Archive/File: fascism/canada/alberta keegstra.scc.4
Last-Modified: 1994/11/11
  
   Section 2(b) of the Charter guarantees freedom of  
thought, belief, opinion and expression in this country. It  
does so in broad terms. The question addressed under this  
heading is whether s. 319(2) of the Criminal Code introduces  
a limit on this broadly defined freedom. 
  
   I turn first to the legal principles governing the  
construction of s. 2(b) of the Charter. The theme  
established in Dolphin, supra, and the cases that followed  
was two-fold. The guarantee of freedom of expression in the  
Charter would be viewed in the light of the ''large and  
liberal'' interpretation which its history justifies and  
which is properly accorded to Charter rights. At the same  
time, freedom of expression was not absolute. It may be  
required to give way to other rights and interests in  
certain situations. 
  
   A series of decisions in this court have addressed the  
implications of these propositions. What is the scope of the  
Charter guarantee of freedom of expression? What sorts of  
expression does it apply to? When can it be defeated by  
other rights or interests? 
  
   The court has accorded a broad scope to s. 2(b). To begin  
with, it has defined ''expression'' broadly. 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. Secondly, it has held  
that the guarantee applies regardless of the nature of the  
content of the expression. The nature of the content of  
expression can never function to exclude it from the  
protection of the Charter. As stated in Irwin Toy (at pp.  
606-7):  
  
   Freedom of expression was entrenched in our Constitution  
... so as to ensure that everyone can manifest their  
thoughts, opinions, beliefs, indeed all expressions of the  
heart and mind, however unpopular, distasteful or contrary  
to the mainstream. 
  
   We cannot ... exclude human activity from the scope of  
guaranteed free expression on the basis of the content or  
meaning being conveyed. Indeed, if the activity conveys or  
attempts to convey a meaning, it has expressive content and  
prima facie falls within the scope of the guarantee. 
  
   (Emphasis added.) Similarly, Lamer J. states in Reference  
re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.)  
(1990), 56 C.C.C. (3d) 65 at p. 108, 77 C.R. (3d) 1, [1990]  
1 S.C.R. 1123, ''Activities cannot be excluded from the  
scope of guaranteed freedom of expression on the basis of  
the content or meaning conveyed.'' 
  
   At the same time, the court has affirmed that freedom of  
speech is not absolute. It may properly be limited. There  
are several ways in which it can be limited. First, there  
are forms of expression which can be distinguished from  
content and which may be excluded from the scope of s. 2(b)  
of the Charter. In Dolphin Delivery it was suggested, in  
obiter dicta, that violence and threats of violence would be  
excluded from the protection offered by s. 2(b). And in  
Irwin Toy, at p. 607, this court stated that ''a murderer or  
rapist cannot invoke freedom of expression in justification  
of the form of expression he has chosen''. 
  
   Secondly, s. 2(b) is violated only if it can be shown  
that the purpose or effect of the government action in  
question (in this case s. 319(2) of the Criminal Code ) was  
to restrict freedom of expression. Where the government's  
aim was not to limit freedom of expression, and this is but  
an incident of its attempt to accomplish another goal, then  
the person complaining of the infringement must show that  
its effect was to infringe his constitutional freedom. Here,  
the composite rationale for freedom of expression suggested  
by Emerson and others has been given a limited role. To make  
out a violation of s. 2(b) where the government infringement  
of expression is incidental to its pursuit of another goal,  
a complainant must show that one of the suggested values  
underlying the guarantee is infringed, these being three.  
First, ''seeking and attaining the truth is an inherently  
good activity.'' Secondly, ''participation in social and  
political decision-making is to be fostered and  
encouraged.'' Third, ''the diversity in forms of individual  
self-fulfillment and human flourishing ought to be  
cultivated in an essentially tolerant, indeed welcoming,  
environment not only for the sake of those who convey a  
meaning, but also for the sake of those to whom it is  
conveyed'': Irwin Toy, at p. 612. Thus, a government action  
not aimed at suppressing free expression will constitute a  
violation only if the complainant can show that one of these  
values is implicated in protecting his or her expression. 
  
   Applying these principles, the first step in an analysis  
under s. 2(b) of the Charter is to determine whether the  
impugned activity or legislation, given its form and  
content, lies within the sphere of conduct protected by the  
guarantee of freedom of expression. If it does, the next  
step is to determine whether the purpose or effect of the  
government action is to restrict freedom of expression. If  
the answers to both these questions are affirmative, a  
breach of the section is established and it is necessary to  
consider whether the government action or legislation is  
saved under s. 1 of the Charter. 
  
   I turn then to the question of whether the expression  
here at issue falls within the sphere of conduct protected  
by the guarantee of freedom of expression in the Charter. As  
this court has repeatedly affirmed, the content of a  
statement cannot deprive it of the protection accorded by s.  
2(b), no matter how offensive it may be. The content of Mr.  
Keegstra's statements was offensive and demeaning in the  
extreme; nevertheless, on the principles affirmed by this  
court, that alone would appear not to deprive them of the  
protection guaranteed by the Charter. 
  
   Three arguments are advanced in support of the  
proposition that statements violating s. 319(2) do not fall  
within the sphere of protection accorded to freedom of  
speech by s. 2(b) of the Charter. The first is the argument  
that the form of the statements is not protected because  
they are akin to violence or threats of violence and are  
thus excluded from s. 2(b). The second is the submission  
that, for a variety of reasons including other provisions of  
the Charter and Canada's international obligations, s. 2(b)  
should be construed as not extending to this type of speech.  
The third is the argument that the promotion of hatred is  
evil and of no redeeming value and hence not worthy of  
protection. I shall consider each of these arguments in turn. 
  
   A. The argument based on violence 
  
   The first argument is that promoting hatred is equivalent  
to threats of violence and hence, assumes a form which falls  
outside the protected sphere of s. 2(b). As already noted,  
this court held in Dolphin Delivery, supra, that freedom of  
expression does not extend to protect threats or acts of  
violence. Relying on this jurisprudence, it was argued  
before us that in so far as Mr. Keegstra's statements  
promote hatred, they are analogous to threats of violence  
and are therefore not protected. 
  
   This argument depends on an extension of the category of  
exceptions to s. 2(b), since it is plain that Mr. Keegstra's  
statements constituted neither a ''threat'' nor an ''act of  
violence''. ''Threat'' is defined in Mozley & Whiteley's Law  
Dictionary, 10th ed. (1988), as follows ''Any menace of such  
a nature and extent as to unsettle the mind of the person on  
whom it operates, and to take away from his acts that free  
voluntary action which alone constitutes consent.'' While  
many may find Mr. Keegstra's ideas unsettling, it is not  
suggested that they are made with the intention or have the  
effect of compelling Jewish people or anyone else to do one  
thing or another. Nor do they urge violence against the  
Jewish people. This was the context in which ''threat'' was  
used in Dolphin Delivery, supra. Mr. Keegstra's  
communications were offensive and propagandistic, but they  
did not constitute threats in the usual sense of that word. 
  
   Nor do Mr. Keegstra's words fulfill the requirement of  
violence. The primary meaning of the word ''violence''  
according to the Shorter Oxford English Dictionary, 3rd ed.  
(1987) is ''[]he exercise of physical force so as to inflict  
injury on or damage to persons or property.'' This is the  
sense in which the term was used in Dolphin Delivery, as is  
evident from the following passage at p. 187: ''That  
freedom, of course, would not extend to protect threats of  
violence or acts of violence. It would not protect the  
destruction of property, or assaults, or other clearly  
unlawful conduct.'' Violence as discussed in Dolphin  
Delivery and Irwin Toy connotes actual or threatened  
physical interference with the activities of others. 
  
   I conclude that Keegstra's statements do not constitute  
either violence or threats of violence. This leaves for  
consideration the alternative argument that statements  
calculated to promote hatred are akin to threats of violence  
and should be excluded from s. 2(b) on this ground. 
  
   In general, I would be reluctant to widen an exception to  
a Charter right or freedom, absent a clear showing of social  
or logical necessity. Such a necessity is present in the  
case of violence or threats of violence. Is this equally  
present in the case of hate propaganda? 
  
   I think not. The justification for excluding violence as  
a protected form of expression is not just that violence is  
harmful to the victim, it is rather that violence is  
inimical to the rule of law on which all rights and freedoms  
depend. Threats of violence are similarly inimical. They are  
coercive, taking away free choice and undermining freedom of  
action. Most fundamentally, they undercut one of the  
essential justifications of free expression -- the role of  
free expression in enhancing the freedom to choose between  
ideas (the argument based on truth) or between courses of  
conduct (the argument based on democracy). Being  
antithetical to the values underlying the guarantee of free  
expression, it is logical and appropriate that violence and  
threats of violence be excluded from its scope. 
  
   How does promotion of hatred compare? In some contexts,  
it is not inimical to the workings of democracy. For  
example, in the heat of political debate protagonists  
frequently make overstated attacks that could easily be  
described as ''promoting hatred''. Opponents are called  
incompetent, or corrupt, or unintelligent -- or worse.  
Groups of opponents -- for example, cabinet ministers or  
members of the opposing party -- may be categorically  
vilified. Yet, even assuming an intention to promote hatred  
of members of those groups or the foresight that hatred may  
result, there is nothing in the form of such statements  
which subverts democracy or our basic freedoms in the way in  
which violence or threats of violence may. There may of  
course be a world of difference between such statements and  
expression covered by s. 319(2), but that is a difference of  
content, not form. 
  
   It has been suggested that hate propaganda undermines the  
guarantee of free expression by attacking the credibility of  
speakers belonging to vilified groups, thereby reducing  
their ability to effectively communicate: see A. Fish,  
''Hate Promotion and Freedom of Expression: Truth and  
Consequences'', 2 Can. J.L. & Juris. 111 (1989). There are  
several difficulties with this argument. The first is that  
it rests on the assumption that freedom of expression  
includes the right to be believed. I know of no historical  
or philosophical basis for such a proposition. The  
underlying assumption of the ''market-place of ideas''  
justification for free speech as well as the justification  
on political grounds is that many ideas will be rejected.  
Even the rationale of self-actualization does not support a  
right to be considered or believed. Freedom of expression  
guarantees the right to loose one's ideas on the world; it  
does not guarantee the right to be listened to or to be  
believed. 
  
   A second difficulty with this argument is that it would  
justify the suppression of much valuable expression. It is  
impossible to imagine a vigorous political debate on a  
contentious issue in which the speakers did not seek to  
undermine the credibility of the ideas, conclusions and  
judgment of their opponents. Yet such debate is essential to  
the maintenance and functioning of our democratic  
institutions. In support of this argument, it might be  
asserted that justifiable speech should be confined to  
rational argument on the issues and should not extend to  
non-rational attacks on credibility. But who is to decide  
what is rational argument and what is not? Furthermore, it  
should be permissible in vigourous debate to go beyond  
rational arguments on the merits and attack the credibility  
of one's opponent. Lack of credibility in the proponent of  
an idea is an important and justifiable reason for rejecting  
a position. In short, to suggest that speech which  
undermines the credibility of speakers belonging to  
particular groups does not fall within s. 2(b) of the  
Charter, is to remove from the protection of the Charter an  
enormous amount of speech which has long been accepted as  
important and valuable. I cannot accept that s. 2(b) should  
be so limited. 
  
   I conclude that statements promoting hatred are not akin  
to violence or threats of violence, and that the argument  
that they should for this reason be excluded from the  
protection of s. 2(b) of the Charter should be rejected. 
  
   B. The construction arguments 
  
   These submissions urge that s. 2(b) of the Charter should  
not be construed as extending to statements which offend s.  
319(2) of the Criminal Code. The arguments are founded on  
three distinct considerations: s. 15 of the Charter, s. 27  
of the Charter; and Canada's international obligations. 
  
   (1) The argument based on s. 15 of the Charter 
  
   The first argument is that the scope of s. 2(b) is  
diminished by s. 15 of the Charter. This argument is based  
on the principle of construction that where possible, the  
provisions of a statute should be read together so as to  
avoid conflict. The guarantee of equality in s. 15, it is  
submitted, is offended by speech which denigrates a  
particular ethnic or religious group. The competing values  
reflected by the two sections might therefore be reconciled  
by informing the content of s. 2(b) with the values of s.  
15. Accordingly, the freedom of expression guarantee should  
be read down to exclude from protected expression statements  
whose content promotes such inequality. 
  
   It is important initially to define the nature of the  
potential conflict between s. 2(b) and s. 15 of the Charter.  
This is not a case of the collision of two rights which are  
put into conflict by the facts of the case. There is no  
violation of s. 15 in the case at bar, since there is no law  
or state action which puts the guarantee of equality into  
issue. The right granted by s. 15 is the right to be free  
from inequality and discrimination effected by the state.  
That right is not violated in the case at bar. The conflict,  
then, is not between rights, but rather between philosophies. 
  
   There are two significant considerations which militate  
against an acceptance of the argument based on s. 15. First,  
it is important to consider the nature of the two guarantees  
in question. On the one hand, s. 2(b) confers on each  
individual freedom of expression, unconstrained by state  
regulation or action, and subject only to a possible  
limitation under s. 1. On the other hand s. 15 grants the  
right to be free from inequality and discrimination effected  
by the state. Given that the protection under s. 2(b) is  
aimed at protecting individuals from having their expression  
infringed by the government, it seems a misapplication of  
Charter values to thereby limit the scope of that individual  
guarantee with an argument based on s. 15, which is also  
aimed at circumscribing the power of the state. 
  
   I do not mean to suggest that different sections of the  
Charter are irrelevant to the task of defining the content  
of individual guarantees. Indeed, the principles underlying  
its various provisions reflect many of the fundamental  
values of Canadian society. In some instances,  
interpretation of a particular section may be aided by  
relying on the values expressed in other provisions to place  
the guarantee in question in its proper historical and  
philosophical light. In the present case, however, I do not  
agree that the protection s. 15 provides against government  
action should be used to erode the scope of protection  
provided for an individual's expression. 
  
   This conclusion is supported by a second factor which  
weighs against limiting the scope of freedom of expression  
on the basis of the guarantee of s. 15. The cases where this  
court has considered the meaning of s. 2(b) have expressly  
rejected the suggestion that certain statements should be  
denied the protection of the guarantee on the basis of their  
content. This court has repeatedly affirmed that no matter  
how offensive or disagreeable the content of the expression,  
it cannot on that account be denied protection under s. 2(b)  
of the Charter: see Irwin Toy and Reference re ss. 193 and  
195.1(1)(c) of the Criminal Code (Man.), supra. The argument  
based on s. 15 is clearly opposed to this principle, as it  
suggests that protection be denied expression whose content  
conflicts with the values underlying the s. 15 guarantee. 
  
   Even if these difficulties could be surmounted, one would  
be faced with the prospect of cutting back a freedom  
guaranteed by the Charter on the basis that the exercise of  
the freedom may run counter to the philosophy behind another  
section of the Charter. Wilson J. in Edmonton Journal v.  
Alberta (Attorney-General) (1989), 64 D.L.R. (4th) 577,  
[1989] 2 S.C.R. 1326, 45 C.R.R. 1, discusses the  
impossibility of deciding between competing values under the  
Charter in the abstract, and emphasizes the need to weigh  
conflicting values in the factual context of the case. The  
exercise of weighing s. 2(b) of the Charter against s. 15  
would pose just such difficulties. The alleged breach of s.  
2(b) can be placed in a factual context. But since there is  
no breach of s. 15, the value to be weighed on that side of  
the balance cannot be placed in a factual context. This  
would render the exercise of balancing the conflicting  
values extremely difficult. 
  
   Assuming such balancing were to be done, the further  
question would arise of whether it would more appropriately  
take place under s. 1 than under s. 2(b). The rejection by  
the court of narrowing the scope of s. 2(b) on the basis of  
content in cases such as Irwin Toy, the contextual  
considerations raised by Wilson J. in Edmonton Journal, and  
consideration of where the burden of proof should lie in  
restricting rights and freedoms -- all these suggest that  
restrictions on the broad definition of free expression  
found in s. 2(b) may well be more appropriately made under  
s. 1. 
  
   I conclude that this court should not reduce the scope of  
expression protected by s. 2(b) of the Charter because of s.  
15 of the Charter. 
  
   (2) The argument based on s. 27 of the Charter 
  
   Section 27 states that the Charter shall be interpreted  
in a manner consistent with the preservation and enhancement  
of the multicultural heritage of Canadians. Similar  
considerations apply here as applied to the argument based  
on s. 15 of the Charter. As in the case of the s. 15  
argument, there is no conflict of rights, s. 27 embodying  
not a right or freedom but a principle of construction. As  
in the case of the s. 15 argument, the submission under s.  
27 amounts to advocating that certain statements be denied  
protection under s. 2(b) because of their content, an  
approach which this court has rejected. Using s. 27 to limit  
the protection guaranteed by s. 2(b) is likewise subject to  
the objection that it would leave unprotected a large area  
of arguably legitimate social and political debate. All this  
is not to mention the difficulty of weighing abstract values  
such as multiculturalism in the balance against freedom of  
speech. 
  
   Further difficulties are not hard to conjure up.  
Different people may have different ideas about what  
undermines multiculturalism. The issue is inherently vague  
and to some extent a matter of personal opinion. For  
example, it might be suggested that a statement that Canada  
should not permit immigration from a certain part of the  
world is inconsistent with the preservation and enhancement  
of multiculturalism. Is s. 2(b) to be cut back to eliminate  
protection for such a statement, given the differing  
opinions one might expect on such a matter? It may be  
argued, moreover, that a certain latitude for expression of  
derogatory opinion about other groups is a necessary  
correlative of a multicultural society, where different  
groups compete for limited resources. 
  
   For example, in R. v. Buzzanga and Durocher (1979), 49  
C.C.C. (2d) 369, 101 D.L.R. (3d) 488, 25 O.R. (2d) 705  
(C.A.), a case prosecuted under s. 319(2), the alleged  
hateful statements arose over the question of whether a  
French school should be built in a predominantly anglophone  
area. Such statements are regrettable. But before concluding  
that they should be denied all constitutional protection in  
all circumstances -- which is the effect of removing them  
from s. 2(b) -- we must ask ourselves hard questions. Will  
repression of such opinions deepen rather than alleviate  
irrational prejudices? Is not the ideal of toleration,  
fundamental to our traditional concept of free expression,  
also the essence of multiculturalism, and can  
multiculturalism truly be promoted by denying that ideal?  
Given the fact that removal of speech from s. 2(b) is to  
deny it any protection regardless of the circumstances, is  
it appropriate where such debates exist to remove statements  
argued to undermine multiculturalism from s. 2(b)? Questions  
such as these point out the difficulty inherent in  
determining with any precision what statements would be  
excluded from s. 2(b) on the ground that they undermine our  
multicultural heritage. 
  
   Before leaving this point I would add that there is no  
evidence that the impugned legislation in fact contributes  
to the enhancement and preservation of multiculturalism in  
Canada. Reliance, therefore, on s. 27 to tailor or otherwise  
cut back the protection afforded by s. 2(b) risks  
undercutting the fundamental freedom with no guarantee of a  
tangible benefit in return. In my opinion, the weighing of  
interests and values implicit in questions such as these is  
better accomplished under s. 1 of the Charter. 
  
   (3) The argument based on international law 
  
   The third argument based on construction is the  
international law argument. It is argued that exclusion of  
hate propaganda from the guarantee of freedom of speech is  
consistent with various international covenants, to some of  
which Canada is party. While this court is not bound to  
follow international law in its interpretation of Charter  
rights and freedoms ( Reference re Public Service Employee  
Relations Act (Alta.) (1987), 38 D.L.R. (4th) 161, [1987] 1  
S.C.R. 313, 28 C.R.R. 305), it is urged that as a matter of  
construction this court should interpret s. 2(b) in a manner  
consistent with the international viewpoint. 
  
   I have earlier alluded to the different philosophies  
toward freedom of speech which inform the international  
tradition on the one hand and the American tradition on the  
other. The international tradition tends to define freedom  
of expression in a way which accommodates state legislation  
curtailing hate propaganda, thus precluding any debate about  
whether such measures infringe freedom of expression, and if  
so, whether they are justified. I have suggested that this  
is not the model of the Canadian Charter, which consistent  
with the pre- Charter quasi-constitutional status accorded  
to freedom of expression in this country posits a broad and  
unlimited right of expression under s. 2(b), a right which  
can be cut back only under s. 1 upon the state demonstrating  
that the limit or infringement of the freedom is reasonably  
justified in a free and democratic society. 
  
   Quite apart from this difference in approach, another  
consideration persuades me that it would be wrong to cut  
back the scope of s. 2(b) on the ground that Canada has  
signed treaties which are inconsistent with affording  
protection to racial propaganda. 
  
   This argument, like the arguments under ss. 15 and 27 of  
the Charter, would require cutting down the protection  
offered by s. 2(b) of the Charter on the basis of the  
content of the statements sought to be protected. It would  
deny certain statements constitutional protection because  
their content is intended to promote discrimination and  
hatred of certain groups in society. This court has  
expressly rejected such a course. 
  
   Canada's international obligations, and the accords  
negotiated between international governments may well be  
helpful in placing Charter interpretation in a larger  
context. Principles agreed upon by free and democratic  
societies may inform the reading given to certain of its  
guarantees. It would be wrong, however, to consider these  
obligations as determinative of or limiting the scope of  
those guarantees. The provisions of the Charter, though  
drawing on a political and social philosophy shared with  
other democratic societies, are uniquely Canadian. As a  
result, considerations may point, as they do in this case,  
to a conclusion regarding a rights violation which is not  
necessarily in accord with those international covenants. 
  
   I should add that I am not of the view that any measures  
taken to implement Canada's international obligations to  
combat racial discrimination and hate propaganda must  
necessarily be unconstitutional. The obligations expressed  
in the International Covenant on Civil and Political Rights  
(to prohibit by law ''[]ny advocacy of national, racial or  
religious hatred that constitutes incitement to  
discrimination, hostility or violence'') and the  
International Convention on the Elimination of All Forms of  
Racial Discrimination (to ''declare an offence punishable by  
law all dissemination of ideas based on racial superiority  
or hatred'') are general in nature. Details of methods to be  
used are not specified. Nothing in those instruments compels  
enactment of s. 319(2), as opposed to other provisions  
combatting racism. 
  
   I conclude that none of the arguments which are advanced  
for construing s. 2(b) of the Charter narrowly to exclude  
from its protection, statements offending s. 319(2) of the  
Criminal Code can prevail. 
  
   C. Absence of redeeming value 
  
   The fundamental premise of the arguments advanced under  
this head is that only justified or meritorious expression  
is protected under s. 2(b). These arguments take several  
forms. 
  
   The first is the contention that the protection of the  
wilful promotion of hatred was never within the  
contemplation of the framers of the Charter and therefore  
can be criminalized without the necessity of meeting the  
standard of justification of s. 1. This argument draws on  
the language of Hunter v. Southam Inc. (1984), 14 C.C.C.  
(3d) 97 at p. 105, 11 D.L.R. (4th) 641, [1984] 2 S.C.R. 145,  
and R. v. Big M Drug Mart Ltd. (1985), 18 C.C.C. (3d) 385 at  
pp. 423-4, 18 D.L.R. (4th) 321, [1985] 1 S.C.R. 295, to the  
effect that Charter rights must be interpreted purposively,  
in light of the interests they were meant to protect, and in  
their proper linguistic, philosophic and historical  
contexts. Freedom of expression, although historically  
recognized as an important value in Canadian society, has  
never been absolute, it is pointed out. Libel and slander  
laws, as well as the hate-mongering sections of the Criminal  
Code, were accepted as limits on freedom of expression  
before the adoption of the Charter and should continue to be  
accepted, the argument goes. 
  
   This argument amounts to saying that the right to free  
expression enshrined in the Charter must be confined to the  
ambit of the rules affecting free speech which preceded the  
Charter. Generally, this court has not taken such a  
restrictive approach to Charter rights and freedoms, but has  
preferred a large and generous interpretation. This is in  
keeping with the fact that the principles enshrined in the  
Charter are general and fundamental. The spirit of the  
jurisprudence that preceded the Charter may infuse the  
interpretation of these rights, but it should not unduly  
constrain the development of principles which may better  
reflect the broad and progressive spirit of the Charter. 
  
   The argument, furthermore, is rebutted by the pre-  
Charter cases themselves. For example, the British common  
law made the promotion of ill-will and hostility between  
subjects the offence of criminal sedition. This court in  
Boucher, supra, however, held that the principle of free  
speech required that the traditional definition of criminal  
sedition be narrowed to encompass only the intention to  
incite people to actual violence, disorder or unlawful  
conduct. Thus, even before the Charter, this court was not  
prepared to accept historical legal limitations on  
expression where they conflicted with the larger Canadian  
conception of free speech. 
  
   Another version of this argument looks to the generally  
accepted justifications for protecting freedom of speech,  
such as truth, democracy and self-fulfillment, and asks  
whether ''hate-mongering'' does anything to further those  
values. 
  
   The first difficulty with this argument is that none of  
the previous decisions of this court involving free speech  
have followed such an approach. In Ford, as already  
mentioned, the court declined to apply such an analysis to  
s. 2(b), on the ground that it related more to the  
consideration of competing claims under s. 1. The arguments  
from truth, democracy and self-fulfillment were given a  
limited role in the interpretation of s. 2(b) in Irwin Toy,  
but only in cases where there is no clear government purpose  
of restricting free expression. The expression in issue in  
Irwin Toy had little redeeming value. That was why the  
government had banned it, a legislative act which the court  
upheld as justified under s. 1. Nevertheless, the court had  
little difficulty finding that the limitation of such speech  
infringed the guarantee of freedom of expression in s. 2(b)  
of the Charter. 
  
   The argument, moreover, is essentially circular. If one  
starts from the premise that the speech covered by s. 319(2)  
is dangerous and without value, then it is simple to  
conclude that none of the commonly offered justifications  
for protecting freedom of expression are served by it. 
  
   Another problem with this approach is the difficulty of  
determining when speech has redeeming value. In cases such  
as the present, it may be easy to achieve near-unanimous  
consensus that the statements contribute nothing positive to  
our society. But the proposition underlying this argument is  
not confined to such cases. In order to make their case,  
those advancing the argument must establish, inter alia,  
that all expression potentially affected by s. 319(2) of the  
Criminal Code is irrelevant to the workings of  
representative democracy. To come within the ambit of  
potential prosecution under s. 319(2) speech need only  
wilfully demean an identifiable group. (To be ''wilful'',  
the speaker must have as his conscious purpose the promotion  
of hatred, or foresee that it is certain or morally certain  
to occur: Buzzanga, supra. However, such purpose or  
foresight may be readily inferred in cases of highly  
controversial speech.) Is it unimaginable that questions of  
public policy should involve speech of this kind? The  
Canadian Civil Liberties Association raises the example of a  
native leader making bitter comments about whites in  
frustration with governmental failure to recognize land  
claims. Bitter debate arising from the language of schooling  
has given rise to prosecution under s. 319(2): Buzzanga.  
Experience shows that in actual cases it may be difficult to  
draw the line between speech which has value to democracy or  
social issues and speech which does not. 
  
   Attempts to confine the guarantee of free expression only  
to content which is judged to possess redeeming value or to  
accord with the accepted values strike at the very essence  
of the value of the freedom, reducing the realm of protected  
discussion to that which is comfortable and compatible with  
current conceptions. If the guarantee of free expression is  
to be meaningful, it must protect expression which  
challenges even the very basic conceptions about our  
society. A true commitment to freedom of expression demands  
nothing less. 
  
   D. The scope of s. 2(b)--summary 
  
   I cannot accept the arguments which have been advanced  
for the proposition that s. 2(b) does not afford protection  
to statements wilfully promoting hatred under s. 319(2) of  
the Criminal Code. Instead, I return to the affirmation in  
Irwin Toy that if the activity being regulated has  
expressive content, and does not convey a meaning through a  
violent form, then it is prima facie protected by s. 2(b) of  
the Charter. Provided that the further condition is  
established that the purpose or effect of the government  
action in issue is to restrict freedom of expression, the  
case for infringement of s. 2(b) has been made out. Both  
conditions are met in this case. Section 319(2) is directed  
at the content of certain statements. It applies where the  
meaning is conveyed in a non-violent form. And finally, its  
purpose is to curtail what people may say. 
  
   The infringement of s. 2(b) is established, and the  
analysis must proceed to the test of justification under s.  
1 of the Charter. 
  
   III: Section 11(d)--The presumption of innocence 
  
   Section 319(3) of the Criminal Code provides several  
defences. One of them, s. 319(3)(a), is the defence of  
truth. The origins of this defence may be found in the  
report of the Cohen Committee, which led to the adoption of  
s. 319(2). That report affirmed that the truth should be a  
defence to the criminal charge of promoting hatred. 
  
   Under s. 319(3)(a), where the Crown proves beyond a  
reasonable doubt that the accused wilfully promoted hatred  
against an identifiable group, the accused will escape  
liability ''if he establishes that the statements  
communicated were true''. With regard to this, the first and  
most important of the defences established by s. 319(3), it  
is clear that the burden of proof lies on the accused. The  
question is whether this violates the presumption of  
innocence in s. 11(d) of the Charter. 
  
   In my view, the answer to this question is governed by  
this court's decision R. v. Whyte (1988), 42 C.C.C. (3d) 97,  
51 D.L.R. (4th) 481, [1988] 2 S.C.R. 3. There Dickson  
C.J.C., writing for the court, found that the crime of  
driving or having care or control of a motor vehicle while  
impaired, combined with a provision that occupancy of the  
driver's seat shall be deemed to be having care and control  
of the vehicle, offended s. 11(d) of the Charter. The Chief  
Justice reiterated the view that he had taken earlier in R.  
v. Holmes (1988), 41 C.C.C. (3d) 497 at p. 513, 50 D.L.R.  
(4th) 680, [1988] 1 S.C.R. 914, that: ''The basic principle  
of the common law has been that the accused need not prove a  
defence.'' He stated at p. 109: 
  
   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 fundamental principle that the accused cannot be  
required to prove a defence without an infringement of s.  
11(d) resulting was not altered, in my view, by the decision  
of this court in R. v. Schwartz (1988), 45 C.C.C. (3d) 97,  
55 D.L.R. (4th) 1, [1988] 2 S.C.R. 443. The majority in  
Schwartz accepted the principle enunciated in Whyte, but  
took the view that the production of a firearms certificate  
by the accused did not constitute a defence, concluding, at  
p. 129, that ''[]here is no reverse onus imposed upon the  
accused...'' in that ''[]e is not required to prove or  
disprove any element of the offence...''. 
  
   It suffices for the purposes of this case to say that  
that is not so here. Parliament has expressly made falsity  
an element of the offence by providing that truth  
constitutes a defence. To say that falsity is not an element  
of the offence is to say that the offence is established  
regardless of the truth or falsity of the statement.  
Clearly, this was not Parliament's intention. It made truth  
a defence. By placing the burden of establishing that truth  
on the accused, it has contravened the basic principle that  
the accused need not prove a defence. 
  
   The argument that it is unworkable to require the Crown  
to prove the falsity of the statements alleged to contravene  
s. 319(2) of the Criminal Code is more appropriately  
considered under s. 1 than under s. 11(d). 
  
   I conclude that s. 319(3)(a) of the Criminal Code  
violates s. 11(d) of the Charter. 
  
   IV. The analysis under s. 1 
  
   A. Section 1 and the infringement of freedom of expression 
  
   The court's function under s. 1 of the Charter is that of  
weighing and balancing. Before reaching s. 1, the court must  
already have determined that the law in question infringes a  
right or freedom guaranteed by the Charter. The infringement  
alone, however, does not mandate that the law must fall. If  
the limit the law imposes on the right infringed is  
''reasonable'' and ''can be demonstrably justified in a free  
and democratic society'', the law is valid. The  
demonstration of this justification, the burden of which  
lies on the state, involves proving that there are other  
rights or interests which outweigh the right infringed in  
the context of that case. 
  
   The task which judges are required to perform under s. 1  
is essentially one of balancing. On the one hand lies a  
violation or limitation of a fundamental right or freedom.  
On the other lies a conflicting objective which the state  
asserts is of greater importance than the full exercise of  
the right or freedom, of sufficient importance that it is  
reasonable and ''demonstrably justified'' that the  
limitation should be imposed. The exercise is one of great  
difficulty, requiring the judge to make value judgments. In  
this task logic and precedent are but of limited assistance.  
What must be determinative in the end is the court's  
judgment, based on an understanding of the values our  
society is built on and the interests at stake in the  
particular case. As Wilson J. has pointed out in Edmonton  
Journal, this judgment cannot be made in the abstract.  
Rather than speak of values as though they were Platonic  
ideals, the judge must situate the analysis in the facts of  
the particular case, weighing the different values  
represented in that context. Thus, it cannot be said that  
freedom of expression will always prevail over the objective  
of individual dignity and social harmony, or vice versa. The  
result in a particular case will depend on weighing the  
significance of the infringement on freedom of expression  
represented by the law in question, against the importance  
of the countervailing objectives, the likelihood the law  
will achieve those objectives, and the proportionality of  
the scope of the law to those objectives. 
  
   The test set out in R. v. Oakes (1986), 24 C.C.C. (3d)  
321, 26 D.L.R. (4th) 200, [1986] 1 S.C.R. 103, provides a  
guide for the analysis under s. 1 which reflects the  
essential task of balancing conflicting values in the  
context of the case at hand. Two conditions must be  
satisfied if a law limiting constitutionally guaranteed  
rights and freedoms is to be sustained under s. 1. First,  
the objective which the limit is designed to serve must be  
of sufficient importance to warrant overriding a  
constitutionally protected right. Second, if such an  
objective is established, the party invoking s. 1 must show  
that the means chosen to attain the objective are reasonably  
and demonstrably justified in a free and democratic society.  
To conclude that the means chosen are reasonable and  
demonstrably justified, the court must be satisfied of three  
things: 
  
   1. The measures designed to meet the legislative  
objective (in this case s. 319(2) of the Criminal Code )  
must be rationally connected to the objective;    2. The  
means used should impair as little as possible the right or  
freedom in question, and 
  
   3. There must be proportionality between the effect of  
the measures which limit the Charter right or freedom and  
the legislative objective of the limit on those rights. This  
involves balancing the invasion of rights guaranteed by the  
Charter against the objective to which the limitation of  
those rights is directed. 
  
   (1) The objective of s. 319(2) of the Criminal Code 
  
   In Oakes Dickson C.J.C., speaking for the majority,  
stated that the first consideration in an analysis under s.  
1 is that the objective be ''of sufficient importance to  
warrant overriding a constitutionally protected right or  
freedom'' (p. 348). Quoting from R. v. Big M Drug Mart Ltd.,  
supra, he observed that the standard must be high in order  
to ensure that objectives of a trivial nature do not gain s.  
1 protection. The objective must be of a pressing and  
substantial nature before it can be characterized as  
sufficiently important to override a Charter right. 
  
   The objective of s. 319(2) of the Criminal Code is to  
prevent the promotion of hatred toward identifiable groups  
within our society. As the Attorney-General of Canada puts  
it, the objective of the legislation is, ''among other  
things, to protect racial, religious and other groups from  
the wilful promotion of hatred against them, to prevent the  
spread of hatred and the breakdown of racial and social  
harmony, and ''to prevent the destruction of our  
multicultural society''. These aims are subsumed in the twin  
values of social harmony and individual dignity. 
  
   These are laudable goals and serious ones. The objectives  
are clearly of a substantial nature. Given the history of  
racial and religious conflict in the world in the past 50  
years, they may be said to be pressing, even though it is  
not asserted that an emergency exists in Canada. The Report  
of the Special Committee on Hate Propaganda in Canada  
(1966), at pp. 11-5, (the Cohen Report) provides an  
empirical foundation for the submission that defamation of  
particular groups is a pressing and substantial concern in  
Canada. Evidence of current and continuing public concern  
about racial and religious tension in Canada generally and  
the subject matter of s. 319(2) in particular, is found in  
Equality Now! (1984), the report of the House of Commons  
Special Committee on Participation of Visible Minorities in  
Canadian Society, at pp. 1-6 and 69-74. 
  
   The continued existence of hateful communication in  
Canada is symptomatic of an unfortunate reality that while  
Canadians often pride themselves for maintaining a tolerant  
and welcoming society, it is undermined by the persistence  
of racial and religious division. The conflict is harmful  
both to the individuals and groups who are the target of  
prejudice, and to society as a whole. Members of minority  
groups are inclined to consider themselves outsiders in  
their country, and may be inhibited from contributing to the  
extent of their desire and ability. The loss of this  
potential talent and ability threatens to deprive Canada of  
the skills and talents of those who feel excluded and  
unwelcome. Moreover, the animosity created by ignorance and  
hatred further exacerbates the divisions of a nation. 
  
   The problem is not new, but neither is it quickly  
disappearing. As the Annual Report 1989 of the Canadian  
Human Rights Commission strongly remarked, intolerance among  
Canadians towards members of different groups remains a  
serious problem (at p. 22): 
  
   The demons of racial and cultural prejudice have never  
been either officially or unofficially exorcised from  
Canadian society. We may, on occasion, have been marginally  
more enlightened than our southern neighbours, but instances  
of racism and intolerance are deeply etched in the  
historical record and, for that matter, not hard to find in  
the daily newspapers. 
  
   Given the problem of racial and religious prejudice in  
this country, I am satisfied that the objective of the  
legislation is of sufficient gravity to be capable of  
justifying limitations on constitutionally protected rights  
and freedoms. 
  
   (2) Proportionality 
  
   (a) General Considerations 
  
   The real question in this case, as I see it, is whether  
the means -- the criminal prohibition of wilfully promoting  
hatred -- are proportional and appropriate to the ends of  
suppressing hate propaganda in order to maintain social  
harmony and individual dignity. The objective of the  
legislation is one of great significance, such significance  
that it is capable of outweighing the fundamental values  
protected by the Charter. The ultimate question is whether  
this objective is of sufficient importance to justify the  
limitation on free expression effected by s. 319(2) of the  
Criminal Code. In answering this question, the court must  
consider not only the importance of the right or freedom in  
question and the significance of its limitation, but whether  
the way in which the limitation is imposed is justifiable.  
How serious is the infringement of the constitutionally  
guaranteed freedom, in this case freedom of expression? Is  
the limiting measure likely to further the objective in  
practice? Is the limiting measure overbroad or unnecessarily  
invasive? In the final analysis, bearing all these things in  
mind, does the benefit to be derived from the legislation  
outweigh the seriousness of the infringement? These are the  
considerations relevant to the question of the  
proportionality of the limiting law. 
  
   I have said that the contest in this case lies between  
the fundamental right of free expression on the one hand,  
and the values of social harmony and individual liberty on  
the other. In approaching the difficult task of determining  
where the balance lies in the context of this case, it is  
important not to be diverted by the offensive content of  
much of the speech in question. As this court has repeatedly  
stated, even the most reprehensible or disagreeable comments  
are prima facie entitled to the protection of s. 2(b). It is  
not the statements of Mr. Keegstra which are at issue in  
this case, but rather the constitutionality of s. 319(2) of  
the Criminal Code. That must be our focus. 
  
   Another general consideration relevant to the balancing  
of values involved in the proportionality test in this case  
relates peculiarly to the nature of freedom of expression.  
Freedom of expression is unique among the rights and  
freedoms guaranteed by the Charter in two ways. 
  
   The first way in which freedom of expression may be  
unique was alluded to earlier in the context of the  
philosophical underpinnings of freedom of expression. The  
right to fully and openly express one's views on social and  
political issues is fundamental to our democracy and hence  
to all the other rights and freedoms guaranteed by the  
Charter. Without free expression, the vigourous debate on  
policies and values that underlies participatory government  
is lacking. Without free expression, rights may be  
trammelled with no recourse in the court of public opinion.  
Some restrictions on free expression may be necessary and  
justified and entirely compatible with a free and democratic  
society. But 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. This is of particular importance  
under s. 1 of the Charter which expressly requires the court  
to have regard to whether the limits are reasonable and  
justified in a free and democratic society. 
  
   A second characteristic peculiar to freedom of expression  
is that limitations on expression tend to have an effect on  
expression other than that which is their target. In the  
United States this is referred to as the chilling effect.  
Unless the limitation is drafted with great precision, there  
will always be doubt about whether a particular form of  
expression offends the prohibition. There will always be  
limitations inherent in the use of language, but that must  
not discourage the pursuit of the greatest drafting  
precision possible. The result of a failure to do so may be  
to deter not only the expression which the prohibition was  
aimed at, but legitimate expression. The law-abiding citizen  
who does not wish to run afoul of the law will decide not to  
take the chance in a doubtful case. Creativity and the  
beneficial exchange of ideas will be adversely affected.  
This chilling effect must be taken into account in  
performing the balancing required by the analysis under s.  
1. It mandates that in weighing the intrusiveness of a  
limitation on freedom of expression our consideration cannot  
be confined to those who may ultimately be convicted under  
the limit, but must extend to those who may be deterred from  
legitimate expression by uncertainty as to whether they  
might be convicted. 
  
   I make one final point before entering on the specific  
tests for proportionality proposed in Oakes. In determining  
whether the particular limitation of a right or freedom is  
justified under s. 1, it is important to consider not only  
the proportionality and effectiveness of the particular law  
in question, but alternative ways of furthering the  
objective. This is particularly important at stages two  
(minimum impairment) and three (balancing the infringement  
against the objective) of the proportionality analysis  
proposed in Oakes. 
  
   Against this background, I turn to the three  
considerations critical to determining whether the  
limitation on freedom of expression effected by s. 319(2) of  
the Criminal Code is reasonably and demonstrably justifiable  
in a free and democratic society. 
  
   (b) Rational connection 
  
   The first question is whether s. 319(2) of the Criminal  
Code may be seen as carefully designed or rationally  
connected to the objectives which it is aimed at promoting.  
This may be viewed in two ways. 
  
   The first is whether Parliament carefully designed s.  
319(2) to meet the objectives it is enacted to promote. 
  
   Although some evidence of care in linking s. 319(2) to  
its objectives is clear, it has been argued that it is  
overbroad, an allegation which I will consider in greater  
detail in discussing whether s. 319(2) represents a  
''minimum impairment'' of the right of free speech  
guaranteed by s. 2(b) of the Charter. Nevertheless it is  
clear that the legislation does, at least at one level,  
further Parliament's objectives. Prosecutions of individuals  
for offensive material directed at a particular group may  
bolster its members' beliefs 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. Such a use of the criminal law may well affirm  
certain values and priorities which are of a pressing and  
substantial nature. 
  
   It is necessary, however, to go further, and consider not  
only Parliament's intention, but whether, given the actual  
effect of the legislation, a rational connection exists  
between it and its objectives. Legislation designed to  
promote an objective may in fact impede that objective. In  
R. v. Morgentaler (1988), 37 C.C.C. (3d) 449, 44 D.L.R.  
(4th) 385, [1988] 1 S.C.R. 30, this court considered the  
actual effect of abortion legislation designed to preserve  
women's life and health and found that it had the opposite  
effect of the legislative goals by imposing unreasonable  
procedural requirements and delays. This court was  
particularly mindful of the effects that these requirements  
had in practice of substantially increasing the risks to the  
health of pregnant women, especially in certain locations.  
Dickson C.J.C. treated this in the context of rational  
connection, stating (at p. 480), ''to the extent that s.  
251(4) is designed to protect the life and health of women,  
the procedures it establishes may actually defeat that  
objective''. 
  
   This approach recognizes that s. 1 of the Charter could  
easily become diluted if an intention on the part of  
government to act on behalf of a disadvantaged group  
sufficed in all cases to establish the necessary rational  
connection between the legislation and its objective. In  
some cases the link between the intention of the legislators  
and the achievement of the goal may be self-evident. In  
others, there may be doubt about whether the legislation  
will in fact achieve its ends; in resolving that doubt,  
deference must be paid to the Parliament and the  
legislatures. But in cases such as Morgentaler, where it  
appears that the legislation not only may fail to achieve  
its goal but may have a contrary effect, the court is  
justified in finding that the rational connection between  
the measure and the objective is absent. This is only a  
matter of common sense. How can a measure which takes away a  
measure of one's constitutional freedom be reasonably and  
demonstrably justified unless there is some likelihood that  
it will further the objective upon which its justification  
rests? Where instead of that probability there is an  
indication that the measure may in fact detract from the  
objectives it is designed to promote, the absence of a  
rational connection between the measure and the objective is  
clear. 
  
   In my view, s. 319(2) of the Criminal Code falls in this  
class of case. Section 319(2) may well have a chilling  
effect on defensible expression by law-abiding citizens. At  
the same time, it is far from clear that it provides an  
effective way of curbing hate-mongers. Indeed, many have  
suggested it may promote their cause. Prosecutions under the  
Criminal Code for racist expression have attracted extensive  
media coverage. Zundel, prosecuted not under s. 319(2), but  
for the crime of spreading false news (s. 181), claimed that  
his court battle had given him ''a million dollars worth of  
publicity'': Globe and Mail, March 1, 1985, p. P1. There is  
an unmistakable hint of the joy of martyrdom in some of the  
literature for which Andrews, in the companion appeal, was  
prosecuted:  
  
   ''The Holocaust Hoax has been so ingrained in the minds  
of the hated 'goyim' by now that in some countries,...  
challenging its validity can land you in jail.'' 
  
   ( R. v. Andrews (1988), 43 C.C.C. (3d) 193 at p. 197, 65  
O.R. (2d) 161, 65 C.R. (3d) 320 (C.A.).) 
  
   Not only does the criminal process confer on the accused  
publicity for his dubious causes -- it may even bring him  
sympathy. The criminal process is cast as a conflict between  
the accused and the state, a conflict in which the accused  
may appear at his most sympathetic. Franz Kafka was not  
being entirely whimsical when he wrote, ''If you have the  
right eye for these things, you can see that accused men are  
often attractive'' (The Trial 1976, at p. 203). 
  
   The argument that criminal prosecutions for this kind of  
expression will reduce racism and foster multiculturalism  
depends on the assumption that some listeners are gullible  
enough to believe the expression if exposed to it. But if  
this assumption is valid, these listeners might be just as  
likely to believe that there must be some truth in the  
racist expression because the government is trying to  
suppress it. Theories of a grand conspiracy between  
government and elements of society wrongly perceived as  
malevolent can become all too appealing if government  
dignifies them by completely suppressing their utterance. It  
is therefore not surprising that the criminalization of hate  
propaganda and prosecutions under such legislation have been  
subject to so much controversy in this country. 
  
   Historical evidence also gives reason to be suspicious of  
the claim that hate propaganda laws contribute to the cause  
of multiculturalism and equality. This evidence is  
summarized by A. Borovoy, When Freedoms Collide (1988), at  
p. 50: 
  
   Remarkably, pre-Hitler Germany had laws very much like  
the Canadian anti-hate law. Moreover, those laws were  
enforced with some vigour. During the fifteen years before  
Hitler came to power, there were more than two hundred  
prosecutions based on anti-semitic speech. And, in the  
opinion of the leading Jewish organization of that era, no  
more than 10 per cent of the cases were mishandled by the  
authorities. As subsequent history so painfully testifies,  
this type of legislation proved ineffectual on the one  
occasion when there was a real argument for it. Indeed,  
there is some indication that the Nazis of pre-Hitler  
Germany shrewdly exploited their criminal trials in order to  
increase the size of their constituency. They used the  
trials as platforms to propagate their message. 
  
   Viewed from the point of view of actual effect, the  
rational connection between s. 319(2) and the goals it  
promotes may be argued to be tenuous. Certainly it cannot be  
said that there is a strong and evident connection between  
the criminalization of hate propaganda and its suppression. 
  
   (c) Minimum Impairment 
  
   The second matter which must be considered in determining  
whether the infringement represented by the legislation is  
proportionate to its ends is whether the legislation impairs  
the right to the minimum extent possible. 
  
   Those supporting s. 319(2) of the Criminal Code point to  
the fact that it applies only to wilful promotion of hatred,  
and not to promotion of any lesser emotion. Hatred, they  
argue, is the most extreme and reprehensible of human  
emotions. They also point out that s. 319(2) provides a  
number of defences, including the truth of the statements  
made, discussion for public benefit of a subject of public  
importance (provided the statements were believed to be true  
on reasonable grounds), and good faith opinion on a  
religious subject. They add that s. 319(2) does no more than  
fulfil Canada's international obligations and that similar  
provisions apply in other western democracies. 
  
   Those who maintain the unconstitutionality of s. 319(2)  
argue that the subjective emotion of hatred is overbroad and  
vague, that judges and juries will convict only if the  
speech is unpopular, and that there may be criminal  
liability even if not a single person was moved to any  
emotion, hatred or otherwise, by the statement. Moreover,  
the fact that the accused has the burden of proving the  
truth of his statement means that convictions may result  
even for true statements. 
  
   Two questions are pertinent to the inquiry into whether  
s. 319(2) impairs freedom of expression as little as  
possible. The first is whether s. 319(2) is drafted too  
broadly, catching more expressive conduct than can be  
justified by the objectives of promoting social harmony and  
individual dignity. The second is whether criminalization of  
hate-mongering may in itself be an excessive response to the  
problem, given the alternatives. I will deal with each in  
turn. 
  
   Despite the limitations found in s. 319(2), a strong case  
can be made that it is overbroad in that its definition of  
offending speech may catch many expressions which should be  
protected. 
  
   The first difficulty lies in the different  
interpretations which may be placed on the word ''hatred.''  
The Shorter Oxford English Dictionary defines ''hatred'' as:  
''The condition or state of relations in which one person  
hates another; the emotion of hate; active dislike,  
detestation; enmity, ill-will, malevolence.'' The wide range  
of diverse emotions which the word ''hatred'' is capable of  
denoting is evident from this definition. Those who defend  
its use in s. 319(2) of the Criminal Code emphasize one end  
of this range -- hatred, they say, indicates the most  
powerful of virulent emotions lying beyond the bounds of  
human decency and limiting s. 319(2) to extreme materials.  
Those who object to its use point to the other end of the  
range, insisting that ''active dislike'' is not an emotion  
for the promotion of which a person should be convicted as a  
criminal. To state the arguments is to make the case;  
''hatred'' is a broad term capable of catching a wide  
variety of emotion. 
  
   It is not only the breadth of the term ''hatred'' which  
presents dangers; it is its subjectivity. ''Hatred'' is  
proved by inference -- the inference of the jury or the  
judge who sits as trier of fact -- and inferences are more  
likely to be drawn when the speech is unpopular. 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. 
  
   But ''hatred'' does not stand alone. To convict, it must  
have been ''wilfully promote[]''. Does this requirement  
sufficiently constrain the term to meet the claim that s.  
319(2) is overbroad? 
  
   In R. v. Buzzanga and Durocher, supra, the Ontario Court  
of Appeal held that the requirement of ''wilful promotion''  
may be satisfied in either of two ways: (1) by proof of  
intention or conscious purpose of promoting hatred; or (2)  
by proof that the accused foresaw that the promotion of  
hatred against an identifiable group is certain, or  
''morally certain'', to result from the communication. 
  
   It is argued that the requirement of ''wilful promotion''  
eliminates from the ambit of s. 319(2) statements which are  
made for honest purposes such as telling a perceived truth  
or contributing to a political or social debate. The  
difficulty with this argument is that those purposes are  
compatible with the intention (or presumed intention by  
reason of foreseeability) of promoting hatred. A belief that  
what one says about a group is true and important to  
political and social debate is quite compatible with and  
indeed may inspire an intention to promote active dislike of  
that group. Such a belief is equally compatible with  
foreseeing that promotion of such dislike may stem from  
one's statements. The result is that people who make  
statements primarily for non-nefarious reasons may be  
convicted of wilfully promoting hatred. 
  
   The absence of any requirement that actual harm or  
incitement to hatred be shown further broadens the scope of  
s. 319(2) of the Criminal Code. This, in the view of the  
Court of Appeal, was the section's main defect. In effect,  
the provision makes a crime not only of actually inciting  
others to hatred, but also of attempting to do so. The Court  
of Appeal accepted the argument that this made the crime, at  
least potentially, a victimless one. In the view of Kerans  
J.A., while a prohibition on expression that actually spread  
hatred would be justified, a prohibition on attempts to  
spread hatred was not. 
  
   Though I regard this breadth as a relevant factor, I  
would be hesitant to treat it as constitutionally  
determinative. To view hate propaganda as ''victimless'' in  
the absence of any proof that it moved its listeners to  
hatred is to discount the wrenching impact that it may have  
on members of the target group themselves. For Jews, many of  
whom have personally been touched by the terrible  
consequences of the degeneration of a seemingly civilized  
society into unparalleled barbarism, statements such as  
Keegstra's may raise very real fears of history repeating  
itself. Moreover, it is simply not possible to assess with  
any precision the effects that expression of a particular  
message will have on all those who are ultimately exposed to  
it. The process of ''proving'' that listeners were moved to  
hatred has a fictitious air about it. These considerations  
undermine the notion that we can draw a bright line between  
provisions which are justifiable because they require proof  
that hatred actually resulted, and provisions which are  
unjustifiable because they require only an intent to promote  
hatred. 
  
   The breadth of s. 319(2) is narrowed somewhat by the  
defences. Statements made in good faith on religious  
subjects and statements on matters of public interest which  
the accused reasonably believed to be true, as well as  
statements made for the purpose of removing hatred, are  
exempted. 
  
   Quite apart from the fact that the onus lies on the  
accused to prove these defences, it is far from clear that  
in practice they significantly narrow the ambit of s. 319(2)  
of the Criminal Code. The most important defence is truth --  
if the accused establishes that his statements are true, s.  
319(2) is not violated. On the other hand, as already  
mentioned, conviction may result for true statements given  
that the onus of proof lies on the accused. Moreover, the  
concepts of ''truth'' and ''reasonable belief in truth'' may  
not always be applicable. Statements of opinion may be  
incapable of being classified as true or false,  
communicating not facts so much as sentiments and beliefs.  
Polemic statements frequently do not lend themselves to  
proof of truth or falsity. As for the defence of reasonable  
belief, how is a court to evaluate the reasonableness of  
diverse theories, political or otherwise? The defence of  
statements in the public interest poses similar problems.  
How is a court to determine what is in the public interest,  
given the wide range of views which may be held on matters  
potentially caught by s. 319(2)? 
  
   Not only is the category of speech caught by s. 319(2)  
defined broadly. The application of the definition of  
offending speech, i.e., the circumstances in which the  
offending statements are prohibited, is virtually unlimited.  
Only private conversations are exempt from state scrutiny.  
Section 319(2) is calculated to prevent absolutely  
expression of the offending ideas in any and all public  
forums through any and all mediums. Speeches are caught. The  
corner soap-box is no longer open. Books, films and works of  
art -- all these fall under the censor's scrutiny because of  
s. 319(2) of the Criminal Code. 
  
   The real answer to the debate about whether s. 319(2) is  
overbroad is provided by the section's track record.  
Although the section is of relatively recent origin, it has  
provoked many questionable actions on the part of the  
authorities. There have been no reported convictions, other  
than the instant appeals. But the record amply demonstrates  
that intemperate statements about identifiable groups,  
particularly if they represent an unpopular viewpoint, may  
attract state involvement or calls for police action. Novels  
such as Leon Uris' pro-Zionist novel, The Haj (1984), face  
calls for banning: Toronto Star, September 26, 1984, p. A6.  
Other works, such as Salman Rushdie's Satanic Verses (1988),  
are stopped at the border on the ground that they violate s.  
319(2). Films may be temporarily kept out, as happened to a  
film entitled ''Nelson Mandela,'' ordered as an educational  
film by Ryerson Polytechnical Institute in 1986: Globe and  
Mail, December 24, 1986, p. A14. Arrests are even made for  
distributing pamphlets containing the words ''Yankee Go  
Home'': Globe and Mail, July 4, 1975, p. 1. Experience shows  
that many cases are winnowed out due to prosecutorial  
discretion and other factors. It shows equally, however,  
that initially quite a lot of speech is caught by s. 319(2). 
  
   Even where investigations are not initiated or  
prosecutions pursued, the vagueness and subjectivity  
inherent in s. 319(2) of the Criminal Code gives ground for  
concern that the chilling effect of the law may be  
substantial. The more vague the language of the prohibition,  
the greater the danger that right-minded citizens may  
curtail the range of their expression against the  
possibility that they may run afoul of the law. The danger  
here is not so much that the legislation will deter those  
bent on promoting hatred -- in so far as it does so (and of  
this I remain skeptical) it is arguably not overbroad. The  
danger is rather that the legislation may have a chilling  
effect on legitimate activities important to our society by  
subjecting innocent persons to constraints born out of a  
fear of the criminal process. Given the vagueness of the  
prohibition of expression in s. 319(2), one may ask how  
speakers are to know when their speech may be seen as  
encroaching on the forbidden area. The reaction is  
predictable. The combination of overbreadth and  
criminalization may well lead people desirous of avoiding  
even the slightest brush with the criminal law to protect  
themselves in the best way they can -- by confining their  
expression to non-controversial matters. Novelists may steer  
clear of controversial characterizations of ethnic  
characteristics, such as Shakespeare's portrayal of Shylock  
in ''The Merchant of Venice''. Scientists may well think  
twice before researching and publishing results of research  
suggesting difference between ethnic or racial groups. Given  
the serious consequences of criminal prosecution, it is not  
entirely speculative to suppose that even political debate  
on crucial issues such as immigration, educational language  
rights, foreign ownership and trade may be tempered. These  
matters go to the heart of the traditional justifications  
for protecting freedom of expression. 
  
   This brings me to the second aspect of minimum  
impairment. The examples I have just given suggest that the  
very fact of criminalization itself may be argued to  
represent an excessive response to the problem of hate  
propagation. The procedures and sanctions associated with  
the criminal law are comparatively severe. Given the stigma  
that attaches and the freedom which is at stake, the contest  
between the individual and the state imposed by a criminal  
trial must be regarded as difficult and harrowing in the  
extreme. The seriousness of the imprisonment which may  
follow conviction requires no comment. Moreover, the  
chilling effect of prohibitions on expression is at its most  
severe where they are effected by means of the criminal law.  
It is this branch of the law more than any other which the  
ordinary, law-abiding citizen seeks to avoid. The additional  
sanction of the criminal law may pose little deterrent to a  
convinced hate-monger who may welcome the publicity it  
brings; it may, however, deter the ordinary individual. 
  
   Moreover, it is arguable whether criminalization of  
expression calculated to promote racial hatred is necessary.  
Other remedies are perhaps more appropriate and more  
effective. Discrimination on grounds of race and religion is  
worthy of suppression. Human rights legislation, focusing on  
reparation rather than punishment, has had considerable  
success in discouraging such conduct. This is the conclusion  
of Borovoy, op. cit., at pp. 221-5. After noting the  
emphasis in human rights codes on amendment of conduct and  
their general success in effecting settlements before  
hearing, Borovoy addresses the suggestion that ''racial  
discriminators be prosecuted or sued without having any  
opportunity to make amends'' (p. 223). He concludes that  
criminal prosecution is not only unnecessary, but may be  
counter-productive. It is unnecessary because proceedings  
under the human rights codes show strong success in  
achieving their essential purpose, the curtailment of  
discrimination. It may be counter-productive in that: (1)  
racial discriminators threatened with prosecution may have  
little or no incentive to co-operate with human rights  
boards and voluntarily amend their conduct (p. 223), and (2)  
it leaves open the argument that ''where a prosecutorial  
remedy exists, the state is obliged to adopt such a route  
first'' (p. 225), thereby eliminating the possibility of  
voluntary amendment of conduct. For these reasons, Borovoy  
concludes that: ''[]part from collateral matters such as  
obstructing complaint investigations, the criminal process  
can safely be eliminated from human rights matters'' (p. 225). 
  
   It is true that the focus of most human rights  
legislation is acts rather than words. But if it is  
inappropriate and ineffective to criminalize discriminatory  
conduct, it must necessarily be unjustifiable to criminalize  
discriminatory expression falling short of conduct. 
  
   Finally, it can be argued that greater precision is  
required in the criminal law than, for example, in human  
rights legislation because of the different character of the  
two types of proceedings. The consequences of alleging a  
violation of s. 319(2) of the Criminal Code are direct and  
serious in the extreme. Under the human rights process a  
tribunal has considerable discretion in determining what  
messages or conduct should be banned and by its order may  
indicate more precisely their exact nature, all of which  
occurs before any consequences inure to the alleged violator. 
  
   In summary, s. 319(2) of the Criminal Code catches a  
broad range of speech and prohibits it in a broad manner,  
allowing only private conversations to escape scrutiny.  
Moreover, the process by which the prohibition is effected  
-- the criminal law -- is the severest our society can  
impose and is arguably unnecessary given the availability of  
alternate remedies. I conclude that the criminalization of  
hate statements does not impair free speech to the minimum  
extent permitted by its objectives. 
  
   (d) Importance of the right versus benefit conferred 
  
   The third consideration in determining whether the  
infringement represented by the legislation is proportionate  
to the ends, is the balance between the importance of the  
infringement of the right in question and the benefit  
conferred by the legislation. The analysis is essentially a  
cost-benefit analysis. On the one hand, how significant is  
the infringement of the fundamental right or freedom in  
question? On the other hand, how significant is the benefit  
conferred by the impugned legislation? Weighing these  
countervailing considerations, has the state met the burden  
upon it of establishing that the limit on the  
constitutionally guaranteed freedom or right is reasonable  
and demonstrably justified in a free and democratic society? 
  
   I deal first with the significance of the infringement of  
the constitutionally guaranteed freedom at issue in this  
case. Viewed from the perspective of our society as a whole,  
the infringement of the guarantee of freedom of expression  
before this court is a serious one. Section 319(2) of the  
Criminal Code does not merely regulate the form or tone of  
expression -- it 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 like those at issue in this case, but works of  
art and the intemperate statement made in the heat of social  
controversy. While few may actually be prosecuted to  
conviction under s. 319(2), many fall within the shadow of  
its broad prohibition. These dangers are exacerbated by the  
fact that s. 319(2) applies to all public expression. In  
short, the limitation on freedom of expression created by s.  
319(2) of the Criminal Code invokes all of the values upon  
which s. 2(b) of the Charter rests -- the value of fostering  
a vibrant and creative society through the market-place of  
ideas; the value of the vigourous and open debate essential  
to democratic government and preservation of our rights and  
freedoms; and the value of a society which fosters the  
self-actualization and freedom of its members. 
  
   The consequences of the infringement of freedom of speech  
imposed by s. 319(2) of the Criminal Code considered from  
the viewpoint of the individual caught within its net are  
equally serious. The exercise of the right of free speech  
contrary to its provisions may result in a criminal record  
and imprisonment of up to two years. No warning, other than  
the description in s. 319(2) itself (which necessarily  
includes subjective elements), is given as to what speech is  
liable to result in prosecution. And those individuals not  
caught may find their expression restricted by the fear of  
running afoul of a vague and subjective law. 
  
   These considerations establish an infringement of the  
guarantee of freedom of expression of the most serious  
nature -- much more serious, for example, than that which  
this court upheld under s. 1 in Irwin Toy, supra. There the  
only value which could be prayed in aid of free expression  
was the right to earn a profit. Section 319(2) of the  
Criminal Code, in contrast, touches on values vital to the  
preservation of democratic government and our fundamental  
rights and freedoms, as well as our right to individual  
self-actualization. And its broad sweep makes the  
infringement it effects not only serious in nature, but in  
extent. An infringement of this seriousness can only be  
justified by a countervailing state interest of the most  
compelling nature. 
  
   I turn then to the other side of the scale and the  
benefit to be gained by maintenance of the limitation on  
freedom of expression effected by s. 319(2) of the Criminal  
Code. As indicated earlier, there is no question but that  
the objectives which underlie this legislation are of a most  
worthy nature. Unfortunately, the claims of gains to be  
achieved at the cost of the infringement of free speech  
represented by s. 319(2) 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. Accepting the importance to our  
society the goals of social harmony and individual dignity,  
of multiculturalism and equality, it remains difficult to  
see how s. 319(2) fosters them. 
  
   In my opinion, the result is clear. Any questionable  
benefit of the legislation is outweighed by the significant  
infringement on the constitutional guarantee of free  
expression effected by s. 319(2) of the Criminal Code. 
  
   (3) Conclusion--s. 1 in relation to infringement of free  
speech 
  
   Is the limit on free expression effected by s. 319(2) of  
the Criminal Code reasonable and demonstrably justifiable in  
a free and democratic society? On all three criteria for  
proportionality laid down in Oakes, supra [at p. 348] --  
rational connection between the legislation with its  
objectives, infringement to the minimum extent possible, and  
the balance between the importance of the infringement or  
the right of free speech and the benefit conferred by the  
legislation -- s. 319(2) of the Criminal Code emerges  
wanting. Accepting that the objectives of the legislation  
are valid and important and potentially capable of  
overriding the guarantee of freedom of expression, I cannot  
conclude that the means chosen to achieve them --the  
criminalization of the potential or foreseeable promotion of  
hatred -- are proportionate to those ends. 
  
   B. Section 1 and the infringement of the presumption of  
innocence 
  
   I arrive at the same conclusion with respect to the  
infringement of s. 11(d) of the Charter, as I did with  
respect to the infringement of s. 2(b) of the Charter.  
Again, the necessary proportionality between infringement  
and the ends achieved is doubtful. 
  
   A rational connection between the aims of s. 319(3)(a)  
and its requirement that the accused prove the truth of his  
statements is difficult to discern. It is argued that  
without the reverse onus, it would be difficult if not  
impossible to obtain convictions for much speech promoting  
hate. If the objection is that it is merely difficult to  
prove the statements true or false, the answer is that the  
burden should be on the state because it has superior  
resources. If the 
objection is that it is impossible to know if the statements  
are true or false (i.e., true opinion), then the answer is  
that it cannot be ruled out that the statements may be more  
valuable than harmful, if we accept the ultimate value of  
the exchange of truthful ideas. The same considerations  
suggest that s. 319(3)(a)'s infringement of the presumption  
of innocence is neither minimal nor, given the importance of  
the infringement in the context of prosecutions under s.  
319(2), sufficient to outweigh the dubious benefit of such a  
provision. 
  
   Similar considerations arise on the question of whether  
s. 319(3)(a) of the Criminal Code impairs the presumption of  
innocence under s. 11(d) as little as possible. It is said  
that hate promotion against identifiable groups is highly  
unlikely to be true. But that would be small comfort to a  
particular accused in the case where such a defence lay but  
he or she, because of restricted means or for whatever other  
reason, was unable to prove it. The presumption of innocence  
should not depend on the percentage of cases in which the  
defence in question may arise. It is also said that hate  
promotion consists as much in how it is said as in what is  
said, and it is sound policy to require individuals who  
choose to persuade by objectionable means to be certain they  
are speaking the truth before they make an utterance. But s.  
319(2) is not confined to expression in an objectionable  
form. It criminalizes expression not on the basis of its  
form but its content. Finally, it may be suggested in this  
context too that it is better to place the onus on the  
accused because of the difficulty of proving the falsity of  
negative assertions about identifiable groups. But, as I  
have pointed out above, proving the truth of such statements  
may be equally difficult. The accused, lacking the resources  
of the state, is arguably in a worse position than the Crown  
to prove his or her assertions to be true. 
  
   The final test of proportionality between the effects of  
the infringement and the objectives it promotes encounters  
other difficulties. We must start from the proposition that  
Parliament intended the truth to be a defence and that  
falsehood is an important element of the offence created by  
s. 319(2) of the Criminal Code. That fact, coupled with the  
centrality of the presumption of innocence in our criminal  
law, suggests that only a countervailing state interest of  
the most compelling kind could justify the infringement.  
But, as discussed in connection with the infringement of the  
guarantee of freedom of expression, it is difficult to see  
what benefits s. 319(2) in fact produces in terms of  
stemming hate propaganda and promoting social harmony and  
individual dignity. Thus Fish, op. cit., in defending the  
proportionality of infringement to benefit, is driven  
finally to negate the defence itself, concluding at p. 121:  
''The defence of truth does not presume falsity so much as  
it does that truth is not exculpatory of hate promotion.'' I  
conclude that s. 319(3)(a) is not saved by s. 1 of the  
Charter. 
  
   Conclusion 
  
   Section 319(2) breaches the guarantee of freedom of  
expression enshrined in the Charter. Moreover, the defence  
provided under s. 319(3)(a) infringes an accused's right to  
be presumed innocent. The importance of such objectives as  
avoiding discrimination, racial violence and promoting  
multiculturalism, is such that a limited and measured  
infringement of free speech may be justifiable under s. 1 of  
the Charter, provided that the means chosen are  
proportionate. However, the broad criminalization of  
virtually all expression which might be construed as  
promoting hatred effected by s. 319(2) of the Criminal Code  
is not, in my view, a proportionate and appropriate means of  
achieving the ends to which the legislation is directed. The  
breadth of the category of speech it catches, the absolute  
nature of the prohibition it applies to such speech, the  
draconian criminal consequences it imposes coupled with the  
availability of preferable remedies, and finally, the  
counter-productive nature of its actual effects -- all these  
features of s. 319(2) of the Criminal Code combine to make  
it an inappropriate means of protecting our society against  
the evil of hate propaganda. 
  
   I would dismiss the appeal, and answer the constitutional  
questions as follows: 
  
   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: No. 
  
   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: No. 
  
   Appeal allowed; case remitted to Court of Appeal. 
  
CLB-DATE: 03/12/91 
  

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