R. v. Keegstra, [1990] 3 S.C.R. 697
Her Majesty The Queen Appellant
v.
James Keegstra Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General for New Brunswick,
the Attorney General of Manitoba,
the Canadian Jewish Congress,
the League for Human Rights of B'nai Brith,
Canada, Interamicus, the Women's Legal
Education and Action Fund, and the
Canadian Civil Liberties Association Interveners
indexed as: r. v. keegstra
File No.: 21118.
1989: December 5, 6; 1990: December 13.
Present: Dickson C.J.* and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and McLachlin JJ.
on appeal from the court of appeal for alberta
Constitutional law -- Charter of Rights -- Freedom of expression ‑- Hate propaganda -- Criminal Code prohibiting wilful promotion of hatred against identifiable groups (s. 319(2)) -- Defence of truth to be established by accused on balance of probabilities (s. 319(3)(a)) -- Whether s. 319(2) of Criminal Code infringes s. 2(b) of Canadian Charter of Rights and Freedoms ‑‑ If so, whether infringement justifiable under s. 1 of Charter.
Constitutional law -- Charter of Rights -- Presumption of innocence -- Reverse onus provision -- Criminal Code prohibiting wilful promotion of hatred against identifiable groups (s. 319(2)) -- Defence of truth to be established by accused on balance of probabilities (s. 319(3)(a)) -- Whether s. 319(3)(a) of Criminal Code infringes s. 11(d) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter.
Constitutional law -- Charter of Rights -- Reasonable limits -- General approach to s. 1 of Canadian Charter of Rights and Freedoms.
The accused, an Alberta high school teacher, was charged under s. 319(2) of the Criminal Code with wilfully promoting hatred against an identifiable group by communicating anti‑semitic statements to his students. Prior to his trial, the accused applied to the Court of Queen's Bench for an order quashing the charge. The court dismissed the application on the ground that s. 319(2) of the Code did not violate freedom of expression as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The court, for want of proper notice to the Crown, did not entertain the accused's argument that s. 319(3)(a) of the Code violated the presumption of innocence protected by s. 11(d) of the Charter. Section 319(3)(a) affords a defence of "truth" to the wilful promotion of hatred but only where the accused proves the truth of the communicated statements on a balance of probabilities. The accused was thereafter tried and convicted. On appeal the accused's Charter arguments were accepted, the Court of Appeal holding that ss. 319(2) and 319(3)(a) infringed ss. 2(b) and 11(d) of the Charter respectively, and that the infringements were not justifiable under s. 1 of the Charter.
Held (La Forest, Sopinka and McLachlin JJ. dissenting): The appeal should be allowed. Sections 319(2) and 319(3)(a) of the Code are constitutional.
(1) Freedom of Expression
Per Dickson C.J. and Wilson, L'Heureux-Dubé and Gonthier JJ.: Communications which wilfully promote hatred against an identifiable group are protected by s. 2(b) of the Charter. When an activity conveys or attempts to convey a meaning, through a non-violent form of expression, it has expressive content and thus falls within the scope of the word "expression" as found in the guarantee. The type of meaning conveyed is irrelevant. Section 2(b) protects all content of expression. In enacting s. 319(2) of the Code, Parliament sought to prohibit communications which convey meaning. Section 319(2), therefore, represents an infringement of s. 2(b).
Communications which are intended to promote hatred against identifiable groups do not fall within the ambit of a possible s. 2(b) exception concerning expression manifested in a violent form. This exception refers only to expression communicated directly through physical harm. Hate propaganda is not analogous to violence. It conveys a meaning that is repugnant, but the repugnance stems from the content of the message and not from its form. As for threats of violence, they are not excluded from the definition of expression envisioned by s. 2(b).
Sections 15 and 27 of the Charter, which deal with equality and multiculturalism, and the international agreements signed by Canada on the prohibition of racist statements, should not be used to interpret the scope of s. 2(b). It is inappropriate to attenuate the s. 2(b) freedom on the grounds that a particular context so requires. The large and liberal interpretation given to freedom of expression indicates that the preferable course is to weigh the various contextual values and factors in s. 1 of the Charter. This section both guarantees and limits Charter rights and freedoms by reference to principles fundamental in a free and democratic society.
Section 319(2) of the Code constitutes a reasonable limit upon freedom of expression. Parliament's objective of preventing the harm caused by hate propaganda is of sufficient importance to warrant overriding a constitutional freedom. Parliament has recognized the substantial harm that can flow from hate propaganda and, in trying to prevent the pain suffered by target group members and to reduce racial, ethnic and religious tension and perhaps even violence in Canada, has decided to suppress the wilful promotion of hatred against identifiable groups. Parliament's objective is supported not only by the work of numerous study groups, but also by our collective historical knowledge of the potentially catastrophic effects of the promotion of hatred. Additionally, the international commitment to eradicate hate propaganda and Canada's commitment to the values of equality and multiculturalism in ss. 15 and 27 of the Charter strongly buttress the importance of this objective.
Section 319(2) of the Code is an acceptably proportional response to Parliament's valid objective. There is obviously a rational connection between the criminal prohibition of hate propaganda and the objective of protecting target group members and of fostering harmonious social relations in a community dedicated to equality and multiculturalism. Section 319(2) serves to illustrate to the public the severe reprobation with which society holds messages of hate directed towards racial and religious groups. It makes that kind of expression less attractive and hence decreases acceptance of its content. Section 319(2) is also a means by which the values beneficial to a free and democratic society in particular, the value of equality and the worth and dignity of each human person can be publicized.
Section 319(2) of the Code does not unduly impair freedom of expression. This section does not suffer from overbreadth or vagueness; rather, the terms of the offence indicate that s. 319(2) possesses definitional limits which act as safeguards to ensure that it will capture only expressive activity which is openly hostile to Parliament's objective, and will thus attack only the harm at which the prohibition is targeted. The word "wilfully" imports into the offence a stringent standard of mens rea which significantly restricts the reach of s. 319(2) by necessitating the proof of either an intent to promote hatred or knowledge of the substantial certainty of such a consequence. The word "hatred" further reduces the scope of the prohibition. This word, in the context of s. 319(2), must be construed as encompassing only the most severe and deeply felt form of opprobrium. Further, the exclusion of private communications from the scope of s. 319(2), the need for the promotion of hatred to focus upon an identifiable group and the presence of the s. 319(3) defences, which clarify the scope of s. 319(2), all support the view that the impugned section creates a narrowly confined offence. Section 319(2) is not an excessive impairment of freedom of expression merely because the defence of truth in s. 319(3)(a) does not cover negligent or innocent error as to the truthfulness of a statement. Whether or not a statement is susceptible to classification as true or false, such error should not excuse an accused who has wilfully used a statement in order to promote hatred against an identifiable group. Finally, while other non-criminal modes of combatting hate propaganda exist, it is eminently reasonable to utilize more than one type of legislative tool in working to prevent the spread of racist expression and its resultant harm. To send out a strong message of condemnation, both reinforcing the values underlying s. 319(2) and deterring the few individuals who would harm target group members and the larger community by communicating hate propaganda, will occasionally require use of the criminal law.
The effects of s. 319(2) are not of such a deleterious nature as to outweigh any advantage gleaned from the limitation of s. 2(b). The expressive activity at which s. 319(2) is aimed constitutes a special category, a category only tenuously connected with the values underlying the guarantee of freedom of expression. Hate propaganda contributes little to the aspirations of Canadians or Canada in either the quest for truth, the promotion of individual self‑development or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged. Moreover, the narrowly drawn terms of s. 319(2) and its defences prevent the prohibition of expression lying outside of this narrow category. Consequently, the suppression of hate propaganda represents an impairment of the individual's freedom of expression which is not of a most serious nature.
Per La Forest, Sopinka McLachlin JJ. (dissenting): Section 319(2) of the Code infringes the guarantee of freedom of expression. Where, as in this case, an activity conveys or attempts to convey a meaning or message through a non‑violent form of expression, this activity falls within the sphere of the conduct protected by s. 2(b). This section protects all content of expression irrespective of the meaning or message sought to be conveyed, no matter how offensive it may be. The government's purpose in enacting s. 319(2) was to restrict freedom of expression by curtailing what people may say. Section 319(2), therefore, imposes a limit on s. 2(b).
The promotion of hatred in this case does not assume a form which falls outside the protected sphere of s. 2(b). The accused's communications were offensive and propagandistic, but they do not constitute threats in the usual sense of that word. The accused's statements did not urge violence against the Jewish people. They were not made with the intention and do not have the effect of compelling Jewish people or anyone else to do one thing or another. Nor do the accused's statements constitute violence. Violence, as discussed in Dolphin Delivery and Irwin Toy, connotes actual or threatened physical interference with the activities of others. Moreover, statements promoting hatred are not akin to threats or violence. There is nothing in the form of such statements which subverts democracy or our basic freedoms in the way in which violence or threats of violence may. Finally, to suggest that speech, like hate propaganda, which undermines the credibility of speakers belonging to particular groups does not fall within s. 2(b) of the Charter, is to remove from the protection of the Charter an enormous amount of speech which has long been accepted as important and valuable.
Sections 15 and 27 of the Charter and the international convenants signed by Canada on the prohibition of racism do not reduce the scope of expression protected by s. 2(b) so as to exclude the accused's statements. First, to do so would be to exclude statements from the protection of s. 2(b) on the basis of their content, an approach which this Court has rejected. Second, given that the protection under s. 2(b) is aimed at protecting individuals from having their expression infringed by the government, it would be a misapplication of Charter values to thereby limit the scope of that individual guarantee with an argument based on s. 15, which is also aimed at circumscribing the power of the state. Third, it would be extremely difficult to balance in the abstract conflicting values such as equality and multiculturalism against freedom of expression. Assuming such balancing were to be done, it would be more appropriately made under s. 1 of the Charter than under s. 2(b). Fourth, Canada's international obligations, and the accords negotiated between international governments, may well be helpful in placing Charter interpretation in a larger context but these obligations are not determinative or limitative of the scope of the Charter guarantees. The provisions of the Charter, though drawing on a political and social philosophy shared with other democratic societies, are uniquely Canadian. As a result, considerations may point, as they do in this case, to a conclusion regarding a rights violation which is not necessarily in accord with those international covenants. Unlike the international covenants, which exclude hate propaganda from the guarantee of speech, the Charter posits a broad and unlimited right of expression under s. 2(b), a right which can only be cut back under s. 1.
Section 2(b) does not protect only justified or meritorious expression. Historical legal limitations on expression which conflict with the larger Canadian conception of free speech must be rejected. While in this case it may be easy to achieve near‑unanimous consensus that the statements contribute nothing positive to our society, experience shows that in other cases it may be difficult to draw the line between speech which has value to democracy or social issues and speech which does not. Attempts to confine the guarantee of free expression only to content which is judged to possess redeeming value or to accord with the accepted values strike at the very essence of the value of the freedom, reducing the realm of protected discussion to that which is comfortable and compatible with current conceptions. If the guarantee of free expression is to be meaningful, it must protect expression which challenges even the very basic conceptions about our society. A true commitment to freedom of expression demands nothing less.
Section 319(2) of the Code does not constitute a reasonable limit upon freedom of expression. While the legislative objectives of preventing the promotion of hatred, of avoiding racial violence and of promoting equality and multiculturalism are of sufficient importance to warrant overriding the guarantee of freedom of expression, s. 319(2) fails to meet the proportionality test.
Section 319(2) does, to some degree, further Parliament's objective. However, the rational connection between s. 319(2) and its goals is tenuous as there is not a strong and evident connection between the criminalization of hate propaganda and its suppression. Section 319(2) may in fact detract from the objectives it is designed to promote by deterring legitimate expression. Law‑abiding citizens, who do not wish to run afoul of the law, could decide not to take the chance in a doubtful case. Creativity and the beneficial exchange of ideas could be adversely affected. At the same time, it is unclear that s. 319(2) provides an effective way of curbing hate-mongers. Not only does the criminal process attract extensive media coverage and confer on the accused publicity for his dubious causes, it may even bring him sympathy.
Section 319(2) of the Code does not interfere as little as possible with freedom of expression. Section 319(2) is drafted too broadly, catching more expressive conduct than can be justified by the objectives of promoting social harmony and individual dignity. The term "hatred" in s. 319(2) is capable of denoting a wide range of diverse emotions and is highly subjective, making it difficult to ensure that only cases meriting prosecution are pursued and that only those whose conduct is calculated to dissolve the social bonds of society are convicted. Despite the requirement of "wilful promotion", people who make statements primarily for non‑nefarious reasons may also be convicted under s. 319(2). A belief that what one says about a group is true and important to political and social debate is quite compatible with, and indeed may inspire, an intention to promote active dislike of that group. Such a belief is equally compatible with foreseeing that promotion of such dislike may stem from one's statements. The absence of any requirement that actual harm or incitement to hatred be shown further broadens the scope of s. 319(2), and it is unclear, in practice, if the s. 319(3) defences, including the defence of truth, significantly narrow the ambit of s. 319(2). Moreover, not only is the category of speech caught by s. 319(2) defined broadly, the application of the definition of offending speech i.e., the circumstances in which the offending statements are prohibited is virtually unlimited. Only private conversations are exempt from state scrutiny. Given the vagueness of the prohibition of expression in s. 319(2), there is again a danger that the legislation may have a chilling effect on legitimate activities important to our society by subjecting innocent persons to constraints born out of a fear of the criminal process. Finally, the process by which the prohibition is effected -- the criminal law -- is the severest our society can impose and is arguably unnecessary given the availability of alternate and more appropriate and effective remedies.
Any questionable benefit conferred by s. 319(2) of the Code is outweighed by the significant infringement on the guarantee of freedom of expression. Section 319(2) does not merely regulate the form or tone of expression, it strikes directly at its content. It is capable of catching not only statements like those at issue in this case, but works of art and the intemperate statement made in the heat of social controversy. While few may actually be prosecuted to conviction under s. 319(2) and imprisoned, many fall within the shadow of its broad prohibition. Section 319(2) touches on the vital values upon which s. 2(b) of the Charter rests: the value of fostering a vibrant and creative society through the marketplace of ideas; the value of the vigourous and open debate essential to democratic government and preservation of our rights and freedoms; and the value of a society which fosters the self‑actualization and freedom of its members. An infringement of this seriousness can only be justified by a countervailing state interest of the most compelling nature. However, the claims of gains to be achieved at the cost of the infringement of free speech represented by s. 319(2) are tenuous. Indeed, it is difficult to see how s. 319(2) fosters the goals of social harmony and individual dignity.
(2) Presumption of Innocence
Per Dickson C.J. and Wilson, L'Heureux-Dubé and Gonthier JJ.: Section 319(3)(a) of the Code, which provides that no person shall be convicted of wilfully promoting hatred "if he establishes that the statements communicated were true", infringes the presumption of innocence guaranteed in s. 11(d) of the Charter. The real concern under s. 11(d) is not whether the accused must disprove an element of the offence or prove a defence. What is decisive is the final effect of the impugned provision on the verdict. If, as in this case, an accused is required to prove some fact on a balance of probabilities to avoid conviction, the impugned provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.
Section 319(3)(a) of the Code constitutes a reasonable limit on the presumption of innocence. Parliament's objective in employing a reverse onus is pressing and substantial. The objective behind s. 319(3)(a) is closely connected with the purpose of 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 is too easily used, Parliament's objective under s. 319(2) will suffer unduly. It is therefore in the furtherance of that same objective that truthfulness must be proved by the accused on a balance of probabilities.
Section 319(3)(a) meets the proportionality test. First, the section has a rational connection to the purpose of preventing the harm caused by hate propaganda. The reverse onus in the truth defence operates so as to make it more difficult to avoid conviction where the wilful promotion of hatred has been proven beyond a reasonable doubt. Second, the section also represents a minimal impairment of the presumption of innocence. By requiring the accused to prove that his statements are true on a balance of probabilities, Parliament made a concession to the importance of truth in freedom of expression values without excessively compromising the effectiveness of s. 319(2). Any less onerous burden would severely skew the equilibrium. Third, the importance of preventing the harm caused by hate propaganda is not outweighed by Parliament's infringement of s. 11(d). The reverse onus found in the truth defence represents the only way in which the defence can be offered while still enabling Parliament to prohibit hate propaganda effectively through criminal legislation; to require that the state prove beyond a reasonable doubt the falsity of a statement would excuse much of the harmful expressive activity caught by s. 319(2) despite minimal proof as to its worth.
Per Sopinka and McLachlin JJ. (dissenting): Section 319(3)(a) of the Code infringes s. 11(d) of the Charter. Under s. 319(2), where the Crown proves beyond a reasonable doubt that the accused wilfully promoted hatred against an identifiable group, the accused will escape liability if, under s. 319(3)(a), he "establishes that the statements communicated were true". By placing the burden of establishing the truth of the statements on the accused, Parliament has contravened the basic principle that the accused need not prove a defence. When an accused is required to prove some fact on a balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.
Section 319(3)(a) of the Code does not constitute a reasonable limit upon the right to be presumed innocent. The section lacks the required degree of proportionality. It is difficult to discern a rational connection between the aims of s. 319(3)(a) and its requirement that the accused prove the truth of his statements. Further, s. 319(3)(a) does not impair s. 11(d) as little as possible. Because of its superior resources, the state is in a better position than the accused to determine whether or not a statement is true or false. If such a determination is impossible, it should not be ruled out that the statements could be more valuable than harmful. These considerations suggest that s. 319(3)(a)'s infringement of the presumption of innocence is neither minimal nor, given the importance of the infringement in the context of prosecutions under s. 319(2), sufficient to outweigh the dubious benefit of such a provision. Parliament intended the truth to be a defence and falsehood to be an important element of the offence created by s. 319(2). That fact, coupled with the centrality of the presumption of innocence in our criminal law, indicates that only a countervailing state interest of the most compelling kind could justify the infringement. It is difficult to see, however, what benefits s. 319(2) in fact produces in terms of stemming hate propaganda and promoting social harmony and individual dignity.
Per La Forest J. (dissenting): It is unnecessary to consider the issues respecting the right to be presumed innocent in s. 11(d) of the Charter.
Cases Cited
By Dickson C.J.
Applied: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Morgentaler, [1988] 1 S.C.R. 30; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; referred to: R. v. Holmes, [1988] 1 S.C.R. 914; Reference re Alberta Statutes, [1938] S.C.R. 100; Switzman v. Elbling, [1957] S.C.R. 285; Boucher v. The King, [1951] S.C.R. 265; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Beauharnais v. Illinois, 343 U.S. 250 (1952); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Brandenburg v. Ohio, 395 U.S. 444 (1969); Collin v. Smith, 578 F.2d 1197 (1978), certiorari denied, 439 U.S. 916 (1978); American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323 (1985); Glimmerveen v. Netherlands, Eur. Comm. H. R., Applications Nos. 8348/78 and 8406/78, October 11, 1979, D.R. 18, p. 187; Taylor and Western Guard Party v. Canada, Communication No. 104/1981, Report of the Human Rights Committee, 38 U.N. GAOR, Supp. No. 40 (A/38/40) 231 (1983), decision reported in part at (1983), 5 C.H.R.R. D/2097; R. v. Carrier (1951), 104 C.C.C. 75; R. v. Zundel (1987), 58 O.R. (2d) 129; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; R. v. Jones, [1986] 2 S.C.R. 284; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Garrison v. Louisiana, 379 U.S. 64 (1964); Ashton v. Kentucky, 384 U.S. 195 (1966); 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); Tollett v. United States, 485 F.2d 1087 (1973); Doe v. University of Michigan, 721 F. Supp. 852 (1989); R. v. Rahey, [1987] 1 S.C.R. 588; 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 Defense and Educational Fund, Inc., 473 U.S. 788 (1985); Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252; Felderer v. Sweden (1986), 8 E.H.R.R. 91; X. v. Federal Republic of Germany, Eur. Comm. H. R., Application No. 9235/81, July 16, 1982, D.R. 29, p. 194; Lowes v. United Kingdom, Eur. Comm. H. R., Application No. 13214/87, December 9, 1988, unreported; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Andrews (1988), 65 O.R. (2d) 161, aff'd [1990] 3 S.C.R. 000; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 000.
By McLachlin J. (dissenting)
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Oakes, [1986] 1 S.C.R. 103; Abrams v. United States, 250 U.S. 616 (1919); Reference re Alberta Statutes, [1938] S.C.R. 100; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Switzman v. Elbling, [1957] S.C.R. 285; Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067; Attorney General for Canada and Dupond v. City of Montreal, [1978] 2 S.C.R. 770; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Boucher v. The King, [1951] S.C.R. 265; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; 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); Beauharnais v. Illinois, 343 U.S. 250 (1952); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Brandenburg v. Ohio, 395 U.S. 444 (1969); Collin v. Smith, 578 F.2d 1197 (1978), certiorari denied, 439 U.S. 916 (1978); American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323 (1985); 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); Glimmerveen v. Netherlands, Eur. Comm. H. R., Applications Nos. 8348/78 and 8406/78, October 11, 1979, D.R. 18, p. 187; Eur. Court H. R., Handyside case, Judgment of 7 December 1976, Series A No. 24; Taylor and Western Guard Party v. Canada, Communication No. 104/1981, Report of the Human Rights Committee, 38 U.N. GAOR, Supp. No. 40 (A/38/40) 231 (1983), decision reported in part at (1983), 5 C.H.R.R. D/2097; R. v. Carrier (1951), 104 C.C.C. 75; R. v. Zundel (1987), 58 O.R. (2d) 129; Saskatchewan Human Rights Commission v. Waldo (1984), 5 C.H.R.R. D/2074; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Holmes, [1988] 1 S.C.R. 914; R. v. Schwartz, [1988] 2 S.C.R. 443; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Andrews (1988), 65 O.R. (2d) 161, aff'd [1990] 3 S.C.R. 000; Re Warren and Chapman (1984), 11 D.L.R. (4th) 474; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 000; Saskatchewan (Human Rights Commission) v. Engineering Students' Society (1989), 56 D.L.R. (4th) 604; Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
Statutes and Regulations Cited
Canadian Bill of Rights, S.C. 1960, c. 44 [reprinted R.S.C., 1985, App. III], preamble, s. 1(d).
Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 8, 11(d), 15, 16 to 23, 25, 27, 28, 29.
Canadian Human Rights Act, S.C. 1976‑77, c. 33 [now R.S.C., 1985, c. H-6], s. 13.
Criminal Code, R.S.C., 1985, c. C‑46, ss. 2, 181, 298, 300, 318(4), 319 [previously R.S.C. 1970, c. C‑34, s. 281.2 (en. 1st Supp., c. 11, s. 1)].
Customs Tariff, S.C. 1987, c. 49, s. 114 and Schedule VII, Code 9956(b).
Defamation Act, R.S.M. 1987, c. D20, s. 19(1).
European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 (1950), Art. 10.
International Convention on the Elimination of All Forms of Racial Discrimination, Can. T.S. 1970 No. 28, Art. 4.
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966), Arts. 19, 20.
Libel Act, R.S.M. 1913, c. 113, s. 13A [ad. 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.), 1986, c. 64, ss. 17 to 23.
Race Relations Act 1971 (N.Z.), No. 150, s. 25.
Racial Discrimination Act, 1944, S.O. 1944, c. 51, s. 1.
Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, s. 14.
Authors Cited
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APPEAL from a judgment of the Alberta Court of Appeal (1988), 60 Alta. L.R. (2d) 1, 87 A.R. 177, 43 C.C.C. (3d) 150, 65 C.R. (3d) 289, 39 C.R.R. 5, [1988] 5 W.W.R. 211, allowing the accused's appeal from his conviction on a charge of wilfully promoting hatred contrary to s. 319(2) of the Criminal Code. Appeal allowed, La Forest, Sopinka and McLachlin JJ. dissenting.
Bruce R. Fraser, Q.C., for the appellant.
Douglas H. Christie, for the respondent.
D. Martin Low, Q.C., Stephen B. Sharzer and Irit Weiser, for the intervener the Attorney General of Canada.
Gregory J. Fitch, for the intervener the Attorney General for Ontario.
Jean Bouchard and Marise Visocchi, for the intervener the Attorney General of Quebec.
Bruce Judah, for the internener the Attorney General for New Brunswick.
Aaron Berg and Deborah Carlson, for the intervener the Attorney General of Manitoba.
John I. Laskin, for the intervener the Canadian Jewish Congress.
Mark J. Sandler, for the intervener the League for Human Rights of B'nai Brith, Canada.
Joseph Nuss, Q.C., Irwin Cotler and Ann Crawford, for the intervener Interamicus.
Kathleen Mahoney and Linda A. Taylor, for the intervener the Women's Legal Education and Action Fund.
Marc Rosenberg, for the intervener the Canadian Civil Liberties Association.
//Dickson C.J.//
The judgment of Dickson C.J. and Wilson, L'Heureux-Dubé and Gonthier was delivered by
DICKSON C.J. -- This appeal was heard in conjunction with the appeals in R. v. Andrews, [1990] 3 S.C.R. 000, and Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 000. 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 1970s until his dismissal in 1982. In 1984 Mr. Keegstra was charged under s. 319(2) (then s. 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 1, 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 Canadian Charter of Rights and Freedoms 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 Canadian Charter of Rights and Freedoms 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 on a religious subject;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred 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
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 (1984), 19 C.C.C. (3d) 254
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) (1988), 43 C.C.C. (3d) 150
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 second, 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), 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 (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] 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 1930s, 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'Abbé Gérard 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 a 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 RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; and Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 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. 583-88, 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 Statutes, [1938] S.C.R. 100, per Duff C.J., at pp. 132-33; and Switzman v. Elbling, [1957] S.C.R. 285, per Abbott J., at p. 326).
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), 195, at pp. 197-98). 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. 764:
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 constitutional 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. 971). 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. 976) 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 pp. 765-66 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. 766).
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 (Man.), 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. 968):
"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 expressions 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. 969). 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 (Man.), supra, at p. 1181, 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 nonetheless 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. 970). Accordingly, we were urged to find that hate propaganda of the type caught by s. 319(2), insofar 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. 588). 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 the Criminal Code (Man.) 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 at p. 970 that,
[w]hile 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 freedom of expression in justification of the form of expression he has chosen. [Emphasis in original.]
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., I. Cotler, "Hate Literature", in R. S. Abella and M. L. Rothman, eds., Justice Beyond Orwell (1985), 117, at pp. 121-22). The general tenor of this argument is that these interpretative 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 Section 319(2)
A. General Approach to Section 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] 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. 138). 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. 139):
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. Second, 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. . . . Third, 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. 133-34). 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] 1 S.C.R. 1038, at p. 1056:
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. 1056). 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. 136):
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 pp. 1355-56):
. . . 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] 1 S.C.R. 1469, at pp. 1489-90:
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.
See also R. v. Jones, [1986] 2 S.C.R. 284, per La Forest J., at p. 300; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, per Dickson C.J., at pp. 768-69; and Irwin Toy, supra, per the majority, at pp. 989-90. The sentiments of La Forest J. correctly suggest that the application of the Oakes approach will vary depending on the circumstances of the case, including the nature of the interests at stake.
B. The Use of American Constitutional Jurisprudence
Having discussed the unique and unifying role of s. 1, I think it appropriate to address a tangential matter, yet one nonetheless crucial to the disposition of this appeal: the relationship between Canadian and American approaches to the constitutional protection of free expression, most notably in the realm of hate propaganda. Those who attack the constitutionality of s. 319(2) draw heavily on the tenor of First Amendment jurisprudence in weighing the competing freedoms and interests in this appeal, a reliance which is understandable given the prevalent opinion that the criminalization of hate propaganda violates the Bill of Rights (see, e.g., L. H. Tribe, American Constitutional Law (2nd ed. 1988), at p. 861, n. 2; K. Greenawalt, "Insults and Epithets: Are They Protected Speech?" (1990), 42 Rutgers L. Rev. 287, at p. 304). In response to the emphasis placed upon this jurisprudence, I find it helpful to summarize the American position and to determine the extent to which it should influence the s. 1 analysis in the circumstances of this appeal.
A myriad of sources -- both judicial and academic -- offer reviews of First Amendment jurisprudence as it pertains to hate propaganda. Central to most discussions is the 1952 case of Beauharnais v. Illinois, 343 U.S. 250, where the Supreme Court of the United States upheld as constitutional a criminal statute forbidding certain types of group defamation. Though never overruled, Beauharnais appears to have been weakened by later pronouncements of the Supreme Court (see, e.g., Garrison v. Louisiana, 379 U.S. 64 (1964); Ashton v. Kentucky, 384 U.S. 195 (1966); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Brandenburg v. Ohio, 395 U.S. 444 (1969); and Cohen v. California, 403 U.S. 15 (1971)). The trend reflected in many of these pronouncements is to protect offensive, public invective as long as the speaker has not knowingly lied and there exists no clear and present danger of violence or insurrection.
In the wake of subsequent developments in the Supreme Court, on several occasions Beauharnais has been distinguished and doubted by lower courts (see, e.g., Anti-Defamation League of B'nai B'rith v. Federal Communications Commission, 403 F.2d 169 (D.C. Cir. 1968), at p. 174, n. 5; Tollett v. United States, 485 F.2d 1087 (8th Cir. 1973), at p. 1094, n. 14; American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985), at pp. 331-32; and Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989), at p. 863). Of the judgments expressing a shaken faith in Beauharnais, Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978), certiorari denied, 439 U.S. 916 (1978), is of greatest relevance to this appeal. In Collin, the Court of Appeal for the Seventh Circuit invalidated a municipal ordinance prohibiting public demonstrations inciting "violence, hatred, abuse or hostility toward a person or group of persons by reason of reference to religious, racial, ethnic, national or regional affiliation" (p. 1199), and thereby allowed members of the American Nazi Party to march through Skokie, Illinois, home to a large number of Jewish Holocaust survivors (despite the ruling, however, no march was held in Skokie; I. Horowitz, "First Amendment Blues: On Downs, Nazis in Skokie", [1986] Am. B. Found. Res. J. 535, at p. 540).
The question that concerns us in this appeal is not, of course, what the law is or should be in the United States. But it is important to be explicit as to the reasons why or why not American experience may be useful in the s. 1 analysis of s. 319(2) of the Criminal Code. In the United States, a collection of fundamental rights has been constitutionally protected for over two hundred years. The resulting practical and theoretical experience is immense, and should not be overlooked by Canadian courts. On the other hand, we must examine American constitutional law with a critical eye, and in this respect La Forest J. has noted in R. v. Rahey, [1987] 1 S.C.R. 588, at p. 639:
While it is natural and even desirable for Canadian courts to refer to American constitutional jurisprudence in seeking to elucidate the meaning of Charter guarantees that have counterparts in the United States Constitution, they should be wary of drawing too ready a parallel between constitutions born to different countries in different ages and in very different circumstances ....
Canada and the United States are not alike in every way, nor have the documents entrenching human rights in our two countries arisen in the same context. It is only common sense to recognize that, just as similarities will justify borrowing from the American experience, differences may require that Canada's constitutional vision depart from that endorsed in the United States.
Having examined the American cases relevant to First Amendment jurisprudence and legislation criminalizing hate propaganda, I would be adverse to following too closely the line of argument that would overrule Beauharnais on the ground that incursions placed upon free expression are only justified where there is a clear and present danger of imminent breach of peace. Equally, I am unwilling to embrace various categorizations and guiding rules generated by American law without careful consideration of their appropriateness to Canadian constitutional theory. Though I have found the American experience tremendously helpful in coming to my own conclusions regarding this appeal, and by no means reject the whole of the First Amendment doctrine, in a number of respects I am thus dubious as to the applicability of this doctrine in the context of a challenge to hate propaganda legislation.
First, it is not entirely clear that Beauharnais must conflict with existing First Amendment doctrine. Credible arguments have been made that later Supreme Court cases do not necessarily erode its legitimacy (see, e.g., K. Lasson, "Racial Defamation as Free Speech: Abusing the First Amendment" (1985), 17 Colum. Hum. Rts. L. Rev. 11). Indeed, there exists a growing body of academic writing in the United States which evinces a stronger focus upon the way in which hate propaganda can undermine the very values which free speech is said to protect. This body of writing is receptive to the idea that, were the issue addressed from this new perspective, First Amendment doctrine might be able to accommodate statutes prohibiting hate propaganda (see, e.g., R. Delgado, "Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling" (1982), 17 Harv. C.R.-C.L. L. Rev. 133; I. Horowitz, "Skokie, the ACLU and the Endurance of Democratic Theory" (1979), 43 Law & Contemp. Probs. 328; Lasson, op. cit., at pp. 20-30; M. Matsuda, "Public Response to Racist Speech: Considering the Victim's Story" (1989), 87 Mich. L. Rev. 2320, at p. 2348; "Doe v. University of Michigan: First Amendment -- Racist and Sexist Expression on Campus -- Court Strikes Down University Limits on Hate Speech" (1990), 103 Harv. L. Rev. 1397).
Second, the aspect of First Amendment doctrine most incompatible with s. 319(2), at least as that doctrine is described by those who would strike down the legislation, is its strong aversion to content-based regulation of expression. I am somewhat skeptical, however, as to whether this view of free speech in the United States is entirely accurate. Rather, in rejecting the extreme position that would provide an absolute guarantee of free speech in the Bill of Rights, the Supreme Court has developed a number of tests and theories by which protected speech can be identified and the legitimacy of government regulation assessed. Often required is a content-based categorization of the expression under examination. As an example, obscenity is not protected because of its content (see, e.g., Roth v. United States, 354 U.S. 476 (1957)) and laws proscribing child pornography have been scrutinized under a less than strict First Amendment standard even where they extend to expression beyond the realm of the obscene (see New York v. Ferber, 458 U.S. 747 (1982)). Similarly, the vigourous protection of free speech relaxes significantly when commercial expression is scrutinized (see, e.g., Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986)), and it is permissible to restrict government employees in their exercise of the right to engage in political activity (Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788 (1985)).
In short, a decision to place expressive activity in a category which either merits reduced protection or falls entirely outside of the First Amendment's ambit at least impliedly involves assessing the content of the activity in light of free speech values. As Professor F. Schauer has said, it is always necessary to examine the First Amendment value of the expression limited by state regulation ("The Aim and the Target in Free Speech Methodology" (1989), 83 Nw. U.L. Rev. 562, at p. 568). To recognize that content is often examined under the First Amendment is not to deny that content neutrality plays a real and important role in the American jurisprudence. Nonetheless, that the proscription against looking at the content of expression is not absolute, and that balancing is occasionally employed in First Amendment cases (see Professor T. A. Aleinikoff, "Constitutional Law in the Age of Balancing" (1987), 96 Yale L.J. 943, at pp. 966-68), reveals that even in the United States it is sometimes thought justifiable to restrict a particular message because of its meaning.
Third, applying the Charter to the legislation challenged in this appeal reveals important differences between Canadian and American constitutional perspectives. I have already discussed in some detail the special role of s. 1 in determining the protective scope of Charter rights and freedoms. Section 1 has no equivalent in the United States, a fact previously alluded to by this Court in selectively utilizing American constitutional jurisprudence (see, e.g., Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, per Lamer J., at p. 498). Of course, American experience should never be rejected simply because the Charter contains a balancing provision, for it is well known that American courts have fashioned compromises between conflicting interests despite what appears to be the absolute guarantee of constitutional rights. Where s. 1 operates to accentuate a uniquely Canadian vision of a free and democratic society, however, we must not hesitate to depart from the path taken in the United States. Far from requiring a less solicitous protection of Charter rights and freedoms, such independence of vision protects these rights and freedoms in a different way. As will be seen below, in my view the international commitment to eradicate hate propaganda and, most importantly, the special role given equality and multiculturalism in the Canadian Constitution necessitate a departure from the view, reasonably prevalent in America at present, that the suppression of hate propaganda is incompatible with the guarantee of free expression. (In support of this view, see the comments of Professors K. Mahoney and J. Cameron in "Language as Violence v. Freedom of Expression: Canadian and American Perspectives on Group Defamation" (1988-89), 37 Buffalo L. Rev. 337, beginning at pp. 344 and 353 respectively).
In sum, there is much to be learned from First Amendment jurisprudence with regard to freedom of expression and hate propaganda. It would be rash, however, to see First Amendment doctrine as demanding the striking down of s. 319(2). Not only are the precedents somewhat mixed, but the relaxation of the prohibition against content-based regulation of expression in certain areas indicates that American courts are not loath to permit the suppression of ideas in some circumstances. Most importantly, the nature of the s. 1 test as applied in the context of a challenge to s. 319(2) may well demand a perspective particular to Canadian constitutional jurisprudence when weighing competing interests. If values fundamental to the Canadian conception of a free and democratic society suggest an approach that denies hate propaganda the highest degree of constitutional protection, it is this approach which must be employed.
C. Objective of Section 319(2)
I now turn to the specific requirements of the Oakes approach in deciding whether the infringement of s. 2(b) occasioned by s. 319(2) is justifiable in a free and democratic society. According to Oakes, the first aspect of the s. 1 analysis is to examine the objective of the impugned legislation. Only if the objective relates to concerns which are pressing and substantial in a free and democratic society can the legislative limit on a right or freedom hope to be permissible under the Charter. In examining the objective of s. 319(2), I will begin by discussing the harm caused by hate propaganda as identified by the Cohen Committee and subsequent study groups, and then review in turn the impact upon this objective of international human rights instruments and ss. 15 and 27 of the Charter.
(i)Harm Caused by Expression Promoting the Hatred of Identifiable Groups
Looking to the legislation challenged in this appeal, one must ask whether the amount of hate propaganda in Canada causes sufficient harm to justify legislative intervention of some type. The Cohen Committee, speaking in 1965, found that the incidence of hate propaganda in Canada was not insignificant (at p. 24):
. . . there exists in Canada a small number of persons and a somewhat larger number of organizations, extremist in outlook and dedicated to the preaching and spreading of hatred and contempt against certain identifiable minority groups in Canada. It is easy to conclude that because the number of persons and organizations is not very large, they should not be taken too seriously. The Committee is of the opinion that this line of analysis is no longer tenable after what is known to have been the result of hate propaganda in other countries, particularly in the 1930's when such material and ideas played a significant role in the creation of a climate of malice, destructive to the central values of Judaic-Christian society, the values of our civilization. The Committee believes, therefore, that the actual and potential danger caused by present hate activities in Canada cannot be measured by statistics alone.
Even the statistics, however, are not unimpressive, because while activities have centered heavily in Ontario, they nevertheless have extended from Nova Scotia to British Columbia and minority groups in at least eight Provinces have been subjected to these vicious attacks.
In 1984, the House of Commons Special Committee on Participation of Visible Minorities in Canadian Society in its report, entitled Equality Now!, observed that increased immigration and periods of economic difficulty "have produced an atmosphere that may be ripe for racially motivated incidents" (p. 69). With regard to the dissemination of hate propaganda, the Special Committee found that the prevalence and scope of such material had risen since the Cohen Committee made its report, stating (at p. 69):
There has been a recent upsurge in hate propaganda. It has been found in virtually every part of Canada. Not only is it anti-semitic and anti-black, as in the 1960s, but it is also now anti-Roman Catholic, anti-East Indian, anti-aboriginal people and anti-French. Some of this material is imported from the United States but much of it is produced in Canada. Most worrisome of all is that in recent years Canada has become a major source of supply of hate propaganda that finds its way to Europe, and especially to West Germany.
As the quotations above indicate, the presence of hate propaganda in Canada is sufficiently substantial to warrant concern. Disquiet caused by the existence of such material is not simply the product of its offensiveness, however, but stems from the very real harm which it causes. Essentially, there are two sorts of injury caused by hate propaganda. First, there is harm done to members of the target group. It is indisputable that the emotional damage caused by words may be of grave psychological and social consequence. In the context of sexual harassment, for example, this Court has found that words can in themselves constitute harassment (Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252). In a similar manner, words and writings that wilfully promote hatred can constitute a serious attack on persons belonging to a racial or religious group, and in this regard the Cohen Committee noted that these persons are humiliated and degraded (p. 214).
In my opinion, a response of humiliation and degradation from an individual targeted by hate propaganda is to be expected. A person's sense of human dignity and belonging to the community at large is closely linked to the concern and respect accorded the groups to which he or she belongs (see I. Berlin, "Two Concepts of Liberty", in Four Essays on Liberty (1969), 118, at p. 155). The derision, hostility and abuse encouraged by hate propaganda therefore have a severely negative impact on the individual's sense of self-worth and acceptance. This impact may cause target group members to take drastic measures in reaction, perhaps avoiding activities which bring them into contact with non-group members or adopting attitudes and postures directed towards blending in with the majority. Such consequences bear heavily in a nation that prides itself on tolerance and the fostering of human dignity through, among other things, respect for the many racial, religious and cultural groups in our society.
A second harmful effect of hate propaganda which is of pressing and substantial concern is its influence upon society at large. The Cohen Committee noted that individuals can be persuaded to believe "almost anything" (p. 30) if information or ideas are communicated using the right technique and in the proper circumstances (at p. 8):
. . . we are less confident in the 20th century that the critical faculties of individuals will be brought to bear on the speech and writing which is directed at them. In the 18th and 19th centuries, there was a widespread belief that man was a rational creature, and that if his mind was trained and liberated from superstition by education, he would always distinguish truth from falsehood, good from evil. So Milton, who said "let truth and falsehood grapple: who ever knew truth put to the worse in a free and open encounter".
We cannot share this faith today in such a simple form. While holding that over the long run, the human mind is repelled by blatant falsehood and seeks the good, it is too often true, in the short run, that emotion displaces reason and individuals perversely reject the demonstrations of truth put before them and forsake the good they know. The successes of modern advertising, the triumphs of impudent propaganda such as Hitler's, have qualified sharply our belief in the rationality of man. We know that under strain and pressure in times of irritation and frustration, the individual is swayed and even swept away by hysterical, emotional appeals. We act irresponsibly if we ignore the way in which emotion can drive reason from the field.
It is thus not inconceivable that the active dissemination of hate propaganda can attract individuals to its cause, and in the process create serious discord between various cultural groups in society. Moreover, the alteration of views held by the recipients of hate propaganda may occur subtlely, and is not always attendant upon conscious acceptance of the communicated ideas. Even if the message of hate propaganda is outwardly rejected, there is evidence that its premise of racial or religious inferiority may persist in a recipient's mind as an idea that holds some truth, an incipient effect not to be entirely discounted (see Matsuda, op. cit., at pp. 2339-40).
The threat to the self-dignity of target group members is thus matched by the possibility that prejudiced messages will gain some credence, with the attendant result of discrimination, and perhaps even violence, against minority groups in Canadian society. With these dangers in mind, the Cohen Committee made clear in its conclusions that the presence of hate propaganda existed as a baleful and pernicious element, and hence a serious problem, in Canada (at p. 59):
The amount of hate propaganda presently being disseminated and its measurable effects probably are not sufficient to justify a description of the problem as one of crisis or near crisis proportions. Nevertheless the problem is a serious one. We believe that, given a certain set of socio-economic circumstances, such as a deepening of the emotional tensions or the setting in of a severe business recession, public susceptibility might well increase significantly. Moreover, the potential psychological and social damage of hate propaganda, both to a desensitized majority and to sensitive minority target groups, is incalculable. As Mr. Justice Jackson of the United States Supreme Court wrote in Beauharnais v. Illinois, such "sinister abuses of our freedom of expression . . . can tear apart a society, brutalize its dominant elements, and persecute even to extermination, its minorities".
As noted previously, in articulating concern about hate propaganda and its contribution to racial and religious tension in Canada, the Cohen Committee recommended that Parliament use the Criminal Code in order to prohibit wilful, hate-promoting expression and underline Canada's commitment to end prejudice and intolerance.
The close connection between the recommendations of the Cohen Committee and the hate propaganda amendments to the Criminal Code made in 1970 indicates that in enacting s. 319(2) Parliament's purpose was to prevent the harm identified by the Committee as being caused by hate-promoting expression. More recent reports have echoed the findings and concerns of the Cohen Committee, lending further support to the substantial nature of the legislative objective. The 1981 Report Arising Out of the Activities of the Ku Klux Klan in British Columbia by John D. McAlpine noted evidence of racism and racial violence in British Columbia, and among its conclusions recommended the strengthening of existing remedies, including the criminal offence of the wilful promotion of hatred. The 1984 report of the Special Committee on Participation of Visible Minorities in Canadian Society, investigated, among many topics, legal and justice issues pertaining to and affecting members of visible minority groups in Canada. The Committee suggested a wider ranging prohibition in s. 319(2), most notably by removing reference to the mental element of wilfulness, as a response to the threat to equality and multiculturalism presented by hate propaganda (Recommendations 35-37). Also in 1984, the Canadian Bar Association's Report of the Special Committee on Racial and Religious Hatred found that the law had a role to play, both at the criminal and civil level, in restricting the dissemination of hate propaganda (p. 12). With regard to s. 319(2), this conclusion was affirmed two years later in Working Paper 50 of the Law Reform Commission of Canada, entitled Hate Propaganda (1986).
(ii) International Human Rights Instruments
There is a great deal of support, both in the submissions made by those seeking to uphold s. 319(2) in this appeal and in the numerous studies of racial and religious hatred in Canada, for the conclusion that the harm caused by hate propaganda represents a pressing and substantial concern in a free and democratic society. I would also refer to international human rights principles, however, for guidance with respect to assessing the legislative objective.
Generally speaking, the international human rights obligations taken on by Canada reflect the values and principles of a free and democratic society, and thus those values and principles that underlie the Charter itself (Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, per Dickson C.J., at p. 348). Moreover, international human rights law and Canada's commitments in that area are of particular significance in assessing the importance of Parliament's objective under s. 1. As stated in Slaight Communications Inc. v. Davidson, supra, at pp. 1056-57:
. . . Canada's international human rights obligations should inform not only the interpretation of the content of the rights guaranteed by the Charter but also the interpretation of what can constitute pressing and substantial s. 1 objectives which may justify restrictions upon those rights.
In the context of justifying an infringement of s. 2(b), the majority in Slaight made a point of noting that a value enjoying status as an international human right is generally to be ascribed a high degree of importance under s. 1 of the Charter (pp. 1056-57).
No aspect of international human rights has been given attention greater than that focused upon discrimination. The large emphasis placed upon eradicating discrimination is evident in the fact that all but one of the major international human rights instruments (the European Social Charter) proscribe it in an article of general application (P. Sieghart, The International Law of Human Rights (1983), at p. 75). This high concern regarding discrimination has led to the presence in two international human rights documents of articles forbidding the dissemination of hate propaganda.
In 1966, the United Nations adopted the International Convention on the Elimination of All Forms of Racial Discrimination, Can. T.S. 1970 No. 28 (hereineafter "CERD"). The Convention, in force since 1969 and including Canada among its signatory members, contains a resolution that States Parties agree to:
. . . adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination.
Article 4 of the CERD is of special interest, providing that:
ARTICLE 4
States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or other ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:
(a)Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;
Further, the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966) (hereinafter "ICCPR"), adopted by the United Nations in 1966 and in force in Canada since 1976, in the following two articles guarantees the freedom of expression while simultaneously prohibiting the advocacy of hatred:
Article 19. . . .
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a)For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Article 20.1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
It appears that the protection provided freedom of expression by CERD and ICCPR does not extend to cover communications advocating racial or religious hatred. In CERD, Article 5 guarantees a number of civil rights, including freedom of expression, but it is generally agreed that this guarantee does not prevent a State Party from prohibiting hate propaganda (Study on the Implementation of Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, prepared by Special Rapporteur Mr. José D. Inglés, A/CONF. 119/10, May 18, 1983, para. 108). As for ICCPR, in 1981 a complaint against Canada was submitted by Mr. John Ross Taylor and the Western Guard Party (also appealing to this Court) to the United Nations Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights. The complaint alleged that s. 13(1) of the Canadian Human Rights Act, S.C. 1976-77, c. 33 (now R.S.C., 1985, c. H-6), which prohibits the communication of hate messages by telephone, had been applied against Mr. Taylor and his organization in violation of Article 19 of ICCPR. The Committee rejected this argument, however, holding that it was incompatible with the provisions of ICCPR, and in particular with Article 20, stating that,
. . . the opinions which Mr. [Taylor] seeks to disseminate through the telephone system clearly constitute the advocacy of racial or religious hatred which Canada has an obligation under article 20(2) of the Covenant to prohibit.
(Taylor and Western Guard Party v. Canada, Communication No. 104/1981, Report of the Human Rights Committee, 38 U.N. GAOR, Supp. No. 40 (A/38/40) 231 (1983), para. 8(b), decision reported in part at (1983), 5 C.H.R.R. D/2397.)
In discussing the stance taken toward hate propaganda in international law, it is also worth mentioning the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 (1950), to which twenty-one states are parties. The Convention contains a qualified guarantee of free expression in Article 10, which reads as follows:
Article 10
(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. . . .
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 10(2), the language of which bears significant resemblance to that of s. 1 of the Charter, has been interpreted by the European Commission of Human Rights so as to permit the prohibition of racist communications as a valid derogation from the protection of free expression (see Felderer v. Sweden (1986), 8 E.H.R.R. 91; X. v. Federal Republic of Germany, Eur. Comm. H. R., Application No. 9235/81, July 16, 1982, D.R. 29, p. 194; and Lowes v. United Kingdom, Eur. Comm. H. R., Application No. 13214/87, December 9, 1988, unreported). In the leading pronouncement of the Commission, however, Article 17 of the Convention was invoked in order to justify hate propaganda laws (Glimmerveen v. Netherlands, Eur. Comm. H. R., Applications Nos. 8348/78 and 8406/78, October 11, 1979, D.R. 18, p. 187). Article 17 prevents the interpretation of any Convention right so as to imply a "right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention". The decision in Glimmerveen also utilized Article 14, which provides that the enjoyment of Convention rights and freedoms shall be secured without discrimination on any ground such as, inter alia, race or colour.
CERD and ICCPR demonstrate that the prohibition of hate-promoting expression is considered to be not only compatible with a signatory nation's guarantee of human rights, but is as well an obligatory aspect of this guarantee. Decisions under the European Convention for the Protection of Human Rights and Fundamental Freedoms are also of aid in illustrating the tenor of the international community's approach to hate propaganda and free expression. This is not to deny that finding the correct balance between prohibiting hate propaganda and ensuring freedom of expression has been a source of debate internationally (see, e.g., N. Lerner, The U.N. Convention on the Elimination of All Forms of Racial Discrimination (1980), at pp. 43-54). But despite debate Canada, along with other members of the international community, has indicated a commitment to prohibiting hate propaganda, and in my opinion this Court must have regard to that commitment in investigating the nature of the government objective behind s. 319(2) of the Criminal Code. That the international community has collectively acted to condemn hate propaganda, and to oblige State Parties to CERD and ICCPR to prohibit such expression, thus emphasizes the importance of the objective behind s. 319(2) and the principles of equality and the inherent dignity of all persons that infuse both international human rights and the Charter.
(iii) Other Provisions of the Charter
Significant indicia of the strength of the objective behind s. 319(2) are gleaned not only from the international arena, but are also expressly evident in various provisions of the Charter itself. As Wilson J. noted in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 218:
. . . it is important to bear in mind that the rights and freedoms set out in the Charter are fundamental to the political structure of Canada and are guaranteed by the Charter as part of the supreme law of our nation. I think that in determining whether a particular limitation is a reasonable limit prescribed by law which can be "demonstrably justified in a free and democratic society" it is important to remember that the courts are conducting this inquiry in light of a commitment to uphold the rights and freedoms set out in the other sections of the Charter.
Most importantly for the purposes of this appeal, ss. 15 and 27 represent a strong commitment to the values of equality and multiculturalism, and hence underline the great importance of Parliament's objective in prohibiting hate propaganda.
Looking first to s. 15, in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, I said that "[a] free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter" (p. 336). Section 15 lends further support to this observation, for the effects of entrenching a guarantee of equality in the Charter are not confined to those instances where it can be invoked by an individual against the state. Insofar as it indicates our society's dedication to promoting equality, s. 15 is also relevant in assessing the aims of s. 319(2) of the Criminal Code under s. 1. In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, this Court examined the equality guarantee of s. 15, McIntyre J. noting (at p. 171):
It is clear that the purpose of s. 15 is to ensure equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration. It has a large remedial component.
As noted in Big M Drug Mart, promoting equality is an undertaking essential to any free and democratic society, and I believe that the words of McIntyre J. support this position. The principles underlying s. 15 of the Charter are thus integral to the s. 1 analysis.
In its written submission to the Court, the intervenor L.E.A.F. made the following comment in support of the view that the public and wilful promotion of group hatred is properly understood as a practice of inequality:
Government sponsored hatred on group grounds would violate section 15 of the Charter. Parliament promotes equality and moves against inequality when it prohibits the wilful public promotion of group hatred on these grounds. It follows that government action against group hate, because it promotes social equality as guaranteed by the Charter, deserves special constitutional consideration under section 15.
I agree with this statement. In light of the Charter commitment to equality, and the reflection of this commitment in the framework of s. 1, the objective of the impugned legislation is enhanced insofar as it seeks to ensure the equality of all individuals in Canadian society. The message of the expressive activity covered by s. 319(2) is that members of identifiable groups are not to be given equal standing in society, and are not human beings equally deserving of concern, respect and consideration. The harms caused by this message run directly counter to the values central to a free and democratic society, and in restricting the promotion of hatred Parliament is therefore seeking to bolster the notion of mutual respect necessary in a nation which venerates the equality of all persons.
Section 15 is not the only Charter provision which emphasizes values both important to a free and democratic society and pertinent to the disposition of this appeal under s. 1. Section 27 states that:
27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
This Court has where possible taken account of s. 27 and its recognition that Canada possesses a multicultural society in which the diversity and richness of various cultural groups is a value to be protected and enhanced. Section 27 has therefore been used in a number of judgments of this Court, both as an aid in interpreting the definition of Charter rights and freedoms (see, e.g., Big M Drug Mart, supra, per Dickson J., at pp. 337-38, Edwards Books, supra, per Dickson C.J., at p. 758; and Andrews v. Law Society of British Columbia, supra, per McIntyre J., at p. 171) and as an element in the s. 1 analysis (see, e.g., Edwards Books, per La Forest J., at p. 804, and Wilson J., at p. 809).
The value expressed in s. 27 cannot be casually dismissed in assessing the validity of s. 319(2) under s. 1, and I am of the belief that s. 27 and the commitment to a multicultural vision of our nation bear notice in emphasizing the acute importance of the objective of eradicating hate propaganda from society. Professor J. E. Magnet has dealt with some of the factors which may be used to inform the meaning of s. 27, and of these I expressly adopt the principle of non-discrimination and the need to prevent attacks on the individual's connection with his or her culture, and hence upon the process of self-development (see Magnet "Multiculturalism and Collective Rights: Approaches to Section 27", in G.-A. Beaudoin and E. Ratushny, eds., op. cit., at p. 739). Indeed, the sense that an individual can be affected by treatment of a group to which he or she belongs is clearly evident in a number of other Charter provisions not yet mentioned, including ss. 16 to 23 (language rights), s. 25 (aboriginal rights), s. 28 (gender equality) and s. 29 (denominational schools).
Hate propaganda seriously threatens both the enthusiasm with which the value of equality is accepted and acted upon by society and the connection of target group members to their community. I thus agree with the sentiments of Cory J.A. who, in writing to uphold s. 319(2) in R. v. Andrews (1988), 65 O.R. (2d) 161, said (at p. 181):
Multiculturalism cannot be preserved let alone enhanced if free rein is given to the promotion of hatred against identifiable cultural groups.
When the prohibition of expressive activity that promotes hatred of groups identifiable on the basis of colour, race, religion, or ethnic origin is considered in light of s. 27, the legitimacy and substantial nature of the government objective is therefore considerably strengthened.
(iv) Conclusion Respecting Objective of Section 319(2)
In my opinion, it would be impossible to deny that Parliament's objective in enacting s. 319(2) is of the utmost importance. Parliament has recognized the substantial harm that can flow from hate propaganda, and in trying to prevent the pain suffered by target group members and to reduce racial, ethnic and religious tension in Canada has decided to suppress the wilful promotion of hatred against identifiable groups. The nature of Parliament's objective is supported not only by the work of numerous study groups, but also by our collective historical knowledge of the potentially catastrophic effects of the promotion of hatred (Jones, supra, per La Forest J., at pp. 299-300). Additionally, the international commitment to eradicate hate propaganda and the stress placed upon equality and multiculturalism in the Charter strongly buttress the importance of this objective. I consequently find that the first part of the test under s. 1 of the Charter is easily satisfied and that a powerfully convincing legislative objective exists such as to justify some limit on freedom of expression.
D. Proportionality
The second branch of the Oakes test -- proportionality -- poses the most challenging questions with respect to the validity of s. 319(2) as a reasonable limit on freedom of expression in a free and democratic society. It is therefore not surprising to find most commentators, as well as the litigants in the case at bar, agreeing that the objective of the provision is of great importance, but to observe considerable disagreement when it comes to deciding whether the means chosen to further the objective are proportional to the ends. (Among the more recent Canadian legal articles supporting the validity of a provision in the nature of s. 319(2) see: D. Bottos, "Keegstra and Andrews: A Commentary on Hate Propaganda and the Freedom of Expression" (1989), 27 Alta. L. Rev. 461; Cotler, op. cit.; A. Fish, "Hate Promotion and Freedom of Expression: Truth and Consequences" (1989), 2 Can. J.L. & Juris. 111; A. W. MacKay, "Freedom of Expression: Is It All Just Talk?" (1989), 68 Can. Bar Rev. 713; N. N. Rauf, "Freedom of Expression, the Presumption of Innocence and Reasonable Limits: An Analysis of Keegstra and Andrews" (1988), 65 C.R. (3d) 356; A. Regel, "Hate Propaganda: A Reason to Limit Freedom of Speech" (1984-85), 49 Sask. L. Rev. 303. Canadian writers taking the opposite view include R. Bessner, "The Constitutionality of the Group Libel Offences in the Canadian Criminal Code" (1988), 17 Man. L.J. 183; A. A. Borovoy, "Freedom of Expression: Some Recurring Impediments" in R. S. Abella and M. L. Rothman, eds., op. cit., at p. 125; S. Braun, "Social and Racial Tolerance and Freedom of Expression in a Democratic Society: Friends or Foes? Regina v. Zundel" (1987), 11 Dalhousie L. J. 471.)
(i) Relation of the Expression at Stake to Free Expression Values
In discussing the nature of the government objective, I have commented at length upon the way in which the suppression of hate propaganda furthers values basic to a free and democratic society. I have said little, however, regarding the extent to which these same values, including the freedom of expression, are furthered by permitting the exposition of such expressive activity. This lacuna is explicable when one realizes that the interpretation of s. 2(b) under Irwin Toy, supra gives protection to a very wide range of expression. Content is irrelevant to this interpretation, the result of a high value being placed upon freedom of expression in the abstract. This approach to s. 2(b) often operates to leave unexamined the extent to which the expression at stake in a particular case promotes freedom of expression principles. In my opinion, however, the s. 1 analysis of a limit upon s. 2(b) cannot ignore the nature of the expressive activity which the state seeks to restrict. While we must guard carefully against judging expression according to its popularity, it is equally destructive of free expression values, as well as the other values which underlie a free and democratic society, to treat all expression as equally crucial to those principles at the core of s. 2(b).
In Rocket v. Royal College of Dental Surgeons of Ontario, supra, McLachlin J. recognized the importance of context in evaluating expressive activity under s. 1, stating with regard to commercial speech (at pp. 246-47):
While the Canadian approach does not apply special tests to restrictions on commercial expression, our method of analysis does permit a sensitive, case-oriented approach to the determination of their constitutionality. Placing the conflicting values in their factual and social context when performing the s. 1 analysis permits the courts to have regard to special features of the expression in question. As Wilson J. notes in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, not all expression is equally worthy of protection. Nor are all infringements of free expression equally serious. [See also Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), per Dickson C.J., at p. 1135.]
Using this contextual approach, McLachlin J. evaluated the expression jeopardized by government regulation in light of s. 2(b) values. She thus went on to consider those interests which argued for restriction only after having assessed the importance of the freedom of expression interest at stake on the facts of the case.
Royal College dealt with provincial limitations upon the freedom of dentists to impart information to patients and potential patients via advertisements. In these circumstances, the Court found that the expression regulated was of a nature that made its curtailment something less than a most serious infringement of the freedom of expression, the limitation affecting neither participation in the political process nor the ability of the individual to achieve spiritual or artistic self-fulfillment. The resulting conclusion was that "restrictions on expression of this kind might be easier to justify than other infringements" (p. 247). At the same time, however, it was recognized that an interest existed in those who wished to make an informed choice as to a dentist, and in so far as access to such information was restricted the infringement of s. 2(b) could not be lightly dismissed (p. 247). Moreover, unlike in Irwin Toy, the information was not aimed at children, a group hampered in making informed choices, and hence any heightened state interest that might arise in protecting a vulnerable group was absent (p. 248).
Applying the Royal College approach to the context of this appeal is a key aspect of the s. 1 analysis. One must ask whether the expression prohibited by s. 319(2) is tenuously connected to the values underlying s. 2(b) so as to make the restriction "easier to justify than other infringements." In this regard, let me begin by saying that, in my opinion, there can be no real disagreement about the subject matter of the messages and teachings communicated by the respondent, Mr. Keegstra: it is deeply offensive, hurtful and damaging to target group members, misleading to his listeners, and antithetical to the furtherance of tolerance and understanding in society. Furthermore, as will be clear when I come to discuss in detail the interpretation of s. 319(2), there is no doubt that all expression fitting within the terms of the offence can be similarly described. To say merely that expression is offensive and disturbing, however, fails to address satisfactorily the question of whether, and to what extent, the expressive activity prohibited by s. 319(2) promotes the values underlying the freedom of expression. It is to this difficult and complex question that I now turn.
From the outset, I wish to make clear that in my opinion the expression prohibited by s. 319(2) is not closely linked to the rationale underlying s. 2(b). Examining the values identified in Ford and Irwin Toy as fundamental to the protection of free expression, arguments can be made for the proposition that each of these values is diminished by the suppression of hate propaganda. While none of these arguments is spurious, I am of the opinion that expression intended to promote the hatred of identifiable groups is of limited importance when measured against free expression values.
At the core of freedom of expression lies the need to ensure that truth and the common good are attained, whether in scientific and artistic endeavors or in the process of determining the best course to take in our political affairs. Since truth and the ideal form of political and social organization can rarely, if at all, be identified with absolute certainty, it is difficult to prohibit expression without impeding the free exchange of potentially valuable information. Nevertheless, the argument from truth does not provide convincing support for the protection of hate propaganda. Taken to its extreme, this argument would require us to permit the communication of all expression, it being impossible to know with absolute certainty which factual statements are true, or which ideas obtain the greatest good. The problem with this extreme position, however, is that the greater the degree of certainty that a statement is erroneous or mendacious, the less its value in the quest for truth. Indeed, expression can be used to the detriment of our search for truth; the state should not be the sole arbiter of truth, but neither should we overplay the view that rationality will overcome all falsehoods in the unregulated marketplace of ideas. There is very little chance that statements intended to promote hatred against an identifiable group are true, or that their vision of society will lead to a better world. To portray such statements as crucial to truth and the betterment of the political and social milieu is therefore misguided.
Another component central to the rationale underlying s. 2(b) concerns the vital role of free expression as a means of ensuring individuals the ability to gain self-fulfillment by developing and articulating thoughts and ideas as they see fit. It is true that s. 319(2) inhibits this process among those individuals whose expression it limits, and hence arguably works against freedom of expression values. On the other hand, such self-autonomy stems in large part from one's ability to articulate and nurture an identity derived from membership in a cultural or religious group. The message put forth by individuals who fall within the ambit of s. 319(2) represents a most extreme opposition to the idea that members of identifiable groups should enjoy this aspect of the s. 2(b) benefit. The extent to which the unhindered promotion of this message furthers free expression values must therefore be tempered insofar as it advocates with inordinate vitriol an intolerance and prejudice which view as execrable the process of individual self-development and human flourishing among all members of society.
Moving on to a third strain of thought said to justify the protection of free expression, one's attention is brought specifically to the political realm. The connection between freedom of expression and the political process is perhaps the linchpin of the s. 2(b) guarantee, and the nature of this connection is largely derived from the Canadian commitment to democracy. Freedom of expression is a crucial aspect of the democratic commitment, not merely because it permits the best policies to be chosen from among a wide array of proffered options, but additionally because it helps to ensure that participation in the political process is open to all persons. Such open participation must involve to a substantial degree the notion that all persons are equally deserving of respect and dignity. The state therefore cannot act to hinder or condemn a political view without to some extent harming the openness of Canadian democracy and its associated tenet of equality for all.
The suppression of hate propaganda undeniably muzzles the participation of a few individuals in the democratic process, and hence detracts somewhat from free expression values, but the degree of this limitation is not substantial. I am aware that the use of strong language in political and social debate -- indeed, perhaps even language intended to promote hatred -- is an unavoidable part of the democratic process. Moreover, I recognize that hate propaganda is expression of a type which would generally be categorized as "political", thus putatively placing it at the very heart of the principle extolling freedom of expression as vital to the democratic process. Nonetheless, expression can work to undermine our commitment to democracy where employed to propagate ideas anathemic to democratic values. Hate propaganda works in just such a way, arguing as it does for a society in which the democratic process is subverted and individuals are denied respect and dignity simply because of racial or religious characteristics. This brand of expressive activity is thus wholly inimical to the democratic aspirations of the free expression guarantee.
Indeed, one may quite plausibly contend that it is through rejecting hate propaganda that the state can best encourage the protection of values central to freedom of expression, while simultaneously demonstrating dislike for the vision forwarded by hate-mongers. In this regard, the reaction to various types of expression by a democratic government may be perceived as meaningful expression on behalf of the vast majority of citizens. I do not wish to be construed as saying that an infringement of s. 2(b) can be justified under s. 1 merely because it is the product of a democratic process; the Charter will not permit even the democratically elected legislature to restrict the rights and freedoms crucial to a free and democratic society. What I do wish to emphasize, however, is that one must be careful not to accept blindly that the suppression of expression must always and unremittingly detract from values central to freedom of expression (L. C. Bollinger, The Tolerant Society: Freedom of Speech and Extremist Speech in America (1986), at pp. 87-93).
I am very reluctant to attach anything but the highest importance to expression relevant to political matters. But given the unparalleled vigour with which hate propaganda repudiates and undermines democratic values, and in particular its condemnation of the view that all citizens need be treated with equal respect and dignity so as to make participation in the political process meaningful, I am unable to see the protection of such expression as integral to the democratic ideal so central to the s. 2(b) rationale. Together with my comments as to the tenuous link between communications covered by s. 319(2) and other values at the core of the free expression guarantee, this conclusion leads me to disagree with the opinion of McLachlin J. that the expression at stake in this appeal mandates the most solicitous degree of constitutional protection. In my view, hate propaganda should not be accorded the greatest of weight in the s. 1 analysis.
As a caveat, it must be emphasized that the protection of extreme statements, even where they attack those principles underlying the freedom of expression, is not completely divorced from the aims of s. 2(b) of the Charter. As noted already, suppressing the expression covered by s. 319(2) does to some extent weaken these principles. It can also be argued that it is partly through a clash with extreme and erroneous views that truth and the democratic vision remain vigorous and alive (see Braun, op. cit., at p. 490. In this regard, judicial pronouncements strongly advocating the importance of free expression values might be seen as helping to expose prejudiced statements as valueless even while striking down legislative restrictions that proscribe such expression. Additionally, condoning a democracy's collective decision to protect itself from certain types of expression may lead to a slippery slope on which encroachments on expression central to s. 2(b) values are permitted. To guard against such a result, the protection of communications virulently unsupportive of free expression values may be necessary in order to ensure that expression more compatible with these values is never unjustifiably limited.
None of these arguments is devoid of merit, and each must be taken into account in determining whether an infringement of s. 2(b) can be justified under s. 1. It need not be, however, that they apply equally or with the greatest of strength in every instance. As I have said already, I am of the opinion that hate propaganda contributes little to the aspirations of Canadians or Canada in either the quest for truth, the promotion of individual self-development or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged. While I cannot conclude that hate propaganda deserves only marginal protection under the s. 1 analysis, I can take cognizance of the fact that limitations upon hate propaganda are directed at a special category of expression which strays some distance from the spirit of s. 2(b), and hence conclude that "restrictions on expression of this kind might be easier to justify than other infringements of s. 2(b)" (Royal College, supra, at p. 247).
As a final point, it should be stressed that in discussing the relationship between hate propaganda and freedom of expression values I do not wish to be taken as advocating an inflexible "levels of scrutiny" categorization of expressive activity. The contextual approach necessitates an open discussion of the manner in which s. 2(b) values are engaged in the circumstances of an appeal. To become transfixed with categorization schemes risks losing the advantage associated with this sensitive examination of free expression principles, and I would be loath to sanction such a result.
Having made some preliminary comments as to the nature of the expression at stake in this appeal, it is now possible to ask whether s. 319(2) is an acceptably proportional response to Parliament's valid objective. As stated above, the proportionality aspect of the Oakes test requires the Court to decide whether the impugned state action: i) is rationally connected to the objective; ii) minimally impairs the Charter right or freedom at issue; and iii) does not produce effects of such severity so as to make the impairment unjustifiable. I will now address these segments of the proportionality inquiry, beginning with the question of whether a rational connection exists between s. 319(2) and the legislative objective.
(ii) Rational Connection
Section 319(2) makes the wilful promotion of hatred against identifiable groups an indictable offence, indicating Parliament's serious concern about the effects of such activity. Those who would uphold the provision argue that the criminal prohibition of hate propaganda obviously bears a rational connection to the legitimate Parliamentary objective of protecting target group members and fostering harmonious social relations in a community dedicated to equality and multiculturalism. I agree, for in my opinion it would be difficult to deny that the suppression of hate propaganda reduces the harm such expression does to individuals who belong to identifiable groups and to relations between various cultural and religious groups in Canadian society.
Doubts have been raised, however, as to whether the actual effect of s. 319(2) is to undermine any rational connection between it and Parliament's objective. As stated in the reasons of McLachlin J., there are three primary ways in which the effect of the impugned legislation might be seen as an irrational means of carrying out the Parliamentary purpose. First, it is argued that the provision may actually promote the cause of hate-mongers by earning them extensive media attention. In this vein, it is also suggested that persons accused of intentionally promoting hatred often see themselves as martyrs, and may actually generate sympathy from the community in the role of underdogs engaged in battle against the immense powers of the state. Second, the public may view the suppression of expression by the government with suspicion, making it possible that such expression -- even if it be hate propaganda -- is perceived as containing an element of truth. Finally, it is often noted, citing the writings of A. Neier, Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom (1979), that Germany of the 1920s and 1930s possessed and used hate propaganda laws similar to those existing in Canada, and yet these laws did nothing to stop the triumph of a racist philosophy under the Nazis.
If s. 319(2) can be said to have no impact in the quest to achieve Parliament's admirable objectives, or in fact works in opposition to these objectives, then I agree that the provision could be described as "arbitrary, unfair or based on irrational considerations" (Oakes, supra, at p. 139). I recognize that the effect of s. 319(2) is impossible to define with exact precision -- the same can be said for many laws, criminal or otherwise. In my view, however, the position that there is no strong and evident connection between the criminalization of hate propaganda and its suppression is unconvincing. I come to this conclusion for a number of reasons, and will elucidate these by answering in turn the three arguments just mentioned.
It is undeniable that media attention has been extensive on those occasions when s. 319(2) has been used. Yet from my perspective, s. 319(2) serves to illustrate to the public the severe reprobation with which society holds messages of hate directed towards racial and religious groups. The existence of a particular criminal law, and the process of holding a trial when that law is used, is thus itself a form of expression, and the message sent out is that hate propaganda is harmful to target group members and threatening to a harmonious society (see Rauf, op. cit., at p. 359). As I stated in my reasons in R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 70:
The criminal law is a very special form of governmental regulation, for it seeks to express our society's collective disapprobation of certain acts and omissions.
The many, many Canadians who belong to identifiable groups surely gain a great deal of comfort from the knowledge that the hate-monger is criminally prosecuted and his or her ideas rejected. Equally, the community as a whole is reminded of the importance of diversity and multiculturalism in Canada, the value of equality and the worth and dignity of each human person being particularly emphasized.
In this context, it can also be said that government suppression of hate propaganda will not make the expression attractive and hence increase acceptance of its content. Similarly, it is very doubtful that Canadians will have sympathy for either propagators of hatred or their ideas. Governmental disapproval of hate propaganda does not invariably result in dignifying the suppressed ideology. Pornography is not dignified by its suppression, nor are defamatory statements against individuals seen as meritorious because the common law lends its support to their prohibition. Again, I stress my belief that hate propaganda legislation and trials are a means by which the values beneficial to a free and democratic society can be publicized. In this context, no dignity will be unwittingly foisted upon the convicted hate-monger or his or her philosophy, and that a hate-monger might see him or herself as a martyr is of no matter to the content of the state's message.
As for the use of hate propaganda laws in pre-World War Two Germany, I am skeptical as to the relevance of the observation that legislation similar to s. 319(2) proved ineffective in curbing the racism of the Nazis. No one is contending that hate propaganda laws can in themselves prevent the tragedy of a Holocaust; conditions particular to Germany made the rise of Nazi ideology possible despite the existence and use of these laws (see A. Doskow and S. B. Jacoby, "Anti Semitism and the Law in Pre-Nazi Germany" (1940), 3 Contemporary Jewish Record 498, at p. 509). Rather, hate propaganda laws are one part of a free and democratic society's bid to prevent the spread of racism, and their rational connection to this objective must be seen in such a context. Certainly West Germany has not reacted to the failure of pre-war laws by seeking their removal, a new set of criminal offences having been implemented as recently as 1985 (see E. Stein, "History Against Free Speech: The New German Law Against the `Auschwitz' -- and other -- `Lies'" (1987), 85 Mich. L. Rev. 277). Nor, as has been discussed, has the international community regarded the promulgation of laws suppressing hate propaganda as futile or counter-productive. Indeed, this Court's attention has been drawn to the fact that a great many countries possess legislation similar to that found in Canada (see, e.g., England and Wales, Public Order Act 1986 (U.K.), 1986, c. 64, ss. 17 to 23; New Zealand, Race Relations Act 1971 (N.Z.), No. 150, s. 25; Sweden, Penal Code, c. 16, s. 8; Netherlands, Penal Code, ss. 137c, 137d and 137e; India, Penal Code, ss. 153-A and 153-B, and generally, the United Nation's Study on the Implementation of Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination). The experience of Germany represents an awful nadir in the history of racism, and demonstrates the extent to which flawed and brutal ideas can capture the acceptance of a significant number of people. One aspect of this experience is not, however, determinative in deciding whether or not hate propaganda laws are effective.
In sum, having found that the purpose of the challenged legislation is valid, I also find that the means chosen to further this purpose are rational in both theory and operation, and therefore conclude that the first branch of the proportionality test has been met. Accordingly, I move now to the issue of whether s. 319(2) minimally impairs the s. 2(b) guarantee of freedom of expression.
(iii) Minimal Impairment of the Section 2(b) Freedom
The criminal nature of the impugned provision, involving the associated risks of prejudice through prosecution, conviction and the imposition of up to two years imprisonment, indicates that the means embodied in hate propaganda legislation should be carefully tailored so as to minimize impairment of the freedom of expression. It therefore must be shown that s. 319(2) is a measured and appropriate response to the phenomenon of hate propaganda, and that it does not overly circumscribe the s. 2(b) guarantee.
The main argument of those who would strike down s. 319(2) is that it creates a real possibility of punishing expression that is not hate propaganda. It is thus submitted that the legislation is overbroad, its terms so wide as to include expression which does not relate to Parliament's objective, and also unduly vague, in that a lack of clarity and precision in its words prevents individuals from discerning its meaning with any accuracy. In either instance, it is said that the effect of s. 319(2) is to limit the expression of merely unpopular or unconventional communications. Such communications may present no risk of causing the harm which Parliament seeks to prevent, and will perhaps be closely associated with the core values of s. 2(b). This overbreadth and vagueness could consequently allow the state to employ s. 319(2) to infringe excessively the freedom of expression or, what is more likely, could have a chilling effect whereby persons potentially within s. 319(2) would exercise self-censorship. Accordingly, those attacking the validity of s. 319(2) contend that vigorous debate on important political and social issues, so highly valued in a society that prizes a diversity of ideas, is unacceptably suppressed by the provision.
The question to be answered, then, is whether s. 319(2) indeed fails to distinguish between low value expression that is squarely within the focus of Parliament's valid objective and that which does not invoke the need for the severe response of criminal sanction. In order to answer this question, and thus to determine whether s. 319(2) minimally impairs the freedom of expression, the nature and impact of specific features of the provision must be examined in some detail. These features relate to both the terms of the offence and the available defences enumerated in s. 319(3), and I find it convenient to utilize this slightly arbitrary division for the purposes of the following discussion. As well, in examining this aspect of the proportionality test I will comment upon the relevance of alternative modes of combatting the harm caused by hate propaganda.
a. Terms of Section 319(2)
In assessing the constitutionality of s. 319(2), especially as concerns arguments of overbreadth and vagueness, an immediate observation is that statements made "in private conversation" are not included in the criminalized expression. The provision thus does not prohibit views expressed with an intention to promote hatred if made privately, indicating Parliament's concern not to intrude upon the privacy of the individual. Indeed, that the legislation excludes private conversation, rather than including communications made in a public forum, suggests that the expression of hatred in a place accessible to the public is not sufficient to activate the legislation (see Fish, op. cit., at p. 115). This observation is supported by comparing the words of s. 319(2) with those of the prohibition against the incitement of hatred likely to lead to a breach of peace in s. 319(1). Section 319(1) covers statements communicated "in any public place", suggesting that a wider scope of prohibition was intended where the danger occasioned by the statements was of an immediate nature, while the wording of s. 319(2) indicates that private conversations taking place in public areas are not prohibited. Moreover, it is reasonable to infer a subjective mens rea requirement regarding the type of conversation covered by s. 319(2), an inference supported by the definition of "private communication" contained in s. 183 of the Criminal Code. Consequently, a conversation or communication intended to be private does not satisfy the requirements of the provision if through accident or negligence an individual's expression of hatred for an identifiable group is made public.
Is s. 319(2) nevertheless overbroad because it captures all public expression intended to promote hatred? It would appear not, for the harm which the government seeks to prevent is not restricted to certain mediums and/or locations. To attempt to distinguish between various forms and fora would therefore be incongruent with Parliament's legitimate objective.
A second important element of s. 319(2) is its requirement that the promotion of hatred be "wilful". The nature of this mental element was explored by Martin J.A. in R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont. C.A.). In that case, the two accused were charged under s. 319(2) (then s. 281.2(2)), after distributing handbills containing statements attacking the French Canadian public in Essex County. At the time, the francophone minority in the county was attempting to have the school board build a French language secondary school. The accused persons identified with French-speaking Canadians and were responding to opposition to the construction of the school. According to them, the pamphlet was intended as a satire that would bring a quick solution by provoking government reaction, thereby exerting pressure on the school board, but in spite of this explanation a conviction was entered at trial.
On appeal, Martin J.A. overturned the conviction. He noted that the word "wilfully" does not have a fixed meaning in criminal law, and thus sought to divine the use and import of the word as it appears in s. 319(2) (pp. 379-81). Comparing the section with s. 319(1) (then s. 281.2(1)), which prohibits incitement to hatred in a public place where such incitement is likely to lead to a breach of peace, he said (at pp. 381-82):
The insertion of the word "wilfully" in [s. 319(2)] was not necessary to import mens rea since that requirement would be implied in any event because of the serious nature of the offence: see R. v. Prue, supra. The statements, the communication of which are proscribed by [s. 319(2)], are not confined to statements communicated in a public place in circumstances likely to lead to a breach of the peace and they, consequently, do not pose such an immediate threat to public order as those falling under [s. 319(1)]; it is reasonable to assume, therefore, that Parliament intended to limit the offence under [s. 319(2)] to the intentional promotion of hatred. It is evident that the use of the word "wilfully" in [s. 319(2)], and not in [s. 319(1)], reflects Parliament's policy to strike a balance in protecting the competing social interests of freedom of expression on the one hand, and public order and group reputation on the other hand.
More specifically, Martin J.A. went on to elaborate on the meaning of "wilfully", concluding that this mental element is satisfied only where an accused subjectively desires the promotion of hatred or foresees such a consequence as certain or substantially certain to result from an act done in order to achieve some other purpose (pp. 384-85). On the facts in Buzzanga, the trial judge had informed the jury that "wilfully" could be equated with the intention to create "controversy, furor and an uproar" (p. 386). This interpretation was clearly incompatible with Martin J.A.'s requirement that the promotion of hatred be intended or foreseen as substantially certain, and a new trial was therefore ordered.
The interpretation of "wilfully" in Buzzanga has great bearing upon the extent to which s. 319(2) limits the freedom of expression. This mental element, requiring more than merely negligence or recklessness as to result, significantly restricts the reach of the provision, and thereby reduces the scope of the targeted expression. Such a reduced scope is recognized and applauded in the Law Reform Commission of Canada's Working Paper on Hate Propaganda, op. cit., it being said that (at p. 36):
The principle of restraint requires lawmakers to concern themselves not just with whom they want to catch, but also with whom they do not want to catch. For example, removing an intent or purpose requirement could well result in successful prosecutions of cases similar to Buzzanga, where members of a minority group publish hate propaganda against their own group in order to create controversy or to agitate for reform. This crime should not be used to prosecute such individuals.
I agree with the interpretation of "wilfully" in Buzzanga, and wholeheartedly endorse the view of the Law Reform Commission Working Paper that this stringent standard of mens rea is an invaluable means of limiting the incursion of s. 319(2) into the realm of acceptable (though perhaps offensive and controversial) expression. It is clear that the word "wilfully" imports a difficult burden for the Crown to meet and, in so doing, serves to minimize the impairment of freedom of expression.
It has been argued, however, that even a demanding mens rea component fails to give s. 319(2) a constitutionally acceptable breadth. The problem is said to lie in the failure of the offence to require proof of actual hatred resulting from a communication, the assumption being that only such proof can demonstrate a harm serious enough to justify limiting the freedom of expression under s. 1. It was largely because of this lack of need for proof of actual hatred that Kerans J.A in the Court of Appeal held s. 319(2) to violate the Charter.
While mindful of the dangers identified by Kerans J.A., I do not find them sufficiently grave to compel striking down s. 319(2). First, to predicate the limitation of free expression upon proof of actual hatred gives insufficient attention to the severe psychological trauma suffered by members of those identifiable groups targeted by hate propaganda. Second, it is clearly difficult to prove a causative link between a specific statement and hatred of an identifiable group. In fact, to require direct proof of hatred in listeners would severely debilitate the effectiveness of s. 319(2) in achieving Parliament's aim. It is well accepted that Parliament can use the criminal law to prevent the risk of serious harms, a leading example being the drinking and driving provisions in the Criminal Code. The conclusions of the Cohen Committee and subsequent study groups show that the risk of hatred caused by hate propaganda is very real, and in view of the grievous harm to be avoided in the context of this appeal, I conclude that proof of actual hatred is not required in order to justify a limit under s. 1.
The next feature of the provision that must be explored is the phrase "promotes hatred against any identifiable group". Given the purpose of the provision to criminalize the spreading of hatred in society, I find that the word "promotes" indicates active support or instigation. Indeed the French version of the offence uses the verb "fomenter", which in English means to foment or stir up. In "promotes" we thus have a word that indicates more than simple encouragement or advancement. The hate-monger must intend or foresee as substantially certain a direct and active stimulation of hatred against an identifiable group. As for the term "identifiable group", s. 318(4) states that an ""identifiable group" means any section of the public distinguished by colour, race, religion or ethnic origin". The act to be targeted is therefore the intentional fostering of hatred against particular members of our society, as opposed to any individual.
The meaning of "hatred" remains to be elucidated. Just as "wilfully" must be interpreted in the setting of s. 319(2), so must the word "hatred" be defined according to the context in which it is found. A dictionary definition may be of limited aid to such an exercise, for by its nature a dictionary seeks to offer a panoply of possible usages, rather than the correct meaning of a word as contemplated by Parliament. Noting the purpose of s. 319(2), in my opinion the term "hatred" connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation. As Cory J.A. stated in R. v. Andrews, supra, at p. 179:
Hatred is not a word of casual connotation. To promote hatred is to instil detestation, enmity, ill-will and malevolence in another. Clearly an expression must go a long way before it qualifies within the definition in [s. 319(2)].
Hatred is predicated on destruction, and hatred against identifiable groups therefore thrives on insensitivity, bigotry and destruction of both the target group and of the values of our society. Hatred in this sense is a most extreme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.
Those who argue that s. 319(2) should be struck down submit that it is impossible to define with care and precision a term like "hatred". Yet, as I have stated, the sense in which "hatred" is used in s. 319(2) does not denote a wide range of diverse emotions, but is circumscribed so as to cover only the most intense form of dislike. It was also argued on appeal, however, that regardless of the definition given "hatred" by the courts, the trier of fact must make a subjective decision in deciding whether "hatred" is indeed what the accused intended to promote. To determine if the promotion of hatred was intended, the trier will usually make an inference as to the necessary mens rea based upon the statements made. The subjective nature of this inferential exercise is said to create a danger that hatred of the type required by s. 319(2) will be found, though unjustifiably, in every instance where the trier dislikes or finds offensive the content of the accused's statements.
The danger that a trier will improperly infer hatred from statements he or she personally finds offensive cannot be dismissed lightly, yet I do not think that the subjectivity inherent in determining whether the accused intended to promote hatred, as opposed to an emotion involving a lesser degree of antipathy, represents an unbridled license to extend the scope of the offence. Recognizing the need to circumscribe the definition of "hatred" in the manner referred to above, a judge should direct the jury (or him or herself) regarding the nature of the term as it exists in s. 319(2). Such a direction should include express mention of the need to avoid finding that the accused intended to promote hatred merely because the expression is distasteful. If such a warning is given, the danger referred to above will be avoided and the freedom of expression limited no more than is necessary.
b. The Defences to Section 319(2)
The factors mentioned above suggest that s. 319(2) does not unduly restrict the s. 2(b) guarantee. The terms of the offence, as I have defined them, rather indicate that s. 319(2) possesses definitional limits which act as safeguards to ensure that it will capture only expressive activity which is openly hostile to Parliament's objective, and will thus attack only the harm at which the prohibition is targeted. The specific defences provided are further glosses on the purview of the offence, and I repeat them here.
319. . . .
(3) No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.
A careful reading of the s. 319(3) defences shows them to take in examples of expressive activity that generally would not fall within the "wilful promotion of hatred" as I have defined the phrase. Thus the three defences which include elements of good faith or honest belief -- namely, s. 319(3)(b), (c) and (d) -- would seem to operate to negate directly the mens rea in the offence, for only rarely will one who intends to promote hatred be acting in good faith or upon honest belief. These defences are hence intended to aid in making the scope of the wilful promotion of hatred more explicit; individuals engaging in the type of expression described are thus given a strong signal that their activity will not be swept into the ambit of the offence. The result is that what danger exists that s. 319(2) is overbroad or unduly vague, or will be perceived as such, is significantly reduced. To the extent that s. 319(3) provides justification for the accused who would otherwise fall within the parameters of the offence of wilfully promoting hatred, it reflects a commitment to the idea that an individual's freedom of expression will not be curtailed in borderline cases. The line between the rough and tumble of public debate and brutal, negative and damaging attacks upon identifiable groups is hence adjusted in order to give some leeway to freedom of expression.
The overlap between s. 319(2) and the defences is less pronounced in the case of the defence of truth, s. 319(3)(a) being more likely than the other defences to excuse the wilful promotion of hatred. This increased likelihood reveals the defence in para. (a) to be an especially poignant indicator of Parliament's cautionary approach and care in protecting freedom of expression. Of course, if statements of truth are made without the intention to promote hatred towards identifiable groups, the offence as defined in s. 319(2) has not been committed. On the other hand, if a situation arises where an individual uses statements of truth in order to promote hatred against identifiable groups, the accused is acquitted despite the existence of the harm which Parliament seeks to prevent. Excusing the accused who intentionally promotes hatred through the communication of truthful statements is thus a circumspect measure associated with the importance attributed to truth -- and hence to free expression -- in our society.
It has been forcefully argued before us that the defence of truth is insufficient protection against an overly broad hate propaganda law. In this vein, it is rightly pointed out that many (if not most) of the communications coming within s. 319(2) are not susceptible to a true/false categorization, existing instead as ideas or opinions in the mind of the communicator. The accused could therefore sincerely believe in the worth of his or her viewpoint and yet be unable to utilize the s. 319(3)(a) defence. Moreover, it is said that, even where a statement is capable of categorization as true or false, the individual honestly mistaken as to the validity of his or her position (even if innocently so) is left unprotected, a result which dangerously restricts freedom of expression, causing a "chill" on communications as those who fear that their statements may be false exercise self-censorship. Finally, one might wonder if the courts are not on dangerous ground in attempting to distinguish between truthfulness and falsehood. The potential for bias in making such a determination, be it intentional or subconscious, is a danger frequently noted in freedom of expression theory (this potential is equally evident in s. 319(3)(c), insofar as ideas are assessed in light of "reasonableness" and the "public benefit").
The way in which I have defined the s. 319(2) offence, in the context of the objective sought by society and the value of the prohibited expression, gives me some doubt as to whether the Charter mandates that truthful statements communicated with an intention to promote hatred need be excepted from criminal condemnation. Truth may be used for widely disparate ends, and I find it difficult to accept that circumstances exist where factually accurate statements can be used for no other purpose than to stir up hatred against a racial or religious group. It would seem to follow that there is no reason why the individual who intentionally employs such statements to achieve harmful ends must under the Charter be protected from criminal censure.
Nevertheless, it is open to Parliament to make a concession to free expression values, whether or not such is required by the Charter. Deference to truth as a value central to free expression has thus led Parliament to include the defence in s. 319(3)(a), even though the accused has used truthful statements to cause harm of the type falling squarely within the objective of the legislation. When the statement contains no truth, however, this flicker of justification for the intentional promotion of hatred is extinguished, and the harmful malice of the disseminator stands alone. The relationship between the value of hate propaganda as expression and the Parliamentary objective of eradicating harm, slightly altered so as to increase the magnitude of the former where the statement of the accused is truthful, thus returns to its more usual condition, a condition in which it is permissible to suppress the expression.
Because the presence of truth, though legally a defence to a charge under s. 319(2), does not change the fact that the accused has intended to promote the hatred of an identifiable group, I cannot find excessive impairment of the freedom of expression merely because s. 319(3)(a) does not cover negligent or innocent error. Whether or not a statement is susceptible to classification as true or false, my inclination is therefore to accept that such error should not excuse an accused who has wilfully used a statement in order to promote hatred against an identifiable group. That the legislative line is drawn so as to convict the accused who is negligent or even innocent regarding the accuracy of his or her statements is perfectly acceptable, for the mistake is not as to the use to which the information is put, namely, the promotion of hatred against an identifiable group. As for the argument that the courts and legislature should not involve themselves in the evaluation of "truth", "reasonable grounds for finding truth" or "public interest", the same response applies. Where the likelihood of truth or benefit from an idea diminishes to the point of vanishing, and the statement in question has harmful consequences inimical to the most central values of a free and democratic society, it is not excessively problematic to make a judgment that involves limiting expression.
Before looking at the effect which alternative responses to hate propaganda have upon the proportionality of s. 319(2), I should comment on a final argument marshalled in support of striking down s. 319(2) because of overbreadth or vagueness. It is said that the presence of the legislation has led authorities to interfere with a diverse range of political, educational and artistic expression, demonstrating only too well the way in which overbreadth and vagueness can result in undue intrusion and the threat of persecution. In this regard, a number of incidents are cited where authorities appear to have been overzealous in their interpretation of the law, including the arrest of individuals distributing pamphlets admonishing Americans to leave the country and the temporary holdup at the border of a film entitled Nelson Mandela and Salman Rushdie's novel Satanic Verses (see, e.g., Borovoy, op. cit., at p. 141; note that the latter two examples involve not s. 319(2), but similar wording found in Customs Tariff, S.C. 1987, c. 49, s. 114, Schedule VII, Code 9956(b)).
That s. 319(2) may in the past have led authorities to restrict expression offering valuable contributions to the arts, education or politics in Canada is surely worrying. I hope, however, that my comments as to the scope of the provision make it obvious that only the most intentionally extreme forms of expression will find a place within s. 319(2). In this light, one can safely say that the incidents mentioned above illustrate not over-expansive breadth and vagueness in the law, but rather actions by the state which cannot be lawfully taken pursuant to s. 319(2). The possibility of illegal police harassment clearly has minimal bearing on the proportionality of hate propaganda legislation to legitimate Parliamentary objectives, and hence the argument based on such harassment can be rejected.
c. Alternative Modes of Furthering Parliament's Objective
One of the strongest arguments supporting the contention that s. 319(2) unacceptably impairs the s. 2(b) guarantee posits that a criminal sanction is not necessary to meet Parliament's objective. Thus, even though the terms of s. 319(2) and the nature of the available defences expose an individual to conviction only in narrow and clearly defined circumstances, it is said that non-criminal responses can more effectively combat the harm caused by hate propaganda. Most generally, it is said that discriminatory ideas can best be met with information and education programmes extolling the merits of tolerance and cooperation between racial and religious groups. As for the prohibition of hate propaganda, human rights statutes are pointed to as being a less severe and more effective response than the criminal law. Such statutes not only subject the disseminator of hate propaganda to reduced stigma and punishment, but also take a less confrontational approach to the suppression of such expression. This conciliatory tack is said to be preferable to penal sanction because an incentive is offered the disseminator to cooperate with human rights tribunals and thus to amend his or her conduct.
Given the stigma and punishment associated with a criminal conviction and the presence of other modes of government response in the fight against intolerance, it is proper to ask whether s. 319(2) can be said to impair minimally the freedom of expression. With respect to the efficacy of criminal legislation in advancing the goals of equality and multicultural tolerance in Canada, I agree that the role of s. 319(2) will be limited. It is important, in my opinion, not to hold any illusions about the ability of this one provision to rid our society of hate propaganda and its associated harms. Indeed, to become overly complacent, forgetting that there are a great many ways in which to address the problem of racial and religious intolerance, could be dangerous. Obviously, a variety of measures need be employed in the quest to achieve such lofty and important goals.
In assessing the proportionality of a legislative enactment to a valid governmental objective, however, s. 1 should not operate in every instance so as to force the government to rely upon only 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. In such circumstances, the government may legitimately employ a more restrictive measure, either alone or as part of a larger programme of action, if that measure is not redundant, furthering the objective in ways that alternative responses could not, and is in all other respects proportionate to a valid s. 1 aim.
Though the fostering of tolerant attitudes among Canadians will be best achieved through a combination of diverse measures, the harm done through hate propaganda may require that especially stringent responses be taken to suppress and prohibit a modicum of expressive activity. At the moment, for example, the state has the option of responding to hate propaganda by acting under either the Criminal Code or human rights provisions. In my view, having both avenues of redress at the state's disposal is justified in a free and democratic society. I see no reason to assume that the state will always utilize the most severe tool at hand, namely, the criminal law, to prevent the dissemination of hate propaganda. Where use of the sanction provided by s. 319(2) is imprudent, employing human rights legislation may be the more attractive route to take, but there may equally be circumstances in which the more confrontational response of criminal prosecution is best suited to punish a recalcitrant hate-monger. To send out a strong message of condemnation, both reinforcing the values underlying s. 319(2) and deterring the few individuals who would harm target group members and the larger community by intentionally communicating hate propaganda, will occasionally require use of the criminal law.
d. Conclusion as to Minimal Impairment
To summarize the above discussion, in light of the great importance of Parliament's objective and the discounted value of the expression at issue I find that the terms of s. 319(2) create a narrowly confined offence which suffers from neither overbreadth nor vagueness. This interpretation stems largely from my view that the provision possesses a stringent mens rea requirement, necessitating either an intent to promote hatred or knowledge of the substantial certainty of such, and is also strongly supported by the conclusion that the meaning of the word "hatred" is restricted to the most severe and deeply-felt form of opprobrium. Additionally, however, the conclusion that s. 319(2) represents a minimal impairment of the freedom of expression gains credence through the exclusion of private conversation from its scope, the need for the promotion of hatred to focus upon an identifiable group and the presence of the s. 319(3) defences. As for the argument that other modes of combatting hate propaganda eclipse the need for a criminal provision, it is eminently reasonable to utilize more than one type of legislative tool in working to prevent the spread of racist expression and its resultant harm. It will indeed be more difficult to justify a criminal statute under s. 1, but in my opinion the necessary justificatory arguments have been made out with respect to s. 319(2).
I thus conclude that s. 319(2) of the Criminal Code does not unduly impair the freedom of expression, and it remains only to examine whether its effects nonetheless present so grave a limitation upon the s. 2(b) guarantee so as to outweigh the benefits to be gained from a measure otherwise proportional to an important legislative objective.
(iv) Effects of the Limitation
The third branch of the proportionality test entails a weighing of the importance of the state objective against the effect of limits imposed upon a Charter right or guarantee. Even if the purpose of the limiting measure is substantial and the first two components of the proportionality test are satisfied, the deleterious effects of a limit may be too great to permit the infringement of the right or guarantee in issue.
I have examined closely the significance of the freedom of expression values threatened by s. 319(2) and the importance of the objective which lies behind the criminal prohibition. It will by now be quite clear that I do not view the infringement of s. 2(b) by s. 319(2) as a restriction of the most serious kind. The expressive activity at which this provision aims is of a special category, a category only tenuously connected with the values underlying the guarantee of freedom of speech. Moreover, the narrowly drawn terms of s. 319(2) and its defences prevent the prohibition of expression lying outside of this narrow category. Consequently, the suppression of hate propaganda affected by s. 319(2) represents an impairment of the individual's freedom of expression which is not of a most serious nature.
It is also apposite to stress yet again the enormous importance of the objective fueling s. 319(2), an objective of such magnitude as to support even the severe response of criminal prohibition. Few concerns can be as central to the concept of a free and democratic society as the dissipation of racism, and the especially strong value which Canadian society attaches to this goal must never be forgotten in assessing the effects of an impugned legislative measure. When the purpose of s. 319(2) is thus recognized, I have little trouble in finding that its effects, involving as they do the restriction of expression largely removed from the heart of free expression values, are not of such a deleterious nature as to outweigh any advantage gleaned from the limitation of s. 2(b).
E. Analysis of Section 319(2) Under Section 1 of the Charter: Conclusion
I find that the infringement of the respondent's freedom of expression as guaranteed by s. 2(b) should be upheld as a reasonable limit prescribed by law in a free and democratic society. Furthering an immensely important objective and directed at expression distant from the core of free expression values, s. 319(2) satisfies each of the components of the proportionality inquiry. I thus disagree with the Alberta Court of Appeal's conclusion that this criminal prohibition of hate propaganda violates the Charter, and would allow the appeal in this respect.
VIII. Section 319(3)(a) and the Presumption of Innocence
As already noted, s. 319(3)(a) of the Criminal Code provides that no person shall be convicted of wilfully promoting hatred "if he establishes that the statements communicated were true". This provision is challenged as breaching the presumption of innocence guaranteed in s. 11(d) of the Charter. The Court must therefore decide whether permitting an accused to raise the defence of truth on the balance of probabilities creates a reverse onus, thereby infringing s. 11(d). If s. 11(d) is so infringed, the focus of the inquiry shifts to examine the justifiability of the reverse onus under s. 1 of the Charter.
A. Section 319(3)(a) and Infringement of Section 11(d) of the Charter
In a prosecution under s. 319(2), the Crown must prove beyond a reasonable doubt the various elements of the offence, namely, that the accused, by communicating statements other than in private conversation, wilfully promoted hatred against a group identifiable by colour, race, religion or ethnic origin. Determining whether an accused falls within the terms of s. 319(2) does not require that the trier of fact examine the truth or falsity of the statements. The defence of truth, to be established by the accused on the balance of probabilities, is thus only considered if the Crown proves the components of s. 319(2) beyond a reasonable doubt.
The judgments of the appeal courts in this case and in the accompanying appeal of Andrews reveal a divergence of opinion as to whether s. 11(d) of the Charter is infringed by the truth defence. In the Alberta Court of Appeal, Kerans J.A. viewed as crucial the possibility that an accused can be convicted of wilfully promoting hatred though there exists a reasonable doubt that the statements communicated are true. As the defence places an onus on the accused to prove truth on the balance of probabilities, he thus found it to infringe s. 11(d). In contrast to this conclusion, the Ontario Court of Appeal in R. v. Andrews, supra, found that s. 319(3)(a) does not place a true reverse onus upon the accused. Relying upon the majority judgment in R. v. Holmes, [1988] 1 S.C.R. 914, Grange J.A. felt that s. 319(3)(a) provides a defence which becomes applicable only after all elements of the offence have been proven beyond a reasonable doubt, a circumstance which was said to avoid infringing the presumption of innocence (p. 193). Grange J.A. distinguished this Court's decision in R. v. Whyte, [1988] 2 S.C.R. 3, on the grounds that the statutory presumption challenged in that case related to the proof of an essential element of the offence.
It is not overly difficult to settle the disagreement between the Alberta and Ontario Appeal Courts. Though some confusion may have existed after the decision of this Court in Holmes, since Whyte it is clear that the presumption of innocence is infringed whenever the accused is liable to be convicted despite the existence of a reasonable doubt as to guilt in the mind of the trier of fact. As was stated by a unanimous bench in Whyte (at p. 18):
. . . the distinction between elements of the offence and other aspects of the charge is irrelevant to the s. 11(d) inquiry. The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence.
The exact characterization of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused. The trial of an accused in a criminal matter cannot be divided neatly into stages, with the onus of proof on the accused at an intermediate stage and the ultimate onus on the Crown.
As is evident from the above quotation, the categorization of a factual finding as forming an element "essential" to the offence is of no consequence when determining whether s. 11(d) has been breached.
Applying the approach taken in Whyte to this appeal, it is obvious that s. 319(3)(a) runs afoul of the presumption of innocence. Contrary to the arguments of those who would find s. 319(3)(a) compatible with s. 11(d), it matters not that the defence of truth may be intended to play a minor role in providing relief from conviction. What is of essence is not the "essential nature" of the crime, but that the trier of fact will have to convict even where there is a reasonable doubt as to the truth of an accused's statements. This result means that s. 11(d) is infringed, making necessary an inquiry as to whether s. 319(3)(a) can be justified under s. 1 of the Charter.
B. Justifiability of Section 319(3)(a) Under Section 1 of the Charter
In seeing whether the truth defence is justifiable as a reasonable limit in a free and democratic society, my general comments regarding the role of s. 1 and the Oakes test obviously apply. As well, much of what has been said in discussing s. 319(2) is pertinent, though it remains necessary to undertake a separate inquiry into the validity of s. 319(3)(a)'s reverse onus.
The impetus behind s. 319(3)(a) represents somewhat of a caveat to the broad objectives underlying the offence in s. 319(2). As explored earlier, domestic and international commitments to freedom of expression, equality, and respect for human dignity and multiculturalism lay the foundation for the offence of the wilful promotion of hatred. Without rejecting this broad foundational base, the objective of s. 319(3)(a) is attributable to the importance given the expression of truth by Parliament (see the Cohen Committee, op. cit., at p. 66, and the Law Reform Commission of Canada, op. cit., at p. 36). Specifically, the truth defence allows an accused to escape liability based on the possibility that the statements made, while intended to promote hatred, nonetheless possess increased merit (in relation to free expression values) because of their truthful nature.
That a defence may be warranted by reason of the merit associated with truthful statements does not, however, make clear Parliament's objective in requiring that the accused prove truthfulness on a balance of probabilities. The objective behind the defence's reverse onus is closely connected with the purpose fueling 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 is too easily used, the pressing and substantial objective of Parliament in preventing such harm will suffer unduly, and it is therefore in the furtherance of that same objective that truthfulness must be proved by the accused on the balance of probabilities. For the reasons given in discussing the purpose behind s. 319(2), I consequently find that Parliament's objective in employing a reverse onus in s. 319(3)(a) is pressing and substantial.
Moving on to examine the proportionality of the reverse onus measure to the legislative objective, the first question to ask is whether s. 319(3)(a) evinces a rational connection to the purpose of preventing the harm caused by hate-promoting expression. In my view, such a connection plainly exists. The reverse onus in the truth defence operates so as 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 aims, placing such a burden upon the accused is rationally connected to a valid s. 1 objective.
The second component of the proportionality inquiry asks whether the impugned measure impairs the right or freedom as little as possible. Instrumental in reaching a conclusion as to minimal impairment is the nature of the defence in issue, and most especially its relation to the offence set out in s. 319(2). As I have stated in discussing the proportionality of s. 319(2), 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; it works to excuse the actions of an accused even though the harm sought to be prevented is present. To provide the accused with such an escape route may not be required under the Charter, but neither is it illogical. Out of caution Parliament has made a concession to the importance of truth in freedom of expression values, a concession designed to allow an accused person to benefit from the tangential possibility that his or her statements, though admittedly defamatory of targeted groups, may have some social utility as part of legitimate public dialogue.
In the overall context of the s. 319(2) offence, it is therefore evident that Parliament has used the reverse onus provision to strike a balance between two legitimate concerns. Requiring the accused to prove on the civil standard that his or her statements are true is an integral part of this balance, and any less onerous burden would severely skew the equilibrium. To include falsity as a component of s. 319(2) for example, or even to require only that the accused raise a reasonable doubt as to the truthfulness of the statements, would excessively compromise the effectiveness of the offence in achieving its purpose. The former option would especially hinder Parliament's objective, for many statements are not susceptible to a true/false categorization. In either instance, however, where a reasonable doubt existed as to the falsity of an accused's statements an acquittal would be entered. To accept such a result it would have to be agreed that this relatively small possibility of truthfulness outweighs the harm caused through the wilful promotion of hatred. Yet to my mind the crucial objective of Parliament in this appeal justifies requiring a more convincing demonstration that a hate-monger's statements may be true, as a successful defence provides an excuse despite the presence of the harm sought to be eradicated (see Rauf, op. cit., at pp. 368-69). Having the accused prove truthfulness on the balance of probabilities is an understandable and valid precaution against too easily justifying such harm, and I hence conclude that the reverse onus provision in s. 319(3)(a) represents a minimal impairment of the presumption of innocence.
As for the final segment of the Oakes proportionality inquiry, I have no difficulty in finding that the importance of preventing the harm caused by hate-promoting expression is not outweighed by Parliament's infringement of s. 11(d) of the Charter. In reaching this conclusion I would refer to the approach taken by this Court in Whyte. There, the accused challenged what is now s. 258(1)(a) of the Criminal Code, which creates the presumption that a person in the driver's seat of a vehicle has care or control of the vehicle for the purposes of the impaired driving provisions. This presumption can only be overcome if the accused proves that he or she occupied the driver's seat for some purpose other than setting the vehicle in motion. In upholding the statutory presumption under s. 1, this Court stated the following regarding the proportionality between the effects of the measure and the objective (at p. 27):
. . . [258(1)(a)] satisfies [the] final element in s. 1 analysis. The threat to public safety posed by drinking and driving has been established by evidence in this case and recognized by this Court in others. While [s. 258(1)(a)] does infringe the right guaranteed by s. 11(d) of the Charter, it does so in the context of a statutory setting which makes it impracticable to require the Crown to prove an intention to drive. The reverse onus provision, in effect, affords a defence to an accused which could not otherwise be made available.
In Whyte, the impugned statutory presumption was found to be justified despite its effect upon the presumption of innocence only after an examination of the history of drinking and driving legislation, and a recognition of both the serious societal danger of drinking and driving and the difficulties associated with requiring the Crown to prove an intention to drive. As already noted, similar factors operate to justify the reverse onus provision challenged in this appeal, in particular the significant importance attached to preventing the harm caused by hate-promoting expression and the fact that the truth defence operates despite the presence of such harm. The infringement of s. 11(d) thus occurs in the context of a statutory and practical setting that makes it unworkable to require the Crown to prove the falsity of the statements in issue, and using the words of Whyte I conclude that the reverse onus provision in s. 319(3)(a), in effect, affords a defence to an accused which could not otherwise be made available.
C. Conclusion Respecting Section 319(3)(a)
In sum, having followed this Court's decision in Whyte in deciding that s. 319(3)(a) infringes s. 11(d) of the Charter, I nonetheless find the impugned provision to be justified under s. 1. The reverse onus found in the truth defence represents the only way in which the defence can be offered while still enabling Parliament to prohibit effectively hate-promoting expression through criminal legislation; to require that the state prove beyond a reasonable doubt the falsity of a statement would excuse much of the harmful expressive activity caught by s. 319(2) despite minimal proof as to its worth. In my opinion, justification for this reverse onus must therefore reside in the fact that it only applies where the Crown has proven beyond a reasonable doubt an intent to promote harm-causing hatred, and in the recognition that excessive deference to the possibility that a statement is true will undermine Parliament's objective.
IX. Conclusion
In so far as its purpose is to prohibit the expression of certain meanings, s. 319(2) of the Criminal Code infringes the guarantee of freedom of expression found in s. 2(b) of the Charter. Given the importance of Parliament's purpose in preventing the dissemination of hate propaganda and the tenuous connection such expression has with s. 2(b) values, however, I have found the narrowly drawn parameters of s. 319(2) to be justifiable under s. 1. Similarly, although the reverse onus provision contained in s. 319(3)(a) conflicts with the s. 11(d) presumption of innocence, it can be seen as a justifiable means of excusing truthful statements without undermining the objective of preventing harm caused by the intentional promotion of hatred.
Having come to these conclusions, I answer the constitutional questions in the following manner:
1.Is s. 281.2(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) an infringement of freedom of expression as guaranteed under s. 2(b) of the Canadian Charter of Rights and Freedoms?
Answer: Yes.
2.If s. 281.2(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) is an infringement of s. 2(b) of the Canadian Charter of Rights and Freedoms, can it be upheld under s. 1 of the Canadian Charter of Rights and Freedoms as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society?
Answer: Yes.
3.Is s. 281.2(3)(a) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) an infringement of the right to be presumed innocent, as guaranteed under s. 11(d) of the Canadian Charter of Rights and Freedoms?
Answer: Yes.
4.If s. 281.2(3)(a) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) is an infringement of s. 11(d) of the Canadian Charter of Rights and Freedoms, can it be upheld under s. 1 of the Canadian Charter of Rights and Freedoms as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society?
Answer: Yes.
I would thus reverse the decision of the Alberta Court of Appeal and allow the appeal. This case should return to the Court of Appeal in order to resolve those issues left unexamined by reason of its decision to strike down the impugned provisions.
//La Forest J.//
The following are the reasons delivered by
LA FOREST J. (dissenting) -- I agree with Justice McLachlin on the issues respecting freedom of expression and I would accordingly dispose of the appeal and answer the first two constitutional questions as she does. I find it unnecessary to consider the issues respecting the right to be presumed innocent and, in consequence, to answer the other constitutional questions.
//McLachlin J.//
The reasons of Sopinka and McLachlin JJ. were delivered by
MCLACHLIN J. (dissenting) --
Introduction
The issue on this appeal is whether ss. 319(2) and 319(3) of the Criminal Code, R.S.C., 1985, c. C-46, creating the offence of unlawfully promoting hatred, should be struck down on the ground that they infringe the guarantees of free expression and the presumption of innocence embodied in the Canadian Charter of Rights and Freedoms.
Mr. Keegstra, a secondary school teacher in Eckville, a small town in Alberta, was convicted of unlawfully promoting hatred under s. 319(2). The evidence established that he had systematically denigrated Jews and Judaism in his classes. He described Jews by such epithets as "revolutionists", "treacherous", "imposters", "communists", "secret", "sneaky", "manipulative", and "deceptive". He taught that the Jewish people are "barbaric", "subversive", "sadistic", "materialistic", "money-loving" and "power hungry". He maintained that anyone Jewish must be evil and that anyone evil must be Jewish. Not only did he maintain these things; he advised the students that they must accept his views as true unless they were able to contradict them. Moreover, he expected his students to regurgitate these notions in essays and examinations. If they did so, they received good marks. If they did not, their marks were poor.
Prior to his trial, Mr. Keegstra had applied to a judge of the Alberta Court of Queen's Bench for an order quashing the charge on the ground that s. 319(2) of the Criminal Code violates the right of freedom of expression guaranteed by the Charter. Quigley J. rejected this contention: (1984), 19 C.C.C. (3d) 254. He regarded the section, not as a limit on freedom of expression, but rather as a safeguard promoting freedom of expression. In his view, "freedom of expression" in s. 2(b) of the Charter does not mean an absolute freedom conferring an unabridged right of speech or expression. He added that if he were wrong in concluding that s. 319(2) did not infringe s. 2(b), he would find that the limit was a reasonable one, demonstrably justified in a free and democratic society within s. 1 of the Charter.
The Court of Appeal, however, reversed this decision, and quashed the conviction entered at trial: (1988), 43 C.C.C. (3d) 150. In its view, s. 319(2) of the Criminal Code violated the Charter in two ways. First, it infringed the presumption of innocence by making the truth of statements promoting hatred a defence, but placing the burden of proving them on the accused. Second, it violated the guarantee of free speech in s. 2(b) of the Charter. The court, per Kerans J.A., held that "imprudent promotion of hatred falls within the definition of freedom of expression" (p. 162) in that section, and that mistakes of fact by speakers -- even by speakers who have no reasonable grounds for the mistake -- are protected under the Charter.
Nor was the violation saved by s. 1 of the Charter, in the opinion of the Court of Appeal. "[T]his rule is overly broad", Kerans J.A. observed, pointing out that the section does not require that anyone actually come to hate a member of the protected group as a result of the promotion of hatred by the offender. He accepted that the spread of hatred against target groups might be justifiably regulated, but found the fact that the law criminalizes mere attempts to do so and leaves no room for the defence of honest mistake precluded its justification as a reasonable measure justified in a democratic society. Nor, in the view of Kerans J.A., did the values of multiculturalism and equality enshrined in the Charter make the limit imposed on free expression by s. 319(2) of the Criminal Code reasonable under s. 1. Section 15 is restricted to government action, while the concern of s. 319(2) is individual expression -- expression protected by s. 2(b) of the Charter. In Kerans J.A.'s view, nothing in the Charter suggests a legally enforceable orthodoxy in matters of expression. On the contrary, our commitment to the marketplace of ideas precludes us from presuming that those who promote hatred will be successful in fomenting it among the majority of Canadians. Moreover, freedom of expression is an individual liberty of such importance that it can be overridden only by an extraordinarily weighty public goal. In the end the Court of Appeal held that the Charter protected even imprudent promotion of hatred, up to the point where it actually caused listeners to hate target groups.
The Crown appeals to this Court.
Statutory Provisions
The respondent was charged under s. 319(2) of the Criminal Code, which provides: