by some judges of this court in 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, and Switzman v. Elbling  
(1957), 117 C.C.C. 129, [1957] S.C.R. 285, [1953] 7 D.L.R.  
(2d) 337. Rand J. and Abbott J. spoke of an implied bill of  
rights arising out of the provision in the Constitution Act,  
1867, for ''a constitution similar in principle to that of  
the United Kingdom.'' 
  
   These decisions confirmed the fundamental importance of  
freedom of speech and the press in Canada. The conception of  
freedom of speech embodied in these cases, however, was  
largely limited to the political process model. Subsequent  
cases, such as Cherneskey v. Armadale Publishers Ltd.  
(1978), 90 D.L.R. (3d) 321, [1979] 1 S.C.R. 1067 [1978] 6  
W.W.R. 618, suggested an unwillingness to promote a broad  
concept of freedom of expression. Furthermore, in the pre-  
Charter context fundamental notions of free speech were  
ultimately recognized as subservient to legislative limits.  
The concept of an implied bill of rights put forward in  
Saumur and Switzman was rejected by the court in A.-G. Can.  
v. Dupond (1978), 84 D.L.R. (3d) 420, [1978] 2 S.C.R. 770,  
19 N.R. 478, and the overriding power of legislatures to  
define the limits of free speech was confirmed in  
  
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. 
  
   Nevertheless, one thing that has remained constant  
through all the decisions, is the recognition that freedom  
of speech is a fundamental Canadian value. 
  
   Other pre- Charter cases reflected a broader approach to  
the scope of free speech concerns. In 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, this court affirmed the fundamental value  
of freedom of speech not only in our political system, but  
also in society generally. Rand J. wrote at pp. 70-7, 96  
C.C.C. 48: 
  
   Freedom in thought and speech and disagreement in ideas  
and beliefs, on every conceivable subject, are of the  
essence of our life. The clash of critical discussion on  
political, social and religious subjects has too deeply  
become the stuff of daily experience to suggest that mere  
ill-will as a product of controversy can strike down the  
latter with illegality...Controversial fury is aroused  
constantly by differences in abstract conceptions; heresy in  
some fields is again a mortal sin; there can be fanatical  
puritanism in ideas as well as in mortals; but our compact  
of free society accepts and absorbs these differences and  
they are exercised at large within the framework of freedom  
and order on broader and deeper uniformities as bases of  
social stability. 
  
   The enactment of s. 2(b) of the Charter represented both  
the continuity of these traditions, and a new flourishing of  
the importance of freedom of expression in Canadian society.  
As Professor MacKay has stated, op. cit., at p. 714  
''Freedom of expression was not invented by the Charter of  
Rights and Freedoms but it has acquired new dimensions as a  
consequence of its entrenchment.'' Continuity has been  
stressed in cases such as R.W.D.S.U. v. Dolphin Delivery  
Ltd. (1986), 33 D.L.R. (4th) 174, [1986] 2 S.C.R. 573, 25  
C.R.R. 321. McIntyre J., at p. 183, recognized both the deep  
roots of freedom of expression in Canadian society, and the  
key role it has played in our democratic development: 
  
   Freedom of expression is not, however, a creature of the  
Charter. It is one of the fundamental concepts that has  
formed the basis for the historical development of the  
political, social and educational institutions of western  
society. Representative democracy, as we know it today,  
which is in great part the product of free expression and  
discussion of varying ideas, depends upon its maintenance  
and protection. 
  
   At the same time, bearing in mind the breadth of the  
wording of the guarantee in s. 2(b), and the need for a  
broad and liberal interpretation to realize the purposes of  
the guarantee, this court has shown its preference for the  
broad approach set forth by Rand J. in Boucher, supra.  
Rejecting the proposition that the Charter's guarantee of  
freedom of expression is confined to political matters, this  
court held in Ford v. Quebec (Attorney-General) (1988), 54  
D.L.R. (4th) 577, [1988] 2 S.C.R. 712, 36 C.R.R. 1, and  
Irwin Toy, supra, that the Charter applies to commercial  
expression. All activities which convey or attempt to convey  
meaning prima facie fall within the scope of the guarantee:  
see Irwin Toy, per Dickson C.J.C., Lamer and Wilson JJ.  
Within the framework of this general principle, however,  
some of the classic rationales for protecting freedom of  
expression have been given a limited role in interpreting s.  
2(b). Where a government measure limits expressive activity  
not by design but in its effects, to make out a violation of  
s. 2(b), the claimant must show that the expressive activity  
relates to those values identified in Irwin Toy as  
underlying the guarantee of freedom of expression in s. 2(b)  
of the Charter: the value of seeking and attaining truth;  
the value of participation in social and political  
decision-making; and individual self-fulfillment and human  
flourishing. 
  
   C. Hate propaganda and freedom of speech -- An overview 
  
   Before entering upon the analysis of whether s. 319(2) of  
the Criminal Code is inconsistent with the Charter and must  
be struck down, it may be useful to consider the conflicting  
values underlying the question of the prohibition of hate  
literature and how the issue has been treated in other  
jurisdictions. 
  
   Hate literature presents a great challenge to our  
conceptions about the value of free expression. Its  
offensive content often constitutes a direct attack on many  
of the other principles which are cherished by our society.  
Tolerance, the dignity and equality of all individuals;  
these and other values are all adversely affected by the  
propagation of hateful sentiment. The problem is not  
peculiarly Canadian; it is universal. Wherever racially or  
culturally distinct groups of people live together, one  
finds people, usually a small minority of the population,  
who take it upon themselves to denigrate members of a group  
other than theirs. Canada is no stranger to this conduct.  
Our history is replete with examples of discriminatory  
communications. In their time, Canadians of Asian and East  
Indian descent, black, and native people have been the  
objects of communications tending to foster hate. In the  
case at bar it is the Jewish people who have been singled  
out as objects of calumny. 
  
   The evil of hate propaganda is beyond doubt. It inflicts  
pain and indignity upon individuals who are members of the  
group in question. In so far as it may persuade others to  
the same point of view, it may threaten social stability.  
And it is intrinsically offensive to people -- the majority  
in most democratic countries -- who believe in the equality  
of all people regardless of race or creed. 
  
   For these reasons, governments have legislated against  
the dissemination of propaganda directed against racial  
groups, and in some cases this legislation has been tested  
in the courts. Perhaps the experience most relevant to  
Canada is that of the United States, since its Constitution,  
like ours, places a high value on free expression, raising  
starkly the conflict between freedom of speech and the  
countervailing values of individual dignity and social  
harmony. Like s. 2(b), the First Amendment guarantee is  
conveyed in broad, unrestricted language, stating that  
''Congress shall make no law ... abridging the freedom of  
speech, or of the press''. The relevance of aspects of the  
American experience to this case is underlined by the  
factums and submissions, which borrowed heavily from ideas  
which may be traced to the United States. 
  
   The protections of the First Amendment to the U.S.  
Constitution, and in particular free speech, have always  
assumed a particular importance within the U.S.  
constitutional scheme, being regarded as the cornerstone of  
all other democratic freedoms. As expressed by Jackson J.,  
in West Virginia State Board of Education v. Barnette, 319  
U.S. 624 (1943), ''[]f there is any fixed star in our  
constitutional constellation, it is that no official, high  
or petty, can prescribe what shall be orthodox in politics,  
nationalism, religion, or other matters of opinion or force  
citizens to confess by word or act their faith therein'' (p.  
642). The U.S. Supreme Court, particularly in recent years,  
has pronounced itself strongly on the need to protect speech  
even at the expense of other worthy competing values. 
  
   Nevertheless, tolerance for unpopular speech, especially  
speech which was perceived as a threat to vital security  
interests, was not initially a hallmark of the U.S. Supreme  
Court. When the socialist labour leader Eugene Debs made a  
speech critical of United States involvement in the First  
World War, the court was content to uphold his conviction  
for ''wilfully caus[ing] or attempt[ing] to cause  
insubordination, disloyalty, mutiny or refusal of duty in  
the military or naval forces... or wilfully obstruct[ing]  
the recruiting or enlistment service'': Debs v. United  
States, 249 U.S. 211 (1919). A companion case set out the  
classic test for the justifiability of an abridgement of  
free speech: 
  
   The question in every case is whether the words used are  
used in such circumstances and are of such a nature as to  
create a clear and present danger that they will bring about  
the substantive evils that Congress has a right to prevent. 
  
   Schenck v. United States, 249 U.S. 47 (1919), at p. 52. 
  
   The test was stiffened in the famous dissents of Holmes  
J. in Abrams v. United States, supra, at p. 628 (''present  
danger of immediate evil or an intent to bring it about'')  
and Brandeis J. (Holmes J. concurring) in Whitney v.  
California, 274 U.S. 357 (1927), at pp. 377-8: 
  
   To courageous, self-reliant men, with confidence in the  
power of free and fearless reasoning applied through the  
processes of popular government, no danger flowing from  
speech can be deemed clear and present, unless the incidence  
of the evil apprehended is so imminent that it may befall  
before there is opportunity for full discussion. If there be  
time to expose through discussion the falsehood and  
fallacies, to avert the evil by the processes of education,  
the remedy to be applied is more speech, not enforced  
silence... 
  
   Moreover, even imminent danger cannot justify resort to  
prohibition of these functions essential to effective  
democracy, unless the evil apprehended is relatively  
serious... There must be the probability of serious injury  
to the State. 
  
   This stricter formulation of the ''clear and present  
danger'' test came to be accepted as the standard for a  
justified infringement of the free speech guarantee, but it  
too was subject to varying interpretation. In the crisis  
atmosphere of the Cold War, the court upheld convictions of  
communists for conspiring to advocate the overthrow of the  
United States government in Dennis v. United States, 341  
U.S. 494 (1951). Purporting to apply the above test, the  
court endorsed the following formulation, at p. 510, ''In  
each case [courts] must ask whether the gravity of the  
''evil'', discounted by its improbability, justifies such  
invasion of free speech as is necessary to avoid the  
danger.'' This is how matters stood when hate propaganda  
first came to the attention of the court. 
  
   In Beauharnais v. Illinois, 343 U.S. 250 (1952), a  
closely-divided court upheld the constitutionality of a  
statute bearing some resemblance to s. 319(2) of the  
Canadian Criminal Code, prohibiting exhibition in any public  
place of any publication portraying ''depravity,  
criminality, unchastity, or lack of virtue of a class of  
citizens, of any race, color, creed or religion [which  
exposes such citizens] to contempt, derision or obloquy or  
which is productive of breach of the peace or riots''.  
Frankfurter J., writing the court's opinion, held that the  
statute prohibited libelous utterances directed against  
groups, and that these utterances were outside of the ambit  
of the First Amendment. Quoting from the court's decision in  
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), he stated  
at pp. 255-7: 
  
   Today, every American jurisdiction [punishes] libels  
directed at individuals. ''There are certain well-defined  
and narrowly limited classes of speech, the prevention and  
punishment of which have never been thought to raise any  
Constitutional problem. These include the lewd and obscene,  
the profane, the libelous, and the insulting or 'fighting'  
words -- those which by their very utterance inflict injury  
or tend to incite an immediate breach of the peace. It has  
been well observed that such utterances are no essential  
part of any exposition of ideas, and are of such slight  
social value as a step to truth that any benefit that may be  
derived from them is clearly outweighed by the social  
interest in order and morality...'' 
  
   But the full flowering of First Amendment doctrine came  
after the Beauharnais case. Later cases have weakened its  
authority to the extent that many regard it as overruled. In  
the first place, the U.S. Supreme Court has recognized that  
libel laws do indeed ''raise constitutional problems''. New  
York Times Co. v. Sullivan, 376 U.S. 254 (1964), held that a  
public official, in order to bring an action for libel, had  
to show that the defamatory statement was directed at the  
official personally, and that the maker of the statement had  
actual knowledge that it was false. Secondly, the ''clear  
and present danger'' test went through yet another  
metamorphosis. Brandenburg v. Ohio, 395 U.S. 444 (1969),  
struck down a statute forbidding a person to ''advocat[] the  
duty, necessity, or propriety of crime, sabotage, violence,  
or unlawful methods of terrorism as a means of accomplishing  
industrial or political reform'', in a prosecution of a  
Klansman who showed a film that was derogatory of Negroes  
and Jews and implied that ''revengeance'' should be taken  
against them. The test that emerges from Brandenburg is much  
stricter than the earlier formulations -- advocacy of the  
use of force or violation of the law cannot be proscribed  
''except where such advocacy is directed to inciting or  
producing imminent lawless action and is likely to incite or  
produce such action'' (p. 447). 
  
   The U.S. Supreme Court subsequently refused to grant  
certiorari in two more recent cases which call Beauharnais,  
supra, into question. In Collin v. Smith, 578 F. 2d 1197  
(7th Cir. 1978), a federal court struck down an ordinance  
forbidding the dissemination of any material (including  
public displays of symbolic significance) promoting and  
inciting racial or religious hatred, in a case where  
neo-Nazis proposed a march, complete with swastikas, through  
the predominantly Jewish village of Skokie, Illinois. And in  
American Booksellers Ass'n Inc. v. Hudnut, 771 F. 2d 323  
(7th Cir. 1985), an ordinance forbidding the display of  
''graphic sexually explicit subordination of women'' was  
held to be unconstitutional. The effect of these cases has  
been to undermine the authority of Beauharnais, supra. As  
Tribe, op. cit., at p. 861, n. 2, puts it: 
  
   The continuing validity of the Beauharnais holding is  
very much an open question. See, e.g., Smith v. Collin, 439  
U.S. 916, 919 (1978) (Blackmun, J., dissenting from denial  
of certiorari) (noting that Beauharnais ''has not been  
overruled or formally limited''). In recent years, courts  
have given Beauharnais a very limited reading. In Collin v.  
Smith ... the Seventh Circuit stated that ''(i)t may be  
questioned after such cases as Cohen v. California, (403  
U.S. 15 (1971)), Gooding v. Wilson, (405 U.S. 517 (1972)),  
and Brandenburg v. Ohio, (395 U.S. 444 (1969) (per curiam)),  
whether the tendency to induce violence approach sanctioned  
implicitly in Beauharnais would pass constitutional muster  
today.''... In American Booksellers Ass'n Inc. v. Hudnut ...  
the Seventh Circuit stated that subsequent cases ''had so  
washed away the foundations of Beauharnais that it could not  
be considered authoritative.'' 
  
   It is worth describing a few doctrines associated with  
free speech that form part of the reasoning in the U.S.  
cases, and which are cited in the factums. One is a  
hierarchy of possible abridgements on free speech.  
Legislation against the content of speech has been  
distinguished from legislation restricting speech in other  
ways, with the former attracting stricter judicial scrutiny.  
For example, while ''time, place and manner'' regulation of  
speech has traditionally been given some latitude, an  
ordinance preventing picketing other than labour picketing  
near schools has been struck down because it draws a  
distinction based on content of the speech: Police  
Department of the City of Chicago v. Mosley, 408 U.S. 92  
(1972). Viewpoint-based abridgments of speech, in which the  
government selects between viewpoints, will very rarely be  
justifiable. Section 319(2) of the Criminal Code is probably  
best described as content-based rather than viewpoint-based,  
because the government itself does not choose between  
viewpoints directly. For example, a statement declaring the  
superiority of a particular race is not preferred over a  
declaration suggesting the reverse hierarchy. Rather, all  
discussion of the superiority of a particular race over  
another is potentially suspect. This content-based provision  
is similar in this regard to the statute forbidding  
demonstrations critical of foreign governments within 500  
feet of embassies that was struck down as an impermissible  
content-based restriction on speech in Boos v. Barry, 108  
S.Ct. 1157 (1988). Although not as offensive as  
viewpoint-based restrictions, content-based restrictions on  
speech have attracted ''most exacting scrutiny'' from the  
U.S. Supreme Court, being upheld only if ''necessary to  
serve a compelling state interest and... narrowly drawn to  
achieve that end'': Perry Education Ass'n v. Perry Local  
Educators' Ass'n, 460 U.S. 37 (1983) at p. 45. 
  
   The distinction between content-based and form-based  
restrictions on freedom of speech has been incorporated,  
although in a different form, into the analysis under s.  
2(b) of the Charter: see Irwin Toy, supra. 
  
   Two other concepts employed in the United States in cases  
dealing with the prohibition of dissemination of racist  
literature figured in argument before us. These are the  
concepts of overbreadth and vagueness. Overbreadth is  
defined by Tribe, op. cit., at p. 1056, as follows: 
  
   Statutes which open-endedly delegate to administering  
officials the power to decide how and when sanctions are  
applied or licenses issued are overbroad because they grant  
such officials the power to discriminate -- to achieve  
indirectly through selective enforcement a censorship of  
communicative content that is clearly unconstitutional when  
achieved directly. 
  
   If legitimate activity protected by the First Amendment  
would come within the terms of the statute, the statute may  
be void on its face. Even where the actions of the litigant  
are not themselves worthy of protection, the litigant may  
rely on the constitutional defect of overbreadth.  
Alternatively, an argument of overbreadth may sometimes be  
met by a construction of the statute that clearly confines  
it within constitutional bounds, if one is available (i.e.,  
reading down). If one is not, however, the statute is void  
on its face. 
  
   Vagueness is distinct from overbreadth, and carries  
different consequences in American constitutional law. To  
quote Tribe again at pp. 1033-4: 
  
   Vagueness is a constitutional vice conceptually distinct  
from overbreadth in that an overbroad law need lack neither  
clarity nor precision, and a vague law need not reach  
activity protected by the first amendment. As a matter of  
due process, a law is void on its face if it is so vague  
that persons ''of common intelligence must necessarily guess  
at its meaning and differ as to its application.'' Such  
vagueness occurs when a legislature states its proscriptions  
in terms so indefinite that the line between innocent and  
condemned conduct becomes a matter of guesswork... 
  
   But vagueness is not calculable with precision... []he  
Supreme Court will not ordinarily invalidate a statute  
because some marginal offenses may remain within the scope  
of a statute's language. The conclusion that a statute is  
too vague and therefore void as a matter of due process is  
thus unlikely to be triggered without two findings: that the  
individual challenging the statute is indeed one of the  
entrapped innocent, and that it would have been practical  
for the legislature to draft more precisely. (Citations  
omitted.) 
  
   Thus, vagueness of a statute is a defence only in more  
restrictive circumstances: where the statute is vague as  
applied to the conduct of the litigant, or where it is vague  
in all possible applications. An example of the latter was  
an ordinance making it illegal for ''three or more persons  
to assemble ... on any of the sidewalks ... and there  
conduct themselves in a manner annoying to persons passing  
by'', struck down in Coates v. City of Cincinnati, 402 U.S.  
611 (1971). 
  
   The rationale for invalidating statutes that are  
overbroad (even in a case where the litigant's conduct is  
clearly not protected by the First Amendment) or vague is  
that they have a chilling effect on legitimate speech.  
Protection of free speech is regarded as such a strong value  
that legislation aimed at legitimate ends and in practice  
used only to achieve those legitimate ends may be struck  
down, if it also tends to inhibit protected speech. 
  
   In the United States, a provision similar to s. 319(2) of  
the Criminal Code was struck down in Collin v. Smith, supra,  
on the ground that is was fatally overbroad. In addition,  
the Seventh Circuit Court of Appeals hinted that the  
provision might also be void for vagueness. The ordinance in  
Collin prohibited ''[]he dissemination of any materials  
within the Village of Skokie which promotes and incites  
hatred against persons by reason of their race, national  
origin, or religion, and is intended to do so''. The court  
found that the activity in question in the case -- a  
proposed neo-Nazi demonstration in Skokie, Illinois -- was a  
form of expression entitled to protection under the First  
Amendment. The ordinance, it found, was overbroad in that it  
''could conceivably be applied to criminalize dissemination  
of The Merchant of Venice or a vigorous discussion of the  
merits of reverse racial discrimination in Skokie'' (p. 1207). 
  
   Legislation against the dissemination of racial  
propaganda has also been tested under various international  
instruments, providing a counter-example to the U.S.  
experience. The European Convention for the Protection of  
Human Rights and Fundamental Freedoms contains the following  
articles: 
  
   Article 10 
  
   (1) Everyone has the right to freedom of expression. This  
right shall include freedom to hold opinions and to receive  
and impart information and ideas without interference by  
public authority and regardless of frontiers... 
  
   (2) The exercise of these freedoms, since it carries with  
it duties and responsibilities, may be subject to such  
formalities, conditions, restrictions or penalties as are  
prescribed by law and are necessary in a democratic society,  
in the interests of national security, territorial integrity  
or public safety, for the prevention of disorder or crime,  
for the protection of health or morals, for the protection  
of the reputation or rights of others, for preventing the  
disclosure of information received in confidence, or for  
maintaining the authority and impartiality of the judiciary. 
  
   The European Commission on Human Rights has had little  
difficulty in holding that prosecutions for dissemination of  
racist ideas and literature are permitted under the article:  
see, e.g., Glimmerveen v. Netherlands (1979), 4 E.H.R.R.  
260. In view of the breadth of the limitations clause, which  
specifically mentions the protection of ''health or morals''  
and ''the reputation or the rights of others'', this is  
unsurprising. In other contexts, protection for free  
expression under this article has at times been decidedly  
lukewarm, as befits an international instrument which is  
designed to limit as little as possible the sovereignty of  
the nations that signed it. For example, the European Court  
of Human Rights also upheld prosecution of a bookseller in  
Northern Ireland for distributing The Little Red Schoolbook,  
an educational book on sexuality aimed at 12 to  
18-year-olds, on the grounds that the prosecution was ''for  
the protection of health or morals'': Handyside v. United  
Kingdom (1976), 1 E.H.R.R. 737. 
  
   Other international instruments go further, and require  
state parties to prohibit some forms of hate propaganda. The  
International Covenant on Civil and Political Rights, to  
which Canada is a party, provides as follows: 
  
   Article 19... 
  
   2. Everyone shall have the right to freedom of  
expression... 
  
   3. The exercise of the rights provided for in paragraph 2  
of this article carries with it special duties and  
responsibilities. It may therefore be subject to certain  
restrictions, but these shall only be such as are provided  
by law and are necessary; 
  
   (a) for respect of the rights or reputations of others; 
  
   (b) for the protection of national security or of public  
order... or of public health or morals. 
  
   Article 20... 
  
   2. Any advocacy of national, racial or religious hatred  
that constitutes incitement to discrimination, hostility or  
violence shall be prohibited by law. 
  
   The U.N. Human Rights Committee has dismissed a complaint  
against Canada brought by Mr. Taylor (also appealing to this  
court) on the grounds that Canada was merely carrying out  
its international obligations in proceeding against Mr.  
Taylor for the dissemination of hatred against ethnic  
groups: see Taylor and Western Guard Party v. Canada,  
Communication No. R. 24-104, Report of the Human Rights  
Committee, 38 U.N. GAOR, Supp. No. 40 (A/38/40) 231 (1983)  
(reported in part in (1983), 5 C.H.R.R. D/2097). 
  
   Similar obligations are set forth in another convention  
to which Canada is a party, the International Convention on  
the Elimination of All Forms of Racial Discrimination, Can.  
T.S. 1970, No. 28. Article 4 provides that States Parties: 
  
   Article 4 
  
   (a) Shall declare an offence punishable by law all  
dissemination of ideas based on racial superiority or  
hatred, incitement to racial discrimination as well as all  
acts of violence or incitement to such acts against any race  
or group of persons of another colour or ethnic origin, and  
also the provision of any assistance to racist activities,  
including the financing thereof; 
  
   (b) Shall declare illegal and prohibit organizations, and  
also organized and all other propaganda activities, which  
promote and incite racial discrimination, and shall  
recognize participation in such organizations or activities  
as an offence punishable by law; 
  
   (c) Shall not permit public authorities or public  
institutions, national or local, to promote or incite racial  
discrimination. 
  
   These international instruments embody quite a different  
conception of freedom of expression than the case law under  
the U.S. First Amendment. The international decisions  
reflect the much more explicit priorities of the relevant  
documents regarding the relationship between freedom of  
expression and the objective of eradicating speech which  
advocates racial and cultural hatred. The approach seems to  
be to read down freedom of expression to the extent  
necessary to accommodate the legislation prohibiting the  
speech in question. 
  
   Both the American and international approach recognize  
that freedom of expression is not absolute, and must yield  
in some circumstances to other values. The divergence lies  
in the way the limits are determined. On the international  
approach, the objective of suppressing hatred appears to be  
sufficient to override freedom of expression. In the United  
States, it is necessary to go much further and show clear  
and present danger before free speech can be overridden. 
  
   The Charter follows the American approach in method,  
affirming freedom of expression as a broadly-defined and  
fundamental right, and contemplating balancing the values  
protected by and inherent in freedom of expression against  
the benefit conferred by the legislation limiting that  
freedom under s. 1 of the Charter. This is in keeping with  
the strong liberal tradition favouring free speech in this  
country -- a tradition which had led to conferring  
quasi-constitutional status on free expression in this  
country prior to any bill of rights or Charter. At the same  
time, the tests are not necessarily the same as in the  
United States. 
  
   Having reviewed the American and international experience  
on the subject of hate propaganda, I conclude with a brief  
history of the attempts to curb such expression in Canada. 
  
   Two crimes with ancient roots have been treated as being  
relevant to hate propaganda in Canada. In Boucher v. The  
King, supra, the Crown attempted to charge a Jehovah's  
Witness, who had accused Quebeckers and Catholics of  
persecuting the Witnesses, with the crime of seditious libel  
(currently s. 59 of the Criminal Code ). This court,  
however, held that intention to produce feelings of hatred  
and ill will between different classes of His Majesty's  
subjects fell short of seditious intent. Something more,  
such as intention to disturb order or to resist authority,  
was needed. 
  
   The other offence of general application that has been  
considered relevant to hate propaganda is that of spreading  
false news (currently s. 181 of the Criminal Code ). This  
crime, which may be traced back to the offence De Scandalis  
Magnatum (1275), was originally intended to prohibit the  
spreading of false rumours that would sow discord between  
the King and great men of the realm. The same pamphlet that  
was adjudged not to be a seditious libel in Boucher was the  
subject of a prosecution for spreading false news in R. v.  
Carrier (1951), 104 C.C.C. 75, 16 C.R. 18 (Que. K.B.). The  
court acquitted, holding that s. 181 was similarly  
circumscribed, and could not be applied to a pamphlet that  
was not intended to arouse disorder. More recently, however,  
s. 181 was applied to attacks on Jews that the accused was  
found to have known to be false in R. v. Zundel (1987), 31  
C.C.C. (3d) 97, 35 D.L.R. (4th) 338, 58 O.R. (2d) 129  
(C.A.). Its application to hate propaganda, like the hate  
propaganda offences themselves, has been controversial. 
  
   These provisions, especially in light of the limiting  
court decisions, were regarded by many as being inadequate  
to deal with the perceived problem of hate propaganda. In  
response to the representations of various groups, and after  
a reported upsurge in neo-Nazi activity in the early 1960's  
in Canada, the U.S. and Britain, the Minister of Justice in  
1965 set up a Special Committee to study hate propaganda  
(the Cohen Committee). The Committee reported in 1966, and  
recommended the addition of new offences to the Criminal  
Code. In 1970, after former Committee member Pierre-Elliot  
Trudeau had become Prime Minister, these recommendations  
were acted upon. The Criminal Code was amended by the  
addition of new offences of advocating genocide (s. 318),  
public incitement of hatred likely to lead to a breach of  
the peace (s. 319(1)), and wilful promotion of hatred (s.  
319(2)). 
  
   Strategies for the curtailment of hate propaganda have  
not been confined to the Criminal Code. As far back as 1934,  
s. 19 of the Manitoba Defamation Act, R.S.M. 1987, c. D20  
(then s. 13A of the Libel Act ) provided injunctive relief  
for members of a libelled racial or religious group, where  
such libel was ''likely to expose persons belonging to the  
race, or professing the religious creed, to hatred, contempt  
or ridicule and tend[] to raise unrest or disorder among the  
people''. Subsequently, provisions with potential  
application to hate propaganda were included in various  
human rights statutes. The first of these was Ontario's  
Racial Discrimination Act, 1944, S.O. 1944, c. 51, s. 1,  
which prevented the publication or display of ''any notice,  
sign, symbol, emblem or other representation indicating  
discrimination or an intention to discriminate against any  
person or any class of persons for any purpose because of  
the race or creed of such person or class of persons''.  
Gradually, all Canadian jurisdictions enacted comparable  
provisions, the most recent and far-reaching of these being  
s. 13 of the Canadian Human Rights Act, S.C. 1976-77, c. 33,  
which is under attack in the companion appeal of Canada  
(Human Rights Commission) v. Taylor, S.C.C., No. 20462  
[summarized 24 A.C.W.S. (3d) 311]    The provisions in the  
provincial Acts prohibiting the publication of a ''notice,  
sign, symbol, emblem or other representation'' apply  
paradigmatically to signs with messages such as ''No Blacks  
Allowed''. Some attempt has been made to apply them to hate  
propaganda, but the courts have foreclosed such a broad  
interpretation. Application of the Manitoba provision to a  
series of allegedly discriminatory newspaper articles was  
rejected in Re Warren and Chapman (1984), 11 D.L.R. (4th)  
474, [1984] 5 W.W.R. 454, 29 Man. R. (2d) 172 (Q.B.), and an  
editorial in a student newspaper (including cartoons) that  
was offensive to women was held not to be a  
''representation'' within the meaning of s. 14(1) of the  
Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, in  
Saskatchewan (Human Rights Commission) v. Engineering  
Students' Society (1989), 56 D.L.R. (4th) 604, 72 Sask. R.,  
10 C.H.R.R. #D/5636 (C.A.), leave to appeal refused, 57  
D.L.R. (4th) viii, 81 Sask. R. 160n, [1989] 1 S.C.R. xiv.  
Besides being limited in scope, many of these provisions  
contain an exemption for ''free speech'' or ''free  
expression of opinion'': see, e.g., The Saskatchewan Human  
Rights Code, s. 14(2). 
  
   Section 13 of the federal Act is unique among human  
rights provisions. It declares to be a discriminatory  
practice the repeated communication by telephone of ''any  
matter that is likely to expose a person or persons to  
hatred or contempt by reason of the fact that that person or  
those persons are identifiable on the basis of a prohibited  
ground of discrimination''. It contains no explicit  
exemption for free speech or expression. Enforcement is by  
''cease and desist'' order registrable with the Federal  
Court, which, if violated, can give rise to contempt  
proceedings. 
  
   II. The scope of s. 2(b) of the Charter 


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