[1990] 3 SCR 697
R. V. Keegstra - SCC cases. (n.d.). https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/695/index.do
By: Dwija Bhatt
Facts
The essential and relevant facts of the case revolve around the legal dispute regarding the constitutionality of sections 319(2) and 319(3)(a) of the Criminal Code, which limits freedom of expression. The dispute arose from the prosecution of Mr. Keegstra under section 319(2) for promoting hatred against an identifiable group and the requirement under section 319(3)(a) for the accused to prove the truth of the statements in order to avoid conviction. The fundamental details the court finds important in making its decision include the balancing of conflicting values, such as freedom of expression, individual dignity, and social harmony. The court also emphasizes the significance of the infringement on freedom of expression represented by the law, the importance of the countervailing objectives, and the proportionality of the scope of the law to those objectives. The court also highlights the violation of the presumption of innocence under section 11(d) of the Charter, as well as the need to assess whether the limitations on freedom of expression are reasonable and justified in a free and democratic society under section 1 of the Charter.
Procedural posture
The case involved Mr. Keegstra, who was accused of promoting hatred against an identifiable group by making anti-Semitic statements to his students. He was initially tried and convicted by a jury in the Court of Queen's Bench of Alberta. Mr. Keegstra then appealed his conviction to the Alberta Court of Appeal, raising Charter issues related to freedom of expression and the presumption of innocence. The Court of Appeal unanimously accepted his argument, leading to the Crown's appeal of the decision. The reasons for the appeal were to contest the findings related to the Charter issues and to seek a different outcome in the case. Ultimately, the appeal was allowed by the Supreme Court of Canada, with three judges dissenting.
Issue
The specific question or legal issue that the appellate court is tasked with answering, in this case, is whether sections 319(2) and 319(3) of the Criminal Code, creating the offense 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.
The central point of contention that needs resolution is whether the criminal prohibition of wilfully promoting hatred, as outlined in section 319(2) of the Criminal Code, infringes upon the guarantee of freedom of expression, as protected by section 2(b) of the Charter of Rights and Freedoms. The issue at hand involves balancing the importance of maintaining social harmony and individual dignity by suppressing hate propaganda against the fundamental value of freedom of expression in a free and democratic society. The resolution of this contention requires a thorough analysis of the significance of the limitation on freedom of expression, the gravity of the infringement, and the proportionality of the restriction in relation to the objective of suppressing hate propaganda.
Rule applied
The legal rule or principle that the appellate court decides to use in reaching its decision is the test set out in R. v. Oakes, which provides a guide for the analysis under section 1 of the Charter of Rights and Freedoms. This test involves balancing conflicting values in the context of the case at hand, weighing the significance of the infringement on freedom of expression represented by the law in question against the importance of the countervailing objectives, the likelihood the law will achieve those objectives, and the proportionality of the scope of the law to those objectives. The court interprets and applies this rule by considering the significance of the infringement of the constitutionally guaranteed freedom of expression in the particular case and assessing whether the limitation on freedom of expression created by the law invokes the values of fostering a vibrant and creative society through the marketplace of ideas, and the vigorous and open debate essential to democratic government and preservation of rights and freedoms.
Holding
The court's final decision is that section 319(2) of the Criminal Code constitutes an infringement of the Charter guarantee of freedom of expression. The court then examines whether such an infringement is justifiable under section 1 as a reasonable limit in a free and democratic society. The court resolves the legal issue by applying a two-step analysis to determine if the limit on freedom of expression can be demonstrably justified in a free and democratic society. The court emphasizes the importance of balancing conflicting values and considers the significance of the infringement of constitutionally guaranteed freedom in the specific context of the case. Ultimately, the court concludes that the limitation on freedom of expression created by section 319(2) of the Criminal Code invokes all the values upon which section 2(b) of the Charter rests. Therefore, the infringement is not justifiable as a reasonable limit in a free and democratic society.
Reasoning
The court arrives at its holding by conducting a thorough analysis of the specific case at hand, taking into consideration the conflicting values and interests involved. The court employs a contextual approach, weighing the significance of the infringement on freedom of expression represented by the law in question against the importance of the countervailing objectives, the likelihood the law will achieve those objectives, and the proportionality of the scope of the law to those objectives. The court also references the Oakes test, which sets out the conditions that must be satisfied for a law limiting constitutionally guaranteed rights and freedoms to be sustained. The court emphasizes the need for a flexible and sensitive approach, recognizing the importance of factual circumstances in shaping its view of the right or freedom at stake and the limit proposed by the state. Ultimately, the court's thought process involves balancing the competing values and interests to arrive at a fair compromise under section 1 of the Charter.
Result
The court affirms the lower court's decision in this case. The court's decision implies that the statutory limitation on freedom of expression, as outlined in section 319(2) of the Criminal Code, is upheld. The court finds that the restriction is justified in the context of preventing harm caused by hate-promoting expression and that the reverse onus provision in the statute provides a defense to the accused that could not otherwise be made available. This decision has significant implications for the parties involved, as it sets a precedent for the balancing of conflicting values in the context of freedom of expression and establishes the importance of preventing harm caused by hate-promoting expression.
Concurrences and dissents
In the case of R. v. Keegstra, the Alberta Court of Appeal unanimously found that the Charter had been violated in two instances. First, they ruled that the reverse onus placed upon an accused by the defense of truth in s. 319(3)(a) violated the presumption of innocence protected in s. 11(d). Second, they found that s. 319(2) extended beyond knowingly false communications, covering all falsehoods, including those innocently and negligently made, which violated the freedom of expression protected under s. 2(b). Other judges on the appellate court expressed no separate opinions, and the points of agreement were that the Charter had been violated in both instances.
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