Hate Promotion in a Free and Democratic Society:
R. v. Keegstra
Lorraine Eisenstat Weinrib*
Where s. 1 operates to accentuate a uniquely Canadian vision of a free and dem-
ocratic society…we must not hesitate to depart from the path taken in the United
States.’
[T]he provisions of the Charter, though drawing on a political and social philos-
ophy shared with other democratic societies, are uniquely Canadian.2
Introduction
R. v. Keegstra3 deals with an issue fundamental to a free and democratic
society: is hate propaganda constitutionally protected?
Mr. Keegstra was a secondary school teacher who used his classroom to
inculcate anti-semitism. He taught that Jews were personally odious (“sadistic,”
“manipulative,” “deceptive,” “money-loving,” “child killers,” “inherently
evil”)4 and politically dangerous (“treacherous,” “subversive,” “power hungry,”
“revolutionists,” “communists”).5 He faulted them for attempting to destroy
Christianity through a variety of world calamities, including “depressions,
anarchy, chaos, wars and revolution.”6 Students could obtain good marks by
regurgitating this mesh of anti-semitic myth and diatribe, poor marks for doing
otherwise.7
Mr. Keegstra was prosecuted for promoting hatred contrary to s. 319(2)
of the Criminal Code.’ As is evident from the debate which preceded its adop-
* Of the Faculty of Law, University of Toronto.
McGill Law Journal 1991
Revue de droit de McGill
1R. v. Keegstra, [1990] 3 S.C.R. 697, [1991] 2 W.W.R. 1 at 40 (S.C.C.), Dickson C.J. [hereinafter
Keegstra cited to W.W.R.].
21bid. at 112, McLachlin J. (dissenting).
31bid.
41bid. at 17, Dickson C.J., and at 81, McLachlin J.
5lbid.
61bid. at 17.
71bid. at 81. The factum submitted to the Supreme Court on his behalf gives a chilling sense of
Mr. Keegstra’s Christian crusade against “evil.”
8S. 319 of the Criminal Code, R.S.C. 1985, c. C-46 [hereinafter s. 319], provides as follows:
(2) Everyone who, by communicating statements, other than … in private con-
versation, wilfully promotes hatred against any identifiable group is guilty of
1991]
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tion and the numerous studies that have deliberated upon its retention, this
section is complex and controversial. Its many twists and turns reflect the
tension between Canada’s national commitment to freedom of expression
and our awareness of the corrosive effects of racial, religious and ethnic
hatred.
In a 4-3 decision, the Supreme Court of Canada upheld the constitutional-
ity of s. 319(2). The majority and the dissent agreed that the section infringed
s. 2(b) of the Charter,9 but disagreed as to whether the provision could be saved
by s. 1. The two judgments canvass many issues of both substance and method.
What kinds of expression should be protected by the Charter? On what basis
can the state abridge expression? How should a court of law determine
the scope of a constitutionally protected right? And behind these specific
questions lies a puzzle about the place of the Charter in the corpus of rights-
protecting documents. Is the Charter modelled on the text and jurisprudence
of the American Bill of Rights, ” or on the international commitment
to human rights that arose in response to the experience of the Second World
War?
(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 argu-
ment an opinion upon a religious subject;
(c) if the statements were relevant to a 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 with-
out the consent of the Attorney General.
(7) In this section,
“communicating” includes communicating by telephone, broadcasting or other
audible or visible means;
“identifiable group” [incorporated from s. 318] means any section of the public
distinguished by colour, race, religion or ethnic origin …
“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.
B of the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].
9Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule
10U.S. Const., amend I.
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[Vol. 36
While both the majority and the dissent in Keegstra find the guarantee of
freedom of expression in s. 2(b)” of the Charter to be infringed by s. 319(2),
the mode of analysis in the two opinions differs dramatically. Resting its discus-
sion on doctrinal precedent, the majority comes to the conclusion that s. 2(b)
brooks no content-based restrictions; the dissent reads the right to freedom of
expression as a prerequisite to an open, democratic and progressive polity. The
respective s. 1 analyses reflect even more profound disagreement. The majority
understands s. 1 analysis as normative, forwarding the Charter’s promise of a
free and democratic society imbued with the public values of equal respect for
all individuals. The dissent, in contrast, takes an empirical approach, insisting
upon proof of the effectiveness of s. 319(2) to eradicate the evil it was enacted
to address without chilling expressive activity beyond its actual reach.
I. The Majority Judgment
The majority judgment, written by Chief Justice Dickson (Wilson,
L’Heureux-Dub6 and Gonthier JJ. concurring), follows the two-stage analysis
now standard to Charter cases. The first stage focuses on the scope of the right
and the fact of its infringement; the second seeks to ascertain whether the
infringement constitutes a justified limitation under s. 1. The two stages of the
majority opinion in Keegstra differ remarkably in tone and technique. The first
part of Dickson C.J.C.’s reasons for judgment relies mechanically and superfi-
cially on recent precedent. Only the second part exhibits the now familiar and
welcome characteristics of the Chief Justice’s other leading Charter judgments:
detailed, well-researched and sensitive presentations of the history and policy
underlying both the Charter and the impugned legal rules; a deep concern for
those whose lives are marked by disadvantage or discrimination; and an aware-
ness that the Charter is a testament to Canada’s commitment to the values
underlying the family of post-war rights-protecting instruments.
A. The Scope of Freedom of Expression
The first issue addressed by the Chief Justice is whether the public, wilful
promotion of hatred, proscribed by s. 319(2) of the Criminal Code, is expression
protected under the guarantee set out in s. 2(b) of the Charter. The majority
answers this question in the affirmative, relying on the Court’s determination in
a previous case that the guarantee of freedom of expression in the Charter
embraces “all content … irrespective of the particular meaning or message
“S. 2(b) of the Charter.
Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of
the press and other media of communication …
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CHRONIQUE DE JURISPRUDENCE
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sought to be conveyed.”‘2 The only relevant exception to the otherwise compre-
hensive constitutional protection of communicated meaning is for expression
communicated directly through physical harm. 3 Hate promotion does not fall
under this exception. It is criminalized for the repugnancy of its meaning, not
because any direct physical harm is consequent on its utterance. With meaning,
therefore, comes constitutional protection.
The Chief Justice’s view that the guarantee of freedom of expression pro-
tects all communicated meaning that lacks violent form is a function of his com-
prehensive approach to the rationales for the protection of freedom of expres-
sion. Citing previous case law,’4 Dickson C.J. sets out these values as: (1) the
protection of the “inherently good activity” of “seeking and attaining truth”; (2)
the fostering and encouragement of “participation in social and political
decision-making;” and (3) the cultivation of “diversity in forms of individual
self-fulfilment and human flourishing” in a society that is “tolerant and welcom-
ing,” so as to benefit speaker and listener alike.’ 5
Despite the broad range of the values he advances as underlying the guar-
antee of freedom of expression, Dickson C.J.’s conception of the right is surpris-
ingly dessicated. These stated values play only a perfunctory role in his eluci-
dation of that right in the general sense, and no role in the specific context of
the wilful promotion of hatred. In his discussion of the scope of the guarantee,
the Chief Justice considers neither the plausibility of the three rationales he has
enumerated, nor their inter-relationship, nor the degree to which the propagation
of hatred instantiates them, nor the extent to which the specific text of s. 319(2)
and (3) conforms to them. Only when he reaches the second stage of Charter
analysis, and comes to consider the justification for the impugned provision,
does he acknowledge that the three rationales are in tension with one another,
that their formulation derives from ajurisprudence that is marginal to our own, 6
“2Supra, note 1 at 29, referring to Reference re ss 193 and 195.1(1)(c) of the Criminal Code of
Canada (Man.), [1990] 1 S.C.R. 1123 at 1181, 4 W.W.R. 481.
131nvin Toy v. A.G. Quebec, [1989] 1 S.C.R. 927, 58 D.L.R. (4th) 577 at 607 & 614 [hereinafter
Inviz Toy cited to D.L.R.] formulated this exception. In Keegstra, ibid. at 31-32, Dickson C.J. dif-
ferentiates the idea of physical harm from mere threats, which are content specific and thus pro-
tected by s. 2(b): “threats of violence can only be … classified by reference to the content of their
meaning. As such, they do not fall within the exception …” The violent form exception would
exclude, e.g., acts of murder or rape that carry a communicative message. See, infra, note 89, for
McLachlin J.’s view that threats are not protected expression.
14 1Invin Toy, ibid. at 612.
15Supra, note 1 at 28.
‘6 rhe majority, in its s. 1 discussion, takes the view that the Charter is sufficiently different from
the American mode of rights protection to warrant different results in similar cases. See Reference
Re S. 94(2) of tire Motor Vehicle Act, [1985] 1 W.W.R. 481, 24 D.L.R. (4th) 536 [hereinafter B.C.
Motor Vehicle], where Lamer J. (as he then was) stated:
We would, in my view, do our own Constitution a disservice to simply allow the Amer-
ican debate to define the issue for us, all the while ignoring the truly fundamental struc-
tural differences between the two constitutions.
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(Vol. 36
that the argument based on democratic process cuts both ways,”7 and that the
truth-seeking rationale is no longer credible.’ Only then, also, does he demon-
strate how the careful drafting of s. 319(2) and (3) of the Criminal Code respects
the values for which freedom of expression is protected. Like Penelope fore-
stalling her suitors, the Chief Justice weaves and then unravels before our eyes
the right to propagate hatred.
Dickson C.J.’s broad-brush approach to the delineation of the right to free-
dom of expression precludes careful examination of the relationship between
s. 2(b) and other Charter provisions. Thus, although the Chief Justice concludes
that the guarantee in s. 2(b) protects the wilful promotion of hatred against iden-
tifiable groups “distinguished by colour, race, religion or ethnic origin”
(s. 319(2)), he does not relate that designation of identifiable groups to the
Charter proscription against state discrimination in s. 15, on grounds that
include colour, race, religion and ethnic origin. 9 Moreover, he denies s. 27 of
the Charter any role in delineating the scope of s. 2(b), even though this section
mandates an interpretation of Charter rights that is favourable to our multicul-
tural heritage –
of
Canadians.’
and hence the colour, race, religion and ethnic origin –
Similarly, the Chief Justice refuses to consider in the first stage of his
analysis the international agreements on rights-protection to which Canada is a
17Democracy can be used to support an argument both for and against regulation of expression.
Some would argue that democracy can flourish only if expression is unchecked. Others would
argue that democracy can function properly only when the state regulates to eliminate excesses and
manipulation. See O.M. Fiss, “Free Speech and Social Structure” (1986) 71 Iowa L. Rev. 1405 and
“Why the State?” (1986) 100 Harvard L. Rev. 781.
‘8The Chief Justice does note in Keegstra, supra, note 1 at 28, perhaps critically, that Irvin Toy,
“perhaps goes further towards stressing as primary the ‘democratic commitment”‘. He appears to
prefer the formulation that s. 2(b) protects more than political expression in service of democracy,
because “it serves individual and societal values in a free and democratic society.” For a discussion
of the conceptual difficulties posed by these rationales for protecting expression, see L.E. Weinrib,
“Does Money Talk? Commercial Expression in the Canadian Constitutional Context” in D. Sch-
neiderman, ed., Freedom of Expression and the Charter (Toronto: Carswell, 1991) [hereinafter
“Does Money Talk?”].
19S. 15 of the Charter provides:
(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 par-
ticular, without discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its
objective the amelioration of conditions of disadvantaged individuals or groups
including those that are disadvantaged because of race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
20S. 27 of the Charter provides:
This Charter shall be interpreted in a manner consistent with the preservation and
enhancement of the multicultural heritage of Canadians.
1991]
CASE COMMENTS
1421
signatory. To do so in the course of articulating the Charter right, he contends,
would diminish the large and liberal interpretation made possible by s. 1 balanc-
ing. He therefore relegates consideration of these instruments to the second
stage of his analysis, that of “weighing of contextual values” 21 to set limits on
protected rights.
According to the majority judgment, then, the first stage of Charter adju-
dication excludes textual, contextual and comparative analysis. The Court is to
read the values underlying the right or freedom as expansively as possible, leav-
ing aside any consideration of the currency or mutual consistency of these val-
ues, the broader significance of the Charter text and its interpretive provisions,
as well as the interpretive resources provided by similar systems of rights pro-
tection elsewhere in the world. This, says the Chief Justice, is the “large and lib-
eral interpretation”‘ of Charter rights.
While this approach may be “large and liberal,” it is certainly not the “pur-
posive” approach as originally articulated in R. v. Big M Drug Mart.’ Far from
directing the Court to raise values at the initial stage of Charter analysis that
turn out to be irrelevant at the justification stage, or to ignore the rest of the
Charter text or other rights-protecting documents simply because s. 1 offers the
Court a second bite, the purposive approach allowed for reference to:
the character and the larger objects of the Charter itself, to the language chosen
to articulate the specific right or freedom, to the historical origins of the concepts
enshrined, and where applicable, to the meaning and purpose of the other specific
rights and freedoms, with which it is associated within the text of the Charter. The
interpretation should be … a generous rather than a legalistic one, aimed at fulfil-
ling the purpose of the guarantee and securing for individuals the full benefit of
the Charter’s protection. [In order not to overshoot the purpose of the right or free-
dom, the Charter must] be placed in its proper linguistic, philosophic and histor-
ical contexts. 24
Compared to the formulation in Big M, the Chief Justice in Keegstra takes an
extremely narrow view of the values that are relevant to the characterization of
the scope of freedom of expression.
On the basis of the purposive approach dictated in Big M, a court might
still have reached the Chief Justice’s conclusion that wilful promotion of hatred
is protected by s. 2(b) of the Charter, but in so doing, it would have taken into
21Supra, note I at 32.
221bid.
23[19851 1 S.C.R. 295, 18 D.L.R. (4th) 321 [hereinafter Big M or Big M Dng Mart cited to
S.C.R.]. P.W. Hogg, “Interpreting the Charter of Rights: Generosity and Justification” (1990) 28
Osgoode Hall L.J. 817 also makes the distinction between a broad or generous approach to inter-
preting the scope of a right and an approach tied to its underlying purposes. D. Beatty, “A Con-
servative Court: The Politicization of Law” (1991) 41 U.T.L.J. 147 traces the development of the
case law on rights and limits.
24Big M, ibid. at 344.
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account the following factors. First, the Big M formulation encourages consid-
eration of the language chosen to articulate the s. 2(b) guarantee. The Charter,
like the international instruments, employs the word “expression,” rather than
the word “speech,” which appears in the First Amendment to the United States’
Bill of Rights. The Charter’s departure from the American terminology, twinned
with the provision in s. 1 of an express limitation clause under which the state
bears the burden of persuasion, gives s. 2(b) a particular significance. “Expres-
sion” connotes emotive behaviour rather than rational discourse. It focuses on
the interests of the speaker, leaving the interests of the audience or of other
affected parties to be considered under the expressly provided limitation clause,
which directs justification to the demands of a free and democratic society.
Second, Big M directs the Court to examine critically the historical origins
of the concepts enshrined in the Charter. Historically, politically and socially,
international rights-protecting documents are more relevant to the Canadian
experience than is the American one. Much of the American commitment to
unrestrained freedom of speech was developed in the course of and in the ex
post legitimation of a revolution, which had been fomented by public speeches,
letter writing and pamphleteering. This background explains the republican
ideal of a sovereign, homogeneous people creating and sustaining self-
government, which continues to inform speech rights in the United States.’
Moreover, the precise ideas underlying the rationales for freedom of expression,
as developed in this century, remain matters of contention. For example, does
the free trade in ideas stand for a truth-seeking enterprise, libertarian ideals,
autonomy, self-fulfilment or individual dignity?26
The American background should not provide an unexamined paradigm
for the development of freedom of expression in Canadian constitutional law.
On the contrary, it should highlight the contrast with Canadian loyalty to the
Crown and faith in the state as promoter of the conditions of collective life in
a system of parliamentary democracy. Instead of accepting the American
approach to free speech, Canadian courts should have recourse to the ideas that
underlie freedom of expression in a more relevant context. The international
25See, e.g., L.H. Cohen, “Creating a Usable Future: The Revolutionary Historians” in J.P.
Greene, ed., The American Revolution: Its Character and Limits (New York: New York University
Press, 1987); B. Bailyn, The Ideological Limits of the American Revolution (Cambridge: Harvard
University Press, 1967); G.S. Wood, The Creation of the American Republic (New York: Norton,
1969); and D.A. Richards, Foundations of American Constitutionalism (New York: Oxford Uni-
versity Press, 1989) at 172-201.
26See M.H. Redich & G. Lippman, “Freedom of Expression and the Civic Republican Revival
in Constitutional Theory: The Ominous Implications” (1991) 79 Calif. L. Rev. 267, D. Cole, “Agon
at Agora: Creative Misreadings of the First Amendment Tradition” (1986) 95 Yale L.J. 857, and
P. Lahav, “Holmes and Brandeis: Libertarian and Republican Justifications for Free Speech”
(1988) 4 J. of L. & Politics 451.
1991]
CHRONIQUE DE JURISPRUDENCE
1423
instruments, the other available paradigm, reflect a more current and more rel-
evant agenda with respect to expression rights. In particular, the international
model is more relevant to Canada than the American one because it is con-
textualized in the post-war project of maintaining democratic stability in nation
states with mixed racial, religious and ethnic populations.
Third, the Big M methodology renders relevant other provisions of the
Charter text.27 In particular, the values embodied in s. 15 (the equality section)
and s. 27 (the multiculturalism section) bear on the constitutional status of the
wilful promotion of hatred. S. 15 proscribes state discrimination, with a proviso
for affirnative action programmes, directed at (or affecting) individuals with
characteristics similar to those listed in s. 319(2). Accordingly, one might argue,
a speaker must be given wide latitude with respect to public comment on the
activities, claims and interests of persons identified by those constitutionally
significant characteristics, because the Charter considers these characteristics to
be of great public importance. Furthermore, the possible application of the
directive in s. 27 to ss 1, 2(b) & 15 gives additional weight to the recognition
of a prima facie right to expression which touches on these categories of
persons.
The majority in Keegstra invokes precedent to relegate these considera-
tions to the second stage of their analysis. The choice of precedent, however,
reflects interpretive preference. The majority relies heavily on Irwin Toy for the
rule that all expression attracts protection regardless of content, based upon its
uncritical adoption of the three rationales noted earlier.2″ An alternative was
available, however. Dickson C.J. might have emulated the reasoning in the Ford
case,29 where the Court had focussed in the first stage of Charter analysis not
on expression in the general sense, but instead upon the particular claim
asserted. With this focus, the Court in Ford considered whether s. 2(b) protected
the right to speak in the language of one’s choice in the context of a modem
democracy grappling with the problem of the varied linguistic usages of its
inhabitants. In Ford, unlike Keegstra, the Court analyzed other sections of the
Charter, as well as international human rights jurisprudence, to reach its conclu-
sion that choice of language found protection under s. 2(b) because of the unde-
27See Dubois v. R., [1985] 2 S.C.R. 350 at 365, [1986] 1 W.W.R. 193, Lamer J. (as he then was),
for the view that the Charter must be construed so that each component gives meaning to the whole
and vice versa: “[t]he courts must interpret each section of the Charter in relation to the others.”
28For comment on Invin Toy and its progeny, e.g., Royal College of Dental Surgeons v. Rocket,
[1990] 2 S.C.R. 232, 71 D.L.R. (4th) 68 [hereinafter Rocket cited to S.C.R.], see “Does Money
Talk?,” supra, note 18 and R. Moon, “Lifestyle Advertising and Classical Freedom of Expression
Doctrine” (1991) 36 McGill L.J. 76.
29Ford v. A.G. Quebec, [1988] 2 S.C.R. 712, 54 D.L.R. (4th) 577 [hereinafter Ford cited to
D.L.R.].
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niable links between individual identity, group affiliation and the expressive
content of language.”
The majority in Keegstra abandoned the methodology of Big M without
explanatory comment. Instead of elucidating broadly those factors relevant to
discerning the purpose of a right in the context of the Charter text, its history
and value structure, the Court adopted an expansive analysis of the particular
right, isolated from the rest of the Charter text.
The Court’s “large and liberal” approach bears certain methodological
costs. First, it sets s. 2(b) off from the other rights already elaborated by the
Court using the purposive approach. The Court has interpreted most other sec-
tions of the Charter, not by parading unexamined values, as did the majority in
Keegstra, but by discerning the values for the sake of which we have set the
right above the political fray.3 By exempting s. 2(b) from this methodology, the
majority in Keegstra suggests that freedom of expression has higher standing
than other Charter rights. This may in turn suggest that the main goal of the
Charter is to support the democratic political function, rather than to affirm
individual human flourishing in a free and democratic society.32 While orienting
the Charter agenda towards the political process may appear to be rights-
forwarding, it may in reality be a post-Charter expression of anti-entrenchment
30Ibid. at 604-09, where the Court quotes from Reference re Language Rights tnder Manitoba
Act, 1870, [1985] 1 S.C.R. 721, 19 D.L.R. (4th) 1 at 19, for reference to the same values of indi-
vidual dignity and equality that Dickson C.J. later invokes in his s. 1 analysis in Keegstra:
The importance of language rights is grounded in the essential role that language plays
in human existence, development and dignity. It is through language that we are able
to form concepts; to structure and order the world around us. Language bridges the gap
between isolation and community, allowing humans to delineate the rights and duties
they hold in respect of one another, and thus to live in society.
The reasons for judgment in Ford refer to other sections of the Canadian Charter, to the preamble
of the Quebec Charter of the French Language, R.S.Q. 1977, c. C-11, ss I & 58, and to the views
of the European Commission of Human Rights and the European Court of Human Rights. While
the conclusion in Ford was that choice of language is protected because of its inextricable relation-
ship with content and meaning, the benchmark values in the case were individual dignity and
equality.
31See, e.g.: for s. 2(a), Big M Drug Mart; for s. 7, B.C. Motor Vehicle and R. v. Morgentaler,
[1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385 [hereinafter Morgentaler cited to D.L.R.]; for the legal
rights, R. v. Strachan, [1988] 2 S.C.R. 980,25 D.L.R. (4th) 567, R. v. Vaillancourt, [1987] 2 S.C.R.
636, 47 D.L.R. (4th) 399, and R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 [hereinafter
Oakes cited to S.C.R.]; and for s. 15, Andrews v. Law Society of B.C., [1989] 1 S.C.R. 143, 56
D.L.R. (4th) 1. P.W. Hogg, supra, note 23, suggests that the Court’s more recent abandonment of
the purposive approach will be reversed. Keegstra and McKinney v. Univ. of Guelph, [1990] 3
S.C.R. 229, 76 D.L.R. (4th) 545 [hereinafter McKinney cited to D.L.R.], to the extent that they
demonstrate the future direction of the Court, reconstituted after a number of retirements, suggest
otherwise.
32For the view that the Charter protects democratic values, see P. Monahan, Politics and the
Constitution (Toronto: Carswell, 1987), who follows the line of thinking developed in the Amer-
ican context by J.H. Ely, Democracy and Distrust (Cambridge: Harvard University Press, 1980).
1991]
CASE COMMENTS
1425
sentiment, because it introduces into Charter adjudication a methodology that
favours claims to expression, particularly in the political arena, and little else.
Second, the approach of the majority in Keegstra undermines the norma-
tivity of Charter rights. When the reasons for protecting rights are not fully
articulated or critically examined by the Court, the currency of rights-protection
is debased. What is essential in the first stage of Charter argument is that the
Court explain why certain activities, here speech acts, are prima facie beyond
the range of our representative and politically accountable institutions. The pur-
posive approach of Big M should focus our attention on Mr. Keegstra’s right to
spew racist venom without being hindered by the state, not on the claims of his
listeners (to listen) and his targets (to stop him). It should make us realize, what-
ever our views about s. 319(2) of the Criminal Code, the sense in which Mr.
Keegstra’s interests are our interests. This, the real reason for content-neutral
protection of expression under s. 2(b), is the message that the Chief Justice’s
“large and liberal” approach fails to deliver.33
Finally, when the right is not brought home to us by the Court as a right
that we must each hold in order to enjoy and maintain a free and democratic
society, then s. 1 justification in the second stage of Charter analysis becomes
blurred.’ Unless the holder of the right comes into clear focus in the first stage,
the broader and more varied viewpoints appropriate to the second stage do not
come alive. How can we tell what might justify limiting the right if we lack a
well-considered appreciation of its grounds? The Chief Justice’s approach in
Keegstra in effect reduces the difference between the two stages to a shift in
onus, from the rights-claimant to the proponent of the impugned legislation. The
change in the burden of persuasion is without significance, however, if the same
arguments arise at both stages and cancel each other out.
B. Limitation under Section 1
When the Chief Justice turns from articulating the scope of s. 2(b) to s. 1
justification, he revisits the themes of truth-seeking, democratic process and
human fulfilment, which he earlier found to underlie the guarantee of freedom
of expression. Now, he regards these values with a critical eye. In a startling
retreat from the jurisprudence that constrained his s.2(b) analysis, and in stark
contrast to the s. 1 analysis offered by the dissent, the Chief Justice uses the sec-
ond stage of Charter adjudication to forge a new resolution of the tension
33D.A.J. Richards, Toleration and the Constitution (New York: Oxford University Press, 1989)
at 192 presents a ringing affirmation of the missing appeal: “the state’s restriction of … speech by
group libel laws is inconsistent with the place respect for conscience holds in our constitutional
traditions”; “communicative integrity, grounded in the fuller expression of its background right of
critical conscience, is not one that can be abridged on grounds of offence, which would sanitize
authentic exercises of the moral powers of free people” (at 195).
34See T. Macklem, “Putting Heart into Expression” (1991) 1 M.C.L.R. 341 at 347ff.
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between vibrant, even heated, public debate, and restrictions on freedom of
expression.
1.
Methodology
The Chief Justice introduces the second part of his judgment with a meth-
odological preface. He warns at the outset that it would be “dangerously mis-
leading to conceive of s. 1 as rigid and technical,” “rigid or formalistic,” or
“mechanical.”35 While the target of these dreaded adjectives is not fully explicit,
he seems to be criticizing the view that the justificatory undertaking in s. 1 per-
tains solely to the values “expressly set out in the Charter.”’36 Dickson C.J. pre-
fers a “flexible,” “contextual,” “sensitive” approach,37 summarized in the fol-
lowing quotation from an earlier judgment of Justice La Forest in U.S.A. v.
Cotroni:
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 legis-
lature.
38
Although the metaphors are mixed, if not garbled, the message here is clear:
Charter values are not the exclusive pre-occupation of s. 1 analysis. Under the
case law embodied in and evolved from this quotation, s. 1 justification is free-
form balancing –
a decidedly subjective exercise, serviced by a superficial util-
itarian cost-benefit analysis, informed by a less-than-rigorous attitude to facts
and data, and deferential in the extreme to majoritarian policy formation.39 A
free and democratic society, for Justice La Forest, is defined in the mind of the
legislature.4″
One can contrast the La Forest quote with the Court’s approach in Oakes.4
The Oakes test focused s. 1 justification on Charter values, so that a free and
ysis based on levels of scrutiny.
35Supra, note I at 33.
361bid. at 33-35. See, ibid. at 58 for attribution of these negative characteristics to American anal-
37Ibid. at 35.
31p1989] 1 S.C.R. 1469 at 1489-90, 48 C.C.C. (3d) 193 [hereinafter Cotroni cited to S.C.R.],
quoted by Dickson C.J. in Keegstra, ibid. at 35. In the Keegstra case itself, La Forest J. concurs
with the dissenting reasons of McLachlin J. This quote from Cotroni is adopted by La Forest J.
in his majority judgment in McKinney, supra, note 31 at 647-48, as epitomizing the balancing func-
tion under s. 1.
39For an application of this methodology, see McKinney. Judgment was rendered in that case on
December 6, 1990, one week before Keegstra.
“0McKinney, ibid. at 676. This approach to s. 1 would have accorded well with versions of its
text that pre-dated its final draft, e.g., “reasonable limits as are generally accepted in a free and
democratic society” or “reasonable limits as are generally acceptable in a free society living under
a parliamentary democracy.” See A.F. Bayefsky, Canada’s Constitution Act, 1982 and Amend-
ments: A Documentary History (Toronto: McGraw-Hill Ryerson, 1989) at 669 & 678.
4 1Supra, note 31. The first section of the Charter states:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set
1991]
CHRONIQUE DE JURISPRUDENCE
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democratic society is one which honours the values that underlie Charter rights
and freedoms, in both stages of Charter adjudication. Despite his invocation of
the La Forest quotation, the Chief Justice in fact follows the Oakes approach.
He rehearses the most significant interpretive component of the Oakes case,
namely, the dual function of s. 1 as the source of both the guarantee and its lim-
itation. In Oakes, Dickson C.J. had inferred from this dual function that the con-
cept of a “free and democratic society” was both the “genesis of the rights and
freedoms guaranteed by the Charter,”2 and “the ultimate standard against
which a limit on a right or freedom must be shown, despite its effect, to be rea-
sonable and demonstrably justified.”43 On this reading the values underlying
Charter rights are decisive in justifying their limitation.
The use of the Oakes test, in turn, allows the majority in Keegstra to rely
heavily on international human rights instruments. Both the Charter and these
international instruments build upon the idea that rights protection and limita-
tion are joined in the common venture of affirming individual dignity and equal-
ity.” So understood, the relationship between the Charter and the international
instruments means that one need not go beyond the Charter’s own values in
Keegstra. And Dickson C.J. does not.
The majority judgment manifests no trace of the deferential, utilitarian and
empirically suspect arguments, championed by Justice La Forest and referred to
with favour by the Chief Justice at the beginning of his judgment. Indeed, Dick-
son C.J. applies the method he just decried as “mechanistic,” “formalistic” and
“technical.” In so doing, he demonstrates it to be as “sensitive,” “contextual”
out in it subject only to such reasonable limits prescribed by law as can be demonstra-
bly justified in a free and democratic society.
Charter” (1988) 10 Sup. Ct. L. Rev. 469 for an elaboration of this view of s. 1.
42Oakes, ibid. at 136. See L.E. Weinrib, “The Supreme Court of Canada and Section One of the
43Oakes, ibid. at 136, quoted in Keegstra, supra, note 1 at 34. Accordingly, each and every strand
of the Oakes test was tied to the values of a free and democratic society. See “The Supreme Court
of Canada and Section One of the Charter,” ibid. for the full development of this approach to the
Charter as a matter of theory as well as doctrinal development. In that article, I attribute this
approach to Wilson J., and argue that she has been its most consistent adherent.
“Particularly helpful sources on this point are: J. M. Ross,’Limitations on Human Rights in
International Law: Their Relevance to the Canadian Charter of Rights and Freedoms” (1986) 6
Human Rights Q. 180; A.C. Kiss, “Permissible Limitations on Rights” in L. Henkin, ed., The Inter-
national Bill of Rights: The Covenant on Civil and Political Rights (New York: Columbia Univer-
sity Press, 1981) 290; and the Siracusa Principles on the Limitation and Derogation Provisions in
the International Covenant on Civil and Political Rights, E/CN.4/1985/4 Annex (reprinted in
(1985) 7 Human Rts Q.). This embrace of international rights-protection as the model for justifi-
cation of limitation upon freedom of expression marks a rejection of the American jurisprudence
on free speech. To soften the sharp departure from previous Supreme Court decisions, which
imported without criticism the American rationales for freedom of speech, the focus is narrowed.
Dickson C.J. indicates that he doubts the unmitigated commitment to content neutrality in that
body of law, and therefore does not read that jurisprudence as inexorably mandating the invalida-
tion of hate promotion laws: Keegstra, ibid. at 38-39.
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and “flexible” an analytic approach as one might desire. Justice La Forest’s pre-
ferred methodology is to be found in the dissent.
2.
The Oakes test applied
a. Pressing and substantial objective
The first part of the Oakes test requires that the objective of the impugned
legislation be pressing and substantial. In a detailed and sensitive dis-
cussion, Dickson C.J. finds adequate foundation for the enactment of s. 319(2)
in a series of parliamentary reports, dating from the 1965 Report of the
Special Committee on Hate Propaganda in Canada,45 to the Working Paper
entitled Hate Propaganda, issued by the Law Reform Commission of Canada
in 1986.46
The Chief Justice begins his survey of the literature by observing that
racial tension, even at low levels, constitutes a breeding ground for sentiments
inimical to civilized society. Originally evidenced in anti-semitic and anti-black
prejudice, hatred of individuals identified by particular characteristics has
expanded with the diversification of Canada’s population. The harm inflicted by
the preaching of racial and religious contempt begins with an affront to the tar-
get individuals’ “sense of human dignity and belonging to the community at
large.”’47 An individual’s feeling of acceptance into Canadian society correlates
with that society’s concern for the group with which the individual identifies.48
The majority judgment underscores the pivotal role of “connection” and
“belonging.” Dickson C.J. takes the concern encompassed in the “chilling
effect” doctrine, favoured by the dissent, for speakers who may be silenced
beyond the actual application of a restrictive law, and re-directs it to the targets
of wilfully promoted hatred, whose entry into the larger community may be
thwarted.
45Report to the Minister of Justice of the Special Committee on Hate Propaganda in Canada
(Chair: M. Cohen) (Ottawa: Queen’s Printer, 1966) [hereinafter Cohen Report].
4 6Law Reform Commission of Canada, Hate Propaganda (Working Paper No. 50) (Ottawa: The
Commission, 1986) at 36, quoted in Keegstra, supra, note I at 41-44. The work of these expert
bodies provides the Chief Justice with the basis for his skepticism, in this part of his analysis, of
the “marketplace of ideas” and the democratic function rationales for freedom of expression, which
he relied upon in the earlier part of his opinion.
4 7Keegstra, ibid. at 42.
48lbid., at 42-43 and also at 35 & 55. At 42, Dickson C.J. refers to I. Berlin, “Two Concepts of
Liberty” in Four Essays on Liberty (London: Oxford University Press, 1969) 118 at 155, and at
51 he cites J. Magnet “Multiculturalism and Collective Rights: Approaches to Section 27” in G.-A.
Beaudoin & E. Ratushny, eds, The Canadian Charter of Rights and Freedoms (Toronto: Carswell,
1989) 739, as well as Cory J.A.’s judgment, in the Ontario Court of Appeal, in R. v. Andrews
(1988), 43 C.C.C. (3d) 193 at 213, 28 O.A.C. 161. For a Rawlsian elaboration of the issues, see
the Factum filed by the Intervenor, Interamicus in Keegstra.
1991]
CASE COMMENTS
1429
Dickson C.J. is keenly aware that the community at large, and thus major-
itarian politics, can fall prey to the poison of hatred because human beings are
not solely or simply rational, truth-seeking creatures. He candidly notes that
emotion can displace reason, at least in the short run and particularly at the non-
conscious level. He makes reference to two examples: modem advertising and
Hitler’s propaganda machine.4 9 He therefore questions the reliability of both the
democratic process and the marketplace of ideas to protect society from the
harm inflicted by the wilful promotion of hatred –
although he had earlier
accepted these as rationales for the constitutional protection of expression.
Such rejection also informs international rights protecting instruments
adopted after the Second World War. For this reason, these documents offer a
model. One is reminded of the Chief Justice’s earlier pronouncement on the rel-
evance of international conventions:
Since the close of the Second World War, the protection of the fundamental rights
and freedoms of groups and individuals has become a matter of international con-
cern. A body of treaties (or conventions) and customary norms now constitutes an
international law of human rights under which the nations of the world have
undertaken to adhere to the standards and principles necessary for ensuring free-
dom, dignity and social justice for their citizens. The Charter conforms to the
spirit of this contemporary international human rights movement, and it incorpo-
rates many of the policies and prescriptions of the various international documents
pertaining to human rights. The various sources of international human rights law
… must, in my opinion be relevant and persuasive sources for interpretation of the
Charter’s provisions. 50
The international approach is to protect freedom of expression, while also com-
mitting signatory states, including Canada, to legislate against hate propaganda.
This approach does not manifest a lesser allegience to democracy. Rather, it
rests upon the understanding that a nation must have healthy public relation-
ships between the individual, the identified group, and the community at large,
49Keegstra, ibid. at 43. This reference to advertising stands in stark contrast to the Supreme
Court’s consideration of advertising in the context of Charter cases. See “Does Money Talk,”
supra, note 18; Moon, supra, note 28; Irvin Toy; and Rocket. In addition, Dickson C.J. does not
comment on the degree to which mass media and advertising concerns now shape politics.
50Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, 38 D.L.R. (4th) 161
at 184, Dickson C.J., dissenting. I am indebted to Mordechai Wasserman for bringing this quote
to my attention, and for general discussions on the line of argument developed in this paper. In Slai-
ght Communications v. Davidson, [1989] 1 S.C.R. 1038 at 1056-57, 93 N.R. 183, Chief Justice
Dickson stated:
Given the dual function of s. 1 identified in Oakes, Canada’s international human rights
obligations should inform not only the interpretation of the content of the rights guar-
anteed by the Charter but also the interpretation of what can constitute pressing and
substantial s. 1 objectives which may justify restrictions upon those rights.
For a detailed account of the reliance in Charter cases upon the international law of rights and lim-
itations, see W.A. Schabas, International Human Rights Law and the Canadian Charter: A Manual
for the Practitioner (Toronto: Carswell, 1991) at 65-126.
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to ensure that all members of society may take part in the democratic process.
The commitment is to the dignity and equality of individuals, regardless of
group identification, through the eradication of hate propaganda, so that all are
members of a free and democratic society.”
The Chief Justice understands the Charter to reflect this commitment to
inherent dignity and equality in a democratic society. Acordingly, he treats the
values of equality and multiculturalism promoted in ss 15 and 27 as informing
the justification exercise under s. 1.52 He also adduces other sections of the
Charter, to highlight the connection of the individual to cultural groups by pro-
viding, for example, language and denominational education rights, aboriginal
rights, and guarantees of gender equality. 3 These sections, of course, do not
apply independently to the issue at hand. Rather, they provide a value structure
for the judicial evaluation of arguments proffered to justify limits on Charter
rights and freedoms. Their role follows from the understanding that the sole jus-
tificatory criterion of limitation is the idea of a free and democratic society,
which is itself the genesis of the rights.’
b. Proportionality
Having recognized the objective of s. 319(2) as “of the utmost impor-
51Keegstra, supra, note 1 at 45ff, referring to the International Convention on the Elimination
of All Forms of Racial Discrimination (“CERD”), Can T.S. 1970, No. 28, Art. 4 and the Interna-
tional Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966), arts. 19 & 20. In addition,
the Chief Justice refers to Taylor and Western Guard Party v. Canada, Communication No. R.
24-104, Report of the Human Rights Committee, 38 U.N. GAOR, Supp. No. 40 (A/38/40) 231
(1983), para. 8(b). The latter decision of the United Nations Human Rights Committee rejects the
argument that s. 13(1) of the Canadian Human Rights Act, S.C. 1976-66, c. 33 –
prohibiting the
communication of hate messages by telephone –
violates art. 20. To mark the general approach
of international human rights documents, the Chief Justice also refers to the European Convention
for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 (1950), art. 10
and its interpretation. The argument with respect to CERD, to the extent that it is an argument
about Canada’s international legal obligations, is diminished by the fact, unmentioned in the judg-
ment by either the Chief Justice or McLachlin J., that Canada has not acted on para. (b) of art. 4
of the CERD, even though it made no reservation or interpretive declaration at the time of ratifi-
cation: see Hate Propaganda, supra, note 44 at 18-19, nn 65-67. This paragraph requires adhering
states to declare illegal organizations and organized activities, including membership therein, that
promote and incite racial discrimination. The Chief Justice refers to this study in Keegstra, supra,
at 44.
52Keegstra, ibid. at 49-5 1. Reference is made to Singh v. Minister of Employment and hnmigra-
tion, [1985] 1 S.C.R. 177 at 218, 17 D.L.R. (4th) 422, Wilson J., where she states: “it is important
to remember that the courts are conducting this inquiry [under s. 1] in light of a commitment to
uphold the rights and freedoms set out in other sections of the Charter.” This idea, picked up in
Oakes is part of the orientation of s. 1 towards exclusively right-based values, discussed supra, note
23 and accompanying text.
53Keegstra, ibid. at 50. The Charter sections referred to are ss 16-23, 25, 28 & 29.
5See, supra, notes 40-43 and accompanying text.
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CHRONIQUE DE JURISPRUDENCE
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tance,”55 the first part of s. I justification is satisfied and the Chief Justice turns
to consider the provision’s proportionality to its objective.
First, he finds a rational connection between the stated objective of
s. 319(2) and its terms. He rejects the contention that criminal prosecution
undermines the stated objective by providing the hate-monger a free public
forum and lending legitimacy to the message. He also rejects the proferred his-
torical example of Weimar Germany, which prosecuted hate-mongers and nev-
ertheless descended into totalitarianism and genocide based on the type of cat-
egory found in s. 319(2) as identifying groups.56 The Chief Justice adopts a
normative stance, in contrast to the dissent’s more empirical approach. The
criminal law, he stresses, embodies society’s highest form of disapprobation,
and when it condemns expression that undercuts diversity and multiculturalism,
it sheds no glimmer of respectability or veracity. Furthermore, the historical
example of Weimar Germany does not attest to the futility of such laws, but to
the multi-faceted nature of the factors that work for and against societal toler-
ance. More instructive on this point is the fact that post-war Germany, as well
as a number of other countries, maintain comparable laws today.”
The Chief Justice turns next to the contention that s. 319(2) is vague and
overbroad, and exceeds the minimal impairment test laid down in Oakes. After
detailed review of the impugned provision, Dickson C.J. rejects these argu-
ments. In particular, he notes the following constricting features in the section:
the offence does not attach to statements made “in private conversation”; pros-
ecution is made more difficult by the Crown’s need to prove subjective mens
rea; the accused must either “subjectively desire” to promote hatred or “foresee
such a consequence as certain or substantially certain to follow” from his
actions; there must be active support or instigation of hatred, rather than mere
encouragement or advancement; the need for an “identifiable group” precludes
prosecution for fostering hatred against individuals; and “hatred” denotes only
a most extreme emotion that ousts reason, rather than a wide range of diverse
emotions.”
The defences afforded under s. 319(3) further narrow the range of activity
proscribed.59 Specifically, an accused may avoid conviction by establishing that
the statements were true, or good faith opinions on a religious subject, or com-
mentary on a subject of public interest reasonably believed to be true, or good
55Supra, note 1 at 51.
561bid. at 60.
57Ibid. at 60-61. While comparison to legislative arrangements in other free and democratic soci-
eties is not cogent as legal argument, such references should at least alert the reader to the fact that
the American aversion to content-based regulation of hate speech is not standard in Western
democracies, and has not been adopted in a number of countries that have post-war constitutions.
51Ibid. at 62ff.
59Ibid. at 67ff. For the text of s. 319(3), see supra, note 8.
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faith comments for the purpose of countering hatred towards identifiable
groups.’ The Chief Justice takes the view that the defence afforded for true
statements is not mandated by the Charter, but is to be understood as a Parlia-
mentary concession to truthful freedom of expression even though it may have
harmful results. This conclusion meshes well with Dickson C.J.’s skepticism as
to the rationality of human behaviour, but appears to call into question the legit-
imacy of the truth-seeking rationale said to underlie s. 2(b). The first and second
stages of the argument lack integration with respect to this important
consideration.
Once again, empirical considerations bow to Charter values in Dickson
C.J.’s analysis. The fact that the state has unsuccessfully tried to use s. 319(2)
in unwarranted circumstances is illustrative of unlawful action, not of legislative
meaning for the purposes of Charter analysis. Moreover, the availability of non-
criminal measures, even if more effective, does not undermine the use of the
criminal sanction. The minimal impairment test under s. 1 does not require the
state to choose one of a number of alternatives where multiple approaches are
indicated, as long as the more restrictive measure is not redundant.6
The Chief Justice concludes his analysis under s. 1 by finding that the lim-
itation upon s. 2(b) freedoms effected by s. 319(2) does not outweigh its legis-
lative objective. This conclusion follows from the finding that the expressive
activity proscribed is remote from the values that underlie the guarantee in s.
2(b), while the objective of the proscription reflects these values. The limitation,
in other words, is more faithful to Charter values than is the crystallized right
expressed in the document itself.
The majority’s s. 1 analysis as a whole is lucid, cogent and principled. It
belies the apprehension initially expressed by the Chief Justice that, were Char-
ter values alone to drive s. 1 analysis, the exercise would become “mechanical”
or “formalistic.” These opprobrious adjectives are out of place. The Charter
shares the values of other post-war rights-protecting instruments, which pro-
mote stable democratic political functioning by rejecting the excesses that can
deprive certain members of the community of their self-dignity and the will to
take part in public life. The Court’s s. 1 analysis is of high calibre. It would have
been a worthy counterpart for a purposive interpretation of s. 2(b), which was
inexplicably lacking in the earlier part of the majority judgment.
innocence.
6Space precludes discussion of the consideration of s. 11 (d) of the Charter, the presumption of
61Supra, note I at 70-72. Also, the division of powers under ss 91 & 92 of the Constitution Act,
1867 (U.K.), 30 & 31 Vict., c. 3 would limit Parliament’s power to legislate to areas within its juris-
diction. Reliance on the possibility of provincial schemes would be an unrealistic, as well as novel,
approach under the “minimal impairment” test.
1991]
CASE COMMENTS
1433
IE. The Dissent
The dissent reaches the same conclusion as the majority in the first stage
of the analysis, finding that s. 319(2) infringes s. 2(b), but holds that this
infringement is not justified under s. 1. The reasons for judgment of McLachlin
J. (La Forest and Sopinka JJ. concurring) are less well documented, less focused
and less cogent than those of Chief Justice Dickson. The most striking contrast
between the two lies in the underlying commitments evident in the respective
reasons for judgment. While the majority reads the objective of the Charter pro-
ject as the protection of the rights and freedoms of individuals in a free and
democratic society, the dissent finds the unfettered and often heated democratic
marketplace to be the Charter’s highest aspiration. Accordingly, the dissenters
align the Charter with the American conception of unfettered speech rights as
indispensable to the democratic political process.
A. The Scope of Freedom of Expression
Like Chief Justice Dickson, McLachlin J. easily finds the s. 2(b) guarantee
to be infringed by s. 319(2). Her understanding of expression as a constitutional
value is developed in an extensive philosophical, historical and comparative dis-
cussion. What emerges from this discussion is Charter interpretation that lacks
focus on the individual, and instead gives pride of place to democratic ordering
and social progress. Curiously absent here, in light of McLachlin J.’s ultimate
finding that s. 1 remains unsatisfied, is any sense of the legitimacy of Mr.
Keegstra’s claims and interests.
The three rationales for protecting freedom of expression, set out earlier by
the Chief Justice, here acquire a distinctively instrumental cast.62 Freedom of
expression is protected not to serve the individual but to serve the state. This
characteristic of the dissenting judgment, although at first glance an effort at
purposive analysis in the Big M tradition, re-orients the first stage of Charter
interpretation to utilitarian considerations. Under the first rationale considered
by McLachlin J., the Charter protects expression to safeguard the institution of
political democracy and to create the bulwark of open debate against state sub-
version of other rights and freedoms.63 She reads the political process rationale
narrowly, so that it offers protection only to political expression, although she
recognizes that the broad language of both s. 2(b) of the Charter and the Amer-
62For the three rationales, see supra, text accompanying note 15. Keegstra, ibid. at 85ff.
631bid. at 85-86. See also, Palko v. Connecticut, 302 U.S. 319 (1937) at 327, Cardozo J.: “[free-
dom of speech is] … the matrix, the indispensable condition of nearly every other form of free-
dom.” But consider the following: “The effort to identify the ‘indispensable conditions of an open
society’ thus proves inseparable from the much larger enterprise of identifying the elements of
and deciding which of those elements are left entirely to politics to protect, and
being human –
which are entrusted to protection by judicial decree” (L. Tribe, American Constitutional Law, 2d
ed. (Mineola, New York: Foundation Press, 1988) at 778-79).
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ican First Amendment suggests otherwise. She cites A. Meikeljohn’s Free
Speech and its Relation to Self-Government’ as the locus classicus of the polit-
ical process rationale, even though that work more generously embraces artistic
expression as forwarding the development of the full-rounded citizen necessary
for successful self-government.5
McLachlin J. regards freedom of expression, understood in light of the
political process rationale, as the “pivotal” Charter right. Her view is at odds
with the text of s. 2 and the First Amendment, both of which give precedence
to the protection of religion or individual conscience. Indeed, in Big M Drug
Mart, Dickson J., as he then was, referred to freedom of religion as the “proto-
typical” and “paradigmatic” example of a belief and manifestation. 6 To read
expression as the primary freedom is to see democratic political functioning as
the end of constitutionalism, rather than to understand the shifting sands of dem-
ocratic politics as the most favourable environment or means for the flourishing
of the individual in society at large. 7
McLachlin J.’s consideration of the second rationale for protecting free-
dom of expression, the maintenance of a marketplace of ideas that will come to
value truth over non-truth, continues the instrumentalist analysis. She concedes
that truth remains an elusive concept. She also concedes that the failure of this
marketplace, or its slowness to discern truth, has generated high social costs his-
torically, for example in the Second World War experience. Yet she determines
that the restriction of freedom of expression produces societies that are not “rel-
evant, vibrant and progressive” in terms of “industry, economic development
and scientific and artistic creativity.”” Section 2(b) helps to avoid the stagnation
641st ed. (New York: Harper, 1948), cited in Keegstra, ibid. at 51.
65Keegstra, ibid. at 85. For the view that Meikeljohn’s concern was direct democracy, not truth,
see “Does Money Talk?,” supra, note 18.
66Big M, supra, note 23 at 347 and L.E. Weinrib, “The Religion Clauses: Reading the Lesson”
(1986) 8 Sup. Ct. L. Rev. 507. For the connection between freedom of speech and conscience, see
Richards, supra, note 33.
67For an attempt –
ultimately unconvincing in my view given the text, history and jurispru-
dence –
to read American constitutionalism as rooted in individual dignity, see W. R. Murphy,
“An Ordering of Constitutional Values”(1980) 53 S. Calif. L. Rev. 703. McLachlin J.’s view of s.
2(b) as the bulwark against the erosion of other rights and freedoms is more correctly positioned
in the American than the Canadian context. The Charter expressly provides for judicial review of
infringements of all guaranteed rights and freedoms, a feature absent from the text of the American
Bill of Rights, and controversial to this day given the separation of powers doctrine espoused by
the U.S. Constitution generally. It is accordingly unhelpful to understand s. 2(b) as the bulwark
against the infringement of those rights and freedoms.
6SSupra, note 1 at 85-86. This approach is formulated, not as a variation of the marketplace of
ideas, but as a fourth rationale, by a leading American academic on the subject, whose thinking
McLachlin J. relies upon quite extensively, but not for this point. See T.I. Emerson, The System
of Freedom of Expression (New York: Random House, 1970):
freedom of expression is a method of achieving a more adaptable and hence a more
stable community … This follows because suppression of discussion makes a rational
1991]
CHRONIQUE DE JURISPRUDENCE
1435
caused by government errors in regulating the marketplace of ideas, e.g., by
promoting orthodoxy in religion, science and art.69 For Justice McLachlin,
therefore, the evil to be avoided by protecting freedom of expression is the
divine right of kings, or perhaps its modern counterpart –
the Cold War.7”
Even when McLachlin J. turns to the third rationale, the idea that freedom
of expression promotes the self-fulfilment of the individual in society, she does
not sustain a non-instrumental viewpoint.7 She questions whether a commit-
ment to the self-realization of speaker and listener is sufficiently focused to
ground constitutional principle, and wonders why the Charter should so privi-
lege expression without favouring other self-fulfilling activities as well, which
she does not enumerate. She concludes that non-instrumental considerations
provide “a useful supplement to the more utilitarian rationales,”7 ” e.g., by
affording protection to artistic expression.73
McLachlin J.’s treatment of the three rationales for s. 2(b) demonstrates
that she is much more comfortable in the utilitarian universe. She subordinates
the “inherent dignity of the individual”’74 to the maintenance of the democratic
judgment impossible, substituting force for reason; because suppression promotes
inflexibility and stultification, preventing society from adjusting to changing circum-
stances or developing new ideas; and because suppression conceals the real problems
confronting a society diverting public attention from the critical issues.
69The examples cited are the suppression of Galileo’s determination that the earth was round or
the use of obscenity laws against great works of art. See Keegstra, ibid. at 87 for the reference to
F. Schauer, Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press,
1982).
70McLachlin J.’s emphasis on progress, particularly with reference to industrial and economic
undertakings, appears to reflect concern for the contemporary problems of the former Iron Curtain
countries. These countries, freed from totalitarian control, are now testing the extent to which the
shift to market economies must be tied to democratic process, including freedom of expression.
The older idea of freedom of speech as a departure from the divine right of kings is echoed in the
Cohen Report, supra, note 45 at 60, which puts it this way:
Our Anglo-Canadian political and legal tradition reflects generally the long struggle to
free society from the absolutism of sovereign [sic] or the oligarchy of the privileged.
Free expression became the most conspicuous index of the movement from govern-
ment by the few to self-government by the many …
While McLachlin J. sees this tradition as a pointer to American-style “absolute” protection for
expression, the Report goes on to note that in Canada the idea of free expression has always been
circumscribed by law.
71Supra, note 1 at 86-87. It is unclear what McLachlin J. understands to be non-instrumental.
She begins her discussion with the statement that the desideratum is “the sort of society we wish
to preserve.” She then includes three quotes from T.I. Emerson, “Toward a General Theory of the
First Amendment” (1963) 72 Yale L.J. 877, which stress as the end the individual’s self-realization,
not the attainment of a particular sort of society.
72Ibid. at 87.
73See supra, notes 64 & 67 and accompanying text.
74Supra, note 1 at 88.
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process and the pursuit of “truth and creativity in science, art, industry and other
endeavours.”75
Justice McLachlin underscores her view that the highest aspiration of the
Charter is to promote democracy by referring to Canadian constitutionalism
generally. In a short historical analysis of freedom of expression in Canada
before the entrenchment of the Charter in 1982, she endorses the view that free-
dom of speech and the press enjoyed “quasi-constitutional status”76 in this
period, citing the familiar case law invoking the division of powers and the
implied bill of rights.77 The nature of this status is obscure, however, since she
concedes that before the Charter, freedom of speech was “ultimately recognized
as subservient to legislative limits.””8 Indeed, the pre-Charter legislative context
included the offence challenged by Mr. Keegstra in this case, as well as an array
of other legislative instruments regulating expression.79
Having concluded that the Charter’s primary commitment to the demo-
cratic process reflects the larger context of Canadian constitutionalism, McLa-
chlin J. turns to consider whether the American or the international regimes for
the protection of freedom of expression provide a model for Charter interpre-
tation. Her assessment is that while both systems honour freedom of expression
less than absolutely, the Charter follows the American rather than the interna-
tional model.
Her preference for the American model follows from the understanding
that the First Amendment affirms freedom of expression broadly; it may not be
infringed unless the test of “clear and present danger” is satisfied.” The inter-
national instruments, in contrast, expressly read down the freedom to accommo-
date the prohibition of the promotion of racial hatred.”‘ In McLachlin J.’s view,
the U.S. approach provides a closer analogy to the Charter’s combination of a
751bid. at 87-89.
76Ibid. at 89ff.
771bid. at 89-91. For a description of this material see P.W. Hogg, Constitutional Law of Canada,
78lbid. at 53, citing Dupondv. Montreal (City), [1978] 2 S.C.R. 770, 19 N.R. 478. On those occa-
sions when provincial laws were invalidated, the reason was not the inviolate nature of expression
but exclusive, albeit unexercised, federal jurisdiction.
2d ed. (Toronto: Carswell, 1985) at 706ff.
79McLachlin J. gives a detailed outline of the various legislative measures adopted to combat
racist acts and expression, ibid. at 101-03.
80 bid. at 94.
81Ibid. at 99-100. The same conclusion is set out at 88-89, invoking the quasi-constitutional pre-
Charter status as well as the text of the Charter as further reasons for the view that the s. 2(b) right
is prima facie all inclusive, leaving all infringements to be justified under s. 1. McLachlin J. pro-
vides the following formulation of the “clear and present danger” test. Advocacy of the use of force
or violation of the law cannot be proscribed “except where such advocacy is directed to inciting
or producing imminent lawless action and is likely to incite or produce such action,” (ibid. at
88-89, citing Brandenburg v. Ohio, 395 U.S. 444 (1969) at 447).
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broad guarantee under s. 2(b) with justification of limitation under s. 1 than the
international instruments.82
This search for a model for Charter interpretation is more conclusory than
analytic. Particularly noteworthy is McLachlin J.’s failure to counter the con-
trary observations of the Chief Justice. First, Dickson C.J. had noted that some
commentators read the American case law as permitting the legislative prohibi-
tion of hate promotion. Second, her attribution of content-neutrality to Ameri-
can law overlooks its exclusion of various sorts of speech from protection, e.g.
defamation and obscenity. These two observations by the Chief Justice, sup-
ported by reference to case law and academic commentary, suggest that it is the
language, not the application, of the First Amendment’s negation of congressio-
nal power that is absolute. 3
Furthermore, the dissent’s structural analogy of the Charter to the United
States Bill of Rights is faulty. The Charter’s provision of rights plus a general
limitation clause is much closer to international models than it is to the Amer-
ican Bill of Rights. The international model of express limitation clauses tied to
groups of rights was intentionally emulated in early drafts of the Charter, and
later developed into the more general formulation of s. 1.’ In contrast, the struc-
2This conclusion is easier to reach when one disregards the text of s. 1, which is the basis for
both the guarantee of the rights that are “set out” in other sections, including s. 2(b), and the limit.
This reading of s. 1, in Oakes, supra, note 31 and accompanying text, was the basis for the Court’s
pronouncement that the values that undergird the rights and freedoms also undergird the justifica-
tion of limits. Dickson C.J., in my view, maintains fidelity to that vision in his analysis here,
although he departs from it in his description of his methodology.
83See supra, note 27 and accompanying text. McLachlin J. cites Tribe, supra, note 63 in Keegs-
tra, supra, note 1 at 95, while the Chief Justice cites a broader range of American academic writ-
ing: see Keegstra, supra, at 38ff. To the Chief Justice’s list may be added the following references,
which give an indication of the intensive debate now flourishing in the American academic liter-
ature on both the political desirability and the constitutional permissibility of regulating hate
speech, especially on the university campus: P. Linzer, “White Liberal Looks at Racist Speech”
(1991) 65 St. John’s L. Rev. 187; M.E. Gale, “Reimagining the First Amendment: Racist Speech
and Equal Liberty” (1991) St. John’s L. Rev. 119; Note, “A Communitarian Defense of Group
Libel Laws” (1988) 101 Harvard Law Rev. 682; R.C. Post, “Racist Speech, Democracy and the
First Amendment” (1990) 32 Win. & M. L. Rev. 267; D. Goldberger, “Sources of Judicial Reluc-
tance to Use Psychic Harm as a Basis for Suppressing Racist, Sexist and Ethnically Offensive
Speech” (1991) 56 Brooklyn L. Rev. 1165. The American Supreme Court will soon hear argument
on a case involving issues of hate speech. See “Judges to Decide if Hate-Crime Law Curbs Free
Speech” New York 71mes (11 June 1991) Al. The case is R.A.V v. St. Paul, on appeal from a deci-
sion of the Supreme Court of Minnesota, 464 N.W. 2d 507 (Minn. 1991). The regulation chal-
lenged makes it an offense to place a burning cross, swastika or other symbol likely to arouse
“anger, alarm, or resentment” on the basis of race, colour, creed, religion or gender on public or
private property.
84Bayefsky, supra, note 40 at 53, 60, 284, 500, 505, 506, 510, 511, 537, 659 & 747. See also,
M.A. Hayward, “International Law and the Interpretation of the Canadian Charter of Rights and
Freedoms: Uses and Justifications” (1985) 23 U.W.O. L. Rev. 9; J. Claydon, “International Human
Rights Law and the Interpretation of the Canadian Charter of Rights and Freedoms” (1982) 4 Sup.
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ture of the American Bill of Rights imposes a negative prohibition on Congress
with no express limitation provision. The idea that the Charter emulates the
American model runs counter to the evidence that the international instruments,
with their specific limitation clauses, were considered an improvement upon the
American formulation of rights protection, and were later further refined in the
general limitation clause in s. 1 of the Charter.
Moreover, McLachlin J. too easily dismisses the arguments based on Cana-
da’s obligations under these international instruments. She quotes from several
of these documents, including two to which Canada is a signatory.” Both of
these mandate adhering states to prohibit by law the incitement of racial dis-
crimination, hostility or violence. She rejects their relevance, however, on the
grounds that international instruments offer only lukewarm protection of free-
dom of expression, and are generally deferential to the sovereignty of their
national adherents.86 She thus predetermines the issues she sets out to decide.
Her rejection of the international instruments as models, which appears at first
to rest on structural elements and political arrangements, flows instead from
doctrine.
Specifically, McLachlin J. states that the Court need not follow interna-
tional law in its interpretation of the Charter. She chooses not to do so in this
case because the Court has made clear its view in previous cases that s. 2(b)
establishes a content-neutral scope of protection.”
In effect, she applies the
Court’s previous interpretation of s. 2(b), drawn from cases where arguments
arising from international legal obligations were not apposite, to the Keegstra
situation, the first situation where they are clearly relevant.
One might have thought that the particular issue at bar would have invited
reconsideration of the appropriateness of content neutrality, particularly since
Canada has acceded to international obligations to proscribe hate propaganda by
law.”8 Instead of analysis focused on this new question, McLachlin J. states that
Ct. L. Rev. 287; M. Cohen & A.F. Bayefsky, “The Canadian Charter of Rights and Freedoms and
Public International Law” (1983) 61 Can. Bar Rev. 265. See L.E. Weinrib, “Of Diligence and Dice
…” (1991) U.T.L.J. [forthcoming] for the development of the text of s. 1.
85McLachlin J. cites, in Keegstra, supra, note I at 98-100: the
European Convention for the Protection of Human Rights and Fundamental Freedoms, supra,
note 51; the International Covenant on Civil and Political Rights, supra, note 51; and the Inter-
national Convention on the Elimination of All Forms of Racial Discrimination, supra, note 51.
Canada is a signatory to the latter two of these.
86Keegstra, ibid. at 112-13 & 100.
87See Ford; Rocket; and Irwin Toy.
8 The Cohen Report, supra, note 45 at 56-57, which prepared the way for the enactment of
s. 319, took the view that international obligations could set “a moral standard for the world,” and
that the then forthcoming convention against racial discrimination would be “legally binding on
any state which ratifies it.” The Law Reform Commission of Canada, writing after this convention
was adopted and ratified by Canada, takes the view that it “imposes on the member states the obli-
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CHRONIQUE DE JURISPRUDENCE
these international obligations –
“general in nature” and unconnected to the enactment of s. 319(2).89
despite their rather clear language –
1439
are
Despite its instrumentalism, the dissenting opinion does share a number of
arguments with the majority. Like the Chief Justice, McLachlin J. rejects the
claim that hate propaganda is akin to violence, action which may be expressive
but is nevertheless excluded from the scope of protection, although she appears
to read the exception somewhat differently than does the Chief Justice.’
Similarly, McLachlin J. rejects the arguments based on sections 15 and 27
of the Charter text, although on more technical grounds than did the Chief Jus-
tice. She finds s. 15 to be irrelevant: there is no collision of rights between
s. 2(b) and s. 15, since s. 15 acts as a bar to legal or state action.9 Moreover,
she takes the view that this type of interpretation would be inconsistent with the
Court’s rejection of any content-based evaluation under s. 2(b), and would raise
the spectre of balancing rights in the abstract, rather than under s. 1, where the
government bears the burden of persuasion.92
McLachlin J. finds s. 27 to be an unhelpful gloss on s. 2(b) because mul-
ticulturalism is an unsettled concept. While some would contend that multicul-
tural goals mandate the proscription of hate propaganda, others would consider
the “expression of derogatory opinion about other groups … a necessary correl-
ative of a multicultural society,”93 as various groups compete for scarce
resources.94 Tolerance of the promotion of hatred, not repression, may be con-
sidered the “essence of multiculturalism. ‘ 95
Thus, while the dissent joins the majority in the conclusion that s. 2(b) is
infringed, the analytic pathway of each judgment is markedly different. The
Chief Justice goes through the motions in the first stage analysis and ultimately
rests his conclusion on precedent. McLachlin J., in contrast, presents a critical
gation to introduce in their national legislation offences to deal with racial discrimination.” See
supra, note 46 at 17-18.
S9Supra, note 1 at 113.
90lbid. at 103-08. Here, McLachlin J. expresses the view that threats are not protected expres-
sion, on the authority of R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 at 588, 33
D.L.R. (4th) 174. See, supra, note 13, for the Chief Justice’s view that threats cannot be excluded
from the scope of s. 2(b) without relying on content based review.
9 1Keegstra, ibid. at 109. See supra, note 52 and accompanying text.
92Ibid. at 106ff.
931bid. at 110.
94The reference to scarce resources is somewhat enigmatic. Is McLachlin J. saying that striving
for scarce resources in the political marketplace necessitates debate having the characteristics of
wilful hate promotion? Curiously, this consideration is not raised again where one would expect
it, under s. 1.
95Supra, note 1 at 111. It is regrettable that the idea of toleration was not better developed. It
has potential as an aspiration of a democratic and diverse society, but in the context of the first
stage of Charter adjudication it must be tied to an idea of the values underlying the right.
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analysis of the rationales she posits as informing s. 2(b). Her discussion, how-
ever, transforms the Charter from an embodiment of individual rights to an invi-
tation to instrumental analysis. Although her approach might validate many
claims to expressive rights, particularly those that involve comment on public
issues, it will not sustain strong rights-protection where the link to the demo-
cratic process and to progress is absent. In abandoning individual dignity as the
benchmark of Charter values, the dissent adopts the value structure of those
who opposed the entrenchment of rights in the Charter in the name of major-
itarian politics and institutions.
B. Limitation of Freedom of Expression under s.1
1.
Pressing and Substantial Objective
In the initial stage of her s. 1 analysis, McLachlin J. has no difficulty in
finding the objective of s. 319(2) to be pressing and substantial. The precise
characterization of that objective is somewhat unclear, however. It becomes
even less clear as her discussion moves from the consideration of legislative
objective to the testing of proportionality. This lack of clarity is a function of
the instrumentalism that pervades the initial part of her judgment on the scope
of freedom of expression. It is difficult to ground limitation on the principles
inherent in a free and democratic society when the rationale for the right in issue
is itself posited as progressive democratic society. Accordingly, the instrumental
bent of the analysis leads to reliance upon weak and often speculative empirical
grounds, as well as a range of seemingly inapposite examples. The dissent shifts
grounds so easily, and departs so markedly from the established criteria of s. 1
analysis, as to undermine the persuasiveness of McLachlin J.’s reasoning.
McLachlin J.’s initial statement of the objective of s. 319(2) is a mere reca-
pitulation of the terms of the provision itself. She states that the provision is
designed “to prevent the promotion of hatred toward identifiable groups within
our society.”96 McLachlin J. sets out a broader formulation of the objective as
well, which refers to the societal rationales for the prohibition against the wilful
promotion of hatred, including the prevention of the spread of hatred and the
preservation of social harmony and multiculturalism. 7 She carries only the nar-
9 6Keegstra, ibid. at 119.
97The wider account of the section’s objective, put forward by the Attorney General of Canada,
appeared to find favour with McLachlin J.; quoted at Keegstra, ibid.:
among other things, to protect racial, religious and other groups from the wilful pro-
motion of hatred against them, to prevent the spread of hatred and the breakdown of
racial and social harmony [and] to prevent the destruction of our multicultural society.
In addition, she refers with approval to the idea, central to the Chief Justice’s approach, that racial
conflict renders members of minority groups “outsiders in their country,” although she appears to
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rower initial characterization forward into the proportionality argument, how-
ever. Its concrete, limited focus lends itself more easily to the instrumental,
empirical and anecdotal arguments McLachlin J. applies.
Unfortunately, the reasoning is weak because there is little data available
of the kind McLachlin J. would need to execute the type of analysis she favours.
Over a twenty-year period, a number of government studies on the question of
restricting hate promotion in a democratic society have set out the problem and
the proposed solution. Early studies recommended the adoption of a provision
like s. 319(2);98 later studies advocated its retention.99 McLachlin J. views this
material as empirical proof of the sufficient importance of the objective of s.
319(2). Given her further findings, however, these reports apparently failed to
provide adequate foundation for the proportionality analysis.
2.
Proportionality
One might think that characterizing the objective of the impugned provi-
sion as preventing what the section itself criminalizes would render McLachlin
J.’s s. 1 analysis circular and thus perfunctory. Since the objective of the provi-
sion is to eliminate the activity to be penalized, it would appear that the tests
of rational connection, minimal impairment and comparative cost should be eas-
ily satisfied. This is not the case, however. McLachlin J.’s analysis takes the s.
1 inquiry beyond its application in previous cases to reach the opposite conclu-
sion on each of the three facets of the proportionality inquiry.
McLachlin J.’s initial inquiry into the rational connection of the impugned
provision to its pressing and substantial objective suffers because of a failure to
focus on that objective. McLachlin J. states that s. 319(2) furthers Parliament’s
intention, in that prosecution:
for offensive material directed at a particular group may bolster its members’
beliefs that they are valued and respected in their community, and that the views
of a malicious few do not reflect those of the population as a whole.1′
In this passage, she dilutes her earlier characterization of the section’s objective.
The objective of preventing speakers from provoking their audience to hatred
of identifiable groups has turned into an objective of mollifying members of
those groups by general condemnation of messages that are offensive to them.
In addition, she alters the thrust of s. 319(2), which proscribes the wilful pro-
motion of hatred of identifiable groups, not the distribution of material which
may be offensive to a particular group.
emphasize the social rather than individual costs. These broader concerns are abandoned as McLa-
chlin J. builds her proportionality analysis upon the narrower formulation.
9″Keegstra, ibid. at 119-20.
“Ibid.
1I0lbid. at 122.
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McLachlin J. then attempts to apply the Oakes test to empirical grounds
that play no part in the Keegstra case. She makes reference to Morgentaler for
the proposition that the operative effect of legislation may undermine its objec-
tive, ” so that rational connection between objective and means is lacking. The
parallel is misconceived, however, because the consideration of effect by Justice
Beetz and Chief Justice Dickson in Morgentaler was based on empirical evi-
dence regarding the experience of women and doctors under the regime of ther-
apeutic hospital committees laid down by the Criminal Code.” McLachlin J.
cites no data, nor indeed could any be made available, for a similar evaluation
of the effect of s. 319(2) on the activities of would-be hate promoters or target
groups, because that section simply creates an offence with defences. Unlike the
Criminal Code section at issue in Morgentaler, s. 319(2) did not set up a system
dispensing exemptions from otherwise proscribed acts. The only empirical find-
ings before the Court in Keegstra were those McLachlin J. referred to as satis-
fying the requirement of pressing and substantial objective. Why this material
did not provide an adequate foundation in the social sciences for a finding of
rational connection McLachlin J. does not make clear.
McLachlin J. states that the rational connection test requires some “likeli-
hood” or “probability” that the objective of the impugned provision will be fur-
thered. Yet she is satisfied with pure speculation as to whether state supression
and prosecution may defeat Parliament’s intentions, and in fact promote rather
than inhibit the cause of hate-mongers, by providing free publicity, public sym-
pathy, the “joy of martyrdom,”‘0 3 and even legitimacy to those promoting
hatred.” Thus, McLachlin J. assumes here the power of the media to subvert
0’0 Supra, note 31, in Keegstra, ibid. at 123ff.
t2McLachlin J.’s characterization of the objective of the 1969 amendment to the Criminal Code
at issue in Morgentaler, supra, note 30 as preserving “women’s life and health,” is questionable.
This interpretation was expressly rejected in Morgentaler. Beetz J. characterized the primary objec-
tive as the protection of the foetus. Dickson C.J. characterized the objective as balancing the pri-
orities and aspirations of pregnant women against the state’s interest in protecting the foetus. Wil-
son J. identified the primary purpose as protecting the foetus, and the ancillary objective as the
protection of the life and health of pregnant women. Morgentaler, supra, note 30 at 453-54, 416
& 498. I have argued that the objective of the 1969 amendment, which added the therapeutic abor-
tion exemption invalidated by the Supreme Court of Canada in Morgentaler, was not “designed
to preserve women’s life and health,” but to protect doctors from criminal liability when they pro-
vided abortions for therapeutic reasons. See “The Morgentaler Judgment: A Study in Constitutional
Rights, Legislative Intention and Institutional Design” (1992) 42 U.T.L.J. [forthcoming].
103Keegstra, supra, note 1 at 123-25. In making these findings, McLachlin J. appears to give cre-
dence to an alleged hatemonger undergoing prosecution who proved a master at attracting media
attention by making provocative statements about the media coverage of his trial, who claimed to
have derived a million dollars worth of publicity from his trial. She appeared to prefer his asser-
tions to the deliberations on the question by numerous experts over a number of years in the mate-
rial before the Court.
14This line of argument raises the possibility that the validity of a Criminal Code provision
might depend upon factors as contingent as the novelty of some feature of the prosecution, the
1991]
CHRONIQUE DE JURISPRUDENCE
1443
the will of Parliament in creating the offence, yet still clings to the metaphor of
the marketplace of ideas. Furthermore, she moves without explanation from a
test of “probability” that s. 319(2) will meet Parliament’s objective, to what she
terms “the point of view of actual effect.”‘”5 For empirical grounds, she turns
from Canada to pre-Second World War Germany. She finds the deterioration of
the Weimar Republic into a racist totalitarian regime, despite its prosecution of
hate mongers, to be evidence of the “tenuous”‘” nature of the connection
between s. 319(2) and its goals. McLachlin J.’s conclusion appears to rest on
this “actual effect” test, rather than the probability test. She states that the ratio-
nal connection test is not satisfied, because the proponents of the impugned leg-
islation have not established a “strong and evident connection between the cri-
minalization of hate propaganda and its suppression.”‘”
Her analysis is flawed in a number of ways. The test used by the dissent
is a moving target, shifting from social science expertise to empirical evidence,
probable effectiveness, historical record, and actual effectiveness in rapid suc-
cession. The speculative quality of McLachlin’s assertions stands up poorly
against the findings of a number of expert bodies,08 which have devoted dec-
ades of study to the issue of hate promotion, and of the prerequisites for a
healthy social and political climate for all members of society.
Perhaps most importantly, McLachlin J.’s discussion denies the normative
function of the criminal law, and ignores the care that went into the drafting of
s. 319(2). The then Minister of Justice Mark MacGuigan’ emphasized this nor-
mative function in the following commentary on the package of Criminal Code
amendments in 1970, of which s. 319(2) was one:
It is the creation of a legal concept of group defamation … In this law we have an
appeal to the conscience of the Canadian people, an appeal to all of us to put our
convictions in writing, in the Criminal Code of Canada, to make them part of the
moral code of our society and to display them in a way which will be plain not
only to ourselves but also to those of the minority group who may be attacked by
less well informed and less well intentioned members of society.” 0
amount and type of media coverage, the public relations skills of the accused, and the newsworth-
iness of the accused’s lawyer.
105Keegstra, supra, note 1 at 125.
1061bid.
1071bid. There was an increase in “overt acts of racism and anti-Semitism” in Alberta in the after-
math of the Court of Appeal invalidation of s. 319(2) in Keegstra. See B.P. Elman, “A Review of
the Keegstra case” (1991) 2 Const. Forum 86 at 88.
I08See Keegstra, ibid. at 41-44 for the studies referred to by Dickson C.J.
‘t 9Professor MacGuigan was a member of the Cohen Committee which first recommended the
adoption of the impugned provision, and is now a judge on the Federal Court of Canada.
” 0M.R. MacGuigan, quoted in R.E. Hage, “The Hate Propaganda Amendment to the Criminal
Code” (1970) 28 U.T. Fac. L. Rev. 63 at 69, from House of Commons Debates 910 (17 November
1969). See also, Morgentaler, supra, note 31 at 412, Dickson C.J.: “The criminal law is a very spe-
cial form of governmental regulation, for it seeks to express our society’s collective disapprobation
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McLachlin J. puts great stock in the way in which the criminal law shapes
behaviour in other contexts: for example, she emphasizes the potential chilling
effect of s. 319(2) on speech in general.”‘ Nevertheless, she denies the effective-
ness of the provision in regard to the very speech targeted by s. 319(2), and
therefore sees insufficient rational connection between the objective of s. 319(2)
and its terms.
McLachlin J. next turns to the second branch of the proportionality test,
and finds that ss 319(2) & (3) impose more than the minimal impairment per-
mitted under Oakes. Her conclusion is based on two grounds: first, the broad
range of conduct caught by the prohibition and, second, the choice of crimina-
lization as opposed to regulation.
For McLachlin J., none of the features of ss 319(2) & (3) manifest suffi-
cient legislative restraint.”‘ Consequently, in her view, at one extreme, the pro-
vision will catch unpopular expression even if it does not contain actual hatred,
and at the other, it will deter people from participating in public debate even
when there is no reasonable possibility of prosecution.
The actual track record of s. 319(2) appears to have no significance here.
The fact that there have been no convictions under s. 319(2), aside from the case
considered here, offers her no comfort. That a number of prosecutions have
been called for and not instituted, or instituted unsuccessfully, demonstrates for
her not the narrow compass of the offence, but that “initially quite a lot of
speech is caught by s. 319(2).”‘ 1 In her discussion of rational connection, she
provides no explanation for her dismissal of this relevant information, which
constitutes the closest parallel available to the factual record of Morgentaler, or
for her acceptance of the much more tenuous information about the workings
of hate propaganda legislation in Weimar Germany.”4
of certain acts and omissions,” and Thomson Newspapers v. Canada, [1990] 1 S.C.R. 425, 67
D.L.R. (4th) 161 at 222, La Forest J.: “the typical concern of the criminal law system” is “conduct
which is by its very nature morally or socially reprehensible,” i.e., “acts violating common sense
standards of humanity which we regard as meriting disapprobation and punishment,” quoting from
the Law Reform Commission of Canada, Our Criminal Law (Report No. 3) (Ottawa: Law Reform
Commission of Canada, 1976) at 3, 5 & 7.
“‘Supra, note 1 at 123.
” 2See Hage, supra, note 110 at 68 for an account of the narrowing of the Cohen Committee’s
recommendations into the terms of s. 319(2). E.g., statements made “for the purpose of removal”
and the exception for private conversation were added by the House of Commons Justice and Legal
Affairs Committee.
The Cohen Report, supra, note 45 at 66, saw no danger to healthy democratic debate:
The two defences of unqualified truth, and reasonable belief in truth coupled with pub-
lie benefit, provide considerable, and we believe adequate, latitude for legitimate public
examination of all matters of concern to it from the rough and tumble of the political
hustings to the riposte of more elegant forms of dialectical needling.
” 3Supra, note 1 at 128.
14McLachlin J. makes no mention of the other countries, including Germany, that have laws
against hate propaganda.
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1445
McLachlin J.’s argument regarding the criminalization of hate promotion
suffers from lack of consistency. In considering rational connection, McLachlin
J. regarded criminalization as potentially advantageous to the hate propagandist,
affording renown, credibility and sympathy.’ Here, in her discussion of mini-
mal impairment, she invokes the more traditional viewpoint of the Court with
respect to criminalization in Charter cases, namely, that the criminal process
imposes stigma and great stress on the accused, and may lead to the curtailment
of one of the most prized interests of all individuals, the liberty of the accused.
McLachlin J.’s analysis militates against the necessity of criminalization and in
favour of other legislative initiatives.” 6 In her view, human rights codes, for
example, provide an opportunity to educate and reform the hate promoter, but
stop short of imposing criminal punishment.”‘ The idea that the minimal
impairment standard requires the state to prove the necessity –
and not merely
the minimal nature – of the intrusion of its impugned policy upon the guaran-
teed right is novel.”‘
McLachlin J. treats the system of human rights codes as less intrusive upon
the s. 2(b) right than the criminal process and sanction, and accordingly as a
demonstration that s. 319(2) does not constitute minimal impairment of freedom
of expression. She makes no mention of the controversial nature of this conclu-
sion, however. One might suggest, for example, that human rights codes fail to
“5Supra, note 1 at 123-24.
“61bid. at 130.
“7McLachlin J. does not mention the possibility of civil actions for group defamation. See the
Civil Rights Protection Act, S.B.C. 1981, c. 12, which prohibits conduct or communication which
purposely promotes hatred, contempt or ideas of superiority of persons, on the basis of colour, race,
religion, ethnic origin or place of origin. Relief includes damages, exemplary damages, and injunc-
tion. The Act also provides for provincial prosecution for breach of the Act, with penalties of a
maximum fine of $2,000 or six months imprisonment.
I18In Oakes, supra, note 31 at 227, the minimal impairment test mandated that the means
employed by a legislature to meet its pressing and substantial objective impair the right claimed
“as little as possible.” In Invin Toy, supra, note 13 at 624-26, the minimal impairment test was
relaxed for instances where the government was mediating between vying groups, reflecting LaFo-
rest J.’s concern that Charter rights not privilege the already privileged or interfere with the legi-
slature’s ability to give priority to urgent “concerns or constituencies.” In such instances, the test
was to consider whether the government had a reasonable basis to assume, on the evidence, that
its legislation impaired the claimed right as little as possible. In other cases, where the government
is not mediating competing group claims, but stands as the “singular antagonist” against the rights
claimant, a “least drastic means” test is applicable: ibid. at 626. In McKinney, supra, note 30 at
652, the majority, per LaForest J. used the “reasonable basis test.” The “necessity” test, therefore,
is a surprising new addition to the shifting sands of the Court’s approach to s. 1 of the Charter,
reminiscent of the test articulated for the Canadian Bill of Rights R.S.C. 1985, Appendix III, in
MacKay v. R., [1980] 2 S.C.R. 370 at 407, 114 D.L.R. (3d) 393: “whether [the inequality] is a nec-
essary departure from the general principle of universal application of the law for the attainment
of some necessary and desirable social objective.” The Invin Toy distinction between “competing
group” and “single antagonist” situations is an insecure foundation for such widely divergent tests
as “reasonable basis” and “necessity.”
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protect the alleged wrongdoer as assiduously as would the criminal law. The
criminal process requires a stricter standard of proof, regards only the prosecu-
tor and the accused as parties, provides a trial conducted by an impartial judge,
and affords defences and full appeal rights –
surely all advantages to an
accused when one is fearful of prosecution for unpopular speech.” 9 In addition,
McLachlin J. makes no mention of the requirement in s. 319(6) that the Attor-
ney General of the particular province consent prior to prosecution, a powerful
protection against ill-considered reliance upon s. 319(2) by the police or
would-be private prosecutors. 2
Turning to the final consideration under the s. 1 Oakes test, that of weigh-
ing the importance of the right against the benefit conferred by its limitation,
McLachlin J. determines that the core values of freedom of expression are jeop-
ardized by s. 319(2). On one side of the balance, she puts the three rationales
for s. 2(b), set out at the beginning of her reasons for judgment.’ On the other,
she finds only the “tenuous”‘ gains afforded by s. 319(2), returning to the view
that the impugned provision may “promote the cause of hate-mongering
extremists,”‘” and hinder the possibility of voluntary reform available under
human rights code regimes but not the criminal law. In this discussion, McLa-
chlin J, once again dismisses the normative force of the criminal law, as well
as the stigma and personal cost of criminal proceedings. 24
This mode of argument is not the now-familiar sequence of considerations
in a s. 1 analysis. While precedent is decisive for McLachlin J. in her consid-
eration of the scope of the right in the first part of her reasons for judgment, she
creates her s. 1 reasoning from whole cloth. Where, one might ask, is the s. 1
HgIn a companion case to Keegstra, the Supreme Court upheld a provision of the Canadian
Human Rights Act, S.C. 1976-77, c. 33 which named as a discriminatory practice the use of the
telephone to communicate repeatedly any matter likely to expose persons to hatred or contempt
with respect to their identification with prohibited grounds of discrimination. McLachlin J. dis-
sented from that judgment on the basis, inter alia, that the impugned provision was too broad and
vague, caught expression beyond what was necessary, lacked an intent requirement, and lacked a
defence of truth. See Taylor v. Canadian Human Rights Commission (1990), 75 D.L.R. (4th) 577,
117 N.R. 191.
120Emst Zundel was prosecuted in Ontario under s. 181, the false news provision of the Criminal
Code, rather than s. 319(2) because Attorney General Ian Scott refused to consent to a prosecution
for inciting hatred. See Hate Propaganda, supra, note 46 at 38, referring to H.R.S. Ryan, “The
Trial of Zundel, Freedom of Expression and the Criminal Law” (1985) 44 C.R. (3rd) 334. It is sur-
prising that the Chief Justice made no mention of this requirement of consent either. The impor-
tance of this feature has come to light recently in the debate about recriminalization of abortion
under the proposed Bill C-43. Had the federal government undertaken an amendment requiring
Attorney General consent for prosecution, the Bill might well have passed the Senate and become
law.
121Supra, note 1 at 84-85 and 121-22.
1221bid. at 132.
123Ibid.
124 1bid. at 131-33.
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concern to ensure that the Charter is not used to invalidate legislation designed
to ameliorate disadvantage?” 5 Where is the reasonable legislature test for min-
imal impairment?” 6 Where is the deference to representative institutions appro-
priate when Charter cases call on courts to reconcile “claims of competing indi-
viduals or groups,”‘ 7 dealing on a step by step basis as urgency dictates?
McLachlin J.’s use of example is also deeply flawed. Her discussion of s.
319(2) is contextualized in hypothetical circumstances that would not in reality
fall within the terms of the provision.”2
This treatment of s. 1 can be contrasted with the careful and well docu-
mented analysis offered by McLachlin J. in her judgment for the B.C. Court of
Appeal in Andrews v. Law Society of B.C. 9 There she was assiduous in artic-
ulating the precise nature of the right, in order to afford the s. 1 argument focus
and rigour. To give s. 15 normative content, she looked to all Charter rights and
interpretive clauses, noting that “no one section should be regarded as para-
mount or as encompassing all of the other sections,”’20 distinguished the Amer-
ican equality jurisprudence and looked to international human rights law to find
in s. 15.” In other words, in
full meaning for the term “discrimination”
125R. v. Edwards Books, [1986] 2 S.C.R. 713 at 779, 55 C.R. (3d) 193.
1261bid See also, Invin Toy and McKinney.
127Inviz Toy, supra, note 13 at 625-26.
12sE.g., she refers to the American legislation under review in Collin v. Smith, 578 F.2d 1197
(7th Circ., 1978) as similar to s. 319(2), a comment that disregards the narrow delineation of the
offence and the list of defences. She also suggests the possibility of prosecutions for dissemination
of William Shakespeare’s The Merchant of Venice, or discussion of reverse racial discrimination:
Keegstra, supra, note 1 at 98. It is unthinkable that either of these examples, as described, would
attract prosecution in Canada under s. 319(2). Indeed, it is difficult to understand how a march of
neo-Nazis in a suburb inhabited by Holocaust survivors could be said to involve the promotion of
hatred. Who are the intended promotees? While one could certainly use Shakespeare’s The Mer-
chant of Venice to promote hatred, the question is whether one has actually done so, not whether
one has made the play available. Other examples are rooted in depictions of the heat of political
debate, e.g., vilifying opponents, even Cabinet ministers or members of a different political party,
as “incompetent, corrupt or unintelligent – or worse” or attempting to “undermine the credibility
of the ideas, conclusions and judgments” of one’s opponents who belong to particular groups:
Keegstra at 106-07. The cut and thrust of debate appears to fall outside s. 319(2) by virtue of subs.
(3)(c). Moreover, it is difficult to put such actions within the definition of “inciting hatred” against
an “identifiable group”. Similarly, the bitter comments uttered by a native leader about whites
would appear to fall outside the section because “whites” would not appear to be an “identifiable
group.” Ibid. at 115. The examples of repression of literary subjects, scientific inquiry or political
debate on questions of immigration, language policy or foreign ownership and trade are given in
the context of discussion of the chilling effect of s. 319(2), and therefore are not proffered as sit-
uations that might attract prosecution. To the extent that it may be inferred that these examples
might attract prosecution, again, subs. (3)(c) should provide a clear answer. Ibid. at 129.
129[1986] 4 W.W.R. 242,27 D.L.R. (4th) 600, aff’d [1989] 1 S.C.R. 143,56 D.L.R. (4th) 1 [here-
inafter Andrews, cited to W.W.R.].
‘3Ibid. at 250.
13’Ibid. at 251ff.
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Andrews, McLachlin J. applied the purposive approach. In addition, her appli-
cation of the Oakes case reflected the more stringent approach to its various
tests, which in Keegstra were employed only by the majority.
H. The Significance of Keegstra
The Keegstra judgment lays bare the two very different value structures
underpinning the right to freedom of expression in a free and democratic
society.
The Chief Justice reads s. 2(b) as forwarding the Charter’s general concern
for individual dignity and equality. In his examination of the Criminal Code
provision against hate propaganda, Dickson C.J.’s sympathy lies with those who
are or might be the targets of hate propaganda. He is apprehensive that wilful,
public hatemongering, in both the short and long term, poisons the atmosphere
of public life, so that members of target groups will be reluctant or unable to
emerge from negative parochial identification into the larger social and political
arena. He requires neither empirical proof of this effect, nor statistical evidence
of its likelihood. He is not daunted by the possibility that this criminal offence
might stifle heated public debate. He is secure in this approach because his con-
ception of free and democratic society, as an aspiration to a public world of
equality and individual dignity, builds upon the knowledge that human beings
are not invariably rational and that, even if they were, rationality takes time. It
is therefore permissible for the state to attach its highest form of disapprobation
to wilful promotion of hatred in the knowledge that there is ample national and
international recognition that this kind of communicative activity is inimical to
the stability in multicultural statehood of the post-war world.
McLachlin J.’s allegiance to the values underlying s. 2(b) may appear to lie
with potential speakers, whose expression stands to be curtailed or chilled by
provisions like s. 319(2). Yet she speaks very little about the rights of speakers,
or even about the rights of Mr. Keegstra himself. Her primary concern is to pre-
serve a social order that can absorb the fortuities of unregulated expression, for
the benefit of the vitality and progress that such expression facilitates. State
interference in expression is forbidden, unless one can establish that there is vio-
lence at hand, or an empirical link between the offensive communication and
harm to members of the target group. Her metaphor is the marketplace of ideas,
in which rational beings trade their wares and true value emerges. She ignores
the fact that the trade in virulent anti-semitism and debased racism can precip-
itate market failure at exorbitant tangible and intangible cost.
The Keegstra decision is the swan song of Chief Justice Dickson, who
wrote, and Justice Wilson, who concurred. It may mark the final invocation of
an understanding of the common values forwarded in Charter rights guarantees
and their limitation, the original vision of purposive rights and justified limita-
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tion under the Charter.3’ In that vision, the text of the Charter encapsulates the
rights and freedoms that are intrinsic to liberal democracy, and permits the jus-
tification of limits that give priority to individual dignity and equality. The leg-
acy of the Keegstra judgment is not that expression rights are feeble. On the
contrary, restrictions on promoting hatred against identifiable groups both pub-
licly and wilfully manifest a commitment to vibrant democracy in a diverse and
far flung land.’33
132This is likely given that the majority’s generous overtures to La Forest and McLachlin JJ.
were ineffective to secure a less sharply divided bench. See supra, note 1 at 35 & 53-54. Cory J.,
before his appointment to the Supreme Court, delivered a judgment much like the majority in
Keegstra: see supra, note 47. Stevenson J. was a member of the Alberta Court of Appeal panel
that invalidated s. 319(2).
133For a similar approach in the American context, see H. Arkes, The Philosopher in the City:
The Moral Dimensions of Urban Life (Princeton: Princeton University Press, 1981), c. 2 & 3.
