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Shofar FTP Archive File: people/k/keegstra.jim/supreme.court/keegstra.scc-1996


Newsgroups: alt.revisionism
Subject: Keegstra Appeal Succeeds in Canada
Summary: S319 of the Criminal Code of Canada an acceptable
         limitation on Canadian Charter Rights
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R. v. Keegstra, [1996] 1 S.C.R. 458

Her Majesty The QueenAppellant/Respondent on Cross-Appeal

v.

James Keegstra       Respondent/Appellant on Cross-Appeal

and

The Attorney General of Canada,
the Attorney General for Ontario
and the League for Human Rights of
B'nai Brith Canada
Interveners

Indexed as:  R. v. Keegstra

File No.:  24296.

1996:  February 28.

Present:   Lamer  C.J.  and  La  Forest,  L'Heureux-Dubé,
Sopinka,  Gonthier, Cory, McLachlin, Iacobucci and  Major
JJ.

on appeal from the court of appeal for alberta

         Constitutional law -- Charter of Rights -- Right
to  fair  trial  -- Inciting hatred --  Reverse  onus  --
Accused not to be convicted if accused established  truth
of  statements -- Whether applicable provision  infringes
right  to  fair  trial  --  If so,  whether  infringement
justifiable  -- Canadian Charter of Rights and  Freedoms,
ss. 1, 11(d) -- Criminal Code, R.S.C., 1985, c. C-46,  s.
319(3)(a).

Cases Cited

         Applied:   R. v. Keegstra, [1990] 3 S.C.R.  697;
distinguished:  R. v. Laba, [1994] 3 S.C.R. 965.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 11(d).

Criminal Code, R.S.C., 1985, c. C-46, s. 319(3)(a).

         APPEAL  from a judgment of the Alberta Court  of
Appeal  (1994),  23 Alta. L.R. (3d) 4,  157  A.R.  1,  77
W.A.C.  1, 92 C.C.C. (3d) 505, dismissing an appeal  from
conviction   by  Lutz  J.  sitting  with  jury.    Appeal
dismissed.

        Jack Watson, Q.C., and J. Steven Koval, Q.C., for
the appellant/respondent on the cross-appeal.

        Douglas H. Christie, for the respondent/appellant
on the cross-appeal.

          Robert  J.  Frater  and  Erin  McKey,  for  the
intervener the Attorney General of Canada.

          Michael  Bernstein,  for  the  intervener   the
Attorney General for Ontario.

          Mark  J.  Sandler  and  Marvin  Kurz,  for  the
intervener the Human Rights League of B'nai Brith Canada.

        The judgment of the Court was delivered orally by

1     Iacobucci  J. -- We are all of the view  that  this
appeal  should be allowed.  With respect to the  handling
by the trial judge of the requests made by the jury for a
copy  of  the transcript of the evidence of Robert  David
and  for a copy of the applicable section of the Criminal
Code, we agree substantially with the  dissenting reasons
of Foisy J.A. in the Alberta Court of Appeal.

2     With respect to the argument that the reverse  onus
contained  in s. 319(3)(a) of the Criminal Code,  R.S.C.,
1985,  c.  C-46,  contravenes s. 11(d)  of  the  Canadian
Charter  of  Rights and Freedoms, we are of  the  opinion
that  the decision of the Court in R. v. Keegstra, [1990]
3  S.C.R.  697, is a complete answer.  In that  decision,
the  Court  concluded  that, although  s.  319(3)(a)  was
inconsistent  with  s.  11(d)  of  the  Charter,  it  was
justified as a reasonable limit within the meaning of  s.
1.   The  decision of the Court in R. v. Laba,  [1994]  3
S.C.R. 965, is distinguishable from the case at bar.

3     With  respect to the other arguments raised by  the
respondent in support of the Court of Appeal's  decision,
we  reject  these  arguments as they are  without  merit.
Specifically,  the argument for a stay because  of  delay
cannot  be  raised  since it is a remedy  that  does  not
support the order of the Court of Appeal directing a  new
trial.   The  trial judge made no error in  charging  the
jury with respect to the various elements contained in s.
319 of the Code.  Notwithstanding any delay in disclosure
of  the  evidence of Dr. Segal, we agree with  the  trial
judge that there was no prejudice in the circumstances.

4      Accordingly,  the  appeal  is  allowed   and   the
cross-appeal  is dismissed, the judgment of  the  Alberta
Court  of  Appeal  is set aside, and  the  conviction  is
restored,  and  the matter is remitted to  the  Court  of
Appeal  so  that  the accused's sentence  appeal  can  be
disposed of.

5      We   would  answer  the  constitutional  questions
(paraphrased) as follows:

1.      Does  s.  319(3)(a) of the Criminal Code, R.S.C.,
        1985,  c. C-46, infringe s. 11(d) of the Canadian
        Charter of Rights and Freedoms?

Response: The answer is yes.

2.      If  so,  is s. 319(3)(a) of the Criminal  Code  a
        reasonable  limit on the s. 11(d)  Charter  right
        pursuant to s. 1 of the Charter?

Response: The answer is yes.

        Judgment accordingly.

          Solicitor   for  the  appellant/respondent   on
cross-appeal:    The   Attorney  General   for   Alberta,
Edmonton.

          Solicitor   for  the  respondent/appellant   on
cross-appeal:  Douglas H. Christie, Victoria.

        Solicitor for the intervener the Attorney General
of Canada:  The Attorney General of Canada, Ottawa.

        Solicitor for the intervener the Attorney General
for Ontario:  The Attorney General for Ontario, Toronto.

         Solicitors  for the intervener  the  League  for
Human  Rights  of  B'nai Brith Canada:  Cooper,  Sandler,
West & Skurka, Toronto.


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