Archive/File: fascism/canada/alberta keegstra.scc.1 Last-Modified: 1994/11/11 Copyright 1993 Canada Law Book Inc. Regina v. Keegstra et al. Indexed as: R. v. Keegstra Supreme Court of Canada 61 C.C.C. 3d 1; 11 W.C.B. (2d) 352 December 13, 1990 PRIOR-HISTORY: Appeal by the Crown from a judgment of the Alberta Court of Appeal, 43 C.C.C. (3d) 150, 65 C.R. (3d) 289, 60 Alta. L.R. (2d) 1,  5 W.W.R. 211, 87 A.R. 177, 39 C.R.R. 5, 15 W.C.B. (2d) 48, allowing an appeal by the accused from his conviction for wilfully promoting hatred contrary to s. 319 of the Criminal Code. KEYWORDS: Charter of Rights -- Freedom of expression -- Criminal Code prohibiting wilful promotion of hatred -- Provision also providing for number of defences including proof that statements true -- Provision aimed at content of expression and thus violating guarantee to freedom of expression -- Legislation however constituting reasonable limit and therefore valid -- Cr. Code, s. 319 -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 15, 27. Charter of Rights -- Presumption of innocence -- Reverse onus provision -- Charge of wilful promotion of hatred -- Defence if accused establishes on balance of probabilities that statements communicated were true -- Provision offending presumption of innocence -- In application of guarantee to presumption of innocence no distinction between elements of offence and defences -- If accused required to prove some fact on balance of probabilities to avoid conviction then provision violating presumption of innocence -- Provision however constituting reasonable limit on guarantee -- Provision valid -- Cr. Code, s. 319 -- Canadian Charter of Rights and Freedoms, ss. 1, 11(d). Hate propaganda -- Wilful promotion of hatred -- Elements of offence -- Provision not covering statements made in private conversation -- Provision not applying to conversations which through accident or negligence made public if intended to be private -- Term ''wilfully'' requiring that promotion of hatred be intended or foreseen as substantially certain -- Term ''hatred'' connoting emotion of intense and extreme nature associated with vilification and detestation -- Jury to be instructed that accused should not be found guilty merely because expression was distasteful -- Cr. Code, s. 319. SUMMARY: The accused was charged with the offence contrary to s. 319(2) of the Criminal Code of wilfully promoting hatred against an identifiable group. Section 319(2) provides that everyone who, by communicating statements, other than in private conversation wilfully promotes hatred against any identifiable group is guilty of an offence. Subsection (3) provides for a number of defences and in particular in para. (a) provides that the accused shall not be convicted ''if he establishes that the statements communicated were true''. Other defences in paras. (b) to (d) refer to good faith expression of arguments on a religious subject, statements relevant to any subject of public interest for the public benefit and where the accused in good faith intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred. The charges against the accused arose out of his anti-semitic teachings in a classroom. The accused was convicted at trial but on appeal argued that s. 319(2) violated the guarantee to freedom of expression and argued that the reversal of the burden of proof for the truth defence in s. 319(3)(a) violated the presumption of innocence. The Alberta Court of Appeal held that the legislation was unconstitutional and the accused's appeal was allowed. In the result the court did not consider several other grounds of appeal raised by the accused against his conviction. On appeal by the Crown from the accused's acquittal, held, La Forest, McLachlin and Sopinka JJ. dissenting, the appeal should be allowed and the case remitted to the Alberta Court of Appeal. Freedom of expression Per Dickson C.J.C., Wilson, L'Heureux-Dube and Gonthier JJ. concurring: The term ''expression'' as used in s. 2(b) of the Canadian Charter of Rights and Freedoms embraces all content of expression irrespective of the particular meaning or message sought to be conveyed. If the purpose of the impugned government action is to restrict freedom of expression then the provision infringes s. 2(b). If, however, it is only the effect of the government action rather than its purpose which restricts an activity then s. 2(b) does not apply unless it can be demonstrated by the party alleging an infringement that the activity supports rather than undermines the principles and values upon which freedom of expression is based. Thus in considering whether legislation infringes freedom of expression it is irrelevant whether the expression is invidious and obnoxious. Communications which wilfully promote hatred against an identifiable group convey a meaning and are thus expression within the meaning of s. 2(b). The prohibition in s. 319(2) of the Criminal Code is aimed directly at words that have as their content and objective the promotion of racial or religious hatred. The purpose of s. 319(2) is clearly to restrict the content of expression by singling out particular meanings that are not to be conveyed and accordingly infringes the guarantee to freedom of expression in s. 2(b). Hate propaganda cannot be excluded from the ambit of s. 2(b) on the basis that it is violence. At its highest an exception has been suggested where meaning is communicated directly through physical violence. Any exclusion of expression from the ambit of s. 2(b) on the basis that it is violence must refer to expression communicated directly through physical harm. Hate propaganda is not analogous to violence. Section 319(2) prohibits the communication of meaning that is repugnant, but the repugnance stems from the content of the message as opposed to its form. Not even threats of violence are excluded from the definition of expression envisaged by s. 2(b). The fact that the Charter in s. 15 protects equality rights and in s. 27 seeks to promote multi-culturalism cannot be used to cut down on the ambit of freedom of expression in s. 2(b). Any balancing of various Charter rights must be done through s. 1. Section 319(2) of the Criminal Code does, however, constitute a reasonable limit on the guarantee to freedom of expression, within the meaning of s. 1 of the Charter. The presence of hate propaganda in Canada is sufficiently substantial to warrant concern. There are two types of injury caused by hate propaganda. First there is the harm done to members of the target group. Persons belonging to a racial or religious group under attack are humiliated and degraded. The derision, hostility and abuse encouraged by hate propaganda have a severely negative impact on the individual's sense of self-worth and acceptance. This impact may cause target group members to take drastic measures in reaction, perhaps avoiding activities which bring them into contact with non-group members or adopting attitudes and postures directed towards blending in with the majority. The other harmful effect of hate propaganda which is of pressing and substantial concern is its influence upon society at large. The act of dissemination of hate propaganda can attract individuals to its cause and in the process create serious discord between various cultural groups and society. Even if the message of hate propaganda is outwardly rejected, the premise of racial or religious inferiority upon which the message is based may persist in a recipient's mind as an idea that holds some truth. Canada along with other members of the international community has indicated a commitment to prohibiting hate propaganda and the Court must have regard to that commitment in investigating the nature of the government objective behind s. 319(2). Significant indicia of the strength of the objective behind s. 319(2) are also gleaned from other provisions of the Charter, most importantly ss. 15 and 27. The Charter commitment to equality as guaranteed in s. 15 enhances the objective of s. 319(2) of the Criminal Code as it seeks to ensure the equality of all individuals in Canadian society. The recognition in s. 27 of a commitment to the preservation and enhancement of the multicultural heritage of Canadians is also significant in emphasizing the importance of the objective of eradicating hate propaganda from society. Hate propaganda seriously threatens both the enthusiasm with which the value of equality is accepted and acted upon by society and the connection of target group members to their community. Section 319(2) therefore relates to objectives of pressing and substantial concern sufficient to warrant overriding the constitutional guarantee to freedom of expression. Section 319(2) also meets the proportionality test. In consideration of the proportionality test it is to be recognized that not all expression and activity is equally crucial to the principles at the core of s. 2(b) of the Charter and thus restrictions on expression such as that prohibited by s. 319(2) which is only tenuously connected to the values underlying s. 2(b) may be easier to justify than other infringements. Expression intended to promote the hatred of identifiable groups is of limited importance when measured against free expression of values. There is little chance that statements intended to promote hatred against an identifiable group are true or that their vision of society will lead to a better world. While s. 319(2) inhibits the role of freedom of expression as a means of ensuring individuals the ability to gain self-fulfilment by developing and articulating thoughts and ideas, the message put forth by individuals who fall within the ambit of s. 319(2) represents a most extreme opposition to the idea that members of identifiable groups should enjoy this aspect of the s. 2(b) benefit. Finally, while suppression of hate propaganda restricts the participation of a few individuals in the democratic process the degree of this limitation is not substantial. In fact expression can work to undermine our commitment to democracy where employed to propagate ideas anathema to democratic values. Section 319(2) meets the rational connection requirement for the proportionality test. Suppression of hate propaganda reduces the harm such expression does to individuals who belong to identifiable groups and to relations between various cultural and religious groups in Canadian society. While the effect of s. 319(2) is impossible to define with exact precision, the argument that there is no strong and evident connection between the criminalization of hate propaganda and its suppression is unconvincing. Hate propaganda legislation and trials of persons charged with the offence are means by which the values beneficial to a free and democratic society can be publicized. Section 319(2) also meets the minimal impairment requirement. The section is a measured and appropriate response to the phenomena of hate propaganda and does not overly circumscribe the guarantee in s. 2(b). Section 319(2) by its terms does not apply to statements made in private conversation. Moreover it is reasonable to infer a subjective mens rea requirement regarding the type of conversation covered by s. 319(2) and thus a conversation or communication intended to be private does not satisfy the requirements of the provision if through accident or negligence the accused's expression of hatred for an identifiable group is made public. The requirement that the promotion of hatred must be wilful requires proof that promotion of hatred was intended or foreseen as substantially certain. The failure of the offence to require proof of actual hatred resulting from a communication is not a sufficient reason to hold that the section is not a reasonable limit. To predicate the limitation of freedom of expression upon proof of actual hatred gives insufficient attention to the severe psychological trauma suffered by members of those identifiable groups targeted by hate propaganda. In addition it would be difficult to prove a causative link between a specific statement and hatred of an identifiable group. It is well accepted that Parliament can use the criminal law to prevent the risk of serious harms. The use of the term ''promotes'' in s. 319(2) signifies conduct which is more than simple encouragement or advancement. The hate monger must intend or foresee as substantially certain direct and active stimulation of hatred against an identifiable group. In addition, the term ''identifiable group'' is defined in s. 318(4) as any section of the public distinguished by colour, race, religion or ethnic origin. The Act is thus targeted to the intentional fostering of hatred against particular members of society as opposed to any individual. Finally, the term ''hatred'' connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation. As used in s. 319(2) the term ''hatred'' does not denote a wide range of diverse emotions but rather covers only the most intense form of dislike. It is an extreme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill treatment on the basis of group affiliation. Thus in directing a jury the trial judge should include express mention of the need to avoid finding that the accused intended to promote hatred merely because the expression is distasteful. Thus s. 319(2) possesses the definitional limits which act as safeguards to ensure that it will capture only expressive activity which is the target of the legislation. In addition the defences provided by s. 319(3) aid in making the scope of the wilful promotion of hatred more explicit and thus significantly reduce any danger that s. 319(2) is over broad or unduly vague or will be perceived as such. To the extent that s. 319(3) provides justification for an accused who would otherwise fall within the parameters of the offence in s. 319(2), it reflects a commitment to the idea that an individual's freedom of expression will not be curtailed in borderline cases. As regards the truth defence in s. 319(3)(a) it is doubtful whether the Charter mandates that truthful statements communicated with an intention to promote hatred need be excepted from criminal condemnation in order to meet constitutional standards. It was, however, open to Parliament to make a concession to free expression values by providing the defence of truth. The fact that the defence in s. 319(3)(a) would not cover negligent or innocent error does not mean that the provision excessively impairs freedom of expression. Further, s. 1 does not operate in every instance so as to require the government to rely only upon the mode of intervention least intrusive of a Charter right or freedom. It may be that a number of courses of action are available in the furtherance of a pressing and substantial objective, each imposing a varying degree of restriction upon a right or freedom. The government may thus legitimately employ a more restrictive measure provided that measure is not redundant. The harm done through hate propaganda may require that especially stringent responses be taken to suppress and prohibit some expression. Finally, the effects of limiting freedom of expression do not outweigh the importance of the state objective in s. 319(2). The infringement of s. 2(b) by s. 319(2) is not a serious restriction. The activity at which the provision is aimed is in a category only tenuously connected with the values underlying the guarantee of freedom of speech. The section is narrowly drawn and deals with objectives of enormous importance and of such magnitude as to justify the severe response of the criminal prohibition. Per McLachlin J., La Forest and Sopinka JJ. concurring, dissenting: Freedom of expression as guaranteed by s. 2(b) of the Charter is a broadly defined and fundamental right. All activities which convey or attempt to convey meaning prima facie fall within the scope of the guarantee. The content of a statement cannot deprive it of protection under s. 2(b), no matter how offensive it may be. Thus statements violating s. 319(2) fall within the sphere of protection accorded to freedom of expression by s. 2(b) of the Charter. While it was argued that promoting hatred is equivalent to threats of violence and thus assumes a form of expression which falls outside the protected sphere of s. 2(b), the communications covered by s. 319(2) although offensive and propagandistic do not constitute threats in the usual sense of that word. Nor are those statements violence. Any exemption from the protection of s. 2(b) on the basis that the expression is violence refers to actual or threatened physical interference with the activities of others. Statements promoting hatred are not akin to violence or threats of violence and thus cannot for that reason be excluded from the protection of s. 2(b). Nor is it open to the court to reduce the scope of expression protected by s. 2(b) of the Charter because of the equality guarantees in s. 15 of the Charter or the commitment to multi-culturalism recognized by s. 27 of the Charter. Similarly, the court cannot cut back on the scope of s. 2(b) on the ground that Canada has signed treaties which are inconsistent with affording protection to racial propaganda. To do so would require cutting down the protection offered by s. 2(b) of the Charter on the basis of the content of expression sought to be protected. It would deny certain statements constitutional protection because their content was intended to promote discrimination and hatred of certain groups in society. This is not a permissible approach to the interpretation of s. 2(b). Finally, it is not open to the court to confine the guarantee of freedom of expression only to contact which is judged to possess redeeming value or to accord with the accepted values. To do so strikes at the very essence of the value of freedom of expression by reducing the realm of protected discussion to that which is comfortable and compatible with current conceptions. If the guarantee of freedom of expression is to be meaningful it must protect expression which challenges even the very basic conceptions of society. Section 319(2) accordingly violates freedom of expression as guaranteed by s. 2(b). Nor can s. 319(2) be justified as a reasonable limit on freedom of expression under s. 1 of the Charter. The objectives of s. 319(2), to prevent the promotion of hatred towards identifiable groups within our society, to prevent the spread of hatred and the breakdown of racial and social harmony and to prevent the disruption of our multicultural society are objectives of a substantial nature and may be said to be pressing even though it is not asserted that any emergency exists in Canada. While these objectives are of sufficient gravity to be capable of justifying the limitations on constitutionally protected rights and freedoms, the criminal prohibition of wilful promotion of hatred cannot meet the proportionality test. The balancing of values under the proportionality test must take account of the unique nature of freedom of expression. The right to fully and openly express one's views on social and political issues is fundamental to democracy and hence to all the other rights and freedoms guaranteed by the Charter. While some restrictions on freedom of expression may be necessary and justified and entirely compatible with a free and democratic society, restrictions which touch the critical core of social and political debate require particularly close consideration because of the dangers inherent in state censorship of such debate. Freedom of expression is also unique in that limitations on expression tend to have an effect on expression other than that which is their target. This chilling effect requires that any limitation be drafted with great precision otherwise there will always be a doubt about whether a particular form of expression offends the prohibition which may deter not only the expression to which the prohibition is aimed but legitimate expression. This chilling effect must be taken into account in performing the balancing required by the s. 1 analysis. In weighing the intrusiveness of a limitation on freedom of expression the court's consideration cannot be confined to those who may ultimately be convicted under the limit but must also extend to those who may be deterred from legitimate expression by uncertainty as to whether they may be convicted. On all three criteria for the proportionality test s. 319(2) is wanting. As regards the rational connection test, prosecutions may bolster the beliefs of members of a target group that they are valued and respected in their community and that the views of a malicious few do not reflect those of the population as a whole. Thus the purpose of the legislation is rationally connected to the objective. In actual effect however it was not shown that the rational connection between the legislation and its objectives exists. A measure which takes away a constitutionally protected freedom cannot be reasonably and demonstrably justified unless there is a likelihood that it will further the objective upon which its justification rests. If there is an indication that the measure may in fact detract from the objectives it is designed to promote, then the absence of a rational connection between the measure and the objective is clear. Section 319(2) falls into this class. The section may well have a chilling effect on defensible expression by law abiding citizens and at the same time it is far from clear that it provides any effective way of curbing hate mongers. It may even promote their cause. Prosecutions under the Criminal Code for racist expression have attracted an extensive media coverage. The criminal process confers on the accused publicity and may even bring him sympathy. The rational connection between s. 319(2) and its goals is tenuous. Further despite the limitations found in s. 319(2) it is over broad in that its definition of offending speech may catch many expressions which should be protected. It therefore cannot meet the minimal impairment test. The term ''hatred'' in s. 319(2) is a broad term capable of catching a wide variety of emotion. The subjective and emotional nature of the concept of promoting hatred compounds the difficulty of ensuring that only cases meriting prosecution are pursued and that only those whose conduct is calculated to dissolve the social bonds of society are convicted. The absence of any requirement that actual harm or incitement to hatred be shown further broadens the scope of s. 319(2). The provision makes a crime not only of actually inciting others to hatred, but also of attempting to do so. The defences provided in s. 319(3) do not in practice significantly narrow the ambit of s. 319(2). Even where investigations are not initiated or prosecutions pursued, the vagueness and subjectivity inherent in s. 319(2) gives ground for concern that the chilling effect of the law may be substantial. The section catches a broad range of speech and prohibits it in a broad manner, allowing only private conversations to escape scrutiny. Finally, it was not shown that the infringement of freedom of expression is proportionate to the ends sought to be achieved. The infringement of the guarantee of freedom of expression in s. 319(2) is a serious one. It does not merely regulate the form or tone of expression but strikes directly at its content and at the viewpoints of individuals. It strikes, moreover, at viewpoints in widely diverse domains whether artistic, social or political. It is capable of catching not only statements to which it may be targeted but works of art and the intemperate statement made in the heat of social controversy. An infringement of this seriousness can only be justified by a countervailing state interest of the most compelling nature. While the objectives underlying the legislation are of a most worthy nature the claims of gains to be achieved at the cost of the infringement of freedom of expression are tenuous. It is far from clear that the legislation does not promote the cause of hate mongering extremists and hinder the possibility of voluntary amendment of conduct more than it discourages the spread of hate propaganda. Any questionable benefit of the legislation is outweighed by the significant infringement on the constitutional guarantee of freedom of expression. Accordingly s. 319(2) of the Criminal Code is unconstitutional. The presumption of innocence (s. 319(3)(a)) Per Dickson C.J.C., Wilson, L'Heureux-Dube and Gonthier JJ. concurring: Requiring the accused to prove on a balance of probabilities that the statements communicated were true in order to amount to a defence under s. 319(3)(a) of the Criminal Code infringes the presumption of innocence. The question is not whether a factual finding is an element of the offence or defence. The presumption of innocence in s. 11(d) of the Charter is infringed whenever the accused is liable to be convicted despite the existence of a reasonable doubt as to the guilt in the mind of the trier of fact. Thus as regards s. 319(3)(a) since the trier of fact must convict even where there is a reasonable doubt as to the truth of an accused's statements, because the accused has been unable to establish the defence on a balance of probabilities, there is a violation of s. 11(d). That violation however is a reasonable limit. The objective behind the reverse onus in s. 319(3)(a) is closely connected with the purpose behind the offence in s. 319(2). Harm is created whenever statements are made with the intention of promoting hatred, whether or not they contain an element of truth. If the defence of truth were too easily available then the pressing and substantial objectives of Parliament in preventing such harm would suffer unduly. Parliament's objective in employing a reverse onus in s. 319(3)(a) is pressing and substantial. Section 319(3)(a) clearly shows a rational connection to the purpose of preventing the harm caused by hate-promoting expression. The reverse onus in the truth defence operates to make it more difficult to avoid conviction where the wilful promotion of hatred has been proven beyond a reasonable doubt. As the wilful promotion of hatred is hostile to Parliament's objectives, placing such a burden on the accused is rationally connected to a valid objective under s. 1. The reverse onus also can meet the requirement that it impair the freedom as little as possible. The defence of truth is in some ways at odds with Parliament's purpose of preventing the damage to target group members and inter group harmony caused by hate propaganda since it works to excuse the actions of an accused even though the harm sought to be prevented is present. Parliament has made a concession to the importance of truth and freedom of expression values but has used the reverse onus provision to strike a balance between the two legitimate concerns. Requiring the accused to prove on the civil standard that his statements are true is an integral part of this balance, and any less onerous burden would severely skew the equilibrium. To provide that the accused need only raise a reasonable doubt as to the truthfulness of the statements would excessively compromise the effectiveness of the offence in achieving its purpose. Finally, the importance of preventing the harm caused by hate-promoting expression is not outweighed by Parliament's infringement of s. 11(d). Per McLachlin J., Sopinka J. concurring, dissenting: Section 319(3)(a) of the Criminal Code infringes the presumption of innocence in s. 11(d) of the Charter. Parliament has expressly made falsity an element of the offence by providing that truth constitutes a defence. By placing the burden of proof on the accused Parliament has contravened the basic principle that the accused need not prove a defence. It was not shown that the reversal of the burden of proof was a reasonable limit. It was difficult to discern any rational connection between the aims of s. 319(3)(a) and its requirement that the accused prove the truth of his statements. While it is argued that without the reverse onus it would be difficult if not impossible to obtain convictions for much speech which promotes hatred, this merely argues for the burden being on the state because of its superior resources. If the objection is that it is impossible to know if the statements are true or false because for example they are merely opinion, then the answer is that it cannot be ruled out that statements may be more valuable than harmful. The infringement of the presumption of innocence is neither minimal nor given the importance of the infringement in the context of prosecutions under s. 319(2), sufficient to outweigh the dubious benefit of such a provision. Similarly it could not be said that s. 319(3)(a) impairs the presumption of innocence as little as possible. Finally, as regards the effects of the infringement as weighed against the objectives it promotes, since falsehood is an important element of the offence and in view of the centrality of the presumption of innocence in criminal law, only a countervailing state interest of the most compelling kind could justify the infringement. It is difficult to see what benefits however the section produces in terms of stemming hate propaganda and promoting social harmony and individual dignity. Accordingly, s. 319(3)(a) is not saved by s. 1 of the Charter. Per La Forest J. dissenting: As s. 319(2) of the Criminal Code is unconstitutional it was unnecessary to consider issues respecting the presumption of innocence. R. v. Oakes (1986), 24 C.C.C. (3d) 321, 26 D.L.R. (4th) 200,  1 S.C.R. 103, 50 C.R. (3d) 1, 19 C.R.R. 308, 65 N.R. 87, 53 O.R. (2d) 719n, 16 W.C.B. 73; R. v. Whyte (1988), 42 C.C.C. (3d) 97, 51 D.L.R. (4th) 481,  2 S.C.R. 3, 64 C.R. (3d) 123,  5 W.W.R. 26, 29 B.C.L.R. (2d) 273, 35 C.R.R. 1, 6 M.V.R. (2d) 138, 86 N.R. 328, 5 W.C.B. (2d) 141 apld; R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369, 101 D.L.R. (3d) 488, 25 O.R. (2d) 705 folld; R.W.D.S.U., Local 580 v. Dolphin Delivery Ltd. (1986), 33 D.L.R. (4th) 174,  2 S.C.R. 573,  1 W.W.R. 577, 38 C.C.L.T. 184, 87 C.L.L.C. 14,002, 25 C.R.R. 321, 9 B.C.L.R. (2d) 273, 71 N.R. 83, 2 A.C.W.S. (3d) 243; Ford v. Quebec (Attorney-General) (1988), 54 D.L.R. (4th) 577,  2 S.C.R. 712, 10 C.H.R.R. D/5559, 36 C.R.R. 1, 19 Q.A.C. 69, 90 N.R. 84, 6 W.C.B. (2d) 186, 13 A.C.W.S. 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Alberta (Attorney-General) (1989), 64 D.L.R. (4th) 577,  2 S.C.R. 1326,  1 W.W.R. 577, 71 Alta. L.R. (2d) 273, 103 A.R. 321, 41 C.P.C. (2d) 109, 45 C.R.R. 1, 102 N.R. 321, 18 A.C.W.S. (3d) 894; Rocket v. Royal College of Dental Surgeons of Ontario (1990), 71 D.L.R. (4th) 68, 73 O.R. (2d) 128,  2 S.C.R. 232, 47 C.R.R. 193, 40 O.A.C. 241, 111 N.R. 161, 21 A.C.W.S. (3d) 958; Reference re Alberta Legislation,  2 D.L.R. 81,  S.C.R. 100, [affd  4 D.L.R. 433,  3 W.W.R. 337,  W.N. 349,  A.C. 117]; Switzman v. Elbling and A.-G. Que. (1957), 117 C.C.C. 129, 7 D.L.R. (2d) 337,  S.C.R. 285; Slaight Communications Inc. v. Davidson (1989), 59 D.L.R. (4th) 416,  1 S.C.R. 1038, 26 C.C.E.L. 85, 89 C.L.L.C. 14,031, 93 N.R. 183, 15 A.C.W.S. (3d) 132; United States of America v. Cotroni (1989), 48 C.C.C. (3d) 193,  1 S.C.R. 1469, 42 C.R.R. 101, 23 Q.A.C. 182, 96 N.R. 321, 7 W.C.B. (2d) 301; R. v. Jones (1986), 28 C.C.C. (3d) 513, 31 D.L.R. (4th) 569,  2 S.C.R. 284,  6 W.W.R. 577, 47 Alta. L.R. (2d) 97, 73 A.R. 133, 69 N.R. 241, 25 C.R.R. 63; R. v. Edwards Books & Art Ltd. (1986), 30 C.C.C. (3d) 385, 35 D.L.R. (4th) 1,  2 S.C.R. 713, 55 C.R. (3d) 193, 86 C.L.L.C. 14,001, 28 C.R.R. 1, 71 N.R. 161, 58 O.R. (2d) 442n; Garrison v. Louisiana, 379 U.S. 64 (1964); Ashton v. Kentucky, 384 U.S. 195 (1966); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Brandenburg v. Ohio, 395 U.S. 444 (1969); Cohen v. California, 403 U.S. 15 (1971); Anti-Defamation League of B'nai B'rith v. Federal Communications Commission, 403 F. 2d 169 (1968); Tollet v. united States, 485 F. 2d 1087 (1973); American Booksellers Ass'n, Inc. v. Hudnut, 771 F. 2d 323 (1985); Doe v. University of Michigan, 721 F. Supp. 852 (1989); R. v. Rahey (1987), 33 C.C.C. (3d) 289, 39 D.L.R. (4th) 481,  1 S.C.R. 588, 57 C.R. (3d) 289, 33 C.R.R. 275, 78 N.S.R. (2d) 183, 75 N.R. 81; Roth v. United States, 354 U.S. 476 (1957); New York v. Ferber, 458 U.S. 747 (1982); Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986); Cornelius v. NAACP Legal Defence and Educ. Fund, Inc., 473 U.S. 788 (1985); Reference re s. 94(2) of Motor Vehicle Act (1985), 23 C.C.C. (3d) 289, 24 D.L.R. (4th) 536,  2 S.C.R. 486, 48 C.R. (3d) 289,  1 W.W.R. 481, 69 B.C.L.R. 145, 18 C.R.R. 30, 36 M.V.R. 240, 63 N.R. 266, 15 W.C.B. (2d) 343; Janzen v. Platy Enterprises Ltd. (1989), 59 D.L.R. (4th) 352,  1 S.C.R. 1252,  4 W.W.R. 39, 25 C.C.E.L. 1, 10 C.H.R.R. D/6205, 89 C.L.L.C. 17,011, 47 C.R.R. 274, 58 Man. R. (2d) 1, 94 N.R. 81; Reference re Public Service Employee Relations Act (1987), 38 D.L.R. (4th) 161,  1 S.C.R. 313,  3 W.W.R. 577, 87 C.L.L.C. 14,021, 28 C.R.R. 305, 51 Alta. L.R. (2d) 97, 78 A.R. 1, 74 N.R. 99, 4 A.C.W.S. (3d) 138; Taylor and Western Guard Party v. Canada (1983), 5 C.H.R.R. D/2097; Felderer v. Sweden (1986), 8 E.H.R.R. 91; X. v. Federal Republic of Germany, App. No. 9235/81, D.R. 29, July 16, 1982; Lowes v. United Kingdom, App. No. 13214/87, December 9, 1988; Glimmerveen v. Netherlands (1979), 4 E.H.R.R. 260; R. v. Big M Drug Mart Ltd. (1985), 18 C.C.C. (3d) 385, 18 D.L.R. (4th) 321,  1 S.C.R. 295,  3 W.W.R. 481, 85 C.L.L.C. 14,023, 13 C.R.R. 64, 37 Alta. L.R. (2d) 97, 60 A.R. 161, 58 N.R. 81; Andrews v. Law Society of British Columbia (1989), 56 D.L.R. (4th) 1,  1 S.C.R. 143,  2 W.W.R. 289, 25 C.C.E.L. 255, 10 C.H.R.R. D/5719, 36 C.R.R. 193, 34 B.C.L.R. (2d) 273, 91 N.R. 255, 13 A.C.W.S. (3d) 347; R. v. Andrews (1988), 43 C.C.C. (3d) 193, 65 O.R. (2d) 161, 65 C.R. (3d) 320, 39 C.R.R. 36, 5 W.C.B. (2d) 24 [affd 75 O.R. (2d) 481n, 36 O.A.C. 320n, 11 W.C.B. (2d) 353; R. v. Morgentaler (1988), 37 C.C.C. (3d) 449, 44 D.L.R. (4th) 385,  1 S.C.R. 30, 62 C.R. (3d) 1, 31 C.R.R. 1, 82 N.R. 1, 63 O.R. (2d) 281n, 3 W.C.B. (2d) 332; R. v. Holmes (1988), 41 C.C.C. (3d) 497, 50 D.L.R. (4th) 680,  1 S.C.R. 914, 64 C.R. (3d) 97, 34 C.R.R. 193, 85 N.R. 21, 65 O.R. (2d) 639n, 4 W.C.B. (2d) 218; Abrams v. United States, 250 U.S. 616 (1919); Saumur v. City of Quebec and A.-G. Que. (1953), 106 C.C.C. 289,  4 D.L.R. 641,  2 S.C.R. 299; Cherneskey v. Armadale Publishers Ltd. (1978), 90 D.L.R. (3d) 321,  1 S.C.R. 1067,  6 W.W.R. 618, 7 C.C.L.T. 69, 24 N.R. 271; A.-G. Can. v. Dupond (1978), 84 D.L.R. (3d) 420,  2 S.C.R. 770, 5 M.P.L.R. 4, 19 N.R. 478; Canada (Attorney-General) v. Law Society of British Columbia (1982), 137 D.L.R. (3d) 1, 66 C.P.R. (2d) 1,  2 S.C.R. 307,  5 W.W.R. 289, 37 B.C.L.R. 145, 19 B.L.R. 234, 43 N.R. 451; West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943); Debs v. United States, 249 U.S. 211 (1919); Schenck v. United States, 249 U.S. 47 (1919); Whitney v. California, 274 U.S. 357 (1927); Dennis v. United States, 341 U.S. 494 (1951); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Police Department of the City of Chicago v. Mosley, 408 U.S. 92 (1972); Boos v. Barry, 108 S. Ct. 1157 (1988); Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983); Coates v. City of Cincinnati, 402 U.S. 611 (1971); Handyside v. United Kingdom (1976), 1 E.H.R.R. 737; Re Warren and Chapman (1984), 11 D.L.R. (4th) 474,  5 W.W.R. 454, 29 Man. R. (2d) 172 [affd 17 D.L.R. (4th) 261,  4 W.W.R. 75, 31 Man. R. (2d) 231; Saskatchewan (Human Rights Commission v. Engineering Students' Society (1989), 56 D.L.R. (4th) 604, 10 C.H.R.R. D/5636, 72 Sask. R. 161, 13 A.C.W.S. (3d) 423; leave to appeal to S.C.C. refused 57 D.L.R. (4th) viii, 81 Sask. R. 160n, 102 N.R. 320n; Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97, 11 D.L.R. (4th) 641, 2 C.P.R. (3d) 1,  2 S.C.R. 145, 41 C.R. (3d) 97,  6 W.W.R. 577, sub nom. Director of Investigation & Research of Combines Investigation Branch v. Southam Inc., 55 A.R. 291, 33 Alta. L.R. (2d) 193, 27 B.L.R. 297, 9 C.R.R. 355, 84 D.T.C. 6467, 55 N.R. 241; R. v. Schwartz (1988), 45 C.C.C. (3d) 97, 55 D.L.R. (4th) 1,  2 S.C.R. 443, 66 C.R. (3d) 251,  1 W.W.R. 289, 39 C.R.R. 260, 56 Man. R. (2d) 92, 88 N.R. 90; Canada (Canadian Human Rights Commission) v. Taylor (1990), 24 A.C.W.S. (3d) 311 Statutes referred to: Canadian Bill of Rights, s. 1 Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 8, 11(d), 15(1), 16 to 23, 25, 27, 28, 29 Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 13--now R.S.C. 1985, c. H-6 Constitution Act, 1867 Criminal Code, ss. 2, 59, 181, 183, definition ''private communication'' 318(4), definition ''identifiable group'', 319 [formerly s. 281.2], 338 [formerly s. 298], 340 [formerly s. 300] Customs Tariff, S.C. 1987, c. 49, s. 114 & Sch. VIII, Code 9956(b) Defamation Act, R.S.M. 1987, c. D-20, s. 19(1) Libel Act, R.S.M. 1913, c. 113, s. 13A [enacted 1934, c. 23, s. 1] Penal Code (India), ss. 153-A, 153-B Penal Code (Netherlands), ss. 137c, 137d, 137e Penal Code (Sweden), c. 16, s. 8 Public Order Act, 1986 (U.K.), c. 64, ss. 17 to 23 Race Relations Act, 1971 (N.Z.), s. 25 Racial Discrimination Act, S.O. 1944, c. 51, s. 1 Conventions and treaties referred to European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, 213 U.N.T.S. 221, art. 10(1), (2) International Convention on the Elimination of All Forms of Racial Discrimination, 1970, Can. T.S. 1970, No. 28, arts. 4, 5 International Covenant on Civil and Political Rights (1966), 999 U.N.T.S. 171 Universal Declaration of Human Rights, 1948 COUNSEL: B.R. Fraser, Q.C., for the Crown, appellant. D.H. Christie, for accused, respondent. D.M. Low, Q.C., S.B. Sharzer and I. Weiser, for intervener, Attorney-General of Canada. G.J. Fitch, for intervener, Attorney-General of Ontario. J. Bouchard and M. Visocchi, for intervener, Attorney-General of Quebec. B. Judah, for intervener, Attorney-General of New Brunswick. A.L. Berg and D. Carlson, for intervener, Attorney-General of Manitoba. J.I. Laskin, for intervener, Canadian Jewish Congress. M.J. Sandler, for intervener, League for Human Rights of B'Nai Brith, Canada. J. Nuss, Q.C., I. Cotler and A. Crawford, for Interamicus. K.E. Mahoney and L.A. Taylor, for Women's Legal Education and Action Fund. Marc Rosenberg, for Canadian Civil Liberties Association. JUDGES: Dickson C.J.C.,*Wilson, La Forest, L'Heureux-Dube, Sopinka, Gonthier and McLachlin JJ. [ See Note: * Chief Justice at the time of hearing.] OPINION: Dickson C.J.C.: This appeal was heard in conjunction with the appeals in R. v. Andrews, S.C.C., No. 21034 [reported 75 O.R. (2d) 481n, 36 O.A.C. 320n, 11 W.C.B. (2d) 353], and Canada (Canadian Human Rights Commission) v. Taylor, S.C.C., No. 20462 [summarized 24 A.C.W.S. (3d) 311]. Along with Andrews it raises a delicate and highly controversial issue as to the constitutional validity of s. 319(2) of the Criminal Code, R.S.C., 1985, c. C-46, a legislative provision which prohibits the wilful promotion of hatred, other than in private conversation, towards any section of the public distinguished by colour, race, religion or ethnic origin. In particular, the court must decide whether this section infringes the guarantee of freedom of expression found in s. 2(b) of the Canadian Charter of Rights and Freedoms in a manner that cannot be justified under s. 1 of the Charter. A secondary issue arises as to whether the presumption of innocence protected in the Charter's s. 11(d) is unjustifiably breached by reason of s. 319(3)(a) of the Code, which affords a defence of ''truth'' to the wilful promotion of hatred, but only where the accused proves the truth of the communicated statements on the balance of probabilities. I. Facts Mr. James Keegstra was a high school teacher in Eckville, Alberta, from the early 1970's until his dismissal in 1982. In 1984, Mr. Keegstra was charged under s. 319(2) (then 281.2(2)) of the Criminal Code with unlawfully promoting hatred against an identifiable group by communicating anti-Semitic statements to his students. He was convicted by a jury in a trial before McKenzie J. of the Alberta Court of Queen's Bench. Mr. Keegstra's teachings attributed various evil qualities to Jews. He thus described Jews to his pupils as ''treacherous'', ''subversive'', ''sadistic'', ''money-loving'', ''power hungry'' and ''child killers''. He taught his classes that Jewish people seek to destroy Christianity and are responsible for depressions, anarchy, chaos, wars and revolution. According to Mr. Keegstra, Jews ''created the Holocaust to gain sympathy'' and, in contrast to the open and honest Christians, were said to be deceptive, secretive and inherently evil. Mr. Keegstra expected his students to reproduce his teachings in class and on exams. If they failed to do so, their marks suffered. Prior to his trial, Mr. Keegstra applied to the Court of Queen's Bench in Alberta for an order quashing the charge on a number of grounds, the primary one being that s. 319(2) of the Criminal Code unjustifiably infringed his freedom of expression as guaranteed by s. 2(b) of the Charter. Among the other grounds of appeal was the allegation that the defence of truth found in s. 319(3)(a) of the Code violates the Charter's presumption of innocence. The application was dismissed by Quigley J., and Mr. Keegstra was thereafter tried and convicted. He then appealed his conviction to the Alberta Court of Appeal, raising the same Charter issues. The Court of Appeal unanimously accepted his argument, and it is from this judgment that the Crown appeals. The Attorneys-General of Canada, Quebec, Ontario, Manitoba and New Brunswick, the Canadian Jewish Congress, Interamicus, the League for Human Rights of B'nai Brith, Canada, and the Women's Legal Education and Action Fund (L.E.A.F.) have intervened in this appeal in support of the Crown. The Canadian Civil Liberties Association has intervened in support of striking down the impugned legislation. II Issues The following constitutional questions were stated on August 11, 1989: 1. Is s. 281.2(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) an infringement of freedom of expression as guaranteed under s. 2(b) of the Canadian Charter of Rights and Freedoms? 2. If s. 281.2(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) is an infringement of s. 2(b) of the Canadian Charter of Rights and Freedoms, can it be upheld under s. 1 of the Charter as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society? 3. Is s. 281.2(3)(a) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) an infringement of the right to be presumed innocent, as guaranteed under s. 11(d) of the Canadian Charter of Rights and Freedoms? 4. If s. 281.2(3)(a) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) is an infringement of s. 11(d) of the Canadian Charter of Rights and Freedoms, can it be upheld under s. 1 of the Charter as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society? III Relevant Statutory and Constitutional Provisions The relevant legislative and Charter provisions are set out below: Criminal Code 319(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction. (3) No person shall be convicted of an offence under subsection (2) (a) if he establishes that the statements communicated were true; (b) if, in good faith, he expressed or attempted to establish by argument an opinion upon a religious subject; (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred towards an identifiable group in Canada. (6) No proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General. (7) In this section, ''communicating'' includes communicating by telephone, broadcasting or other audible or visible means; ''identifiable group'' has the same meaning as in section 318; ''public place'' includes any place to which the public have access as of right or by invitation, express or implied; ''statements'' includes words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or other visible representations. 318(4) In this section, ''identifiable group'' means any section of the public distinguished by colour, race, religion or ethnic origin. Canadian Bill of Rights, R.S.C. 1985, App. III [Preamble] The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that ackowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions; Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law; And being desirous of enshrining these principles and the human rights and fundamental freedoms derived from them, in a Bill of Rights which shall reflect the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada. Therefore Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, (d) freedom of speech; Canadian Charter of Rights and Freedoms 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 2. Everyone has the following fundamental freedoms: (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; 11. Any person charged with an offence has the right (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; 15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national and ethnic origin, colour, religion, sex, age or mental or physical disability. 27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians. IV Judgments of the Alberta Courts A. Alberta Court of Queen's Bench, 19 C.C.C. (3d) 254, 87 A.R. 200 In the Court of Queen's Bench, only the s. 2(b) issue was given substantial consideration, the argument on s. 11(d) not being entertained for lack of proper notice to the Crown. In dismissing Mr. Keegstra's s. 2(b) submission, Quigley J. was of the view that there exists a discernible Canadian concept of freedom of expression, a concept emanating from four principles found in the preamble to the Canadian Bill of Rights and the introductory words to s. 1 of the Bill, namely, (i) an acknowledgment of the supremacy of God; (ii) the dignity and worth of the human person; (iii) respect for moral and spiritual values, and (iv) the rule of law. Quigley J. saw the affirmation of these principles in s. 15 of the Charter, that section enshrining as it does the dignity and worth of every individual (p. 268). Of further interpretive use was the Charter's s. 27, which he felt required a view of freedom of expression which is compatible with the preservation and enhancement of Canada's multicultural heritage (p. 268). Using the principles provided by the Canadian Bill of Rights and affirmed in ss. 15 and 27 of the Charter, Quigley J. observed that the wilful promotion of hatred against a section of the Canadian public distinguished by colour, race, religion or ethnic origin is antithetical to the dignity and worth of the members of an identifiable group. As such, it negates their rights and freedoms, in particular denying them the right to the equal protection and benefit of the law without discrimination. Quigley J. thus decided that s. 319(2) does not infringe s. 2(b) of the Charter, stating (at p. 268): ... it is my opinion that s. 281.2(2) [now s. 319(2)] of the Code cannot rationally be considered to be an infringement which limits ''freedom of expression'', but on the contrary it is a safeguard which promotes it. The protection afforded by the proscription tends to banish the apprehension which might otherwise inhibit certain segments of our society from freely expressing themselves upon the whole spectrum of topics, whether social, economic, scientific, political, religious, or spiritual in nature. The unfettered right to express divergent opinions on these topics is the kind of freedom of expression the Charter protects. In the event that he was wrong in this conclusion, Quigley J. went on to ask whether s. 319(2) was justified under s. 1 of the Charter. He noted that persons maligned by hate propaganda may respond aggressively and be stripped of their sense of personal dignity and self-worth, while those whom the hate-monger seeks to influence are harmed because ''it is beyond doubt that breeding hate is detrimental to society for psychological and social reasons and that it can easily create hostility and aggression which leads to violence'' (p. 273). In light of these harms, Quigley J. saw s. 319(2) as a rational means of preventing real and serious damage to both individuals and society generally. Moreover, he felt that the various restrictions and defences built into s. 319(2) ensure that it has ''a very minimal effect on the over-all right of freedom of expression'' (p. 274). In Quigley J.'s view, the balance struck between free expression and the broader interests of social cohesion and the common good thus justified s. 319(2) as a reasonable limit to s. 2(b) under s. 1. B. Alberta Court of Appeal (per Kerans J.A., Stevenson and Irving JJ.A. concurring), 43 C.C.C. (3d) 150, 65 C.R. (3d) 289,  5 W.W.R. 211 In the Alberta Court of Appeal, two Charter provisions were invoked by Mr. Keegstra. First, s. 2(b) was used as it had been in the pre-trial application before the Court of Queen's Bench, and secondly, the presumption of innocence protected in s. 11(d) was used to attack the reverse onus placed upon an accused by the defence of truth in s. 319(3)(a). On both issues Kerans J.A., writing for a unanimous court, found that the Charter had been violated. As a result, the appeal was allowed and the impugned provision struck down, and it became unnecessary to deal with a number of other grounds of appeal raised by Mr. Keegstra. Kerans J.A. began by noting that under s. 319(3)(a) an accused could be convicted of wilfully promoting hatred upon failure to prove on a balance of probabilities the truth of his or her statements. In this way, the onus of proving innocence was on the accused, and s. 319(3)(a) therefore violated s. 11(d). Under s. 1, Kerans J.A. could only envision one justification for a reverse onus, namely, ''where the inference commanded by the statutory presumption is so persuasive that only a perverse jury would have a doubt'' (p. 160). In his opinion, statements intended to promote hatred could quite conceivably be true, and he consequently ruled that the reverse onus in s. 319(3)(a) was not saved under s. 1. Turning next to the freedom of expression issue, Kerans J.A. was willing to accept that knowingly false expression was not covered by s. 2(b). Section 319(2) extended beyond knowingly false communications, however, covering all falsehoods, including those innocently and negligently made. The relevant question under s. 2(b) was therefore whether falsehoods unknowingly made were protected by the Charter. Invoking John Stuart Mill's ''marketplace of ideas'', Kerans J.A. decided in the affirmative, stating that ''s. 2(b) should be understood as protecting both innocent error and imprudent speech'' (p. 164). As s. 319(2) did neither, he held that it infringes s. 2(b) of the Charter. Moving on to the s. 1 analysis, Kerans J.A. first considered whether the challenged legislation bore a rational relationship to a valid legislative objective. He accepted that preventing harm to the reputation and psychological well-being of target-group members was a valid s. 1 objective, stating that the making of unjust or capricious distinctions is ''an attack on the dignity of the victim, and can result in a debilitating sense of alienation from society'' (p. 169). Kerans J.A. nevertheless saw a difference between pain suffered by the target of isolated abuse and the crushing effect of systemic discrimination. He remarked that feelings of outrage and frustration caused by name-calling may be bearable if the abuse is rejected by the community as a whole, while in contrast name-calling becomes unbearable when, ''it indeed cools one's friends and heats one's enemies'' (p. 169). Consequently, he viewed injury stemming from hate propaganda as serious enough to require the sanction of the criminal law only where people actually hate a group as a result of abuse. The protection of individuals from actual hatred being alone sufficient reason to limit imprudent speech, Kerans J.A. found that s. 319(2) fails the proportionality test through overbreadth, permitting as it does the conviction of a person who merely intends to cause hatred. In coming to this result, Kerans J.A. viewed as insufficient, safeguards said to prevent the use of s. 319(2) to prosecute ''harmless cranks'' or persons in the public eye who utter an ''unfortunate'' remark that is picked up by the media. He also dismissed the Crown's contention that it would be impossible to prove actual harm from a particular hate-promoting communication, and refused to see prosecutorial discretion in s. 319(6) as a sufficient antidote to the offence's overbreadth. Finally, he did not view ss. 15 and 27 of the Charter as working to justify s. 319(2) under s. 1. In Kerans J.A.'s opinion, these Charter provisions do not forbid Canadians from criticizing the values of equality and multiculturalism, and while accepting that no Canadian should be asked to suffer simply because of his or her racial or ethnic heritage, he concluded that the challenged law ''catches more than that'' (p. 178). In the result, he found that the impugned legislative provision was not saved under s. 1. V The History of Hate Propaganda Crimes in Canada The history of attempts to prevent the propagation of scurrilous statements about particular groups is, not surprisingly, extremely old. The earliest instance where such expression was made criminal occurred in 1275, when the offence of De Scandalis Magnatum was created, prohibiting ''any false News or Tales, whereby discord, or occasion of discord or slander may grow between the King and his People, or the Great Men of the Realm''. As Sir William Holdsworth noted, the aim of the statute was to prevent false statements which, in a society dominated by extremely powerful landowners, could threaten the security of the state: see A History of English Law, 5th ed. (1942), vol. III, at p. 409. De Scandalis Magnatum was rarely employed, and was abolished in England in 1887, but its legacy survives in s. 181 of our Criminal Code, which makes it an offence to spread knowingly false news that is likely to cause injury or mischief to a public interest. Section 181 does not on its face address the problem of ''hate propaganda'', a term which I use for convenience to denote expression intended or likely to create or circulate extreme feelings of opprobrium and enmity against a racial or religious group, but it has been used recently to prosecute an individual for the distribution of anti-Semitic material: see R. v. Zundel (1987), 31 C.C.C. (3d) 97, 35 D.L.R. (4th) 338, 58 O.R. (2d) 129 (C.A.). In the more distant past, a forerunner of s. 181 was employed against the disseminator of a pamphlet decrying the plight of Jehovah's Witnesses in Quebec. This earlier case, R. v. Carrier (1951), 104 C.C.C. 75, 16 C.R. 18 (Que. K.B.), interpreted the provision narrowly, holding that the requirement of injury or the likelihood of injury to the public interest was not satisfied by simply a desire to fan hatred and ill-will between different groups, but rather needed something more in the nature of an intention to disobey openly or to act violently against the established authority. Prior to 1970, s. 181 was the only provision of the Criminal Code with links (albeit mainly historical) to an offence of group defamation. Our common law has long seen defamation as a tortious action, but only where a litigant can show that reputation has been damaged by offending statements directed towards him or her as an individual. Similarly, until the amendments creating s. 319(2), Canadian criminal law made defamation an offence only in the case of attacks upon a person, as is evident from the combined effect of what are now ss. 298 and 300 of the Criminal Code. The scope of ''person'' set out in s. 2 of the Code extends somewhat beyond the individual, covering additionally public bodies, corporations, societies and companies, but groups having common characteristics such as race, religion, colour and ethnic origin are not included in the definition. Section 300 was not, before 1970, the only Criminal Code offence prohibiting a type of libel. There also existed the crime of seditious libel, now found in s. 59, prohibiting the speaking or publishing of seditious words. This offence required the existence of a ''seditious intention'', a state of mind which, without limiting the scope of the phrase, was statutorily presumed to be present in those advocating the unlawful use of force as a means of accomplishing a governmental change within Canada. In Boucher v. The King (1951), 91 C.C.C. 1,  2 D.L.R. 369,  S.C.R. 265, this court interpreted ''seditious intention'' restrictively, however, finding the term to require proof of an intention to incite acts of violence or public disorder. The decision in Boucher has been long regarded as a strong defence of the merits of freedom of expression. Not surprisingly, for this reason it was relied upon in Carrier for the narrow interpretation of the offence of spreading false news. While the history of attempts to prosecute criminally the libel of groups is lengthy, the Criminal Code provisions discussed so far do not focus specifically upon expression propagated with the intent of causing hatred against racial, ethnic or religious groups. Even before the Second World War, however, fears began to surface concerning the inadequacy of Canadian criminal law in this regard. In the 1930's, for example, Manitoba passed a statute combatting a perceived rise in the dissemination of Nazi propaganda: the Libel Act, R.S.M. 1913, c. 113, s. 13A (added S.M. 1934, c. 23, s. 1), now the Defamation Act, R.S.M. 1987, c. D20, s. 19(1). Following the Second World War and revelation of the Holocaust, in Canada and throughout the world a desire grew to protect human rights, and especially to guard against discrimination. Internationally, this desire led to the landmark Universal Declaration of Human Rights in 1948, and, with reference to hate propaganda, was eventually manifested in two international human rights instruments. In Canada, the post-war mood saw an attempt to include anti-hate propaganda provisions in the 1953 revision of the Criminal Code, but most influential in changing the criminal law in order to prohibit hate propaganda was the appointment by Justice Minister Guy Favreau of a special committee to study problems associated with the spread of hate propaganda in Canada. The Special Committee on Hate Propaganda in Canada, usually referred to as the Cohen Committee, was composed of the following members: Dean Maxwell Cohen, Q.C., Dean of the Faculty of Law, McGill University, chair; Dr. J.A. Corry, Principal, Queen's University; L'Abbe Gerard Dion, Faculty of Social Sciences, Laval University; Mr. Saul Hayes, Q.C., Executive Vice-President, Canadian Jewish Congress; Professor Mark R. MacGuigan, Associate Professor of Law, University of Toronto; Mr. Shane MacKay, Executive Editor, Winnipeg Free Press; and Professor Pierre E. Trudeau, Associate Professor of Law, University of Montreal. This was a particularly strong committee, and in 1966, it released the unanimous Report of the Special Committee on Hate Propaganda in Canada. The tenor of the report is reflected in the opening paragraph of its preface, which reads: This Report is a study in the power of words to maim, and what it is that a civilized society can do about it. Not every abuse of human communication can or should be controlled by law or custom. But every society from time to time draws lines at the point where the intolerable and the impermissible coincide. In a free society such as our own, where the privilege of speech can induce ideas that may change the very order itself, there is bias weighted heavily in favour of the maximum of rhetoric whatever the cost and consequences. But that bias stops this side of injury to the community itself and to individual members or identifiable groups innocently caught in verbal cross-fire that goes beyond legitimate debate. In keeping with these remarks, the recurrent theme running throughout the report is the need to prevent the dissemination of hate propaganda without unduly infringing the freedom of expression, a theme which led the committee to recommend a number of amendments to the Criminal Code. These amendments were made, essentially along the lines suggested by the committee, and covered the advocation of genocide (s. 318), the public incitement of hatred likely to lead to a breach of peace (s. 319(1)) and the provision challenged in this appeal and presently found in s. 319(2) of the Code, namely, the wilful promotion of hatred. VI Section 2(b) of the Charter--Freedom of Expression Having briefly set out the history of attempts to prohibit hate propaganda, I can now address the constitutional questions arising for decision in this appeal. The first of these concerns whether the Charter guarantee of freedom of expression is infringed by s. 319(2) of the Criminal Code. In other words, does the coverage of s. 2(b) extend to the public and wilful promotion of hatred against an identifiable group. Before looking to the specific facts of this appeal, however, I would like to comment upon the nature of the s. 2(b) guarantee. Obviously, one's conception of the freedom of expression provides a crucial backdrop to any s. 2(b) inquiry; the values promoted by the freedom help not only to define the ambit of s. 2(b), but also come to the forefront when discussing how competing interests might co-exist with the freedom under s. 1 of the Charter. In the recent past, this court has had the opportunity to hear and decide a number of freedom of expression cases, among them R.W.D.S.U., Local 580 v. Dolphin Delivery Ltd. (1986), 33 D.L.R. (4th) 174,  2 S.C.R. 573,  1 W.W.R. 577; Ford v. Quebec (Attorney-General) (1988), 54 D.L.R. (4th) 577,  2 S.C.R. 712, 10 C.H.R.R. D/5559; Irwin Toy Ltd. v. Quebec (Attorney-General) (1989), 58 D.L.R. (4th) 577, 25 C.P.R. (3d) 417,  1 S.C.R. 927; Edmonton Journal v. Alberta (Attorney-General) (1989), 64 D.L.R. (4th) 577,  2 S.C.R. 1326,  1 W.W.R. 577; Reference re ss. 193 and 195.1(1)(c) of Criminal Code (1990), 56 C.C.C. (3d) 65,  1 S.C.R. 1123, 77 C.R. (3d) 1, and Rocket v. Royal College of Dental Surgeons of Ontario (1990), 71 D.L.R. (4th) 68, 73 O.R. (2d) 128,  2 S.C.R. 232. Together, the judgments in these cases provide guidance as to the values informing the freedom of expression, and additionally indicate the relationship between ss. 2(b) and 1 of the Charter. That the freedom to express oneself openly and fully is of crucial importance in a free and democratic society was recognized by Canadian courts prior to the enactment of the Charter. The treatment of freedom of expression by this court in both division of powers and other cases was examined in Dolphin Delivery Ltd., supra, at pp. 183-7, and it was noted that well before the advent of the Charter -- before even the Canadian Bill of Rights was passed by Parliament in 1960, S.C. 1960, c. 44 -- freedom of expression was seen as an essential value of Canadian parliamentary democracy. This freedom was thus protected by the Canadian judiciary to the extent possible before its entrenchment in the Charter, and occasionally even appeared to take on the guise of a constitutionally protected freedom: see, e.g., Reference re Alberta Legislation,  2 D.L.R. 81 at pp. 106-7,  S.C.R. 100, per Duff C.J., and Switzman v. Elbling and A.-G. Que. (1957), 117 C.C.C. 129 at p. 164, 7 D.L.R. (2d) 337,  S.C.R. 285, per Abbott J. Without explicit protection under a written constitution, however, the freedom of expression was not always accorded careful consideration in pre- Charter cases: see Clare Beckton, ''Freedom of Expression'' in G.-A. Beaudoin and E. Ratushny, eds., The Canadian Charter of Rights and Freedoms, 2nd ed. (1989), p. 195 at pp. 197-8). Moreover, pre- Charter jurisprudence used freedom of expression primarily in relation to political expression, a context which restricted somewhat the content of the freedom and led this court to remark in Ford, supra, at p. 616: The pre- Charter jurisprudence emphasized the importance of political expression because it was a challenge to that form of expression that most often arose under the division of powers and the ''implied bill of rights'', where freedom of political expression could be related to the maintenance and operation of the institutions of democratic government. But political expression is only one form of the great range of expression that is deserving of constitutional protection because it serves individual and societal values in a free and democratic society. While the pre- Charter era saw a role for the freedom of expression, then, with the Charter came not only its increased importance, but also a more careful and generous study of the values informing the freedom. As is evident from the quotation just given, the reach of s. 2(b) is potentially very wide, expression being deserving of protection if ''it serves individual and societal values in a free and democratic society''. In subsequent cases, the court has not lost sight of this broad view of the values underlying the freedom of expression, though the majority decision in Irwin Toy perhaps goes further towards stressing as primary the ''democratic commitment'' said to delineate the protected sphere of liberty (p. 608). Moreover, the court has attempted to articulate more precisely some of the convictions fueling the freedom of expression, these being summarized in Irwin Toy (at p. 612) as follows: (1) seeking and attaining truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged, and (3) diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in a tolerant and welcoming environment for the sake of both those who convey a meaning and those to whom meaning is conveyed. Although Ford commented upon the values generally seen to support the freedom of expression, the decision was also sensitive of the need to consider these values within the textual framework of the Charter. Consequently, the court stated at p. 617 that, While ... attempts to identify and define the values which justify the constitutional protection of freedom of expression are helpful in emphasizing the most important of them, they tend to be formulated in a philosophical context which fuses the separate questions of whether a particular form or act of expression is within the ambit of the interests protected by the value of freedom of expression and the question whether that form or act of expression, in the final analysis, deserves protection from interference under the structure of the Canadian Charter and the Quebec Charter. These are two distinct questions and call for two distinct analytical processes. It is the presence of s. 1 which makes necessary this bifurcated approach to Canadian freedom of expression cases. Indeed, the application of this approach in Ford in part permitted the court to give a large and liberal interpretation to s. 2(b), on the facts of the case leading to the inclusion of commercial expression within its ambit, and to state that the weighing of competing values would ''in most instances'' take place in s. 1 (p. 618). Irwin Toy can be seen as at once clarifying the relationship between ss. 2(b) and 1 in freedom of expression cases and reaffirming and strengthening the large and liberal interpretation given the freedom in s. 2(b) by the court in Ford. These aspects of the decision flow largely from a two-step analysis used in determining whether s. 2(b) has been infringed, an approach affirmed by this court in subsequent cases, for example Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, supra, and Royal College of Dental Surgeons, supra. The first step in the Irwin Toy analysis involves asking whether the activity of the litigant who alleges an infringement of the freedom of expression falls within the protected s. 2(b) sphere. In outlining a broad, inclusive approach to answering this question, the following was said (at p. 606): ''Expression'' has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning. That meaning is its content. Freedom of expression was entrenched in our Constitution and is guaranteed in the Quebec Charter so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expression of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection is, in the words of both the Canadian and Quebec Charters, ''fundamental'' because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual. Apart from rare cases where expression is communicated in a physically violent form, the court thus viewed the fundamental nature of the freedom of expression as ensuring that ''if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee'' (p. 607). In other words, the term ''expression'' as used in s. 2(b) of the Charter embraces all content of expression irrespective of the particular meaning or message sought to be conveyed: Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, supra, at pp. 107-8 per Lamer J. The second step in the analysis outlined in Irwin Toy is to determine whether the purpose of the impugned government action is to restrict freedom of expression. The guarantee of freedom of expression will necessarily be infringed by government action having such a purpose. If, however, it is the effect of the action, rather than the purpose, that restricts an activity, s. 2(b) is not brought into play unless it can be demonstrated by the party alleging an infringement that the activity supports rather than undermines the principles and values upon which freedom of expression is based. Having reviewed the Irwin Toy test, it remains to determine whether the impugned legislation in this appeal -- s. 319(2) of the Criminal Code -- infringes the freedom of expression guarantee of s. 2(b). Communications which wilfully promote hatred against an identifiable group without doubt convey a meaning, and are intended to do so by those who make them. Because Irwin Toy stresses that the type of meaning conveyed is irrelevant to the question of whether s. 2(b) is infringed, that the expression covered by s. 319(2) is invidious and obnoxious is beside the point. It is enough that those who publicly and wilfully promote hatred convey or attempt to convey a meaning, and it must therefore be concluded that the first step of the Irwin Toy test is satisfied. Moving to the second stage of the s. 2(b) inquiry, one notes that the prohibition in s. 319(2) aims directly at words -- in this appeal, Mr. Keegstra's teachings -- that have as their content and objective the promotion of racial or religious hatred. The purpose of s. 319(2) can consequently be formulated as follows: to restrict the content of expression by singling out particular meanings that are not to be conveyed. Section 319(2) therefore overtly seeks to prevent the communication of expression, and hence meets the second requirement of the Irwin Toy test. In my view, through s. 319(2) Parliament seeks to prohibit communications which convey meaning, namely, those communications which are intended to promote hatred against identifiable groups. I thus find s. 319(2) to constitute an infringement of the freedom of expression guaranteed by s. 2(b) of the Charter. Before moving on to see whether the impugned provision is none the less justified under s. 1, however, I wish to canvas two arguments made in favour of the position that communications intended to promote hatred do not fall within the ambit of s. 2(b). The first of these arguments concerns an exception mentioned in Irwin Toy concerning expression manifested in a violent form. The second relates to the impact of other sections of the Charter and international agreements in interpreting the scope of the freedom of expression guarantee. Beginning with the suggestion that expression covered by s. 319(2) falls within an exception articulated in Irwin Toy, it was argued before this court that the wilful promotion of hatred is an activity the form and consequences of which are analogous to those associated with violence or threats of violence. This argument contends that Supreme Court of Canada precedent excludes violence and threats of violence from the ambit of s. 2(b), and that the reason for such exclusion must lie in the fact that these forms of expression are inimical to the values supporting freedom of speech. Indeed, in support of this view it was pointed out to us that the court in Irwin Toy stated that ''freedom of expression ensures that we can convey our thoughts and feelings in non-violent ways without fear of censure'' (p. 607). Accordingly, we were urged to find that hate propaganda of the type caught by s. 319(2), in so far as it imperils the ability of target group members themselves to convey thoughts and feelings in non-violent ways without fear of censure, is analogous to violence and threats of violence and hence does not fall within s. 2(b). The proposition in Irwin Toy that violent expression is not afforded protection under s. 2(b) has its origin in a comment made by McIntyre J. in Dolphin Delivery Ltd., in which he stated that the freedom of expression guaranteed picketers would not extend to protect violence or threats of violence (p. 187). Restricting s. 2(b) in this manner has also been mentioned in more recent Supreme Court of Canada decisions, in particular by Lamer J. in Reference re ss. 193 and 195.1(1)(c) of Criminal Code and by a unanimous court in Royal College of Dental Surgeons. It should be emphasized, however, that no decision of this court has rested on the notion that expressive conduct is excluded from s. 2(b) where it involves violence. Turning specifically to the proposition that hate propaganda should be excluded from the coverage of s. 2(b), I begin by stating that the communications restricted by s. 319(2) cannot be considered as violence, which on a reading of Irwin Toy I find to refer to expression communicated directly through physical harm. Nor do I find hate propaganda to be analogous to violence, and through this route exclude it from the protection of the guarantee of freedom of expression. As I have explained, the starting proposition in Irwin Toy is that all activities conveying or attempting to convey meaning are considered expression for the purposes of s. 2(b); the content of expression is irrelevant in determining the scope of this Charter provision. Stated at its highest, an exception has been suggested where meaning is communicated directly via physical violence, the extreme repugnance of this form to free expression values justifying such an extraordinary step. Section 319(2) of the Criminal Code prohibits the communication of meaning that is repugnant, but the repugnance stems from the content of the message as opposed to its form. For this reason, I am of the view that hate propaganda is to be categorized as expression so as to bring it within the coverage of s. 2(b). As for threats of violence, Irwin Toy spoke only of restricting s. 2(b) to certain forms of expression, stating a p. 607 that, While the guarantee of free expression protects all content of expression, certainly violence as a form of expression receives no such protection. It is not necessary here to delineate precisely when and on what basis a form of expression chosen to convey a meaning falls outside the sphere of the guarantee. But it is clear, for example, that a murderer or rapist cannot invoke the freedom of expression in justification of the form of expression he has chosen. While the line between form and content is not always easily drawn, in my opinion threats of violence can only be so classified by reference to the content of their meaning. As such, they do not fall within the exception spoken of in Irwin Toy, and their suppression must be justified under s. 1. As I do not find threats of violence to be excluded from the definition of expression envisioned by s. 2(b), it is unnecessary to determine whether the threatening aspects of hate propaganda can be seen as threats of violence, or analogous to such threats, so as to deny it protection under s. 2(b). The second matter which I wish to address before leaving the s. 2(b) inquiry concerns the relevance of other Charter provisions and international agreements to which Canada is a party in interpreting the coverage of the freedom of expression guarantee. It has been argued in support of excluding hate propaganda from the coverage of s. 2(b) that the use of ss. 15 and 27 of the Charter -- dealing respectively with equality and multiculturalism -- and Canada's acceptance of international agreements requiring the prohibition of racist statements make s. 319(2) incompatible with even a large and liberal definition of the freedom: see, e.g., Irwin Cotler, ''Hate Literature'', in Rosalie S. Abella and Melvin L. Rothman, eds., Justice Beyond Orwell (1985), p. 117 at pp. 121-2. The general tenor of this argument is that these interpretive aids inextricably infuse each constitutional guarantee with values supporting equal societal participation and the security and dignity of all persons. Consequently, it is said that s. 2(b) must be curtailed so as not to extend to communications which seriously undermine the equality, security and dignity of others. Because I will deal extensively with the impact of various Charter provisions and international agreements when considering whether s. 319(2) is a justifiable limit under s. 1, I will keep my comments here to a minimum. Suffice it to say that I agree with the general approach of Wilson J. in Edmonton Journal, supra, where she speaks of the danger of balancing competing values without the benefit of a context. This approach does not logically preclude the presence of balancing within s. 2(b) -- one could avoid the dangers of an overly abstract analysis simply by making sure that the circumstances surrounding both the use of the freedom and the legislative limit were carefully considered. I believe, however, that s. 1 of the Charter is especially well-suited to the task of balancing, and consider this court's previous freedom of expression decisions to support this belief. It is, in my opinion, inappropriate to attenuate the s. 2(b) freedom on the grounds that a particular context requires such; the large and liberal interpretation given the freedom of expression in Irwin Toy indicates that the preferable course is to weigh the various contextual values and factors in s. 1. I thus conclude on the issue of s. 2(b) by finding that s. 319(2) of the Criminal Code constitutes an infringement of the Charter guarantee of freedom of expression, and turn to examine whether such an infringement is justifiable under s. 1 as a reasonable limit in a free and democratic society. VII Section 1 Analysis of s. 319(2) A. General approach to s. 1 Though the language of s. 1 appears earlier in these reasons, it is appropriate to repeat its words: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. In R. v. Oakes (1986), 24 C.C.C. (3d) 321, 26 D.L.R. (4th) 200,  1 S.C.R. 103, this court offered a course of analysis to be employed in determining whether a limit on a right or freedom can be demonstrably justified in a free and democratic society. Under the approach in Oakes, it must first be established that impugned state action has an objective of pressing and substantial concern in a free and democratic society. Only such an objective is of sufficient stature to warrant overriding a constitutionally protected right or freedom (p. 348). The second feature of the Oakes test involves assessing the proportionality between the objective and the impugned measure. The inquiry as to proportionality attempts to guide the balancing of individual and group interests protected in s. 1, and in Oakes was broken down into the following three segments (at p. 348): First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Secondly, the means, even if rationally connected to the objective in this first sense, should impair ''as little as possible'' the right or freedom in question...Thirdly, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of ''sufficient importance''. The analytical framework of Oakes has been continually reaffirmed by this court, yet it is dangerously misleading to conceive of s. 1 as a rigid and technical provision, offering nothing more than a last chance for the state to justify incursions into the realm of fundamental rights. >From a crudely practical standpoint, Charter litigants sometimes may perceive s. 1 in this manner, but in the body of our nation's constitutional law it plays an immeasurably richer role, one of great magnitude and sophistication. Before examining the specific components of the Oakes approach as they relate to this appeal, I therefore wish to comment more generally upon the role of s. 1. In the words of s. 1 are brought together the fundamental values and aspirations of Canadian society. As this court has said before, the premier article of the Charter has a dual function, operating both to activate Charter rights and freedoms and to permit such reasonable limits as a free and democratic society may have occasion to place upon them ( Oakes, at pp. 343-4). What seems to me to be of significance in this dual function is the commonality that links the guarantee of rights and freedoms to their limitation. This commonality lies in the phrase ''free and democratic society''. As was stated by the majority in Slaight Communications Inc. v. Davidson (1989), 59 D.L.R. (4th) 416 at p. 427,  1 S.C.R. 1038, 26 C.C.E.L. 85: ''The underlying values of a free and democratic society both guarantee the rights in the Charter and, in appropriate circumstances, justify limitations upon those rights.'' Obviously, a practical application of s. 1 requires more than an incantation of the words ''free and democratic society''. These words require some definition, an elucidation as to the values that they invoke. To a large extent, a free and democratic society embraces the very values and principles which Canadians have sought to protect and further by entrenching specific rights and freedoms in the Constitution, although the balancing exercise in s. 1 is not restricted to values expressly set out in the Charter (Slaight, supra, at p. 427). With this guideline in mind, in Oakes I commented upon some of the ideals that inform our understanding of a free and democratic society, saying (at p. 346): The court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified. Undoubtedly these values and principles are numerous, covering the guarantees enumerated in the Charter and more. Equally, they may well deserve different emphases, and certainly will assume varying degrees of importance depending upon the circumstances of a particular case. It is important not to lose sight of factual circumstances in undertaking a s. 1 analysis, for these shape a court's view of both the right or freedom at stake and the limit proposed by the state; neither can be surveyed in the abstract. As Wilson J. said in Edmonton Journal, supra, referring to what she termed the ''contextual approach'' to Charter interpretation (at p. 584): ... a particular right or freedom may have a different value depending on the context. It may be, for example, that freedom of expression has greater value in a political context than it does in the context of disclosure of the details of a matrimonial dispute. The contextual approach attempts to bring into sharp relief the aspect of the right or freedom which is truly at stake in the case as well as the relevant aspects of any values in competition with it. It seems to be more sensitive to the reality of the dilemma posed by the particular facts and therefore more conducive to finding a fair and just compromise between the two competing values under s. 1). Though Wilson J. was speaking with reference to the task of balancing enumerated rights and freedoms, I see no reason why her view should not apply to all values associated with a free and democratic society. Clearly, the proper judicial perspective under s. 1 must be derived from an awareness of the synergetic relation between two elements: the values underlying the Charter and the circumstances of the particular case. From the discussion so far, I hope it is clear that a rigid or formalistic approach to the application of s. 1 must be avoided. The ability to use s. 1 as a gauge which is sensitive to the values and circumstances particular to an appeal has been identified as vital in past cases, and La Forest J. admirably described the essence of this flexible approach in United States of America v. Cotroni (1989), 48 C.C.C. (3d) 193 at pp. 218-9,  1 S.C.R. 1469, 42 C.R.R. 101: In the performance of the balancing task under s. 1, it seems to me, a mechanistic approach must be avoided. While the rights guaranteed by the Charter must be given priority in the equation, the underlying values must be sensitively weighed in a particular context against other values of a free and democratic society sought to be promoted by the legislature.
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