R. v. Keegstra
Encyclopedia
R. v. Keegstra, [1990] 3 S.C.R. 697 is a landmark freedom of expression decision of the Supreme Court of Canada
where the Court upheld the Criminal Code of Canada
provision prohibiting the wilful promotion of hatred against an identifiable group as constitutional under the freedom of expression provision in section 2(b)
of the Canadian Charter of Rights and Freedoms
. It is a companion case to R. v. Andrews
.
was a high school teacher in Eckville, Alberta
. In 1984, he was charged under section 281.2(2) of the Criminal Code [now 319(2)] "Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group")http://laws.justice.gc.ca/eng/C-46/page-6.html#anchorbo-ga:l_VIII-gb:s_318 for "promoting hatred against an identifiable group by communicating anti-semitic statements to his students". During class, he would describe Jews
as a people of profound evil who had "created the Holocaust to gain sympathy." As well, he tested his students in exams on his theories and opinion of Jews.
Keegstra had applied to have the charge quashed for violation of his freedom of expression; however, this motion was denied and he was eventually convicted at trial.
The issue before the Supreme Court was whether sections 319(2) and 319(3)(a) of the Criminal Code violated section 2(b) and section 11(d)of the Charter and, if so, whether it could be saved under section 1
.
(equality rights) and section 27
(recognition of multiculturalism) of the Charter. As the Court explained, using sections 15 and 27 in this way would contradict "the large and liberal interpretation given the freedom of expression in Irwin Toy
" and moreover, "s. 1 of the Charter is especially well suited to the task of balancing."
The Court found that the violation of freedom of expression was justified under section 1 as the law had a rational connection to its objective, it was not overly limiting, and the seriousness of the violation was not severe as the content of the hateful expression has little value to protect.
cases. In R. v. Butler
(1992), a case considering laws against obscenity, the Supreme Court cited Keegstra to note that freedom of expression should be interpreted generously and was infringed in that case. In another hate speech case, R. v. Krymowski
(2005), the Court noted that Keegstra had demonstrated hate speech laws were constitutional. Building on expectations that there must be evidence of promotion of hatred against a group, the Court added in Krymowski that courts should then consider the "totality of the evidence" to conclude whether a group had fallen victim to hate speech.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
where the Court upheld the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
provision prohibiting the wilful promotion of hatred against an identifiable group as constitutional under the freedom of expression provision in section 2(b)
Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. It is a companion case to R. v. Andrews
R. v. Andrews
R. v. Andrews, [1990] 3 S.C.R. 870 is a leading decision of the Supreme Court of Canada on the freedom of expression under section 2 of the Canadian Charter of Rights and Freedoms. It is a companion case to R. v. Keegstra...
.
Background
James KeegstraJames Keegstra
James "Jim" Keegstra is a former public school teacher in Eckville, Alberta, Canada, who was charged and convicted of hate speech in 1984. The conviction was overturned by the Court of Appeal but re-instated by the Supreme Court of Canada...
was a high school teacher in Eckville, Alberta
Eckville, Alberta
Eckville is a town in central Alberta, Canada. It is located west of Red Deer on Highway 766 just north of Highway 11.- History :Eckville gets its name from the founder Arthur E.T. Eckford, the landowner of the original Eckville. Eckville relocated to its current location in 1912, after the...
. In 1984, he was charged under section 281.2(2) of the Criminal Code [now 319(2)] "Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group")http://laws.justice.gc.ca/eng/C-46/page-6.html#anchorbo-ga:l_VIII-gb:s_318 for "promoting hatred against an identifiable group by communicating anti-semitic statements to his students". During class, he would describe Jews
Jews
The Jews , also known as the Jewish people, are a nation and ethnoreligious group originating in the Israelites or Hebrews of the Ancient Near East. The Jewish ethnicity, nationality, and religion are strongly interrelated, as Judaism is the traditional faith of the Jewish nation...
as a people of profound evil who had "created the Holocaust to gain sympathy." As well, he tested his students in exams on his theories and opinion of Jews.
Keegstra had applied to have the charge quashed for violation of his freedom of expression; however, this motion was denied and he was eventually convicted at trial.
The issue before the Supreme Court was whether sections 319(2) and 319(3)(a) of the Criminal Code violated section 2(b) and section 11(d)of the Charter and, if so, whether it could be saved under section 1
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
.
Reasons of the court
The Court found that section 319 clearly violated section 2(b) as it was legislation designed to suppress expression. In this, the Court wrote that freedom of expression within section 2 would not be limited by section 15Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
(equality rights) and section 27
Section Twenty-seven of the Canadian Charter of Rights and Freedoms
Section Twenty-seven of the Canadian Charter of Rights and Freedoms is a section of the Charter that, as part of a range of provisions within the section 25 to section 31 bloc, helps determine how rights in other sections of the Charter should be interpreted and applied by the courts...
(recognition of multiculturalism) of the Charter. As the Court explained, using sections 15 and 27 in this way would contradict "the large and liberal interpretation given the freedom of expression in Irwin Toy
Irwin Toy Ltd. v. Quebec (Attorney General)
Irwin Toy Ltd. v. Quebec , [1989] 1 S.C.R. 927 is a landmark Supreme Court of Canada decision on freedom of expression in section 2 of the Canadian Charter of Rights and Freedoms...
" and moreover, "s. 1 of the Charter is especially well suited to the task of balancing."
The Court found that the violation of freedom of expression was justified under section 1 as the law had a rational connection to its objective, it was not overly limiting, and the seriousness of the violation was not severe as the content of the hateful expression has little value to protect.
Aftermath
The case provided precedent for other freedom of expression and hate speechHate speech
Hate speech is, outside the law, any communication that disparages a person or a group on the basis of some characteristic such as race, color, ethnicity, gender, sexual orientation, nationality, religion, or other characteristic....
cases. In R. v. Butler
R. v. Butler
R. v. Butler, [1992] 1 S.C.R. 452 is a leading Supreme Court of Canada decision on pornography and state censorship. In this case, the Court had to balance the right to freedom of expression under section 2 of the Canadian Charter of Rights and Freedoms with women's rights; the outcome has been...
(1992), a case considering laws against obscenity, the Supreme Court cited Keegstra to note that freedom of expression should be interpreted generously and was infringed in that case. In another hate speech case, R. v. Krymowski
R. v. Krymowski
R. v. Krymowski [2005] 1 S.C.R. 101 was a decision by the Supreme Court of Canada on hate speech against the Roma people, also known as "Gypsies."-Background:...
(2005), the Court noted that Keegstra had demonstrated hate speech laws were constitutional. Building on expectations that there must be evidence of promotion of hatred against a group, the Court added in Krymowski that courts should then consider the "totality of the evidence" to conclude whether a group had fallen victim to hate speech.