James Keegstra, an Alberta teacher in 1968 became a follower of anti-Jewish conspiracies and holocaust denial theories in 1970 and began teaching his ideas in his social studies class to his students. In his lessons he preached anti-Jewish ideas and presented disturbing, malicious thoughts about Jewish people, describing them to be sadistic, power-hungry, child killers that desired to destroy Christianity and employ depression, anarchy and chaos onto the world. Along with preach antisemitism to his class, Keegstra also taught the view that the Holocaust did not really happen, that it was a lie created by Jewish people to gain sympathy (140, Greene, 2014). Keegstra’s teachings and beliefs went so far that he expected his students to replicate his teachings back to him in class discussions, examinations and assignments and threatened them with failure if they did not. Keegstra and his teachings came to the attention of a students mother in 1982 and were reported to the school board, as a result, the school board ruled Keegstra needed to follow provincial curriculum and ordered his compliance with the rule. Keegstra, believing he was in compliance with the set curriculum continued teaching his own beliefs on Jewish people and the Holocaust until his removal from his teaching position. In 1988 Keegstra was charged under s. 319(2) of the Canadian Criminal Code with, “willfully promoting hatred against an identifiable group by communicating anti-anti-Semitic statements to his students” (140, Greene, 2014). Keegstra was convicted in 1984 and given a one-year suspended sentence, one-year probation and two hundred hours of community service. In June of 1988, Keegstra appealed his charges under the grounds that s. 319(2) was unconstitutional and went against s.2(b) of the Canadian Charter of Rights and Freedoms, the Supreme Court overturned his conviction on those grounds. The Crown appealed this ruling, resulting in a debate and the Supreme Court Ruling that s. 319(2) was a reasonable limit to s. 2(b) of the Charter:
The court held that while s. 319(2) abridged the right of free expression as guaranteed by s. 2(b) of the Charter, it nevertheless was justifiable under s.1 as one of those reasonable limits prescribed by law as can be reasonably demonstrably justified in a free and democratic society. In short, the Court decided that while s. 319(2) violated the free expression right, it did so constitutionally. (837, Heinrichs, 1998)
Keegstra's conviction was upheld in Court with the knowledge that while his s. 2(b) right was violated by s. 319(2) of the Canadian Criminal Code, it was done so justifiably.
Keegstra’s case is complex and to understand its rulings and implications we must examine the steps taken by the Court to reach its ruling. The promotion of hate speech and propaganda is a criminal and punishable offence under the Canadian Criminal Code, which presents a conflict with s. 2(b) of the Charter of Rights and Freedoms and its guarantee of fundamental freedoms. R. V. Keegstra highlights the communicative and interpretive challenges faced by the subjective and conflicting language of the Canadian Charter of Rights and Freedoms. The importance of the Keegstra case are the issues that present themselves in the connection of hate speech to ones right of free speech, how the courts decided whether or not a law is constitutionally sound and aligned with the provisions of the Canadian Charter and whether the Government should control what limits can be placed on fundamental freedoms. The Keegstra case illustrates the question of how Courts determine the validity of claims about violations of Charter freedoms and help to answer the question of how far should limitations on Charter freedoms go?
To study the ruling in the Keegstra case and its shortcomings, we first must define and understand four terms, the Canadian Charter of Rights and Freedoms, s. 2(b) of the Canadian Charter of Rights and Freedoms, 319(2) of the Canadian Criminal Code and hate speech. The Canadian Charter of Rights and Freedoms is embedded within the Canadian Constitution and guarantees the rights and freedoms of Canadians and persons within Canada (Constitution Act 1982). It serves to protect the rights of Canadian citizens and others within Canada from the Government and entrances these rights within the Canadian Constitution and therefore Canadian society. Within the Charter are the Fundamental Freedoms and within the Fundamental Freedoms is s. 2(b) which covers “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication” (Constitution Act 1982). The Charters inclusion of freedom of expression does not work to safeguard things such as threats, obscenities harassment. 319(2) can be found in the Canadian Criminal Code and it covers the “willful promotion of hatred” and states “ Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of..” (Criminal Code 1985). Hate speech can be defined as “speech that attacks (and is intended to attack) targets because of race, ethnicity, gender, sexuality, religion and so on, and which conveys intense feelings of antipathy” (Seglow, 2016). Hate speech can be targeted to an individual or a group and can foster feelings of resentment and aggression towards a group or an individual.
Keegstra’s case was reviewed and decided on by a 7-judge panel. Minority judges of this panel held that s. 319(2) of the Canadian Criminal Code infringed on s. 2(b) of the Canadian Charter of Rights and Freedoms and allowed for a high level of control. Justice McLachlin argued that the law did not and could not pass a rational connection test as the law's goal of protecting freedom of expression undermined the ability to have freedom of expression. The minority believed the objective of the legislation to protect from hateful propaganda was an important one and hate speech was not to be promoted or protected, disagreed on s. 319(2) being a reasonable means of securing protection. The minority argued that criminalizing the promotion of hate speech showed no evidence of suppressing it and its criminalization may serve to simply incite more of it, due to publicity and exposure when cases like that of Keegstra arose, and s. 319(2) was too broad and could cover more than could be justified (629, Elman, 1994). McLachlin uses three-ways of thinking to justify the infringement s. 319(2) possess.
First, the Charter protects expression in a way to safeguard the institutions of democracy and to create open debate against state subversion of other rights and freedoms. Second, the rationale of protecting freedom of expression with the idea that the collection of ideas will come to value truths over non-truths, is a failure, as the truth remains an ambiguous concept and the failure of the maintenance of such a collective has led to high social costs in the past. Third, the freedom of expression promotes self-fulfilment of the individual and questions whether a commitment to the self-realization of the speaker and the listener is amply focused to ground constitutional principles, leading to wonder why the Charter should privilege expression without favouring other self-self-fulfilling activities (1434-35, Weinrib, 1991).
The minority did not see s. 319(2) as passing the Oakes test as McLachlin argues its objective could have an opposite effect by leading to the promotion of hate speech, therefore it had no real rational connection to its objective. 319(2) was too broad and had the potential to punish not only the incitement of hate but the potential to encourage others to do so, and the belief that 319(2) did more harm than good as limitations of freedom of expression by 319(2) invokes all principles that 2(b) rest upon (144, Greene, 2014). McLachlin promotes the view that the highest goal of the Charter is its promotion of democracy by correlating to Canadian Constitutionalism and freedom of expression and speech have long enjoyed a “quasi-constitutional status” (1438, Weinrib, 1991). 319(2) is argued by the minority to go beyond its intended purpose and has the potential to do more harm than good. The minority judges hold that 319(2) is too broad and too vague in its application and cannot hold up in the Oakes test, therefore 319(2) not only infringes upon the rights of s. 2(b) of the Canadian Charter of Rights and Freedoms, but cannot be constitutionally upheld.
The majority judges held that freedom of expression did not include the right to publicly preach hate or enforce it as truth, and that s. 319(2) of the Canadian Criminal Code presented only a minor infringement on that right that was constitutional as it benefited the greater good of Canadian society. Chief Justice Dickson argued that s. 319(2) of the Criminal Code did not violate s. 2(b) of the Charter as hate speech could not be argued as a value of free speech. By examining the underlying goals of the freedom of speech provision of the Charter, it was determined that the values of freedom of speech were to find and promote the truth and to promote diversity within the form of individualism. Dickson stated “the connection between freedom of expression and the political process…such open participation must involve the notion that all persons are equally deserving of respect and dignity” and due to the issue that hate speech undermines the democratic process and fosters a sense of disrespect based on race and religion, it is not able to be protected under the guise of freedom of expression (140, Greene, 2014). As the purpose of s. 319(2) is to protect from targeting specific members of groups and promote balanced and respectful social interaction, it aligned with the purpose if s. 2(b) of the Charter. Dickson used a three-way argument to justify s. 319(2) and to counter the arguments of the minority judges.
First, there was a rational connection between the legislation and its application and its heavy media attention and push into the public eye worked to expose the lies of hate speech, therefore would not work to promote it but rather to counter it. Second, the elimination of hate speech was beneficial to society as it imposed dignity onto society and highlighted the values of a free and democratic society. Third, the rise of Nazism in Germany and anti-Jewish sentiment could not be solely blamed on the failure of anti-hate speech laws in Germany at the time. (142, Greene, 2014).
Dickson further went on to argue against the idea that s. 319(2) of the Criminal Code was a violation s. 2(b) of the Charter, as s. 319(2) did not prevent hate speech completely, just its ability to be publicly spread, covered only hate propaganda against recognizable groups and does not prevent hateful emotions on groups, only those emotions of degradation or hatred. The Canadian Criminal Code also provides a number of defences for the use of hate speech, therefore s. 319(2) created only a minor restriction on freedom of expression but does not go so far as to remove rights completely. The majority retained the advantages of the prohibition of racism outweighed any harmful results and the argument that hate speech is only subtly related to the values that underlie freedom of expression, thus the majority upheld the constitutional validity of s. 319(2) of the Criminal Code in relation to s. 2(b) of the Charter ( 629, Elman, 1994).
Both the minority and majority judges agreed the objectives of 319(2) of the Canadian Criminal Code were important but different in the belief on what constituted an infringement on s. 2(b) of the Charters rights. The majority won by one vote and Keegstra’s conviction was upheld as it was ruled that s. 319(2) did not infringe on s. 2(b) rights, it simply applied a reasonable limit to freedom of expression to protect society. The case decision had the impact in providing the view that freedom of expression should be understood and explained broadly, and while expression was protected it was also reasonably limited. The Keegstra case ruling was successful in providing an outlined structure to follow and base future case decisions on, such as the Zundel case, it failed in providing a concrete structure of what truly constituted a reasonable infringement of s. 2(b) of the Charter. 319(2) objectives are the protection of morality within society, and while it was upheld, the strength of its support for its constitutional validity can be seen as weak (620, Elman, 1994). While fundamental freedoms such as s. 2(b) of the Canadian Charter of Rights and Freedoms are guaranteed, they are subjective to reasonable limits within the framework of Canadian law as justifiable by the Oakes test and dissection of the law in question.