Case Summary and Outcome

The Supreme Court of Canada held that the prosecution of a high school teacher in Alberta for anti-Semitic statements in his class was a reasonable and justifiable limitation on freedom of expression. James Keegstra, a high-school teacher in Alberta, told his class that Jews were evil and doubted the occurrence of the Holocaust. He was charged with willfully promoting hatred against an identifiable group, which he objected on the grounds of freedom of expression. The Court upheld Canadian legislation under which the teacher was charged because it did not suffer from vagueness or broadness, and sought to eliminate racism and hatred.

Facts

In his classes, Keegstra communicated to his students several negative remarks about the Jewish community. He attributed to Jewish people evil qualities and expressed doubt as to the occurrence of the Holocaust.  Keegstra was charged under Section 319(2) of the Criminal Code of Canada for willfully promoting hatred against an identifiable group for making anti-Semitic and hateful statements to his students. Keegstra objected  on the ground that Section 319(2) infringed upon his right to freedom of expression pursuant to Section 2(b) of the Canadian Charter of Rights and Freedoms (Charter).

Decision Overview

Chief Justice Dickson delivered the majority judgment of the Supreme Court of Canada. The Court had two constitutional questions. The first question was if Section 319(2) was an infringement of freedom of expression as guaranteed under Section 2(b) of the Charter. The Court concluded that it was after applying the two-step analysis established in an earlier Supreme Court case, Irwin Toy Ltd. v. Quebec (Attorney General).

The first step of the Irwin Toy analysis requires a determination of whether the allegation of infringement of freedom of expression falls within the ambit of Section 2(b) of the Charter. Under this first step, the majority concluded that expression is protected when it attempts to convey a meaning. Dickson further asserted that the meaning or message of the expression was irrelevant even if, as in this case, it publicly promoted hate. The second step in the Irwin Toy analysis requires a determination of whether the government action had been taken in order to restrict freedom of expression. Dickson concluded that Section 319(2) sought to prevent a particular expression and thus satisfied the second part of the analysis.

The second question posed was if the limitation on freedom of expression could be upheld under Section 1 of the Charter as reasonable by law and justified in a free and democratic society. The majority judgment answered affirmatively. In this regard, Dickson adopted the approach utilized in R. v. Oakes, where first it had to be established that the objective of the legislation was of a pressing and substantial nature. Dickson determined that the objective of the legislation was indeed pressing and substantial because expression promoting hatred to identifiable groups unduly inhibits multiculturalism in Canada.

On this matter, the majority judgment referenced international instruments to which Canada is a signatory that encourage states to enact legislation against the promotion of hatred. Next, the majority judgment determined that Section 319(2) complied with the proportionality requirement of the Oakes test. Dickson established that under the proportionality requirement, there was a rational connection between Parliament’s objective and the belief that criminal law is the most effective means to suppress the harm caused by hate propaganda. Further, Section 319(2) established a minimal impairment to freedom of expression. The provision does not suffer from vagueness or broadness, as it excludes private conversations, and the accused has the ability to invoke the defense available in Section 319(3). Finally, the majority judgment reaffirmed the importance of the objective of the impugned legislation to have a free and democratic society by trying to eliminate racism and hatred.

Justice McLachlin’s dissenting opinion did agree with the majority judgment that freedom of expression had been infringed pursuant to Section 2(b) of the Charter. However, it did not agree that the limitation to freedom of expression was justifiable and reasonable under Section 1 of the Charter. McLachlin asserted that the criminal aspect of the limitation to freedom of speech that Section 319(2) imposes could produce a chilling effect, primarily because it could deter legitimate expression and cause uncertainty as to whether a particular expression could be prosecuted. The dissenting opinion also rejected the notion that criminal prosecutions can reduce racism and hate propaganda. Finally, McLachlin submitted that the limitations established in Section 319(2) suffer from vagueness and broadness.