The Nizkor Project: Remembering the Holocaust (Shoah)

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   See also R. v. Jones (1986), 28 C.C.C. (3d) 513 at p.  
538, 31 D.L.R. (4th) 569, [1986] 2 S.C.R. 284, per La Forest  
J.; R. v. Edwards Books & Art Ltd. (1986), 30 C.C.C. (3d)  
385 at pp. 425-6, 35 D.L.R. (4th) 1, [1986] 2 S.C.R. 713,  
per Dickson C.J.C., and Irwin Toy, supra, per the majority,  
at pp. 622-3. The sentiments of La Forest J. correctly  
suggest that the application of the Oakes approach will vary  
depending on the circumstances of the case, including the  
nature of the interests at stake. 
   B. The use of American constitutional jurisprudence 
   Having discussed the unique and unifying role of s. 1, I  
think it appropriate to address a tangential matter, yet one  
none the less crucial to the disposition of this appeal: the  
relationship between Canadian and American approaches to the  
constitutional protection of free expression, most notably  
in the realm of hate propaganda. Those who attack the  
constitutionality of s. 319(2) draw heavily on the tenor of  
First Amendment jurisprudence in weighing the competing  
freedoms and interests in this appeal, a reliance which is  
understandable given the prevalent opinion that the  
criminalization of hate propaganda violates the Bill of  
Rights : see, e.g., L. Tribe, American Constitutional Law,  
2nd ed. (1988), at p. 861, note 2; K. Greenawalt, ''Insults  
and Epithets: Are They Protected Speech?'', 42 Rutgers L.  
Rev. 287 at p. 304 (1990). In response to the emphasis  
placed upon this jurisprudence, I find it helpful to  
summarize the American position and to determine the extent  
to which it should influence the s. 1 analysis in the  
circumstances of this appeal. 
   A myriad of sources -- both judicial and academic --  
offer reviews of First Amendment jurisprudence as it  
pertains to hate propaganda. Central to most discussions is  
the 1952 case of Beauharnais v. Illinois, 343 U.S. 250,  
where the Supreme Court of the United States upheld as  
constitutional a criminal statute forbidding certain types  
of group defamation. Though never overruled, Beauharnais  
appears to have been weakened by later pronouncements of the  
Supreme Court: see, e.g., Garrison v. Louisiana, 379 U.S. 64  
(1964); Ashton v. Kentucky, 384 U.S. 195 (1966); New York  
Times Co. v. Sullivan, 376 U.S. 254 (1964); Brandenburg v.  
Ohio, 395 U.S. 444 (1969), and Cohen v. California, 403 U.S.  
15 (1971). The trend reflected in many of these  
pronouncements is to protect offensive, public invective as  
long as the speaker has not knowingly lied and there exists  
no clear and present danger of violence or insurrection. 
   In the wake of subsequent developments in the Supreme  
Court, on several occasions Beauharnais has been  
distinguished and doubted by lower courts: see, e.g.,  
Anti-Defamation League of B'nai B'rith v. Federal  
Communications Commission, 403 F. 2d 169 at p. 174, note 5  
(1968) (D.C. Cir.); Tollett v. United States, 485 F. 2d 1087  
at p. 1094, note 14 (1973) (8th Cir.); American Booksellers  
Ass'n, Inc. v. Hudnut, 771 F. 2d 323 at pp. 331-2 (1985)  
(7th Cir.), and Doe v. University of Michigan, 721 F. Supp.  
852 at p. 863 (1989) (E.D. Mich.). Of the judgments  
expressing a shaken faith in Beauharnais, Collin v. Smith,  
578 F. 2d 1197 (1978) (7th Cir.), certiorari denied 439 U.S.  
916, is of greatest relevance to this appeal. In Collin, the  
Court of Appeal for the Seventh Circuit invalidated a  
municipal ordinance prohibiting public demonstrations  
inciting ''violence, hatred, abuse or hostility toward a  
person or group of persons by reason of reference to  
religious, racial, ethnic, national or regional  
affiliation'' (p. 1199), and thereby allowed members of the  
American Nazi Party to march through Skokie, Illinois, home  
to a large number of Jewish Holocaust survivors (despite the  
ruling, however, no march was held in Skokie; Irving  
Horowitz, ''First Amendment Blues: On Downs, Nazis in  
Skokie'', [1986] Amer. B. Found. Res. J. 535 at p. 540). 
   The question that concerns us in this appeal is not, of  
course, what the law is or should be in the United States.  
But it is important to be explicit as to the reasons why or  
why not American experience may be useful in the s. 1  
analysis of s. 319(2) of the Criminal Code. In the United  
States, a collection of fundamental rights has been  
constitutionally protected for over 200 years. The resulting  
practical and theoretical experience is immense, and should  
not be overlooked by Canadian courts. On the other hand, we  
must examine American constitutional law with a critical  
eye, and in this respect La Forest J. has noted in R. v.  
Rahey (1987), 33 C.C.C. (3d) 289 at p. 325, 39 D.L.R. (4th)  
481, [1987] 1 S.C.R. 588: 
   While it is natural and even desirable for Canadian  
courts to refer to American constitutional jurisprudence in  
seeking to elucidate the meaning of Charter guarantees that  
have counterparts in the United States Constitution, they  
should be wary of drawing too ready a parallel between  
constitutions born to different countries in different ages  
and in very different circumstances ... 
   Canada and the United States are not alike in every way,  
nor have the documents entrenching human rights in our two  
countries arisen in the same context. It is only common  
sense to recognize that, just as similarities will justify  
borrowing from the American experience, differences may  
require that Canada's constitutional vision depart from that  
endorsed in the United States. 
   Having examined the American cases relevant to First  
Amendment jurisprudence and legislation criminalizing hate  
propaganda, I would be adverse to following too closely the  
line of argument that would overrule Beauharnais on the  
ground that incursions placed upon free expression are only  
justified where there is a clear and present danger of  
imminent breach of peace. Equally, I am unwilling to embrace  
various categorizations and guiding rules generated by  
American law without careful consideration of their  
appropriateness to Canadian constitutional theory. Though I  
have found the American experience tremendously helpful in  
coming to my own conclusions regarding this appeal, and by  
no means reject the whole of the First Amendment doctrine,  
in a number of respects I am thus dubious as to the  
applicability of this doctrine in the context of a challenge  
to hate propaganda legislation. 
   First, it is not entirely clear that Beauharnais must  
conflict with existing First Amendment doctrine. Credible  
arguments have been made that later Supreme Court cases do  
not necessarily erode its legitimacy: see, e.g., Kenneth  
Lasson, ''Racial Defamation as Free Speech: Abusing the  
First Amendment'', 17 Colum. Hum. Rts. L. Rev. 11 (1985).  
Indeed, there exists a growing body of academic writing in  
the United States which evinces a stronger focus upon the  
way in which hate propaganda can undermine the very values  
which free speech is said to protect. This body of writing  
is receptive to the idea that, were the issue addressed from  
this new perspective, First Amendment doctrine might be able  
to accommodate statutes prohibiting hate propaganda: see,  
e.g., Richard Delgado, ''Words That Wound: A Tort Action for  
Racial Insults, Epithets, and Name-Calling'', 17 Harv. C.R.-  
C.L. L. Rev. 133 (1982); Irving Horowitz, ''Skokie, the ACLU  
and the Endurance of Democratic Theory'', 43 Law & Contemp.  
Probs. 328 (1979); Lasson, op. cit., at pp. 20-30; Mari  
Matsuda, ''Public  
Response to Racist Speech: Considering the Victim's Story'',  
87 Mich. L. Rev. 2320, at p. 2348 (1989); '' Doe v.  
University of Michigan : First Amendment -- Racist and  
Sexist Expression on Campus -- Court Strikes Down University  
Limits on Hate Speech'', 103 Harv. L. Rev. 1397 (1990). 
   Secondly, the aspect of First Amendment doctrine most  
incompatible with s. 319(2), at least as that doctrine is  
described by those who would strike down the legislation, is  
its strong aversion to content-based regulation of  
expression. I am somewhat skeptical, however, as to whether  
this view of free speech in the United States is entirely  
accurate. Rather, in rejecting the extreme position that  
would provide an absolute guarantee of free speech in the  
Bill of Rights, the Supreme Court has developed a number of  
tests and theories by which protected speech can be  
identified and the legitimacy of government regulation  
assessed. Often required is a content-based categorization  
of the expression under examination. As an example,  
obscenity is not protected because of its content (see,  
e.g., Roth v. United States, 354 U.S. 476 (1957)), and laws  
proscribing child pornography have been scrutinized under a  
less than strict First Amendment standard even where they  
extend to expression beyond the realm of the obscene: see  
New York v. Ferber, 458 U.S. 747 (1982). Similarly, the  
vigourous protection of free speech relaxes significantly  
when commercial expression is scrutinized (see, e.g.,  
Posadas de Puerto Rico Associates v. Tourism Co. of Puerto  
Rico, 478 U.S. 328 (1986)), and it is permissible to  
restrict government employees in their exercise of the right  
to engage in political activity: Cornelius v. NAACP Legal  
Defence and Educ. Fund, Inc., 473 U.S. 788 (1985). 
   In short, a decision to place expressive activity in a  
category which either merits reduced protection or falls  
entirely outside of the First Amendment's ambit at least  
impliedly involves assessing the content of the activity in  
light of free speech values. As Professor Frederick Schauer  
has said, it is always necessary to examine the First  
Amendment value of the expression limited by state  
regulation: ''The Aim and the Target in Free Speech  
Methodology'', 83 Nw. U. L. Rev. 562 at p. 568 (1989). To  
recognize that content is often examined under the First  
Amendment is not to deny that content neutrality plays a  
real and important role in the American jurisprudence. None  
the less, that the proscription against looking at the  
content of expression is not absolute, and that balancing is  
occasionally employed in First Amendment cases (see  
Professor T. Alexander Aleinikoff, ''Constitutional Law in  
the Age of Balancing'', 96 Yale L. J. 943 at pp. 966-8  
(1987), reveals that even in the United States it is  
sometimes thought justifiable to restrict a particular  
message because of its meaning. 
   Third, applying the Charter to the legislation challenged  
in this appeal reveals important differences between  
Canadian and American constitutional perspectives. I have  
already discussed in some detail the special role of s. 1 in  
determining the protective scope of Charter rights and  
freedoms. Section 1 has no equivalent in the United States,  
a fact previously alluded to by this court in selectively  
utilizing American constitutional jurisprudence: see, e.g.,  
Reference re s. 94(2) of Motor Vehicle Act (1985), 23 C.C.C.  
(3d) 289 at p. 298, 24 D.L.R. (4th) 536, [1985] 2 S.C.R.  
486, per Lamer J. Of course, American experience should  
never be rejected simply because the Charter contains a  
balancing provision, for it is well known that American  
courts have fashioned compromises between conflicting  
interests despite what appears to be the absolute guarantee  
of constitutional rights. Where s. 1 operates to accentuate  
a uniquely Canadian vision of a free and democratic society,  
however, we must not hesitate to depart from the path taken  
in the United States. Far from requiring a less solicitous  
protection of Charter rights and freedoms, such independence  
of vision protects these rights and freedoms in a different  
way. As will be seen below, in my view the international  
commitment to eradicate hate propaganda and, most  
importantly, the special role given equality and  
multiculturalism in the Canadian Constitution necessitate a  
departure from the view, reasonably prevalent in America at  
present, that the suppression of hate propaganda is  
incompatible with the guarantee of free expression (in  
support of this view, see the comments of Professors  
Kathleen Mahoney and Jamie Cameron in ''The James McCormick  
Mitchell Lecture -- Language as Violence v. Freedom of  
Expression: Canadian and American Perspectives on Group  
Defamation'', 37 Buffalo L. Rev., 337, beginning at pp. 344  
and 353 respectively (1988-89). 
   In sum, there is much to be learned from First Amendment  
jurisprudence with regard to freedom of expression and hate  
propaganda. It would be rash, however, to see First  
Amendment doctrine as demanding the striking down of s.  
319(2). Not only are the precedents somewhat mixed, but the  
relaxation of the prohibition against content-based  
regulation of expression in certain areas indicates that  
American courts are not loath to permit the suppression of  
ideas in some circumstances. Most importantly, the nature of  
the s. 1 test as applied in the context of a challenge to s.  
319(2) may well demand a perspective particular to Canadian  
constitutional jurisprudence when weighing competing  
interests. If values fundamental to the Canadian conception  
of a free and democratic society suggest an approach that  
denies hate propaganda the highest degree of constitutional  
protection, it is this approach which must be employed. 
   C. Objective of s. 319(2) 
   I now turn to the specific requirements of the Oakes  
approach in deciding whether the infringement of s. 2(b)  
occasioned by s. 319(2) is justifiable in a free and  
democratic society. According to Oakes, the first aspect of  
the s. 1 analysis is to examine the objective of the  
impugned legislation. Only if the objective relates to  
concerns which are pressing and substantial in a free and  
democratic society can the legislative limit on a right or  
freedom hope to be permissible under the Charter. In  
examining the objective of s. 319(2), I will begin by  
discussing the harm caused by hate propaganda as identified  
by the Cohen Committee and subsequent study groups, and then  
review in turn the impact upon this objective of  
international human rights instruments and ss. 15 and 27 of  
the Charter. 
   (i) Harm caused by expression promoting the hatred of  
identifiable groups 
   Looking to the legislation challenged in this appeal, one  
must ask whether the amount of hate propaganda in Canada  
causes sufficient harm to justify legislative intervention  
of some type. The Cohen Committee, speaking in 1965, found  
that the incidence of hate propaganda in Canada was not  
insignificant (at p. 24): 
   ... there exists in Canada a small number of persons and  
a somewhat larger number of organizations, extremist in  
outlook and dedicated to the preaching and spreading of  
hatred and contempt against certain identifiable minority  
groups in Canada. It is easy to conclude that because the  
number of persons and organizations is not very large, they  
should not be taken too seriously. The Committee is of the  
opinion that this line of analysis is no longer tenable  
after what is known to have been the result of hate  
propaganda in other countries, particularly in the 1930s  
when such material and ideas played a significant role in  
the creation of a climate of malice, destructive to the  
central values of Judaic-Christian society, the values of  
our civilization. The Committee believes, therefore, that  
the actual and potential danger caused by present hate  
activities in Canada cannot be measured by statistics alone. 
   Even the statistics, however, are not unimpressive,  
because while activities have centered heavily in Ontario,  
they nevertheless have extended from Nova Scotia to British  
Columbia and minority groups in at least eight Provinces  
have been subjected to these vicious attacks. 
   In 1984, the House of Commons Special Committee on  
Participation of Visible Minorities in Canadian Society in  
its report, entitled Equality Now!, observed that increased  
immigration and periods of economic difficulty ''have  
produced an atmosphere that may be ripe for racially  
motivated incidents'' (p. 69). With regard to the  
dissemination of hate propaganda, the Special Committee  
found that the prevalence and scope of such material had  
risen since the Cohen Committee made its report, stating (at  
p. 69): 
   There has been a recent upsurge in hate propaganda. It  
has been found in virtually every part of Canada. Not only  
is it anti-semitic and anti-black, as in the 1960s, but it  
is also now anti-Roman Catholic, anti-East Indian,  
anti-aboriginal people and anti-French. Some of this  
material is imported from the United States but much of it  
is produced in Canada. Most worrisome of all is that in  
recent years Canada has become a major source of supply of  
hate propaganda that finds its way to Europe, and especially  
to West Germany. 
   As the quotations above indicate, the presence of hate  
propaganda in Canada is sufficiently substantial to warrant  
concern. Disquiet caused by the existence of such material  
is not simply the product of its offensiveness, however, but  
stems from the very real harm which it causes. Essentially,  
there are two sorts of injury caused by hate propaganda.  
First, there is harm done to members of the target group. It  
is indisputable that the emotional damage caused by words  
may be of grave psychological and social consequence. In the  
context of sexual harassment, for example, this court has  
found that words can in themselves constitute harassment:  
Janzen v. Platy Enterprises Ltd. (1989), 59 D.L.R. (4th)  
352, [1989] 1 S.C.R. 1252, [1989] 4 W.W.R. 39. In a similar  
manner, words and writings that wilfully promote hatred can  
constitute a serious attack on persons belonging to a racial  
or religious group, and in this regard the Cohen Committee  
noted that these persons are humiliated and degraded (p. 214). 
   In my opinion, a response of humiliation and degradation  
from an individual targeted by hate propaganda is to be  
expected. A person's sense of human dignity and belonging to  
the community at large is closely linked to the concern and  
respect accorded the groups to which he or she belongs: see  
Isaiah Berlin, ''Two Concepts of Liberty'', in Four Essays  
on Liberty (1969), 118 at p. 155. The derision, hostility  
and abuse encouraged by hate propaganda therefore have a  
severely negative impact on the individual's sense of  
self-worth and acceptance. This impact may cause target  
group members to take drastic measures in reaction, perhaps  
avoiding activities which bring them into contact with  
non-group members or adopting attitudes and postures  
directed towards blending in with the majority. Such  
consequences bear heavily in a nation that prides itself on  
tolerance and the fostering of human dignity through, among  
other things, respect for the many racial, religious and  
cultural groups in our society. 
   A second harmful effect of hate propaganda which is of  
pressing and substantial concern is its influence upon  
society at large. The Cohen Committee noted that individuals  
can be persuaded to believe ''almost anything'' (p. 30) if  
information or ideas are communicated using the right  
technique and in the proper circumstances (at p. 8): 
   ... we are less confident in the 20th century that the  
critical faculties of individuals will be brought to bear on  
the speech and writing which is directed at them. In the  
18th and 19th centuries, there was a widespread belief that  
man was a rational creature, and that if his mind was  
trained and liberated from superstition by education, he  
would always distinguish truth from falsehood, good from  
evil. So Milton, who said ''let truth and falsehood grapple:  
who ever knew truth put to the worse in a free and open  
   We cannot share this faith today in such a simple form.  
While holding that over the long run, the human mind is  
repelled by blatant falsehood and seeks the good, it is too  
often true, in the short run, that emotion displaces reason  
and individuals perversely reject the demonstrations of  
truth put before them and forsake the good they know. The  
successes of modern advertising, the triumphs of impudent  
propaganda such as Hitler's, have qualified sharply our  
belief in the rationality of man. We know that under the  
strain and pressure in times of irritation and frustration,  
the individual is swayed and even swept away by hysterical,  
emotional appeals. We act irresponsibly if we ignore the way  
in which emotion can drive reason from the field. 
   It is thus not inconceivable that the active  
dissemination of hate propaganda can attract individuals to  
its cause, and in the process create serious discord between  
various cultural groups in society. Moreover, the alteration  
of views held by the recipients of hate propaganda may occur  
subtly, and is not always attendant upon conscious  
acceptance of the communicated ideas. Even if the message of  
hate propaganda is outwardly rejected, there is evidence  
that its premise of racial or religious inferiority may  
persist in a recipient's mind as an idea that holds some  
truth, an incipient effect not to be entirely discounted:  
see Matsuda, op. cit., at pp. 2339-40. 
   The threat to the self-dignity of target group members is  
thus matched by the possibility that prejudiced messages  
will gain some credence, with the attendant result of  
discrimination, and perhaps even violence, against minority  
groups in Canadian society. With these dangers in mind, the  
Cohen Committee made clear in its conclusions that the  
presence of hate propaganda existed as a baleful and  
pernicious element, and hence a serious problem, in Canada  
(at p. 59): 
   The amount of hate propaganda presently being  
disseminated its measurable effects probably are not  
sufficient to justify a description of the problem as one of  
crisis or near crisis proportion. Nevertheless the problem  
is a serious one. We believe that, given a certain set of  
socio-economic circumstances, such as a deepening of the  
emotional tensions or the setting in of a severe business  
recession, public susceptibility might well increase  
significantly. Moreover, the potential psychological and  
social damage of hate propaganda, both to a desensitized  
majority and to sensitive minority target groups, is  
incalculable. As Mr Justice Jackson of the United States  
Supreme Court wrote in Beauharnais v. Illinois, such  
''sinister abuses of our freedom of expression ... can tear  
apart a society, brutalize its dominant elements, and  
persecute even to extermination, its minorities''. 
   As noted previously, in articulating concern about hate  
propaganda and its contribution to racial and religious  
tension in Canada, the Cohen Committee recommended that  
Parliament use the Criminal Code in order to prohibit  
wilful, hate-promoting expression and underline Canada's  
commitment to end prejudice and intolerance. 
   The close connection between the recommendations of the  
Cohen Committee and the hate propaganda amendments to the  
Criminal Code made in 1970 indicates that in enacting s.  
319(2) Parliament's purpose was to prevent the harm  
identified by the committee as being caused by  
hate-promoting expression. More recent reports have echoed  
the findings and concerns of the Cohen Committee, lending  
further support to the substantial nature of the legislative  
objective. The 1981 Report Arising Out of the Activities of  
the Ku Klux Klan in British Columbia by John D. McAlpine  
noted evidence of racism and racial violence in British  
Columbia, and among its conclusions recommended the  
strengthening of existing remedies, including the criminal  
offence of the wilful promotion of hatred. The 1984 report  
of the Special Committee on Participation of Visible  
Minorities in Canadian Society, op. cit., investigated,  
among many topics, legal and justice issues pertaining to  
and affecting members of visible minority groups in Canada.  
The committee suggested a wider-ranging prohibition in s.  
319(2), most notably by removing reference to the mental  
element of wilfulness, as a response to the threat to  
equality and multiculturalism presented by hate propaganda  
(Recommendations 35 to 37). Also in 1984, the Canadian Bar  
Association's Report of the Special Committee on Racial and  
Religious Hatred found that the law had a role to play, both  
at the criminal and civil level, in restricting the  
dissemination of hate propaganda (p. 12). With regard to s.  
319(2), this conclusion was affirmed two years later in  
Working Paper 50 of the Law Reform Commission of Canada,  
entitled ''Hate Propaganda'' (1986). 
   (ii) International human rights instruments 
   There is a great deal of support, both in the submissions  
made by those seeking to uphold s. 319(2) in this appeal and  
in the numerous studies of racial and religious hatred in  
Canada, for the conclusion that the harm caused by hate  
propaganda represents a pressing and substantial concern in  
a free and democratic society. I would also refer to  
international human rights principles, however, for guidance  
with respect to assessing the legislative objective. 
   Generally speaking, the international human rights  
obligations taken on by Canada reflect the values and  
principles of a free and democratic society, and thus those  
values and principles that underlie the Charter itself:  
Reference re Public Service Employee Relations Act (1987),  
38 D.L.R. (4th) 161 at p. 184, [1987] 1 S.C.R. 313, [1987] 3  
W.W.R. 577, per Dickson C.J.C. Moreover, international human  
rights law and Canada's commitments in that area are of  
particular significance in assessing the importance of  
Parliament's objective under s. 1. As stated in Slaight  
Communications Inc. v. Davidson, supra, at p. 427: 
   ... Canada's international human rights obligations  
should inform not only the interpretation of the content of  
the rights guaranteed by the Charter but also the  
interpretation of what can constitute pressing and  
substantial s. 1 objectives which may justify restrictions  
upon those rights. 
   In the context of justifying an infringement of s. 2(b),  
the majority in Slaight made a point of noting that a value  
enjoying status as an international human right is generally  
to be ascribed a high degree of importance under s. 1 of the  
Charter (pp. 427-8). 
   No aspect of international human rights has been given  
attention greater than that focused upon discrimination. The  
large emphasis placed upon eradicating discrimination is  
evident in the fact that all but one of the major  
international human rights instruments (the European Social  
Charter) proscribes it in an article of general application:  
Paul Sieghart, The International Law of Human Rights (1983),  
at p. 75. This high concern regarding discrimination has led  
to the presence in two international human rights documents  
of articles forbidding the dissemination of hate propaganda. 
   In 1966, the United Nations adopted the international  
Convention on the Elimination of All Forms of Racial  
Discrimination, 1970, Can. T.S., No. 28 (hereineafter  
''C.E.R.D.''). The convention, in force since 1969 and  
including Canada among its signatory members, contains a  
resolution that states parties agree to: 
   ... adopt all necessary measures for speedily eliminating  
racial discrimination in all its forms and manifestations,  
and to prevent and combat racist doctrines and practices in  
order to promote understanding between races and to build an  
international community free from all forms of racial  
segregation and racial discrimination... 
   Article 4 of the C.E.R.D. is of special interest,  
providing that: 
   Article 4 
   States Parties condemn all propaganda and all  
organizations which are based on ideas or theories of  
superiority of one race or group of persons of one colour or  
ethnic origin, or which attempt to justify or promote racial  
hatred and discrimination in any form, and undertake to  
adopt immediate and positive measures designed to eradicate  
all incitement to, or acts of, such discrimination and, to  
this end, with due regard to the principles embodied in the  
Universal Declaration of Human Rights and the rights  
expressly set forth in article 5 of this Convention, inter  
   (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; 
   Further, the International Covenant on Civil and  
Political Rights, 1966, 999 U.N.T.S. 171 (hereinafter  
''I.C.C.P.R.''), adopted by the United Nations in 1966 and  
in force in Canada since 1976, in the following two articles  
guarantees the freedom of expression while simultaneously  
prohibiting the advocacy of hatred: 
   Article 19 
   2. Everyone shall have the right to freedom of  
expression; this right shall include freedom to seek,  
receive and impart information and ideas of all kinds,  
regardless of frontiers, either orally, in writing or in  
print, in the form of art, or through any other media of his  
   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 the respect of the rights or reputations of others; 
   (b) For the protection of national security or of public  
order (ordre public), or of public health or morals. 
   Article 20 
   1. Any propaganda for war shall be prohibited by law. 
   2. Any advocacy of national, racial or religious hatred  
that constitutes incitement to discrimination, hostility or  
violence shall be prohibited by law. 
   It appears that the protection provided freedom of  
expression by C.E.R.D. and I.C.C.P.R. does not extend to  
cover communications advocating racial or religious hatred.  
In C.E.R.D., art. 5 guarantees a number of civil rights,  
including freedom of expression, but it is generally agreed  
that this guarantee does not prevent a state party from  
prohibiting hate propaganda: ''Study on the Implementation  
of Article 4 of the International Convention on the  
Elimination of All Forms of Racial Discrimination'',  
prepared by Special Rapporteur Mr. Jose D. Ingles, A/CONF.  
119/10, May 18, 1983, para. 108. As for I.C.C.P.R., in 1981  
a complaint against Canada was submitted by Mr. John Ross  
Taylor and the Western Guard Party (also appealing to this  
court) to the United Nations Human Rights Committee under  
the Optional Protocol to the International Covenant on Civil  
and Political Rights. The complaint alleged that s. 13(1) of  
the Canadian Human Rights Act, S.C. 1976-77, c. 33 (now  
R.S.C. 1985, c. H-6), which prohibits the communication of  
hate messages by telephone, had been applied against Mr.  
Taylor and his organization in violation of art. 19 of  
I.C.C.P.R.. The committee rejected this argument, however,  
holding that it was incompatible with the provisions of  
I.C.C.P.R., and in particular with art. 20, stating that,  
''... the opinions which Mr. Taylor seeks to disseminate  
through the telephone system clearly constitute the advocacy  
of racial or religious hatred which Canada has an obligation  
under article U20(2) of the Covenant to prohibit'' ( Taylor  
and Western Guard Party v. Canada (1983), Communication No.  
R.24-104, Report of the Human Rights Committee, 38 U.N.  
GAOR, Supp. No. 40 (A/38/40) 231 (1983), para. 8(b),  
reported in part in 5 C.H.R.R. D/2097). 
   In discussing the stance taken toward hate propaganda in  
international law, it is also worth mentioning the European  
Convention for the Protection of Human Rights and  
Fundamental Freedoms, 1950, 213 U.N.T.S. 221, to which 21  
states are parties. The convention contains a qualified  
guarantee of free expression in art. 10, which reads as  
   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. 
   Article 10(2), the language of which bears significant  
resemblance to that of s. 1 of the Charter, has been  
interpreted by the European Commission of Human Rights so as  
to permit the prohibition of racist communications as a  
valid derogation from the protection of free expression: see  
Felderer v. Sweden (1986), 8 E.H.R.R. 91; X. v. Federal  
Republic of Germany, App. No. 9235/81, July 16, 1982, D.R.  
29, p. 194, and Lowes v. United Kingdom, App. No. 13214/87,  
December 9, 1988, unreported). In the leading pronouncement  
of the commission, however, art. 17 of the convention was  
invoked in order to justify hate propaganda laws:  
Glimmerveen v. Netherlands (1979), 4 E.H.R.R. 260. Article  
17 prevents the interpretation of any convention right so as  
to imply a ''right to engage in any activity or perform any  
act aimed at the destruction of any of the rights and  
freedoms set forth herein or at their limitation to a  
greater extent than is provided for in the Convention''. The  
decision in Glimmerveen also utilized art. 14, which  
provides that the enjoyment of convention rights and  
freedoms shall be secured without discrimination on any  
ground such as, inter alia, race or colour. 
   C.E.R.D. and I.C.C.P.R. demonstrate that the prohibition  
of hate-promoting expression is considered to be not only  
compatible with a signatory nation's guarantee of human  
rights, but is as well an obligatory aspect of this  
guarantee. Decisions under the European Convention for the  
Protection of Human Rights and Fundamental Freedoms are also  
of aid in illustrating the tenor of the international  
community's approach to hate propaganda and free expression.  
This is not to deny that finding the correct balance between  
prohibiting hate propaganda and ensuring freedom of  
expression has been a source of debate internationally: see,  
e.g., Natan Lerner, The U.N. Convention on the Elimination  
of All Forms of Racial Discrimination (1980), at pp. 43-54.  
But despite debate Canada, along with other members of the  
international community, has indicated a commitment to  
prohibiting hate propaganda, and in my opinion this court  
must have regard to that commitment in investigating the  
nature of the government objective behind s. 319(2) of the  
Criminal Code. That the international community has  
collectively acted to condemn hate propaganda, and to oblige  
state parties to C.E.R.D. and I.C.C.P.R. to prohibit such  
expression, thus emphasizes the importance of the objective  
behind s. 319(2) and the principles of equality and the  
inherent dignity of all persons that infuse both  
international human rights and the Charter. 
   (iii) Other provisions of the Charter 
   Significant indicia of the strength of the objective  
behind s. 319(2) are gleaned not only from the international  
arena, but are also expressly evident in various provisions  
of the Charter itself. As Wilson J. noted in Singh v. Canada  
(Minister of Employment and Immigration) (1985), 17 D.L.R.  
(4th) 422 at p. 468, [1985] 1 S.C.R. 177, 14 C.R.R. 13: 
   ... it is important to bear in mind that the rights and  
freedoms set out in the Charter are fundamental to the  
political structure of Canada and are guaranteed by the  
Charter as part of the supreme law of our nation. I think  
that in determining whether a particular limitation is a  
reasonable limit prescribed by law which can be  
''demonstrably justified in a free and democratic society''  
it is important to remember that the courts are conducting  
this inquiry in light of a commitment to uphold the rights  
and freedoms set out in other sections of the Charter. 
   Most importantly for the purposes of this appeal, ss. 15  
and 27 represent a strong commitment to the values of  
equality and multiculturalism, and hence underline the great  
importance of Parliament's objective in prohibiting hate  
   Looking first to s. 15, in R. v. Big M Drug Mart Ltd.  
(1985), 18 C.C.C. (3d) 385, 18 D.L.R. (4th) 321, [1985] 1  
S.C.R. 295, I said that ''[] free society is one which aims  
at equality with respect to the enjoyment of fundamental  
freedoms and I say this without any reliance upon s. 15 of  
the Charter'' (p. 417). Section 15 lends further support to  
this observation, for the effects of entrenching a guarantee  
of equality in the Charter are not confined to those  
instances where it can be invoked by an individual against  
the state. In so far as it indicates our society's  
dedication to promoting equality, s. 15 is also relevant in  
assessing the aims of s. 319(2) of the Criminal Code under  
s. 1. In Andrews v. Law Society of British Columbia (1989),  
56 D.L.R. (4th) 1 at p. 15, [1989] 1 S.C.R. 143, [1989] 2  
W.W.R. 289, this court examined the equality guarantee of s.  
15, McIntyre J. noting: 
   It is clear that the purpose of s. 15 is to ensure  
equality in the formulation and application of the law. The  
promotion of equality entails the promotion of a society in  
which all are secure in the knowledge that they are  
recognized at law as human beings equally deserving of  
concern, respect and consideration. It has a large remedial  
   As noted in Big M Drug Mart, promoting equality is an  
undertaking essential to any free and democratic society,  
and I believe that the words of McIntyre J. support this  
position. The principles underlying s. 15 of the Charter are  
thus integral to the s. 1 analysis. 
   In its written submission to the court, the intervenor  
L.E.A.F. made the following comment in support of the view  
that the public and wilful promotion of group hatred is  
properly understood as a practice of inequality: 
   Government sponsored hatred on group grounds would  
violate section 15 of the Charter. Parliament promotes  
equality and moves against inequality when it prohibits the  
wilful public promotion of group hatred on these grounds. It  
follows that government action against group hate, because  
it promotes social equality as guaranteed by the Charter,  
deserves special constitutional consideration under section  
   I agree with this statement. In light of the Charter  
commitment to equality, and the reflection of this  
commitment in the framework of s. 1, the objective of the  
impugned legislation is enhanced in so far as it seeks to  
ensure the equality of all individuals in Canadian society.  
The message of the expressive activity covered by s. 319(2)  
is that members of identifiable groups are not to be given  
equal standing in society, and are not human beings equally  
deserving of concern, respect and consideration. The harms  
caused by this message run directly counter to the values  
central to a free and democratic society, and in restricting  
the promotion of hatred Parliament is therefore seeking to  
bolster the notion of mutual respect necessary in a nation  
which venerates the equality of all persons. 
   Section 15 is not the only Charter provision which  
emphasizes values both important to a free and democratic  
society and pertinent to the disposition of this appeal  
under s. 1. Section 27 states that: 
   27. This Charter shall be interpreted in a manner  
consistent with the preservation and enhancement of the  
multicultural heritage of Canadians. 
   This court has where possible taken account of s. 27 and  
its recognition that Canada possesses a multicultural  
society in which the diversity and richness of various  
cultural groups is a value to be protected and enhanced.  
Section 27 has therefore been used in a number of judgments  
of this court, both as an aid in interpreting the definition  
of Charter rights and freedoms (see, e.g., Big M Drug Mart,  
supra, per Dickson J., at pp. 417-8; Edwards Books, supra,  
per Dickson C.J.C., at pp. 417-8 and Andrews v. Law Society  
of British Columbia, supra, per McIntyre J., at p. 15) and  
as an element in the s. 1 analysis (see, e.g., Edwards  
Books, per La Forest J., at pp. 457-8, and Wilson J., at p.  
   The value expressed in s. 27 cannot be casually dismissed  
in assessing the validity of s. 319(2) under s. 1, and I am  
of the belief that s. 27 and the commitment to a  
multicultural vision of our nation bears notice in  
emphasizing the acute importance of the objective of  
eradicating hate propaganda from society. Professor Joseph  
Magnet has dealt with some of the factors which may be used  
to inform the meaning of s. 27, and of these I expressly  
adopt the principle of non-discrimination and the need to  
prevent attacks on the individual's connection with his or  
her culture, and hence upon the process of self-development:  
see ''Multiculturalism and Collective Rights: Approaches to  
Section 27'', in The Canadian Charter of Rights and  
Freedoms, op. cit., at p. 739. Indeed, the sense that an  
individual can be affected by treatment of a group to which  
he or she belongs is clearly evident in a number of other  
Charter provisions not yet mentioned, including ss. 16 to 23  
(language rights), s. 25 (aboriginal rights), s. 28 (gender  
equality) and s. 29 (denominational schools). 
   Hate propaganda seriously threatens both the enthusiasm  
with which the value of equality is accepted and acted upon  
by society and the connection of target group members to  
their community. I thus agree with the sentiments of Cory  
J.A. who, in writing to uphold s. 319(2) in R. v. Andrews  
(1988), 43 C.C.C. (3d) 193 at p. 213, 65 O.R. (2d) 161, 65  
C.R. (3d) 320 (C.A.), said: ''Multiculturalism cannot be  
preserved let alone enhanced if free rein is given to the  
promotion of hatred against identifiable cultural groups.''  
When the prohibition of expressive activity that promotes  
hatred of groups identifiable on the basis of colour, race,  
religion, or ethnic origin is considered in light of s. 27,  
the legitimacy and substantial nature of the government  
objective is therefore considerably strengthened. 
   (iv) Conclusion respecting objective of s. 319(2) 
   In my opinion, it would be impossible to deny that  
Parliament's objective in enacting s. 319(2) is of the  
utmost importance. Parliament has recognized the substantial  
harm that can flow from hate propaganda, and in trying to  
prevent the pain suffered by target group members and to  
reduce racial, ethnic and religious tension in Canada has  
decided to suppress the wilful promotion of hatred against  
identifiable groups. The nature of Parliament's objective is  
supported not only by the work of numerous study groups, but  
also by our collective historical knowledge of the  
potentially catastrophic effects of the promotion of hatred:  
Jones, supra, per La Forest J., at pp. 537-8. Additionally,  
the international commitment to eradicate hate propaganda  
and the stress placed upon equality and multiculturalism in  
the Charter strongly buttress the importance of this  
objective. I consequently find that the first part of the  
test under s. 1 of the Charter is easily satisfied and that  
a powerfully convincing legislative objective exists such as  
to justify some limit on freedom of expression. 
   D. Proportionality 
   The second branch of the Oakes test -- proportionality --  
poses the most challenging questions with respect to the  
validity of s. 319(2) as a reasonable limit on freedom of  
expression in a free and democratic society. It is therefore  
not surprising to find most commentators, as well as the  
litigants in the case at bar, agreeing that the objective of  
the provision is of great importance, but to observe  
considerable disagreement when it comes to deciding whether  
the means chosen to further the objective are proportional  
to the ends. (Among the more recent Canadian legal articles  
supporting the validity of a provision in the nature of s.  
319(2) see: Dino Bottos, ''Keegstra and Andrews: A  
Commentary on Hate Propaganda and the Freedom of  
Expression'', 27 Alta. L. Rev. 461 (1989); Cotler, op. cit.;  
Arthur Fish, ''Hate Promotion and Freedom of Expression:  
Truth and Consequences'', 2 Can. J.L. & Juris. 111 (1989);  
A. Wayne MacKay, ''Freedom of Expression: Is It All Just  
Talk?'', 68 Can. Bar Rev. 713 (1989); N. Naeem Rauf,  
''Freedom of Expression, the Presumption of Innocence and  
Reasonable Limits: An Analysis of Keegstra and Andrews''  
(1988), 65 C.R. (3d) 356; Alan Regel, ''Hate Propaganda: A  
Reason to Limit Freedom of Speech'', 49 Sask. L. Rev. 303  
(1985). Canadian writers taking the opposite view include  
Ronda Bessner, ''The Constitutionality of the Group Libel  
Offences in the Canadian Criminal Code'', 17 Man. L. J. 183  
(1988); A. Alan Borovoy, ''Freedom of Expression: Some  
Recurring Impediments'' in Justice Beyond Orwell, op. cit.,  
p. 125; Stefan Braun, ''Social and Racial Tolerance and  
Freedom of Expression in a Democratic Society: Friends or  
Foes? Regina v. Zundel '', 11 Dalhousie L. J. 470 (1988).) 
   (i) Relation of the expression at stake to free  
expression values 
   In discussing the nature of the government objective, I  
have commented at length upon the way in which the  
suppression of hate propaganda furthers values basic to a  
free and democratic society. I have said little, however,  
regarding the extent to which these same values, including  
the freedom of expression, are furthered by permitting the  
exposition of such expressive activity. This lacuna is  
explicable when one realizes that the interpretation of s.  
2(b) under Irwin Toy, supra, gives protection to a very wide  
range of expression. Content is irrelevant to this  
interpretation, the result of a high value being placed upon  
freedom of expression in the abstract. This approach to s.  
2(b) often operates to leave unexamined the extent to which  
the expression at stake in a particular case promotes  
freedom of expression principles. In my opinion, however,  
the s. 1 analysis of a limit upon s. 2(b) cannot ignore the  
nature of the expressive activity which the state seeks to  
restrict. While we must guard carefully against judging  
expression according to its popularity, it is equally  
destructive of free expression values, as well as the other  
values which underlie a free and democratic society, to  
treat all expression as equally crucial to those principles  
at the core of s. 2(b). 
   In Rocket v. Royal College of Dental Surgeons of Ontario,  
supra, McLachlin J. recognized the importance of context in  
evaluating expressive activity under s. 1, stating with  
regard to commercial speech (at p. 78): 
   While the Canadian approach does not apply special tests  
to restrictions on commercial expression, our method of  
analysis does permit a sensitive, case-oriented approach to  
the determination of their constitutionality. Placing the  
conflicting values in their factual and social context when  
performing the s. 1 analysis permits the courts to have  
regard to special features of the expression in question. As  
Wilson J. notes in Edmonton Journal v. Alberta (A.-G.)  
(1989), 64 D.L.R. (4th) 577, [1989] 2 S.C.R. 1326, [1990] 1  
W.W.R. 577, not all expression is equally worthy of  
protection. Nor are all infringements of free expression  
equally serious. 
   (See also Reference re ss. 193 and 195.1(1)(c) of the  
Criminal Code, supra, at p. 73, per Dickson C.J.C.) Using  
this contextual approach, McLachlin J. evaluated the  
expression jeopardized by government regulation in light of  
s. 2(b) values. She thus went on to consider those interests  
which argued for restriction only after having assessed the  
importance of the freedom of expression interest at stake on  
the facts of the case. 
   Royal College dealt with provincial limitations upon the  
freedom of dentists to impart information to patients and  
potential patients via advertisements. In these  
circumstances, the court found that the expression regulated  
was of a nature that made its curtailment something less  
than a most serious infringement of the freedom of  
expression, the limitation affecting neither participation  
in the political process nor the ability of the individual  
to achieve spiritual or artistic self-fulfillment. The  
resulting conclusion was that ''restrictions on expression  
of this kind might be easier to justify than other  
infringements'' (p. 79). At the same time, however, it was  
recognized that an interest existed in those who wished to  
make an informed choice as to a dentist, and in so far as  
access to such information was restricted the infringement  
of s. 2(b) could not be lightly dismissed (p. 79). Moreover,  
unlike in Irwin Toy, the information was not aimed at  
children, a group hampered in making informed choices, and  
hence any heightened state interest that might arise in  
protecting a vulnerable group was absent (p. 79). 
   Applying the Royal College approach to the context of  
this appeal is a key aspect of the s. 1 analysis. One must  
ask whether the expression prohibited by s. 319(2) is  
tenuously connected to the values underlying s. 2(b) so as  
to make the restriction ''easier to justify than other  
infringements''. In this regard, let me begin by saying  
that, in my opinion, there can be no real disagreement about  
the subject-matter of the messages and teachings  
communicated by the respondent, Mr. Keegstra: it is deeply  
offensive, hurtful and damaging to target group members,  
misleading to his listeners, and antithetical to the  
furtherance of tolerance and understanding in society.  
Furthermore, as will be clear when I come to discuss in  
detail the interpretation of s. 319(2), there is no doubt  
that all expression fitting within the terms of the offence  
can be similarly described. To say merely that expression is  
offensive and disturbing, however, fails to address  
satisfactorily the question of whether, and to what extent,  
the expressive activity prohibited by s. 319(2) promotes the  
values underlying the freedom of expression. It is to this  
difficult and complex question that I now turn. 
   From the outset, I wish to make clear that in my opinion  
the expression prohibited by s. 319(2) is not closely linked  
to the rationale underlying s. 2(b). Examining the values  
identified in Ford and Irwin Toy as fundamental to the  
protection of free expression, arguments can be made for the  
proposition that each of these values is diminished by the  
suppression of hate propaganda. While none of these  
arguments is spurious, I am of the opinion that expression  
intended to promote the hatred of identifiable groups is of  
limited importance when measured against free expression  
   At the core of freedom of expression lies the need to  
ensure that truth and the common good are attained, whether  
in scientific and artistic endeavors or in the process of  
determining the best course to take in our political  
affairs. Since truth and the ideal form of political and  
social organization can rarely, if at all, be identified  
with absolute certainty, it is difficult to prohibit  
expression without impeding the free exchange of potentially  
valuable information. Nevertheless, the argument from truth  
does not provide convincing support for the protection of  
hate propaganda. Taken to its extreme, this argument would  
require us to permit the communication of all expression, it  
being impossible to know with absolute certainty which  
factual statements are true, or which ideas obtain the  
greatest good. The problem with this extreme position,  
however, is that the greater the degree of certainty that a  
statement is erroneous or mendacious, the less its value in  
the quest for truth. Indeed, expression can be used to the  
detriment of our search for truth; the state should not be  
the sole arbiter of truth, but neither should we overplay  
the view that rationality will overcome all falsehoods in  
the unregulated market-place of ideas. There is very little  
chance that statements intended to promote hatred against an  
identifiable group are true, or that their vision of society  
will lead to a better world. To portray such statements as  
crucial to truth and the betterment of the political and  
social milieu is therefore misguided. 
   Another component central to the rationale underlying s.  
2(b) concerns the vital role of free expression as a means  
of ensuring individuals the ability to gain self-fulfillment  
by developing and articulating thoughts and ideas as they  
see fit. It is true that s. 319(2) inhibits this process  
among those individuals whose expression it limits, and  
hence arguably works against freedom of expression values.  
On the other hand, such self-autonomy stems in large part  
from one's ability to articulate and nurture an identity  
derived from membership in a cultural or religious group.  
The message put forth by individuals who fall within the  
ambit of s. 319(2) represents a most extreme opposition to  
the idea that members of identifiable groups should enjoy  
this aspect of the s. 2(b) benefit. The extent to which the  
unhindered promotion of this message furthers free  
expression values must therefore be tempered in so far as it  
advocates with inordinate vitriol an intolerance and  
prejudice which views as execrable the process of individual  
self-development and human flourishing among all members of  
   Moving on to a third strain of thought said to justify  
the protection of free expression, one's attention is  
brought specifically to the political realm. The connection  
between freedom of expression and the political process is  
perhaps the linchpin of the s. 2(b) guarantee, and the  
nature of this connection is largely derived from the  
Canadian commitment to democracy. Freedom of expression is a  
crucial aspect of the democratic commitment, not merely  
because it permits the best policies to be chosen from among  
a wide array of proffered options, but additionally because  
it helps to ensure that participation in the political  
process is open to all persons. Such open participation must  
involve to a substantial degree the notion that all persons  
are equally deserving of respect and dignity. The state  
therefore cannot act to hinder or condemn a political view  
without to some extent harming the openness of Canadian  
democracy and its associated tenet of equality for all. 
   The suppression of hate propaganda undeniably muzzles the  
participation of a few individuals in the democratic  
process, and hence detracts somewhat from free expression  
values, but the degree of this limitation is not  
substantial. I am aware that the use of strong language in  
political and social debate -- indeed, perhaps even language  
intended to promote hatred -- is an unavoidable part of the  
democratic process. Moreover, I recognize that hate  
propaganda is expression of a type which would generally be  
categorized as ''political'', thus putatively placing it at  
the very heart of the principle extolling freedom of  
expression as vital to the democratic process. None the  
less, expression can work to undermine our commitment to  
democracy where employed to propagate ideas anathemic to  
democratic values. Hate propaganda works in just such a way,  
arguing as it does for a society in which the democratic  
process is subverted and individuals are denied respect and  
dignity simply because of racial or religious  
characteristics. This brand of expressive activity is thus  
wholly inimical to the democratic aspirations of the free  
expression guarantee. 
   Indeed, one may quite plausibly contend that it is  
through rejecting hate propaganda that the state can best  
encourage the protection of values central to freedom of  
expression, while simultaneously demonstrating dislike for  
the vision forwarded by hate-mongers. In this regard, the  
reaction to various types of expression by a democratic  
government may be perceived as meaningful expression on  
behalf of the vast majority of citizens. I do not wish to be  
construed as saying that an infringement of s. 2(b) can be  
justified under s. 1 merely because it is the product of a  
democratic process; the Charter will not permit even the  
democratically elected legislature to restrict the rights  
and freedoms crucial to a free and democratic society. What  
I do wish to emphasize, however, is that one must be careful  
not to accept blindly that the suppression of expression  
must always and unremittingly detract from values central to  
freedom of expression: Lee C. Bollinger, The Tolerant  
Society: Freedom of Speech and Extremist Speech in America  
(1986), at pp. 87-93. 
   I am very reluctant to attach anything but the highest  
importance to expression relevant to political matters. But  
given the unparalleled vigour with which hate propaganda  
repudiates and undermines democratic values, and in  
particular its condemnation of the view that all citizens  
need be treated with equal respect and dignity so as to make  
participation in the political process meaningful, I am  
unable to see the protection of such expression as integral  
to the democratic ideal so central to the s. 2(b) rationale.  
Together with my comments as to the tenuous link between  
communications covered by s. 319(2) and other values at the  
core of the free expression guarantee, this conclusion leads  
me to disagree with the opinion of McLachlin J. that the  
expression at stake in this appeal mandates the most  
solicitous degree of constitutional protection. In my view,  
hate propaganda should not be accorded the greatest of  
weight in the s. 1 analysis. 
   As a caveat, it must be emphasized that the protection of  
extreme statements, even where they attack those principles  
underlying the freedom of expression, is not completely  
divorced from the aims of s. 2(b) of the Charter. As noted  
already, suppressing the expression covered by s. 319(2)  
does to some extent weaken these principles. It can also be  
argued that it is partly through a clash with extreme and  
erroneous views that truth and the democratic vision remain  
vigorous and alive: see Braun, op. cit., at p. 190. In this  
regard, judicial pronouncements strongly advocating the  
importance of free expression values might be seen as  
helping to expose prejudiced statements as valueless even  
while striking down legislative restrictions that proscribe  
such expression. Additionally, condoning a democracy's  
collective decision to protect itself from certain types of  
expression may lead to a slippery slope on which  
encroachments on expression central to s. 2(b) values are  
permitted. To guard against such a result, the protection of  
communications virulently unsupportive of free expression  
values may be necessary in order to ensure that expression  
more compatible with these values is never unjustifiably  
   None of these arguments is devoid of merit, and each must  
be taken into account in determining whether an infringement  
of s. 2(b) can be justified under s. 1. It need not be,  
however, that they apply equally or with the greatest of  
strength in every instance. As I have said already, I am of  
the opinion that hate propaganda contributes little to the  
aspirations of Canadians or Canada in either the quest for  
truth, the promotion of individual self-development or the  
protection and fostering of a vibrant democracy where the  
participation of all individuals is accepted and encouraged.  
While I cannot conclude that hate propaganda deserves only  
marginal protection under the s. 1 analysis, I can take  
cognizance of the fact that limitations upon hate propaganda  
are directed at a special category of expression which  
strays some distance from the spirit of s. 2(b), and hence  
conclude that ''restrictions on expression of this kind  
might be easier to justify than other infringements of s.  
2(b)'': Royal College, supra, at p. 79. 
   As a final point, it should be stressed that in  
discussing the relationship between hate propaganda and  
freedom of expression values I do not wish to be taken as  
advocating an inflexible ''levels of scrutiny''  
categorization of expressive activity. The contextual  
approach necessitates an open discussion of the manner in  
which s. 2(b) values are engaged in the circumstances of an  
appeal. To become transfixed with categorization schemes  
risks losing the advantage associated with this sensitive  
examination of free expression principles, and I would be  
loath to sanction such a result. 
   Having made some preliminary comments as to the nature of  
the expression at stake in this appeal, it is now possible  
to ask whether s. 319(2) is an acceptably proportional  
response to Parliament's valid objective. As stated above,  
the proportionality aspect of the Oakes test requires the  
court to decide whether the impugned state action: (i) is  
rationally connected to the objective; (ii) minimally  
impairs the Charter right or freedom at issue, and (iii)  
does not produce effects of such severity so as to make the  
impairment unjustifiable. I will now address these segments  
of the proportionality inquiry, beginning with the question  
of whether a rational connection exists between s. 319(2)  
and the legislative objective. 
   (ii) Rational connection 
   Section 319(2) makes the wilful promotion of hatred  
against identifiable groups an indictable offence,  
indicating Parliament's serious concern about the effects of  
such activity. Those who would uphold the provision argue  
that the criminal prohibition of hate propaganda obviously  
bears a rational connection to the legitimate parliamentary  
objective of protecting target group members and fostering  
harmonious social relations in a community dedicated to  
equality and multiculturalism. I agree, for in my opinion it  
would be difficult to deny that the suppression of hate  
propaganda reduces the harm such expression does to  
individuals who belong to identifiable groups and to  
relations between various cultural and religious groups in  
Canadian society. 
   Doubts have been raised, however, as to whether the  
actual effect of s. 319(2) is to undermine any rational  
connection between it and Parliament's objective. As stated  
in the reasons of McLachlin J., there are three primary ways  
in which the effect of the impugned legislation might be  
seen as an irrational means of carrying out the  
Parliamentary purpose. First, it is argued that the  
provision may actually promote the cause of hate-mongers by  
earning them extensive media attention. In this vein, it is  
also suggested that persons accused of intentionally  
promoting hatred often see themselves as martyrs, and may  
actually generate sympathy from the community in the role of  
underdogs engaged in battle against the immense powers of  
the state. Secondly, the public may view the suppression of  
expression by the government with suspicion, making it  
possible that such expression -- even if it be hate  
propaganda -- is perceived as containing an element of  
truth. Finally, it is often noted, citing the writings of  
Arheh Neier, Defending My Enemy: American Nazis, the Skokie  
Case, and the Risks of Freedom (1979), that Germany of the  
1920's and 1930's possessed and used hate propaganda laws  
similar to those existing in Canada, and yet these laws did  
nothing to stop the triumph of a racist philosophy under the  
   If s. 319(2) can be said to have no impact in the quest  
to achieve Parliament's admirable objectives, or in fact  
works in opposition to these objectives, then I agree that  
the provision could be described as ''arbitrary, unfair or  
based on irrational considerations'': ( Oakes, supra, at p.  
348). I recognize that the effect of s. 319(2) is impossible  
to define with exact precision -- the same can be said for  
many laws, criminal or otherwise. In my view, however, the  
position that there is no strong and evident connection  
between the criminalization of hate propaganda and its  
suppression is unconvincing. I come to this conclusion for a  
number of reasons, and will elucidate these by answering in  
turn the three arguments just mentioned. 
   It is undeniable that media attention has been extensive  
on those occasions when s. 319(2) has been used. Yet from my  
perspective, s. 319(2) serves to illustrate to the public  
the severe reprobation with which society holds messages of  
hate directed towards racial and religious groups. The  
existence of a particular criminal law, and the process of  
holding a trial when that law is used, is thus itself a form  
of expression, and the message sent out is that hate  
propaganda is harmful to target group members and  
threatening to a harmonious society: see Rauf, op. cit., at  
p. 359. As I stated in my reasons in R. v. Morgentaler  
(1988), 37 C.C.C. (3d) 449 at p. 476, 44 D.L.R. (4th) 385,  
[1988] 1 S.C.R. 30: ''The criminal law is a very special  
form of governmental regulation, for it seeks to express our  
society's collective disapprobation of certain acts and  
omissions.'' The many, many Canadians who belong to  
identifiable groups surely gain a great deal of comfort from  
the knowledge that the hate-monger is criminally prosecuted  
and his or her ideas rejected. Equally, the community as a  
whole is reminded of the importance of diversity and  
multiculturalism in Canada, the value of equality and the  
worth and dignity of each human person being particularly  
   In this context, it can also be said that government  
suppression of hate propaganda will not make the expression  
attractive and hence increase acceptance of its content.  
Similarly, it is very doubtful that Canadians will have  
sympathy for either propagators of hatred or their ideas.  
Governmental disapproval of hate propaganda does not  
invariably result in dignifying the suppressed ideology.  
Pornography is not dignified by its suppression, nor are  
defamatory statements against individuals seen as  
meritorious because the common law lends its support to  
their prohibition. Again, I stress my belief that hate  
propaganda legislation and trials are a means by which the  
values beneficial to a free and democratic society can be  
publicized. In this context, no dignity will be unwittingly  
foisted upon the convicted hate-monger or his or her  
philosophy, and that a hate-monger might see him or herself  
as a martyr is of no matter to the content of the state's  
   As for the use of hate propaganda laws in pre-World War  
Two Germany, I am skeptical as to the relevance of the  
observation that legislation similar to s. 319(2) proved  
ineffective in curbing the racism of the Nazis. No one is  
contending that hate propaganda laws can in themselves  
prevent the tragedy of a Holocaust; conditions particular to  
Germany made the rise of Nazi ideology possible despite the  
existence and use of these laws: see Ambrose Doskow and  
Sidney B. Jacoby, ''Anti Semitism and the Law in Pre-Nazi  
Germany'', in Contemporary Jewish Record 498 at p. 509).  
Rather, hate propaganda laws are one part of a free and  
democratic society's bid to prevent the spread of racism,  
and their rational connection to this objective must be seen  
in such a context. Certainly West Germany has not reacted to  
the failure of pre-war laws by seeking their removal, a new  
set of criminal offences having been implemented as recently  
as 1985: see Eric Stein, ''History Against Free Speech: The  
New German Law Against 'Auschwitz' -- and other -- 'Lies"',  
85 Mich. L. Rev. 277 (1987). Nor, as has been discussed, has  
the international community regarded the promulgation of  
laws suppressing hate propaganda as futile or  
counter-productive. Indeed, this court's attention has been  
drawn to the fact that a great many countries possess  
legislation similar to that found in Canada: see, e.g.:  
England and Wales, Public Order Act, 1986 (U.K.), c. 64, ss.  
17 to 23; New Zealand, Race Relations Act, 1971 (N.Z.), s.  
25; Sweden, Penal Code, c. 16, s. 8, as amended;  
Netherlands, Penal Code, ss. 137c, 137d and 137e; India,  
Penal Code, ss. 153-A and 153-B, and generally, ''Study on  
the Implementation of Article 4 of the International  
Convention on the Elimination of All Forms of Racial  
Discrimination'', ibid.. The experience of Germany  
represents an awful nadir in the history of racism, and  
demonstrates the extent to which flawed and brutal ideas can  
capture the acceptance of a significant number of people.  
One aspect of this experience is not, however, determinative  
in deciding whether or not hate propaganda laws are effective. 
   In sum, having found that the purpose of the challenged  
legislation is valid, I also find that the means chosen to  
further this purpose are rational in both theory and  
operation, and therefore conclude that the first branch of  
the proportionality test has been met. Accordingly, I move  
now to the issue of whether s. 319(2) minimally impairs the  
s. 2(b) guarantee of freedom of expression. 
   (iii) Minimal impairment of the s. 2(b) freedom 
   The criminal nature of the impugned provision, involving  
the associated risks of prejudice through prosecution,  
conviction and the imposition of up to two years'  
imprisonment, indicates that the means embodied in hate  
propaganda legislation should be carefully tailored so as to  
minimize impairment of the freedom of expression. It  
therefore must be shown that s. 319(2) is a measured and  
appropriate response to the phenomenon of hate propaganda,  
and that it does not overly circumscribe the s. 2(b)  
   The main argument of those who would strike down s.  
319(2) is that it creates a real possibility of punishing  
expression that is not hate propaganda. It is thus submitted  
that the legislation is overbroad, its terms so wide as to  
include expression which does not relate to Parliament's  
objective, and also unduly vague, in that a lack of clarity  
and precision in its words prevents individuals from  
discerning its meaning with any accuracy. In either  
instance, it is said that the effect of s. 319(2) is to  
limit the expression of merely unpopular or unconventional  
communications. Such communications may present no risk of  
causing the harm which Parliament seeks to prevent, and will  
perhaps be closely associated with the core values of s.  
2(b). This overbreadth and vagueness could consequently  
allow the state to employ s. 319(2) to infringe excessively  
the freedom of expression or, what is more likely, could  
have a chilling effect whereby persons potentially within s.  
319(2) would exercise self-censorship. Accordingly, those  
attacking the validity of s. 319(2) contend that vigorous  
debate on important political and social issues, so highly  
valued in a society that prizes a diversity of ideas, is  
unacceptably suppressed by the provision. 
   The question to be answered, then, is whether s. 319(2)  
indeed fails to distinguish between low value expression  
that is squarely within the focus of Parliament's valid  
objective and that which does not invoke the need for the  
severe response of criminal sanction. In order to answer  
this question, and thus to determine whether s. 319(2)  
minimally impairs the freedom of expression, the nature and  
impact of specific features of the provision must be  
examined in some detail. These features relate to both the  
terms of the offence and the available defences enumerated  
in s. 319(3), and I find it convenient to utilize this  
slightly arbitrary division for the purposes of the  
following discussion. As well, in examining this aspect of  
the proportionality test I will comment upon the relevance  
of alternative modes of combatting the harm caused by hate  
   a. Terms of s. 319(2) 
   In assessing the constitutionality of s. 319(2),  
especially as concerns arguments of overbreadth and  
vagueness, an immediate observation is that statements made  
''in private conversation'' are not included in the  
criminalized expression. The provision thus does not  
prohibit views expressed with an intention to promote hatred  
if made privately, indicating Parliament's concern not to  
intrude upon the privacy of the individual. Indeed, that the  
legislation excludes private conversation, rather than  
including communications made in a public forum, suggests  
that the expression of hatred in a place accessible to the  
public is not sufficient to activate the legislation: see  
Fish, op. cit., at p. 115. This observation is supported by  
comparing the words of s. 319(2) with those of the  
prohibition against the incitement of hatred likely to lead  
to a breach of peace in s. 319(1). Section 319(1) covers  
statements communicated ''in a public place'', suggesting  
that a wider scope of prohibition was intended where the  
danger occasioned by the statements was of an immediate  
nature, while the wording of s. 319(2) indicates that  
private conversations taking place in public areas are not  
prohibited. Moreover, it is reasonable to infer a subjective  
mens rea requirement regarding the type of conversation  
covered by s. 319(2), an inference supported by the  
definition of ''private communications'' contained in s. 183  
of the Criminal Code. Consequently, a conversation or  
communication intended to be private does not satisfy the  
requirements of the provision if through accident or  
negligence an individual's expression of hatred for an  
identifiable group is made public. 
   Is s. 319(2) nevertheless overbroad because it captures  
all public expression intended to promote hatred? It would  
appear not, for the harm which the government seeks to  
prevent is not restricted to certain mediums and/or  
locations. To attempt to distinguish between various forms  
and fora would therefore be incongruent with Parliament's  
legitimate objective. 
   A second important element of s. 319(2) is its  
requirement that the promotion of hatred be ''wilful''. The  
nature of this mental element was explored by Martin J.A. 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.). In that case, the  
two accused were charged under s. 319(2) (then s. 281.2(2)),  
after distributing handbills containing statements attacking  
the French-Canadian public in Essex County. At the time, the  
francophone minority in the county was attempting to have  
the school board build a French-language secondary school.  
The accused persons identified with French-speaking  
Canadians and were responding to opposition to the  
construction of the school. According to them, the pamphlet  
was intended as a satire that would bring a quick solution  
by provoking government reaction, thereby exerting pressure  
on the school board, but in spite of this explanation a  
conviction was entered at trial. 
   On appeal, Martin J.A. overturned the conviction. He  
noted that the word ''wilfully'' does not have a fixed  
meaning in criminal law, and thus sought to divine the use  
and import of the word as it appears in s. 319(2) (pp.  
379-81). Comparing the section with s. 319(1) (then s.  
281.2(1)), which prohibits incitement to hatred in a public  
place where such incitement is likely to lead to a breach of  
peace, he said (at pp. 381-2): 
   The insertion of the word ''wilfully'' in [s. 319(2)] was  
not necessary to import mens rea since that requirement  
would be implied in any event because of the serious nature  
of the offence: see R. v. Prue, supra. The statements, the  
communication of which are proscribed by [s. 319(2)], are  
not confined to statements communicated in a public place in  
circumstances likely to lead to a breach of the peace and  
they, consequently, do not pose such an immediate threat to  
public order as those falling under [s. 319(1)]; it is  
reasonable to assume, therefore, that Parliament intended to  
limit the offence under [s. 319(2)] to the intentional  
promotion of hatred. It is evident that the use of the word  
''wilfully'' in [s. 319(2)], and not in [s. 319(1)],  
reflects Parliament's policy to strike a balance in  
protecting the competing social interests of freedom of  
expression on the one hand, and public order and group  
reputation on the other hand. 
   More specifically, Martin J.A. went on to elaborate on  
the meaning of ''wilfully'', concluding that this mental  
element is satisfied only where an accused subjectively  
desires the promotion of hatred or foresees such a  
consequence as certain or substantially certain to result  
from an act done in order to achieve some other purpose (pp.  
384-5). On the facts in Buzzanga, the trial judge had  
informed the jury that ''wilfully'' could be equated with  
the intention to create ''controversy, furor and an uproar''  
(p. 386). This interpretation was clearly incompatible with  
Martin J.A.'s requirement that the promotion of hatred be  
intended or foreseen as substantially certain, and a new  
trial was therefore ordered. 
   The interpretation of ''wilfully'' in Buzzanga has great  
bearing upon the extent to which s. 319(2) limits the  
freedom of expression. This mental element, requiring more  
than merely negligence or recklessness as to result,  
significantly restricts the reach of the provision, and  
thereby reduces the scope of the targeted expression. Such a  
reduced scope is recognized and applauded in the Law Reform  
Commission of Canada's Working Paper, ''Hate Propaganda'',  
op. cit., it being said that (at p. 36): 
   The principle of restraint requires lawmakers to concern  
themselves not just with whom they want to catch, but also  
with whom they do not want to catch. For example, removing  
an intent or purpose requirement could well result in  
successful prosecutions of cases similar to Buzzanga, where  
members of a minority group publish hate propaganda against  
their own group in order to create controversy or to agitate  
for reform. This crime should not be used to prosecute such  
   I agree with the interpretation of ''wilfully'' in  
Buzzanga, and wholeheartedly endorse the view of the Law  
Reform Commission Working Paper that this stringent standard  
of mens rea is an invaluable means of limiting the incursion  
of s. 319(2) into the realm of acceptable (though perhaps  
offensive and controversial) expression. It is clear that  
the word ''wilfully'' imports a difficult burden for the  
Crown to meet and, in so doing, serves to minimize the  
impairment of freedom of expression. 
   It has been argued, however, that even a demanding mens  
rea component fails to give s. 319(2) a constitutionally  
acceptable breadth. The problem is said to lie in the  
failure of the offence to require proof of actual hatred  
resulting from a communication, the assumption being that  
only such proof can demonstrate a harm serious enough to  
justify limiting the freedom of expression under s. 1. It  
was largely because of this lack of need for proof of actual  
hatred that Kerans J.A in the Court of Appeal held s. 319(2)  
to violate the Charter. 
   While mindful of the dangers identified by Kerans J.A., I  
do not find them sufficiently grave to compel striking down  
s. 319(2). First, to predicate the limitation of free  
expression upon proof of actual hatred gives insufficient  
attention to the severe psychological trauma suffered by  
members of those identifiable groups targeted by hate  
propaganda. Secondly, it is clearly difficult to prove a  
causative link between a specific statement and hatred of an  
identifiable group. In fact, to require direct proof of  
hatred in listeners would severely debilitate the  
effectiveness of s. 319(2) in achieving Parliament's aim. It  
is well accepted that Parliament can use the criminal law to  
prevent the risk of serious harms, a leading example being  
the drinking and driving provisions in the Criminal Code.  
The conclusions of the Cohen Committee and subsequent study  
groups show that the risk of hatred caused by hate  
propaganda is very real, and in view of the grievous harm to  
be avoided in the context of this appeal, I conclude that  
proof of actual hatred is not required in order to justify a  
limit under s. 1. 
   The next feature of the provision that must be explored  
is the phrase ''promotes hatred against an identifiable  
group''. Given the purpose of the provision to criminalize  
the spreading of hatred in society, I find that the word  
''promotes'' indicates active support or instigation. Indeed  
the French version of the offence uses the verb  
''fomenter'', which in English means to foment or stir up.  
In ''promotes'' we thus have a word that indicates more than  
simple encouragement or advancement. The hate-monger must  
intend or foresee as substantially certain a direct and  
active stimulation of hatred against an identifiable group.  
As for the term ''identifiable group'', s. 318(4) states  
that an ''identifiable group'' means any section of the  
public distinguished by colour, race, religion or ethnic  
origin''. The act to be targeted is therefore the  
intentional fostering of hatred against particular members  
of our society, as opposed to any individual. 
   The meaning of ''hatred'' remains to be elucidated. Just  
as ''wilfully'' must be interpreted in the setting of s.  
319(2), so must the word ''hatred'' be defined according to  
the context in which it is found. A dictionary definition  
may be of limited aid to such an exercise, for by its nature  
a dictionary seeks to offer a panoply of possible usages,  
rather than the correct meaning of a word as contemplated by  
Parliament. Noting the purpose of s. 319(2), in my opinion  
the term ''hatred'' connotes emotion of an intense and  
extreme nature that is clearly associated with vilification  
and detestation. As Cory J.A. stated in R. v. Andrews,  
supra, at p. 211: ''Hatred is not a word of casual  
connotation. To promote hatred is to instil detestation,  
enmity, ill-will and malevolence in another. Clearly an  
expression must go a long way before it qualifies within the  
definition in [s. 319(2)].'' Hatred is predicated on  
destruction, and hatred against identifiable groups  
therefore thrives on insensitivity, bigotry and destruction  
of both the target group and of the values of our society.  
Hatred in this sense is a most extreme emotion that belies  
reason; an emotion that, if exercised against members of an  
identifiable group, implies that those individuals are to be  
despised, scorned, denied respect and made subject to  
ill-treatment on the basis of group affiliation. 
   Those who argue that s. 319(2) should be struck down  
submit that it is impossible to define with care and  
precision a term like ''hatred''. Yet, as I have stated, the  
sense in which ''hatred'' is used in s. 319(2) does not  
denote a wide range of diverse emotions, but is  
circumscribed so as to cover only the most intense form of  
dislike. It was also argued on appeal, however, that  
regardless of the definition given ''hatred'' by the courts,  
the trier of fact must make a subjective decision in  
deciding whether ''hatred'' is indeed what the accused  
intended to promote. To determine if the promotion of hatred  
was intended, the trier will usually make an inference as to  
the necessary mens rea based upon the statements made. The  
subjective nature of this inferential exercise is said to  
create a danger that hatred of the type required by s.  
319(2) will be found, though unjustifiably, in every  
instance where the trier dislikes or finds offensive the  
content of the accused's statements. 
   The danger that a trier will improperly infer hatred from  
statements he or she personally finds offensive cannot be  
dismissed lightly, yet I do not think that the subjectivity  
inherent in determining whether the accused intended to  
promote hatred, as opposed to an emotion involving a lesser  
degree of antipathy, represents an unbridled licence to  
extend the scope of the offence. Recognizing the need to  
circumscribe the definition of ''hatred'' in the manner  
referred to above, a judge should direct the jury (or him or  
herself) regarding the nature of the term as it exists in s.  
319(2). Such a direction should include express mention of  
the need to avoid finding that the accused intended to  
promote hatred merely because the expression is distasteful.  
If such a warning is given, the danger referred to above  
will be avoided and the freedom of expression limited no  
more than is necessary. 
   b. The defences to s. 319(2) 
   The factors mentioned above suggest that s. 319(2) does  
not unduly restrict the s. 2(b) guarantee. The terms of the  
offence, as I have defined them, rather indicate that s.  
319(2) possesses definitional limits which act as safeguards  
to ensure that it will capture only expressive activity  
which is openly hostile to Parliament's objective, and will  
thus attack only the harm at which the prohibition is  
targeted. The specific defences provided are further glosses  
on the purview of the offence, and I repeat them here. 
   319(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. 
   A careful reading of the s. 319(3) defences shows them to  
take in examples of expressive activity that generally would  
not fall within the ''wilful promotion of hatred'' as I have  
defined the phrase. Thus the three defences which include  
elements of good faith or honest belief -- namely, s.  
319(3)(b), (c) and (d) -- would seem to operate to negate  
directly the mens rea in the offence, for only rarely will  
one who intends to promote hatred be acting in good faith or  
upon honest belief. These defences are hence intended to aid  
in making the scope of the wilful promotion of hatred more  
explicit; individuals engaging in the type of expression  
described are thus given a strong signal that their activity  
will not be swept into the ambit of the offence. The result  
is that what danger exists that s. 319(2) is overbroad or  
unduly vague, or will be perceived as such, is significantly  
reduced. To the extent that s. 319(3) provides justification  
for the accused who would otherwise fall within the  
parameters of the offence of wilfully promoting hatred, it  
reflects a commitment to the idea that an individual's  
freedom of expression will not be curtailed in borderline  
cases. The line between the rough and tumble of public  
debate and brutal, negative and damaging attacks upon  
identifiable groups is hence adjusted in order to give some  
leeway to freedom of expression. 
   The overlap between s. 319(2) and the defences is less  
pronounced in the case of the defence of truth, s. 319(3)(a)  
being more likely than the other defences to excuse the  
wilful promotion of hatred. This increased likelihood  
reveals the defence in para. (a) to be an especially  
poignant indicator of Parliament's cautionary approach and  
care in protecting freedom of expression. Of course, if  
statements of truth are made without the intention to  
promote hatred towards identifiable groups, the offence as  
defined in s. 319(2) has not been committed. On the other  
hand, if a situation arises where an individual uses  
statements of truth in order to promote hatred against  
identifiable groups, the accused is acquitted despite the  
existence of the harm which Parliament seeks to prevent.  
Excusing the accused who intentionally promotes hatred  
through the communication of truthful statements is thus a  
circumspect measure associated with the importance  
attributed to truth -- and hence to free expression -- in  
our society. 
   It has been forcefully argued before us that the defence  
of truth is insufficient protection against an overly broad  
hate propaganda law. In this vein, it is rightly pointed out  
that many (if not most) of the communications coming within  
s. 319(2) are not susceptible to a true/false  
categorization, existing instead as ideas or opinions in the  
mind of the communicator. The accused could therefore  
sincerely believe in the worth of his or her viewpoint and  
yet be unable to utilize the s. 319(3)(a) defence. Moreover,  
it is said that, even where a statement is capable of  
categorization as true or false, the individual honestly  
mistaken as to the validity of his or her position (even if  
innocently so) is left unprotected, a result which  
dangerously restricts freedom of expression, causing a  
''chill'' on communications as those who fear that their  
statements may be false exercise self-censorship. Finally,  
one might wonder if the courts are not on dangerous ground  
in attempting to distinguish between truthfulness and  
falsehood. The potential for bias in making such a  
determination, be it intentional or subconscious, is a  
danger frequently noted in freedom of expression theory  
(this potential is equally evident in s. 319(3)(c), in so  
far as ideas are assessed in light of ''reasonableness'' and  
the ''public benefit''). 
   The way in which I have defined the s. 319(2) offence, in  
the context of the objective sought by society and the value  
of the prohibited expression, gives me some doubt as to  
whether the Charter mandates that truthful statements  
communicated with an intention to promote hatred need be  
excepted from criminal condemnation. Truth may be used for  
widely disparate ends, and I find it difficult to accept  
that circumstances exist where factually accurate statements  
can be used for no other purpose than to stir up hatred  
against a racial or religious group. It would seem to follow  
that there is no reason why the individual who intentionally  
employs such statements to achieve harmful ends must under  
the Charter be protected from criminal censure. 
   Nevertheless, it is open to Parliament to make a  
concession to free expression values, whether or not such is  
required by the Charter. Deference to truth as a value  
central to free expression has thus led Parliament to  
include the defence in s. 319(3)(a), even though the accused  
has used truthful statements to cause harm of the type  
falling squarely within the objective of the legislation.  
When the statement contains no truth, however, this flicker  
of justification for the intentional promotion of hatred is  
extinguished, and the harmful malice of the disseminator  
stands alone. The relationship between the value of hate  
propaganda as expression and the parliamentary objective of  
eradicating harm, slightly altered so as to increase the  
magnitude of the former where the statement of the accused  
is truthful, thus returns to its more usual condition, a  
condition in which it is permissible to suppress the  
   Because the presence of truth, though legally a defence  
to a charge under s. 319(2), does not change the fact that  
the accused has intended to promote the hatred of an  
identifiable group, I cannot find excessive impairment of  
the freedom of expression merely because s. 319(3)(a) does  
not cover negligent or innocent error. Whether or not a  
statement is susceptible to classification as true or false,  
my inclination is therefore to accept that such error should  
not excuse an accused who has wilfully used a statement in  
order to promote hatred against an identifiable group. That  
the legislative line is drawn so as to convict the accused  
who is negligent or even innocent regarding the accuracy of  
his or her statements is perfectly acceptable, for the  
mistake is not as to the use to which the information is  

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