R. v. Keegstra: A Rationale for Regulating Pornography

R. v. Keegstra: A Rationale for Regulating Pornography?

Kathleen Mahoney*

Introduction

The case of R. v. Keegstra’ was heard in conjunction with two other similar
appeals. One was R. v. Andrews and Smith,2 and the other, Human Rights Com-
mission (Canada) v. Taylor3

In this trilogy of cases, the majority of the Supreme Court of Canada artic-
ulated perspectives on freedom of expression that are more inclusive than exclu-
sive, more communitarian than individualistic, and more aware of the actual
impacts of speech on the disadvantaged members of society than has ever
before been articulated in a freedom of expression case. The Court advanced an
equality approach using a harm-based rationale to support the regulation of hate
propaganda as a practice of inequality. The competing constitutional values as
weighed and evaluated point the way to a more inclusive, democratic and egal-
itarian view of speech regulation than past decisions which emphasized the
autonomy of individuals, weighed their competing claims as though they were
equal, and ignored the social realities in which they operated. In this comment,
the Keegstra decision is analyzed in terms of its applicability to pornography
laws which are currently being constitutionally evaluated by the Supreme Court
in the case of R. v. Butler.4 It is argued that while the equality harms-based
approach to hate propaganda adopted in Keegstra was correct, pornography pre-
sents a much stronger case for regulation.

*Professor of Law, University of Calgary. As counsel for the Women’s Legal Education and
Action Fund (L.E.A.F) in its interventions at the Supreme Court in both the Keegstra and the But-
ler cases, the author had many discussions with members of the National Legal Committee and
the case Subcommittee on both matters. Many of the ideas in this paper came from those discus-
sions and from the written facta filed. I am particularly indebted to Prof. Catharine MacKinnon and
co-counsel, Linda Taylor for their input.
McGill ,Law Journal 1992
Revue de droit de McGill
To be cited as: (1992) 37 McGill L.J 242
Mode de citation: (1992) 37 R.D. McGill 242
‘[1990] 3 S.C.R. 697, [1991] 2 W.W.R. 1, 1 C.R. (4th) 129, 61 C.C.C. (3d) 1 [hereinafter Keegs-

2[19901 3 S.C.R. 870, 1 C.R. (4th) 266, 61 C.C.C. (3d) 490 [hereinafter Andrews and Smith cited

tra cited to S.C.R.].

to S.C.R.].

3[1990] 3 S.C.R. 892, 75 D.L.R. (4th) 577 [hereinafter Taylor cited to S.C.R.].
4 (1990), [1991] 1 W.W.R. 97, 60 C.C.C. (3d) 219, 1 C.R. (4th) 309 (Man. C.A.), rev’g [1989]

6 W.W.R. 35 (Man. Q.B.) [hereinafter Butler].

1992]

CASE COMMENTS

L The Canadian Constitutional Approach

The argument that hate propaganda and pornography may be constitution-
ally regulated on an equality theory engages ss 1, 2(b), 15, 27 and 28 of the
Canadian Charter of Rights and Freedoms,5 which are set out below.

Section 1 of the Charter is its central, pre-eminent provision. It states:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and free-
doms set out in it subject only to such reasonable limits prescribed by law as can
be demonstratively justified in a free and democratic society.

The freedom of expression guarantee is found in s. 2(b) of the Charter. It reads:

2. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of
the press and other media of communication.

The most important substantive provision relevant to an equality approach
to freedom of expression is s. 15, the equality section. It actually contains four
equality guarantees, an open-ended list of prohibited grounds and an affirmative
action provision to allow for beneficial programs for disadvantaged groups. The
section reads:

15.(l) 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, reli-
gion, sex, age or physical or mental disability.

(2) Subsection (1) does not preclude any law, program or activity that has
as its object 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.

Section 27, the multicultural section, and s. 28, the gender equality section,
are provisions meant to assist in the interpretation of the Charter. They empha-
size that multiculturalism and gender equality are important Canadian goals.
They read:

27. This Charter shall be interpreted in a manner consistent with the preservation
and enhancement of the multi-cultural heritage of Canadians.
28. Notwithstanding anything in this Charter, the rights and freedoms referred to
in it are guaranteed equally to male and female persons.

5Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule

B of the Canada Act 1982 (U.K.), 1982, c. I1 [hereinafter Charter].

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[Vol. 37

H. Hate Propaganda and Freedom of Expression: The Keegstra Trilogy

The Keegstra and Andrews and Smith cases raised the same issue of the
constitutional validity of s. 319(2) of the Criminal Code,6 a provision which
prohibits the wilful promotion of hatred, other than in private conversation,
towards any section of the public distinguished by colour, race, religion or eth-
nic origin.7 The Taylor case raised the issue of the constitutional validity of s.
13(1) of the Canadian Human Rights Act,8 a legislative provision which prohib-

6R.S.C. 1985, c. C-46.
7Section 319 reads, in part, as follows:

(2) Every one who, by communicating statements, other than in private conversation,
wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two
years; or
(b) an offence punishable on summary conviction.

(3) No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, he expressed or attempted to establish by argument an opinion
on a religious subject;
(c) if the statements were relevant to any subject of public interest, the discussion
of which was for the public benefit, and if on reasonable grounds he believed them
to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters
producing or tending to produce feelings of hatred toward an identifiable group in
Canada….

(6) No proceeding for an offence under subsection (2) shall be instituted without the
consent of the Attorney General.
(7) In this section,
“communication” includes communicating by telephone, broadcasting or other audible
or visible means;
“identifiable group” has the same meaning as in section 318;
“public place” includes any place to which the public have access as of right or by invi-
tation, express or implied;
“statements” includes words spoken or written or recorded electronically or electro-
magnetically or otherwise, and gestures, signs or other visible representations.

The meaning of “identifiable group” in s. 318 referred to in s. 319(7) is as follows:

(4) In this section, “identifiable group” means any section of the public distinguished
by colour, race, religion or ethnic origin.
8R.S.C. 1985, C. H-6. Section 13.(1) reads:

13.(1) It is a discriminatory practice for a person or group of persons acting in concert
to communicate telephonically or to cause to be so communicated, repeatedly, in whole
or in part by means of the facilities of a telecommunication undertaking within the leg-
islative authority of Parliament, any matter that is likely to expose a person or persons
to hatred or contempt by reason of the fact that person or those persons are identifiable
on the basis of a prohibited ground of discrimination.

(2) Subsection (1) does not apply in respect of any matter that is communicated in

whole or in part by means of the facilities of a broadcasting undertaking.

(3) For the purposes of this section, no owner or operator of a telecommunication
undertaking communicates or causes to be communicated any matter described in sub-
section (1) by reason only that the facilities of a telecommunication undertaking owned

1992]

CHRONIQUES DE JURISPRUDENCE

its the communication of hate messages over the telephone. In all three cases,
the Court was asked to decide whether the legislation infringed the guarantee of
freedom of expression found in s. 2(b) of the Charter, and if so, whether it could
be justified under s. 1. Of the three, Keegstra was the leading decision which
set out the approach adopted by the majority in the other two cases and I will
confine my remarks to the reasoning of the Court in that decision.

There was an additional issue in Keegstra as to whether the presumption
of innocence protected in s. 11(d) of the Charter was breached by s. 319(3)(a)
which provides a defence of “truth,” but only where the accused proves the
truth. This issue is beyond the scope of this comment, and is not dealt with.
The facts of the Keegstra case were that the accused, James Keegstra, a
high school teacher, used his classroom time to communicate anti-semitic teach-
ings to his students. He was convicted at trial of the offence of public, wilful
promotion of group hatred.9 The conviction was appealed to the Alberta Court
of Appeal where it was unanimously overturned, the Court finding that s. 319(2)
of the Criminal Code unjustifiably infringed Keegstra’s freedom of expression
as guaranteed by s. 2(b) of the Charter.0 Speaking for the Court, Kerans J.
found that although deliberate lies are not protected by s. 2(b), innocently or
negligently made hate speech was protected. He said, moving to the s. 1 anal-
ysis, that the Alberta Court, while accepting that s. 319(2) had the valid legis-
lative obective of preventing harm to the reputation and psychological well-

or operated by that person are used by other person for the transmission of that matter.

The purpose of the Act and grounds of discrimination are set out in s. 2 as follows:

2. The purpose of this Act is to extend the laws in Canada to give effect, within the
purview of matters coming within the legislative authority of Parliament, to the prin-
ciple that every individual should have an equal opportunity with other individuals to
make for himself or herself the life he or she is able and wishes to have, consistent with
his or her duties and obligations as a member of society, without being hindered in or
prevented from doing so by discriminatory practices based on race, national or ethnic
origin, colour, religion, age, sex, marital status, family status, disability or conviction
for an offence for which a pardon has been granted.
9R. v. Keegstra (1984), 19 C.C.C. (3d) 254 (Alta Q.B.).

The accused taught social studies courses to grade 9 and grade 12 students at Eckville
High School from the early 1970s until 1982. Through evidence given by former stu-
dents, as well as students’ notebooks and essays written during courses, it was deter-
mined that the accused taught anti-semitic theories. Students were expected to take
down what was said by the accused in class or written by him on the blackboard and
they were expected to learn and reflect this information in the form of essays and on
exams. If their essays and exams contained the theories taught by him in class, they
received excellent marks. If, however, they used sources from outside his classroom
such as encyclopedias, dictionaries and history books, they received poor grades. The
accused only taught his personal biased views and told the students they should accept
his biased view as truth unless they could contradict it (Statement of Facts, Factum of
the Appellant, Her Majesty the Queen filed in the Supreme Court of Canada).

‘OR. v. Keegstra (1988), 87 A.R. 177, [1988] 5 W.W.R. 211, 43 C.C.C. (3d) 150, 65 C.R. (3d)

289, 60 Alta. L.R. (2d) 1 (C.A.) [hereinafter cited to C.C.C.].

McGILL LAW JOURNAL

[Vol. 37

being of target group members, nevertheless found the section unconstitutional
because the injury was not serious enough to require the sanction of criminal
law. The Court stated that in order to be constitutional, more than reputational
harm was required. Greater harm, such as proof of actual hatred being caused
as a result of the impugned expression, was necessary. Sections 15 and 27, the
equality and multicultural sections, were not viewed as working to justify the
hate propaganda laws under s. 1. This decision was appealed to the Supreme
Court of Canada.

A. The Section 2(b) Analysis

In order to determine whether the hate propaganda prohibition violated the
Charter, Dickson C.J., writing for the majority, first examined the scope of the
freedom of expression section. He did so by looking at the underlying values
supporting the freedom of expression guarantee. He said those values are seek-
ing and attaining the truth; encouraging and fostering participation in social and
political decision-making; and cultivating diversity in forms of individual self-
fulfilment and human flourishing.”

After finding the scope of s. 2(b) to be very large and liberal, the Court
adopted a strict categorical test requiring content-based restrictions to fall out-
side s. 2(b) protection only when speech is communicated in a physically vio-
lent form. This was a departure from RWDSU v. Dolphin Delivery Ltd 2 where
the Supreme Court ruled that the freedom of expression guarantee does not
extend to threats of violence. The minority opinion in Keegstra, authored by
McLachlin J., maintained that threats fall outside s. 2(b) protection. 3 The Court
did not delineate precisely “when and on what basis a form of expression cho-
sen to convey meaning falls outside the sphere of the guarantee,” but made it
clear that a murderer or rapist could not invoke freedom of expression in jus-
tification of the form of expression chosen.14 The Court said governments may
only restrict expressive activity when its purpose is other than to restrict the
content of the activity. Even if the purpose is directed solely at the effect rather
than the content of the expression, s. 2(b) can still be brought into play to con-
stitutionally protect the expressive activity if the affected party can demonstrate
that the activity in question supports rather than undermines the principles and
values upon which freedom of expression is based. 5

“Relying on Irwin Toy Ltd v. Quebec, [1989] 1 S.C.R. 927 at 976, 58 D.L.R. (4th) 577 [here-
inafter Irwin Toy cited to S.C.R.], aff’g Ford v. A.-G. Quebec, [1988] 2 S.C.R. 712 at 765-67, 54
D.L.R. (4th) 577 [hereinafter Ford cited to S.C.R.].

12[1986] 2 S.C.R. 573 at 588, 33 D.L.R. (4th) 174 [hereinafter Dolphin Delivery cited to S.C.R.].
13Supra, note 1 at 830-31.
4Ibid. at 732, citing Invin Toy, supra, note 11 at 970.
15Supra, note 1 at 831.

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CASE COMMENTS

Applying this categorical test to the hate propaganda provision, Dickson
C.J. found that the legislation prohibiting the public, wilful promotion of group
hatred did indeed infringe s. 2(b) of the Charter. He said the hate propaganda
provision was an attempt by Parliament to prohibit communication conveying
meaning. The Court rejected the argument that hate propaganda is a form of vio-
lence in and of itself. 6 The Chief Justice made the point that competing values
contained in other Charter provisions such as equality and multiculturalism, and
Canada’s international obligations to prohibit hate propaganda should not be
balanced within the freedom of expression guarantee at the first stage of anal-
ysis because the Court would not have the benefit of making a contextual
assessment and the analysis would be dangerously and overly abstract. He
stated that s. 1 is the preferable place to balance because it permits a contextual
analysis that fully weighs the harm hate speech inflicts on minorities.

The Court’s adoption of a strict categorical approach is unconvincing and
puzzling in light of the purposive approach to rights developed prior to Irwin
Toy which said the judiciary determines the content of the right from the nature
of the interests the Charter is meant to protect. 7 The Court says violence is not
protected under s. 2(b) but it does not tell us why. Surely the reason is that such
expression does not recognize or respect human dignity and autonomy. Even
though the conduct may express profound meaning, its harm to other rights pre-
sumably outweighs its expressive value. While the Court acknowledged that
some wordless human activity can have meaning and must be protected under
s. 2(b), it does not seem to recognize that activity that takes the form of expres-
sion can nonetheless be devoid of meaning in the constitutional sense.” From
a purposive perspective, the denial of equality rights through the discriminatory
practice of promoting hatred arguably deserves the same constitutional consid-
eration under s. 2(b) as does violence or threats of violence. Because the text
of the Charter focuses on expression as the medium that manifests the individ-
uality and common humanity of rights holders, the wilful promotion of hatred
to the recipients of expression arguably should have no constitutional
significance.

Section 15 of the Charter contains the competing rights. It guarantees
racial, religious and ethnic minorities equal access to equality rights. In Andrews

16For a contrary view, see M. Matsuda, “Public Response to Racist Speech: Considering the Vic-
tim’s Story” (1989) 87 Mich. L. Rev. 2320; R. Delgado, “Words That Wound: A Tort Action for
Racial Insults, Epithets and Name-Calling” (1982) 17 Harv. C.R.-C.L. L.Rev. 133.
17See, in particular, Hunter v. Southam Inc., [1984] 2 S.C.R. 145, 55 N.R. 241, 11 D.L.R. (4th)

641, 33 Alta. L.R. (2d) 193, 14 C.C.C. (3d) 97, 6 W.W.R. 577.

‘5L. Weinrib makes a similar argument in a different context in “Does Money Talk? Commercial
Expression in the Canadian Constitutional Context” in D. Schneiderman, ed., Freedom of Expres-
sion and the Charter (Toronto: Carswell, 1991) 336 at 348. See also, L. Weinrib, “Hate Promotion
in a Free and Democratic Society: R. v. Keegstra” (1991) 36 McGill L.J. 1416.

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[Vol. 37

v. Law Society of British Columbia,9 the Supreme Court held that s. 15 is the
broadest of all guarantees, applying to and supporting all other rights guaranteed
by the Charter. In R. v. Big M Drug Mart Ltd. ,2 equality was linked with the
concept of a free society. Particularly in light of Dickson C.J.’s comment that
“[a] free society is one which aims at equality with respect to the enjoyment of
fundamental freedoms and I say this without any reliance upon s. 15 of the
Charter,”‘2 one would think that equality rights are embedded within s. 2(b).

While it is true that hate propaganda combines content and form (colour,
race, religion or national origin are the content), when it takes the form of wilful
public promotion of group hatred on the enumerated grounds, it should be seen
as a practice of inequality similar to racial segregation.22

In R. v. Andrews and Smith’ at the Ontario Court of Appeal, Cory J.A. (as
he then was) identified the connection between hate propaganda and discrimi-
nation. He stated: “[w]hen an expression does instil detestation it … lays the
foundations for the mistreatment of members of the victimized group. ‘
“24
Viewed this way, it can be said that the wilful, public promotion of group hatred
is an act, an injury and a consequence itself. It is not a mere intention to act in
the future. To promote group hatred is, at a minimum, to act to further the social
definition of the group as inferior, unequal and rightly disadvantaged. In other
words, to promote group hatred is to practice discrimination. Discrimination
after all, is an act that contradicts some of the core values underlying freedom
of expression, namely, individual self-fulfilment and human flourishing –
the
very values we are told which define the environment in which all the goals of
freedom of expression should be pursued.’ Viewed this way, the regulation of
hate propaganda should not be invalidated by the doctrine of free speech any
more than legal regulation of racial segregation is invalidated by the same doc-
trine.26 Enforcement of inequality results in injury just as violence does. Its vio-

19[19891 1 S.C.R. 143 at 185 56 D.L.R. (4th) 1 [hereinafter Andrews cited to S.C.R.].
20[1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321.
21lbid. at 336.
22Brown v. Board of Education, 347 U.S. 483 (1954), treated segregation as a form of racial

discrimination.

23(1988), 65 O.R. (2d) 161 (C.A.).
241bid. at 179.
2e’he principles and values underlying the protection of freedom of expression were discussed

in Ford, supra, note 11 at 765-67.

26K. Lahey makes the argument that pornography should be similarly viewed. As an act of dis-
crimination which perpetuates or promotes women’s subordinate status, it should be regulated as
a form of discriminatory activity. See “The Canadian Charter of Rights and Pornography: Toward
a Theory of Actual Gender Equality” (1984-85) 20 New England L. Rev. 649. In American Book-
sellers Association v. Hudnut, 598
. Supp. 1316 (S.D. Ind. 1984), the Court found that pornog-
raphy is a practice of discrimination but nevertheless held it was protected speech. See text accom-
panying note 67.

1992]

CHRONIQUES DE JURISPRUDENCE

lent nature ranges from immediate psychic wounding and attack to well docu-
mented consequent physical aggression.’

At the very least, hate propaganda should be seen as harassment on the
basis of group membership. The courts in both Canada and the United States
have accepted that harassment is a practice of inequality resulting in legally rec-
ognized harm and loss, even when it consists solely of words. It is a form of dis-
crimination, even though the action takes the form of words. When legislatures
regulate harassment, they do not regulate the content of expression, although the
expression has content. The Court treats it as a practice of inequality.’ Hate
propaganda, which is a particularly virulent form of harassment, should be
treated similarly.

Had the Court viewed content and form as points on a continuum rather
than as discernibly distinct categories, a more nuanced, sensitive and practical
approach could be taken to forms of expression which should not be dignified
or legitimized by Charter protection. Speech activity such as pornography, rac-
ist signs, sexual and racial harassment as well as hate propaganda fall into this
category. Social-psychologist Gordon Allport’s analysis of the harms of preju-
dice supports a continuum approach rather than the categorical approach and
appeals to common sense and historical experience. Allport says there are five
stages of racial prejudice: expression of prejudicial attitudes, avoidance, dis-
crimination, physical attack and extermination. 9 He says that each stage
depends on and is connected to the preceding one. He refers to the history of
the Third Reich to make this point:

It was Hitler’s antilocution that led Germans to avoid their Jewish neighbours and
erstwhile friends. This preparation made it easier to enact the Nuremburg laws of
discrimination which, in turn, made the subsequent turning of synagogues and
street attacks upon Jews seem natural. The final step in the macabre progression
was the ovens at Auschwitz.3
It is this progressive, interdependent connection of hate propaganda with
violence which cannot be contemplated within the “violent form” limitation on
content regulation as articulated in Irwin Toy.

0

27Center for Democratic Renewal, They Don’t Wear Sheets: A Chronology of Racist and Far
Right Violence, 1980-1986 (Atlanta: Division of Church and Society of the National Council of the
Churches of Christ in the U.S.A., 1987). This report documents violent racist incidents over several
years in 48 states.

28Janzen v. Platy Enterprises Ltd, [1989] 1 S.C.R. 1252,59 D.L.R. (4th) 352 [hereinafter Janzen
cited to S.C.R.]; Robichaud v. Treasury Board (Canada), [1987] 2 S.C.R. 84, 40 D.L.R. (4th) 577;
see C. MacKinnon, Sexual Harassment in the Workplace: A Case of Sex Discrimination (New
Haven: Yale U. Press, 1979) for the seminal work on this topic.

29G.W. Allport, The Nature of Prejudice (Cambridge, MA: Addison-Wesley, 1954), cited in D.
Bottos, “Keegstra and Andrews: A Commentary on Hate Propaganda and the Freedom of Expres-
sion” (1989) 27 Alta. L.R. 461 at 471.

30lbid.

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In the final analysis, the category of “violent form” is unhelpful and even
misleading. Without more convincing reasons, the deviation from the purposive
approach makes both Keegstra and Irwin Toy inconsistent with the earlier deci-
sions of the Supreme Court and introduces unnecessary rigidity into s. 2(b)
interpretation. The effect of the narrow exclusion not only dignifies vicious,
harmful speech activity, it progressively erodes expression rights in favour of
policy-oriented decisions performed under s. 1. Ultimately, using s. 1 in this
way may soften the strigency of its requirements, deny meaningful content to
s. 2(b) and trivialize the Charter guarantee of freedom of expression. 31

B. The Section 1 Analysis

Having determined that the public, wilful promotion of group hatred falls
within the protective ambit of s. 2(b) and that the Criminal Code prohibition of
it infringed James Keegstra’s freedom of expression, the Court turned to con-
sider whether under s. 1, the infringement was a reasonable limit demonstrably
justifiable in a free and democratic society. The Court split 4 to 3 in finding that
the burden of s. 1 was satisfied and that the legislation could be upheld. The
analysis followed the format set out in R. v. Oakes.32 It first looked at the press-
ing and substantial concerns test, articulating three reasons why the test was
met. The first reason focused on the harm caused by hate propaganda. The Chief
Justice stressed that extremist hate speech causes “real” and “grave” harm to
both its target groups and society at large. It is not merely offensive. He said that
like sexual harassment, hate propaganda constitutes a serious attack on psycho-
logical and emotional health. Members of the target groups are humiliated and
degraded, their self-worth is undermined, they are encouraged to withdraw from
the community and deny their own personal identity. The societal harm was
described as the serious discord caused by hate propaganda between cultural
groups, which in turn creates an atmosphere conducive to discrimination and
violence.33

It is worthy of note that the majority rejected the American “clear and pres-
ent danger” test of harm, saying it and other categorizations and rules generated
by American law may be inappropriate to Canadian constitutional theory.’ This
is a welcome clarification in the law. It not only clears up the confusion caused
by differing opinions in the lower courts,35 it recognizes that very serious harms

31See R. v. Committee For the Commonwealth of Canada, [1991] 1 S.C.R. 139 at 232-33, 77
32R. v. Oakes, [1986] 1 S.C.R. 103 at 136, 26 D.L.R. (4th) 200 [hereinafter Oakes cited to

D.L.R. (4th) 385, McLachlin J.

S.C.R.].

33Supra, note 1 at 744-49.
341bid.
35For example, Kerans J., speaking for the majority of the Court of Appeal of Alberta in the
Keegstra case, supra, note 10 at 175-76, said that in order for the hate propaganda provisions to

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CASE COMMENTS

addressed by the hate propaganda law do not in general entail such an identifia-
ble danger point or necessarily lend themselves to a “clear and present danger”
type of classification. The majority of the Court appeared to recognize the
harms caused by hate propaganda are often difficult to detect either immedi-
ately, or ever. Hate propaganda is known to have much more subtle effects. It
relies on fear and ignorance to engender indoctrination over time. It works by
socializing, by establishing the expected and the permissible. Any requirement
to prove “clear and present danger” or scientifically verifiable harm would
effectively ignore the realities of the crime, and ensure that very few, if any con-
victions would ever be obtained. By rejecting the “clear and present danger”
test, Dickson C.J. made it quite clear that dry and sterile analytic techniques36
which effectively predetermine the issue will not be imported into Canada.37

A second reason the provisions were found by the majority to be of press-
ing and substantial concern was the importance of the Canadian commitment to
equality and multiculturalism reflected in ss 15 and 27 of the Charter. The
majority situated s. 27 in an equality context, saying that attacks on groups need
to be prevented because group discrimination can adversely affect its individual
members.” The Court stated that by creating hate propaganda laws, Parliament
seeks “to bolster the notion of mutual respect necessary in a nation which ven-
erates the equality of all persons.”39 This reasoning is not dissimilar to that of
the United States Supreme Court in Beauharnais v. Illinois,n” to which the Chief
Justice referred,4 suggesting that the Beauharnais decision is closer to the
Canadian approach to freedom of expression than the line of cases which sub-
sequently undermined it.4 2 He cautioned that even though current American free
speech doctrine may be helpful in many respects, it is of dubious applicability
in the context of a challenge to hate propaganda legislation.

In this writer’s view, the Court was entirely correct on this point. It brought
a welcome and needed clarification between American free speech doctrine and
Canadian constitutional values. The Charter is not constrained by the textual or

meet the proportionality test, the law would have to require the successful promotion of hate, oth-
erwise, the harm would not be serious enough to justify infringements on the freedom of expres-
sion guarantee. While not conceding the point that hate propaganda causes real harm, Cory J. (as
he then was) of the Ontario Court of Appeal, in R. v. Andrews (1988), 65 O.R. (2d) 161 at 186-87,
on the other hand, cited numerous examples of laws which prohibit activities which carry a risk
of harm (i.e., impaired driving, attempted murder, conspiracy) but where harm need not occur.

36H.F. Stone, “The Common Law in the United States” (1936) 50 Harv. L. Rev. 4 at 10.
37Supra, note I at 740-44.
3 Ibid. at 757.
391bid. at 756.
40343 U.S. 250 at 263 (1951).
41Supra, note 1 at 739.
42Anti-Defamation League of B’nai B’rith v. Federal Communications Commission, 403 F.2d

169 at 174 (D.C. Cir. 1968); Collin v. Smith, 578 F.2d 1197 at 1204-05 (7th Cir. 1978).

REVUE DE DROIT DE McGILL

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political constitutional imperatives of the American First Amendment,43 but
more importantly, the fundamental structure, historical and circumstantial dif-
ferences between the two Constitutions require a distinctively Canadian
approach.’ Although both countries share a democratic ideal, they do not share
the same view of social and political life.

In sociological terms, Canada and the United States experience some of the
same realities of heterogeneity of population, of language differences, and of
original native population.45 In this dimension, definition and reconciliation of
minority rights have been central to civil liberties politics in both countries. But
a major ideological difference is Canada’s rejection of the American melting pot
approach to cultural diversity, in favour of a mosaic approach. One of the objec-
tives of the drafters of the Charter was to develop a bilingual, multicultural
country and a pluralistic mosaic.46

As a result, Charter commitments are different in many respects from the
commitments of the American Bill of Rights. The multicultural section is a case
in point. It states that the Charter shall be interpreted in a manner consistent
with the preservation and enhancement of the multicultural heritage of Canadi-
ans.47 This provision is particularly important when courts are required to bal-
ance the freedom of expression of hate propagandists against the multicultura-
lism ideal and the powerful equality provision. Section 15(1) demonstrates
Canada’s very strong commitment to equality. It not only guarantees equal pro-
tection of the law, like the American Constitution, but it also guarantees equality
before and under the law and equal benefit of the law without discrimination
based on race, national or ethnic origin, colour, religion, sex, age, or mental or
physical disability. It is thus much broader in scope than the Fourteenth Amend-
ment,4″ having wider substantive protections as well as more prohibited grounds

4 3The First Amendment reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or of abridging the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition the government for a redress of
grievances.

“4Dickson, C.J. discusses the similarities and differences in American and Canadian approaches

to freedom of expression, supra, note 1 at 738-44.

45For a further discussion of this and other factors, see A.F. Westin, “The United States Bill of
Rights and the Canadian Charter: A Socio-Political Analysis” in W. McKercher, ed., The U.S. Bill of
Rights and the Canadian Charter of Rights and Freedoms (Toronto: The Economic Council, 1983).
46Special Joint Committee of the Senate and House of Commons on the Constitution of Canada,
Final Report (Ottawa: Queen’s Printer, 1972). The minutes state that the purpose of a multicultural
provision would be, “[t]o develop Canada as a bilingual and multicultural country in which all its
citizens, male and female, young and old, native peoples and Mrtis, and all groups from ethnic ori-
gins feel equally at home.”

47Charter, s. 27.
45The Fourteenth Amendment, s. 1, reads as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No State

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CHRONIQUES DE JURISPRUDENCE

of discrimination. Section 15(2) of the Charter expressly adds a clause which
legitimizes affirmative action in the constitutional definition of equality rights.
When s. 15 is read with the multiculturalism section, it creates a formidable
obstacle against those who would use the freedom of expression guarantee to
promote hatred against identifiable groups.

The other minority interests protected in the Charter –

including language
and education rights, aboriginal rights, and rights for denominational separate
dissentient schools49 – underline the strong commitment to collective rights in
the Charter which is not evident in the American Constitution. Against this
background, it is not surprising the Court found the prohibition of the public,
wilful promotion of group hatred a matter of pressing and substantial concern
sufficient to meet s. 1 requirements.

To further emphasize the pressing and substantial concerns, the Court took
note of international human rights obligations which require Canada to suppress
hate propaganda by way of the criminal law in order to protect identifiable and
vulnerable groups.”0 The Court said that when values such as equality and free-
dom from racism enjoy status as international human rights they are generally
ascribed a high degree of importance under s. L The United States has not rat-
ified this or similar conventions.

In applying the second portion of the Oakes test, that of proportionality, the
majority again referred to harm. The Court made the point that hate propaganda
is only tenuously connected to the values underlying s. 2(b) because the harm
of hate speech is significant and the truth value marginal.52 In assessing hate
propaganda against the fundamental values underlying the freedom of expres-
sion guarantee, the Court found it to be an illegitimate form of political speech
which loses its democratic aspirations to the free expression guarantee because
the ideas it propagates are anathema to democratic values. Moreover, it found
that hate speech undermines the value of protecting and fostering a vibrant
democracy because it denies citizens equality and meaningful participation in
the political process and its contribution to self-fulfilment and human flourish-
ing is negligible. It not only chills or denies freedom of expression to those it
targets, it undercuts the self-development and human flourishing among all
members of society by engendering intolerance and prejudice.53

shall make or enforce any law which shall abridge the privileges or immunities of cit-
izens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.

49 Charter, ss 21, 25, 29, 35.
51See art. 4 of the International Convention on the Elimination of All Forms of Racial Discrim-
ination, 24 August 1966, Can. T.S. 1970 No. 28 (entered into force for Canada, 4 January 1969).
5 1Supra, note 1 at 736, citing Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038
52Supra, note I at 761.
53Ibid. at 763-65.

at 1056, 59 D.L.R. (4th) 416.

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The minority, on the other hand, said some hate speech could be impor-
tant.’
It feared that regulations on hate propaganda could start a “slippery
slope” of encroachment on valuable political speech or could catch angry
speech by members of disadvantaged minority groups. But the Chief Justice
was of the view that the mens rea requirement would restrict the reach of the
provision to only those groups meant to be caught by it. Perhaps a stronger
argument is that the contextualized approach is a sufficient safeguard to isolate
extremist hate speech from legitimate political speech closer to the core of s.
2(b). Constitutional equality as interpreted by the Court in Andrews,55 is essen-
tially designed to protect those groups who suffer social, political and legal dis-
advantage. If hate propaganda was directed against historically dominant group
members by subordinated group members, a contextual approach would consti-
tutionally protect it, even in the s. 1 balance. This is appropriate because the
attack would not be linked to the perpetuation of disadvantage. It would be tied
to the structural domination of the group attacked. If the groups were equal, pre-
sumably any special protection would be removed. Dickson C.J. cautioned
against assigning categories of scrutiny to expressive activity, however, saying
this would result in a loss of the sensitive examination of free speech principles
the contextual approach allows.

Finally, the Court examined the relationship between the equality rights in
the Charter and the freedom of expression guarantee. While acknowledging that
s. 15 does not itself guarantee social equality, the Court nevertheless made it
clear that equal law is seen as a means to an equal society, as well as an end
in itself. Its statement that “[t]he principles underlying s. 15 of the Charter are
… integral to the s. 1 analysis,”56 gives s. 15 a broader constitutional function
than protecting individuals from state-imposed discrimination. The Keegstra
Court clearly established that just as Charter rights can be used to challenge leg-
islation, they can be used to uphold existing legislation that furthers s. 15 val-
ues. In the words of the Chief Justice, “[i]n so far as it indicates our society’s
dedication to promoting equality, s. 15 is also relevant in assessing the aims of
s. 319(2) of the Criminal Code under s. 1.”‘ Similarly, the Court took account
of s. 27 and its recognition that Canada possesses a multicultural society in
which the diversity and richness of various cultural groups is a value to be pro-

54Ibid. at 859, MeLachlin J.
55Supra, note 19 at 154, Wilson J., Dickson C.J., L’Heureux-Dub6 J. concurring.
56Supra, note 1 at 756.
57Ibid. at 755. The Court cited, with approval, the written submissions of the intervenor,

Women’s Legal Education and Action Fund (L.E.A.F.) which stated:

Government sponsored hatred on group grounds would violate section 15 of the Char-
ter. Parliament promotes equality and moves against inequality when it prohibits the
wilful public promotion of group hatred on these grounds. It follows that government
action against group hatred, because it promotes social equality as guaranteed by the
Charter, deserves special constitutional consideration under section 15 (ibid. at 756).

1992]

CASE COMMENTS

tected and enhanced. The equality section and the multicultural section read
with the hate propaganda provisions within s. 1 were sufficient to outweigh the
freedom of expression interest in the propagation of hatred and establish equal-
ity as a pre-eminent value in Canadian society.5”

In conclusion, the approach established by the Keegstra decision in the s.
1 balancing stage legitimated group rights to the extent that they outweighed the
competing individual right of freedom of expression. 9 The recognition that the
harm of discrimination can outweigh the free speech interest marks a major new
development in freedom of expression jurisprudence.

The connections the Court made between institutional arrangements, col-
lective and individual harms, human relations and equality amount to a funda-
mental departure from the American approach. It recognized that boundaries
between individual and collective rights must be confronted and that the Char-
ter is capable of proposing new relationships.

By considering group rights in relation to free speech, the Court moved the
analysis outside the limited liberal spectrum6′ of individual liberty, political
freedom, the public/private distinction, and theoretical definitions.62 The liberal
perception of individuals in complete abstraction and isolation from each other
and social circumstances was rejected by the majority in favour of the view that
essential human characteristics, needs, interests, capacities and desires are both
created and altered by context.63

It is at this fundamental level the American free speech doctrine differs
from the Canadian approach. Under the First Amendment, social reality is not
considered when legislation regulating extremist speech is challenged.’ This is

5 Ibid. at 757-58.
59In the words of Wilson J. in R. v. Turpin, [1989] 1 S.C.R. 1296 at 1333, 96 N.R. 115, 69 C.R.
(3d) 97, 48 C.C.C. (3d) 8 [hereinafter Turpin cited to S.C.R.], s. 15 is designed to protect those
“groups suffering social, political and legal disadvantage in our society.”

6(The minimal impairment analysis is not discussed here as it specifically deals with the precise
wording of the section and the defences available to an accused and this is not directly relevant
to the equality approach.
61This has often been called “outsider jurisprudence.” See Matsuda, supra, note 16 at 2323-26.
62For a discussion of the appropriateness and adequacy of liberal presuppositions, see K.E.
Mahoney, “The Limits of Liberalism,” in R. Devlin, ed., Canadian Perspectives on Legal Theory
(Toronto: Emond Montgomery, 1991) 57 at 60-68.

63C.C. Gould discusses how the liberal theory and values separate human beings from their
social context and how this leads to the development of definitions and principles that ignore other
fundamental values. See “Private Rights and Public Virtues: Women, the Family and Democracy,”
in C.C. Gould, ed., Beyond Domination [:] New Perspectives on Women and Philosophy (Totowa,
N.J.: Rowman and Allanheld, 1983) 3.

64See Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989); P. Seator, “Judicial
Indifference to Pornography’s Harm: American Booksellers v. Hudnut” (1987) 17 Golden Gate U.
L. Rev. 297.

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[Vol. 37

a critical difference because taking a contextual approach can result in a right
or freedom having a different value. In Keegstra, the Court looked at freedom
of expression in the reality of the situation at hand when assessing its value,
including the nature of the interests at stake. The centrality of equality to the
enjoyment of individual as well as group rights in the decision demonstrates a
firm acceptance of the view that equality is a positive right, that the Charter’s
equality provision has a large remedial component and that legislatures should
take positive measures to improve the status of disadvantaged groups.” Most
importantly, the Keegstra decision identifies a transformative potential in the
Charter, a potential to achieve social change towards the creation of a society
based on an ethic that responds to needs, honours difference and rejects abstrac-
tions.66

The next section of this paper deals with the case of R. v. Butler in relation
to the Keegstra decision. The Butler case is presently before the Supreme Court
of Canada on the constitutional challenge that obscenity laws violate the free-
dom of expression guarantee.
M. R. v. Butler: The Constitutional Analysis of Obscenity Laws

in Relation to the Keegstra Case
In Butler,67 the entire inventory of a pornography store in Winnipeg was
seized and the owner was prosecuted. The vast majority of the material seized
was visual, in which women were presented as used, hurt or abused for sex for
men. In the subject materials, women were presented as raped, sometimes act-
ing as if they were enjoying it, sometimes screaming, resisting and trying to run
away. Sex acts were presented as being performed on subordinates by superiors
or caretakers, including employer or employee, priest or penitent, doctor or
nurse, nurse or patient. Adult women were presented as children and some par-
ticipants appeared to be children. Women were penetrated with objects, bound
with rings through their nipples and hung handcuffed and nude from the ceiling.
Men ejaculated on women’s faces and into their mouths. A small amount of the
subject material presented sexual aggression against men including bondage,
penetration with objects, rape and beatings.63

The accused was charged with numerous counts pursuant to s. 159 of the
Criminal Code (now s. 163), including possession of obscene material for the
purposes of distribution, sale, and selling and exposing obscene materials to

ond Story Press, 1991) at 21.

65Andreivs, supra, note 19 at 185.
66S. Razack suggests this is a feminist ideal in Canadian Feminism and the Law (Toronto: Sec-
67Supra, note 4.
6tExhibits 2, 3, 4, 5, 6, 9, 14, 20, 29, 33, 46, 50, 55, 56, 60, 62, 64, 66, 70, 71, 78, 79, 80, 85,
86, 87, 162, 168, 169, 171, 173, 174, 175, 176, 186, 189, 190, 11, 22, 4, 7/23, 12, 15, 17, 30, 34,
42, 44, 59 and 76.

1992]

CHRONIQUES DE JURISPRUDENCE

public view. At trial, a conviction was entered on a small number of the charges.
An acquittal was granted on most of the impugned material on the grounds that
they were protected by s. 2(b) of the Charter. The Crown appealed the acquittals
and the accused cross-appealed the convictions to the Manitoba Court of Appeal
where the Crown’s appeal was upheld and the accused’s was dismissed. It was
from the decision of the Manitoba Court of Appeal that the accused Bufler
appealed to the Supreme Court of Canada on the constitutional grounds that s.
163 of the Criminal Code violates s. 2(b) of the Charter.

In what follows, the same method of analysis that was used in the Keegstra
case will be applied in order to determine the constitutionality of obscenity
laws. First, the scope of freedom of expression will be examined to see if the
legislation violates the expression guarantee. If it does, it will be tested against
the s. 1 standard to see whether it constitutes a reasonable limit prescribed by
law as can be demonstrably justified in a free and democratic society. On the
basis of Keegstra, an equality harms-based theory should be able to constitu-
tionally regulate pornography under ss 2(b), 15, 28 and 1 of the Charter. The
contextualized approach to equality adopted by the Supreme Court in Andrews69
and followed in Keegstra will establish that the sex equality interest in porno-
graphy’s regulation arises out of the harms it causes.

On the issue of the scope of s. 2(b), two arguments will be made: first,
some pornography is made through the use of force, violence or coercion. As
such, it is a “violent form” of expression and is excluded from s. 2(b) protection;
and secondly, some pornography is not protected under s. 2(b) by virtue of s.
28. In the alternative, to the extent that s. 163 is interpreted to promote sex
equality, any restraints it imposes on expression are demonstrably justifiable in
a free and democratic society. Each of the arguments is dealt with in turn.

A. Pornography as a Violent Form of Expression

When considering the scope of freedom of expression guarantee in Keegs-
tra, the Supreme Court concluded two things: that the purpose of the hate prop-
aganda law is to restrict content of expression, and that hate speech does not
amount to a violent form of expression. The Court said that while Mr. Keegs-
tra’s ideas were unsettling and demeaning in the extreme, they did not amount
to a violent form of expression because they did not urge actual or threatened
physical interference in the same sense that violence was characterized in Dol-
phin Delivery70 and Irwin Toy!’ As a result, the analysis of the legitimacy of
hate laws took place within s. 1.

69Supra, note 19.
70Supra, note 12.
7 1Supra, note 11.

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[Vol. 37

The Court should not come to the same conclusion when evaluating por-
nography within s. 2(b). While hate propaganda and pornography are similar in
some respects, they have qualitative differences. They are similar in their
express or implied intent, which is to distort the image of a group or class of
people, to deny their humanity, to make them such objects of ridicule and humil-
iation that acts of aggression against them are viewed less seriously.72 The major
difference between them is the method used to achieve the desired effects. In
some pornography, the sexual use and abuse of women are direct, visual por-
trayals. Unlike most hate propaganda, pornography often involves real violence
where women are coerced and sexually assaulted so that pornography can be
made of them.73 When overt infliction of pain, overt use of force, or the threat
of either of them is used in the production of pornography, its purely violent
nature should bring it within the “violent form” category.74 Furthermore, mass
marketing of sexual assault as a form of “entertainment” provides a profit
motive for physically harming people. Clearly this is a more serious, immediate
harm than the harms identified by the majority in Keegstra. Pornography which
is made from assaults should be no more worthy of protection as expression
than the assaults themselves. Obscenity laws properly interpreted criminalize
this type of pornography not because of any meaning it may have, but because
of the direct harm it causes to the participants involved.7

1

The United States Supreme Court has dealt with child pornography in this
way. In New York v. Ferber,76 the Court upheld a statute criminalizing the dis-
tribution of child pornography. It looked at the process by which child pornog
raphy is made, concluding that it inflicts psychological and physical harm on
children and is a form of child abuse.77 Moreover, the Court found the harm to
the child is exacerbated by circulation of pictures of the abuse. As a result, the
sex pictures were also regarded as child abuse. Through Ferber, the Supreme

72S. Brownmiller compares pornography to hate propaganda against Jews and Blacks, finding
strong similarities in content yet differences in society’s reaction to them. Whereas racist hate prop-
aganda is disparaged, pornography is ideologically encouraged. See “Against our Will: Men,
Woman and Rape” in L. Lederer, ed., Take Back the Night: Women on Pornography (New York:
Morrow, 1980) at 30-35.

73United States, Final Report of the Attorney General’s Commission on Pornography (1986) at

747-56, 767-1035. This report is commonly known as the Meese Commission.

74See Matsuda, supra, note 16; A. Dworkin, “Against the Male Flood: Censorship, Pornography
and Equality” (1985) 8 Harv. Women’s L.J. 1, where the author discusses the pornographic por-
trayal of women being killed and mutilated and the direct connection between pornography and
violence.

75Lahey, supra, note 26, describes how in American Booksellers v. Hudnut extensive evidence
of harm to women participating in the production of pornography was adduced. See also the public
hearings regarding an ordinance to add pornography as discrimination against women, held by the
Government Operations Committee of the Minneapolis City Council (12-13 December 1983). The
testimony before the hearings also included social science evidence of pornography’s harm.

76458 U.S. 747 (1982) [hereinafter Ferber].
771bid. at 758.

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CASE COMMENTS

Court of the United States criminalized the entire chain of sale, distribution and
possession of child pornography as a means of eliminating its harms. The Court
has also recognized that harm can extend to third parties.”

Women forced into the production of pornography or assaulted in it should
be similarly protected. In the context of historic disadvantage on the basis of sex
and age, both groups are vulnerable, both experience the same kind of harm to
produce the same kind of expression, for the same purposes.

It will be very difficult for pornographers to argue that pornography pro-
duced through the use of violence, force or coercion meets any of the values
underlying the freedom of expression guarantee. In her dissent in Keegstra,
McLachlin J. explained the rationale for excluding not only violence from s.
2(b) protection, but also threats of violence:

The justification for excluding violence as a protected form of expression is not
just that violence is harmful to the victim, it is rather that violence is inimical to
the rule of law on which all rights and freedoms depend. Threats of violence are
similarly inimical. They are coercive, taking away choice and undermining free-
dom of action. Most fundamentally, they undercut one of the essential justifica-
tions of free expression –
the role of free expression in enhancing the freedom
to choose between ideas (the argument based in truth) or between courses of con-
duct (the argument based on democracy). Being antithetical to the values under-
lying the guarantee of free expression, it is logical and appropriate that violence
and threats of violence be excluded from its scope.79
In some pornography, there is an inherent threat of violence which takes
away women’s choices and undermines their freedom of action. For example,
positive outcome rape scenarios which portray rape as pleasurable for the victim
are known to increase the risk of violence against women. In laboratory settings,
social scientists have found that exposure to such scenarios increases aggression
against women, increases attitudes which are related to violence against women
in the real world and increases self-reported likelihood to rape. A significant
percentage of men exposed to such materials come to believe that violence
against women is acceptable.8″ Materials which create such effects constitute

78Osborne v. Ohio, 110 S. Ct. 1691 at 1697 (1990). For example, pedophiles may use pornog-

raphy to abuse other children.

79Supra, note 1 at 830-31. See also Dolphin Delivery, supra, note 12 at 578; Irwin Toy, supra,
note I I at 970; Rocket v. Royal College of Dental Surgeons, [1990] 2 S.C.R. 232 at 245, 71 D.L.R.
(4th) 68, 47 C.R.R. 193 [hereinafter Royal College cited to S.C.R.].
80E. Donnerstein, “Pornography: Its Effect on Violence Against Women” in N. Malamuth & E.
Donnerstein, eds, Pornography and Sexual Aggression (Orlando, Fla: Academic Press, 1984) 53;
E. Donnerstein & L. Berkovitz, “Victim Reaction in Aggressive Erotic Films as a Factor in Vio-
lence Against Women” (1981) 41 J. of Personality and Soc. Psych. 710; N. Malamuth, “Factors
Associated with Rape as Predictors of Laboratory Aggression Against Women” (1983) 45 J. of Per-
sonality and Soc. Psych. 432; N. Malamuth, “Predictions of Naturalistic Sexual Aggression”
(1986) 50 J. of Personality and Soc. Psych. 953; N. Malamuth & J.V.P. Check, “The Effects of
Aggressive Pornography and Beliefs in Rape Myths: Individual Differences” (1985) 19 J. of

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direct threats of violence against women, and for the reasons cited by McLach-
lin J., should be excluded from constitutional protection. The majority decision
in Keegstra, however, would preclude such a finding as threats were found to
fall within the protective ambit of s. 2(b). Hopefully, the Court will reconsider
this decision in Butler. The ramifications of protecting threats of violence as
constitutional speech make the underlying free speech rationale of democracy
and truth meaningless.

B. Pornography Is Not Protected Expression by Virtue of Section 28

On its face, it is clear that s. 28 overrides every other provision in the Char-
ter. It is unconditional. The words, “notwithstanding anything in this Charter,
the rights and freedoms referred to in it are guaranteed equally to male and
female persons,” mandate that all rights and freedoms, including freedom of
expression and equality rights, are guaranteed equally to women and men. From
its wording, it is difficult to come to any other conclusion than that s. 28
engages s. 2(b) prior to any recourse to s. 1 and requires a balancing of speech
and sex equality interests. This means that s. 28 should be able to constrain the
operation of s. 2(b) to the extent that freedom of expression cannot be expanded
when it would have the effect of increasing sex inequality. In other words, if
pornography is recognized as a practice of sex discrimination, it follows that
freedom of expression cannot be expanded within s. 2(b) to protect it if the
effect will be to promote or perpetuate the subordinate status of women.

Moreover, s. 15 read with s. 28 guarantees women equal access to equality
rights. Constitutional equality is concerned with eliminating the disadvantage of
historically subordinated groups.”‘ This means that the Charter is not neutral on
practices which promote inequality, but rather has a commitment to ending
them. At the very least, before the protection of s. 2(b) can be claimed, s. 28
should require the pornographer asserting speech rights to demonstrate that the
subject materials do not limit women’s equality rights.

In Keegstra, s. 28 was not a factor, nor were coercion and violence present
in the materials considered. But in considering s. 27, the multiculturalism sec-
tion of the Charter, the Chief Justice quoted Cory J.A. in Andrews where he
wrote that “multiculturalism cannot be preserved let alone enhanced if free rein
is given to the promotion of hatred against identifiable cultural groups.”” The

Research in Personality 299; J.V.P. Check & T.H. Guloien, “Reported Proclivity for Coercive Sex
Following Repeated Exposure to Sexually Violent Pornography, Nonviolent Dehumanizing Por-
nography, and Erotica” in D. Zillman & J. Bryant, eds, Pornography: Research Advances and Pol-
icy Considerations (Hillsdale, N.J.: Erlbaum, 1989) 159; M. McManus, “Introduction” to Final
Report of the Attorney General’s Commission on Pornography, supra, note 73 at xviii (consensus
of all researchers as released by Surgeon General Koop).

81See Andrews, supra, note 19.
82Supra, note 1 at 758, citing Andrews, supra, note 35 at 181.

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CHRONIQUES DE JURISPRUDENCE

argument is stronger in relation to s. 28. Equality cannot be guaranteed equally
to male and female persons if free rein is given to pornography.

C. The Analysis under Section 1: Pornography Is Protected Expression

but Justifiably Regulated by Obscenity Laws
Pornography which does not exhibit explicit or implicit violence in its pro-
duction will be considered under s. 1. The function of s. I is to balance tensions
between harms. When obscenity laws collide with the freedom of expression
guarantee, the state must prove that the rights or interests protected by the law
outweigh the expression right infringed. The equality approach adopted in
Keegstra will require a balancing of the harms that flow from regulating expres-
sion by obscenity laws against harms actualized through the promotion of
women’s inequality in pornography. In deciding on the proper balance, courts
must be guided by the values and principles essential to a free and democratic
society which include respect for the inherent dignity of the human person,
commitment to social justice and equality, accommodation of a wide variety of
beliefs, respect for cultural and group identity, and faith in social and political
institutions which enhance the participation of individuals and groups in soci-
ety.83

The analysis in s. 1 requires the Court to go through several steps. First,
the objectives of the obscenity provisions must be of sufficient importance to
warrant overriding the constitutionally protected right of freedom of expression
in pornography. Second, if such an objective is established, the state must show
that the means chosen to attain the objective are reasonably and demonstrably
justified in a free and democratic society. To conclude that the means chosen are
reasonable and demonstrably justified, the Court must be satisfied of three
things: the measures designed to meet the legislative objective must be ratio-
nally connected to the objective; the means used should impair as little as pos-
sible the right and freedom in question; and there must be proportionality
between the effect of the measures which limit the Charter right or freedom and
the legislative objective.’

1.

The Legislative Objective –

Is It a Pressing and Substantial Concern?
The obscenity provisions seek to prohibit the portrayal, depiction or
description of matters, the dominant characteristic of which is the undue exploi-

83Oakes, supra, note 32, Dickson C.J.
84Supra, note I at 735-38, Dickson C.J. In his discussion of the role of s. 1, the Chief Justice
also stressed that it is misleading to conceive of s. I as a rigid and technical provision. He said
it plays an immeasurably richer role embracing not only Charter values, but all values associated
with a free and democratic society. He said there must be an awareness of the synergistic relation-
ship between the values underlying the Charter and the circumstances of the particular case. In the
pornography context, the interests of women would therefore have to be sensitively weighed
against any value pornography has in the context of a free and democratic society.

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tation of sex, or of sex and one or more of the following subjects, namely, crime,
horror, cruelty and violence.” The Wagner line of cases86 held that Parliament’s
objective is to protect women from the harms resulting from violent or dehu-
manizing and degrading depictions. This notion is implicit in Towne Cinema
Theatres Ltd v. R.’ where the Supreme Court stated that the definition of
“undue” must encompass publications harmful to members of society. The
Court held:

[e]ven if certain sex-related materials were found to be within the standard of tol-
erance of the community, it would still be necessary to ensure that they were not
“undue” in some other sense, for example in that sense that they portray persons
in a degrading manner as objects of violence, cruelty or other forms of dehuman-
izing treatment.

88

Whether the legislation will meet the pressing and substantial concern test will
depend upon how seriously the Court views the harms which are actualized by
the promotion of women’s inequality through pornography and the context in
which pornography is assessed.

Here, as in the s. 2(b) analysis, pornography makes a stronger case for reg-
ulation than hate propaganda does. This is because pornography is much more
commonplace, socially accepted and widely distributed across class, race, and
geographical boundaries than hate propaganda, and it exists in a societal context
of sex inequality. It follows that the harm of pornography must be deeper, wider
and more damaging to social life than the harm of hate propaganda. Thus when
pornography is prohibited, equality is promoted.

The finding in Keegstra89 that serious and real harms are caused by dis-
criminatory expression is consistent with the findings of numerous social sci
ence studies and commissions that have reported on the specific harms of por-
nography. They all acknowledge that while it cannot be scientifically proven
that pornography causes direct harm, it reinforces sexual attitudes and behav-
iour antithetical to equality rights and contributes to violent and dangerous
behaviour.’

8 Criminal Code, s. 163(8).
86R. v. Doug Rankine Co. (1983), 36 C.R. (3d) 154, 9 C.C.C. (3d) 53 (Ont. Co. Ct.); R. v. Nicols
(1984), 43 C.R. (3d) 54, 17 C.C.C. (3d) 555 (Ont. Co. Ct.); R. v. Ramsingh (1984), 14 C.C.C. (3d)
230, 29 Man. R. (2d) 110 (Q.B.); R. v. Wagner (1985), 43 C.R. (3d) 318 (Alta. Q.B.), aff’d (1986),
50 C.R. (3d) 175 (C.A.), leave denied 50 C.R. (3d) 175 (S.C.C.); R. v. Red Hot Video Ltd. (1985),
45 C.R. (3d) 36, 18 C.C.C. (3d) 1 (B.C.C.A.), leave denied 46 C.R. (3d) xxv (S.C.C.); R. v. Fringe
Product Inc. (1990), 53 C.C.C. (3d) 422 (Ont. Dist. Ct.) [hereinafter Fringe Product].

87[1985] 1 S.C.R. 494, [1985] 4 W.W.R. 1, 18 D.L.R. (4th) 1 [hereinafter Towne Cinema cited

to S.C.R.].

88Ibid. at 505.
89See discussion supra, notes 32-36 and accompanying text.
9See Metro Toronto, Final Report on Public Violence Against Women and Children (1984) at
74 [hereinafter Public Violence]; D.E.H. Russell, “Pornography and Rape: A Causal Model”

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CASE COMMENTS

One of the many statements describing the discriminatory effects of por-
nography is found in the Report on Pornography by the Standing Committee on
Justice and Legal Affairs (MacGuigan Report):

The effect of this type of material is to reinforce male-female stereotypes to the
detriment of both sexes. It attempts to make degradation, humiliation, victimiza-
tion, and violence in human relationships appear normal and acceptable. A society
which holds that egalitarianism, non-violence, consensualism, and mutuality are
basic to any human interaction, whether sexual or other, is clearly justified in con-
trolling and prohibiting any medium of depiction, description or advocacy which
violates these principles. 91
A similar, but stronger view of the harm of pornography was expressed by
Easterbrook J. in American Booksellers Association v. Hudnut,9 where he
stated:

[P]ornography affects thoughts. Men who see women depicted as subordinate are
more likely to treat them so. Pornography is an aspect of dominance. It does not
persuade people so much as change them. It works by socializing, by establishing
the expected and the permissible. In this view, pornography is not an idea; por-
nography is the injury.

Depictions of subordination tend to perpetuate subordination. The subordi-
nate status of women in turn leads to affront and lower pay at work, insult and
injury at home, battery and rape on the streets.93
Easterbrook J. specifically made the point that pornography is more than
representational material depicting the subordination of women. He recognized
that pornography actually subordinates women.94

(1988) 9 Political Psychology 41; D.E.H. Russell, “Pornography and Violence: What Does the
New Research Say?” in L. Lederer, ed., supra, note 71 at 218; Malamuth & Donnerstein, supra,
note 80; McManus, Final Report of the Attorney General’s Commission on Pornography, supra,
note 73; Commonwealth of Australia, Report of the Joint Select Committee on Video Material
(Canberra: Australian Government Publishing Service, 1988).

91Standing Committee on Justice and Legal Affairs, Report on Pornography (Ottawa: Minister
of Supply and Services, 1978) at 18:4. Similar findings were made in Pornography and Prostitu-
tion in Canada: Report of the Special Committee on Pornography and Prostitution (Ottawa: Min-
ister of Supply and Services, 1985) at 95-103 [hereinafter Fraser Report]; and in the Final Report
of the Attorney General’s Commission on Pornography, supra, note 73 at 747-56, 767-1035.

92771 F.2d 323 (7th Cir. 1985), aff’d 475 U.S. 1001 (1986).
931bid. at 328-29 (emphasis added).
94This view has been put forward by leading feminist theorists such as C. MacKinnon in many
of her excellent publications including Towards a Feminist Theory of the State (Cambridge: Har-
vard U. Press, 1989) c. 11; see also S. Brownmiller, Against Our Will: Men, Women and Rape (New
York: Simon and Shuster, 1975) at 441-45; A. Dworkin, in numerous articles and books including
“Against the Male Flood: Censorship, Pornography and Equality,” supra, note 74.

In spite of this strong conclusion about the injurious nature of pornography, Easterbrook J. and
the rest of the Court of Appeal for the Seventh Circuit proceeded to deny that any governmental
effort to censor pornography on the grounds of harm to women as a class could possibly withstand
a constitutional challenge. For a comprehensive critique of the judgment, see Seator, supra, note
64.

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When the Supreme Court inquires into the larger social, political, and legal
context of women’s experience, as it must do in the Butler case,95 the broad dis-
criminatory effects of pornography should be obvious.96

In the larger context, women’s experience includes rape, battery, prostitu-
tion, incest and sexual harassment as part of daily life. Compared to men, it is
common knowledge that women are unequal socially, politically and individu-
ally. The encouragement and promotion of subordination in pornography, par-
ticularly the depictions of violence and exploitation of women at the hands of
men, reinforces the systemic violence and social harm.

Stereotyping and stigmatization of historically disadvantaged groups were
recognized as harms deserving of sanction in Keegstra because the Court found
that they shape the social image and reputation of group members, often con-
trolling their opportunities more powerfully than individual abilities do. The
vast proliferation and sheer volume of pornography compared to that of hate
propaganda, makes the harm to women’s credibility, safety and opportunities
much more serious and generalized.97

The pronouncements of the Supreme Court about the importance of equal-
ity in a free and democratic society and the need to protect vulnerable groups
from real harm caused by expression,” should ensure that the pressing and sub-
stantial requirement of the Oakes test will be met.

2.

Are the Means Chosen To Attain the Objective Reasonably and
Demonstrably Justified in a Free and Democratic Society?

Once the pressing and substantial objective of the legislation is identified,
the second branch of the Oakes test, proportionality, must be examined. The
Court determines whether the means –
is proportional and appropriate to the ends of suppressing pornography in order
to maintain individual dignity and women’s equality. The Court must consider
not only the importance of the right in question and the significance of its lim-
itation, but whether the way in which the limitation is imposed is justifiable.

the criminal prohibition of obscenity –

95This requirement was set out in Turpin, supra, note 59 at 1331. The Supreme Court of Canada
said that in assessing whether a group is discriminated against, inquiry must be directed into “the
larger social, political and legal context,” and enumerated “indicia of discrimination such as stereo-
typing historical disadvantage or vulnerability to political and social prejudice” (ibid. at 1333).
96In Keegstra, supra, note 1 at 745-49, Dickson C.J. found that hate propaganda produced real
harms of a discriminatory nature without relying on authoritative studies or evidence. Extensive
evidence of the harms of pornography were put before the Court in Butler so it will be surprising
if the Court does not conclude, in a stronger way, that pornography discriminates against women.
97T. McCormick, Making Sense of Research on Pornography, a report for the subcommittee of
the Metropolitan Toronto Task Force on Violence Against Women, relied on in Public Violence,
supra, note 90 at 37.

98See text accompanying notes 72-75.

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In a society where gender inequality and sexual violence exist as
entrenched and widespread social problems,” criminal legislation prohibiting
material which attempts to make degradation, humiliation, victimization and
violence against women appear normal and acceptable would be more in line
with principles of a free and democratic society than otherwise. The criminal
prohibition, by fostering non-violent, non-aggressive, positive gender relations
in a community dedicated to sex equality obviously bears a rational connection
to the protection of those targeted by pornography.

Whether the means used impair freedom of expression as little as possible
will depend on how the Court interprets the key words of the obscenity defini-
tion, “undue exploitation of sex.”‘ ‘ If they are interpreted to include mere sex-
ual explicitness according to a morality standard,” it will be difficult to find
either a rational connection between the legislative objective and the means
chosen to attain it or minimal impairment. Arguably, the net is cast too wide if
mere explicitness amounts to “undue exploitation of sex.” The inherent vague-
ness in the assessment would probably fail to meet the requirements of intelli-
gible standards. On the other hand, if the harm-based equality interpretation is
adopted, the rational connection is there. The impairment to expression is min-
imized because the harm is more explicit, resulting in more predictable appli-
cation of the law.

In this part of the s. 1 assessment, the Court will also examine whether
other less intrusive means are available to Parliament to meet its objective. The
means, even if rationally connected to the objective, should impair “as little as
possible” the right or freedom in question.”0 2 In Irwin Toy, the Court softened
this requirement, emphasizing the importance of protecting vulnerable groups
where evidence indicates the ban is reasonable.

This Court will not in the name of minimal impairment, take a restrictive approach
to social science evidence and require legislatures to choose the least ambitious
means to protect vulnerable groups. 10 3

“9Fringe Product, supra, note 86 at 444.
100The definition of obscenity in s. 163(8) of the Criminal Code reads as follows:

For the purposes of this Act, any publication a dominant characteristic of which is the
undue exploitation of sex, or of sex and any one or more of the following subjects,
namely, crime, horror, cruelty and violence, shall be deemed to be obscene.

”Historically, obscenity law was justified on the basis of morality, a rationale which has been
the subject of much criticism and obscures pornography’s discriminatory effects on women. Some
courts rely on the morality standard, justifying regulation on the “dirt for dirt’s sake” rationale. See,
for example, R. v. Pereira-Vasquez (1988), 26 B.C.L.R. (2d) 273, 64 C.R. (3d) 253 at 269,
(B.C.C.A.); R. v. Video World Ltd. (1985), 22 C.C.C. (3d) 331 at 342-43, [1986] 1 W.W.R. 413,
36 Man. R. (2d) 68 (C.A.), leave denied, [1987] 1 S.C.R. 1255.

‘020akes, supra, note 32 at 139.
’03Supra, note 11 at 994.

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The Court also distinguished between situations where the government
mediates between different groups with competing interests and those situations
where government is the singular antagonist of the individual whose right has
been infringed.1″ Where the latter is true, the Court will take a stricter approach
to the “least drastic means test.” Even though pornographers cast themselves as
individual victims of government oppression, arguably they are aggressors in a
social conflict between women and men who oppress them. It could be said that
obscenity laws advance the interests of women, while pornographers advance
the interests of the dominant male group by subordinating women. If that is the
case, obscenity laws should be viewed as Parliament’s reasonable assessment as
to where a line should be drawn between competing interests. By prohibiting the
undue exploitation of sex interpreted as violent, degrading and dehumanizing
depictions, Parliament strikes a reasonable balance which courts should not sec-
ond guess. It follows that the relative burdens of the parties under s. 1 should
be assessed in a mediation context. Pornographers should have to justify limit-
ing the equality rights of women, just as the Crown should have to justify any
limit on freedom of expression obscenity laws create.

The final portion of the Oakes test requires the Court to examine the pro-
portionality between the effect of the obscenity laws on freedom of expression
and the legislative objective. If the contextual approach of Keegstra, Royal Col-
lege, 5 and Edmonton Journal” are followed, the Court will examine the rela-
tionship of pornography to the free expression values of seeking and attaining
the truth; participation in social and political decision-making; and individual
self-fulfilment and human flourishing.

Like hate propaganda, the Butler Court should find that pornography is low
value speech. It is hardly persuasive to argue that opinions advocating the sex-
ual torture or degradation of women in pornography will lead to a better world
or can contribute to truth-seeking. Rather than a vehicle for seeking and
attaining the truth, pornography more obviously inhibits truth-seeking because
it intimidates and silences women, preventing them from asserting the truth.
While it could be said that pornography may be of some value through educat-
ing the population about misogyny, it is far from clear that an open confronta-
tion with pornography in the marketplace of ideas leads to a richer belief in the
truth. It is more likely that the opposite result occurs. Debasement of women in
pornographic magazines, books, movies, films or television, on street comer
news-stands, on covers of record albums and in shop windows is an ever-
increasing phenomenon. Three surveys indicate that sales of pornographic mag-
azines in Canada increased by 326.7 percent between 1965 and 1980. This rep-

104Ibid.
’05Supra, note 79.
16Edmonton Journal v. Alberta (A.G.), [1989] 2 S.C.R. 1326 at 1355-56, 64 D.L.R. (4th) 577,

Vilson L

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CASE COMMENTS

resents an increase of at least fourteen times the growth of the Canadian
population during the same period. 7 The messages in pornography that women
and children are sex objects available to be violated, coerced, and subordinated
at the will of men is replicated in real life statistics which are also increasing
at a very rapid rate. Widespread sexual assault, wife battery, sexual harassment
and sexual abuse of children0 8 indicate that the competing idea, that women as
human beings are equal to men and that children must be treated with dignity
and respect, is not emerging from the marketplace in any significant way. The
“value” of pornography as a truth-seeking device in these terms would seem to
range from remote to none. In light of the serious facts detailing widespread
abuse, it doesn’t make sense to suggest that the uninhibited activity of pornog-
raphers is important to maintaining a belief that what they have to say is wrong.
If pornography is seen to subvert the truth-seeking process itself, the interests
of seeking truth work against, rather than in favour of it.”

The harms of pornography render it antithetical to the other values and pur-
poses underlying the freedom of expression guarantee as well. For example, it
is difficult to imagine that it encourages community participation. The more
likely scenario is that social and political participation of women is constrained
by pornography because it undermines respect for them. In terms of the value
of self-fulfilment, if individuals who traffic in and consume pornography are
fulfilled, it is at the expense of the rights of women. Human flourishing of men
cannot be said to be encouraged by material which harms others.

Pornographers and civil libertarians often argue that the harm of pornogra-
phy is “in the eye of the beholder” and any offensiveness caused is easily dimin-
ished or eradicated by averting the eyes or not listening. The problem with this
argument is that the categorization of “offensiveness” wrongly places the harm
within the victim’s control. It suggests that if the victim is harmed it is her own
fault because she should or could have avoided it. This form of victim-blaming
ignores the true essence of discrimination, which is not how members of disad-
vantaged groups feel about themselves, but rather how they are viewed by mem-
bers of the dominant group.

t07Committee on Sexual Offences Against Children and Youths, Sexual Offences Against Chil-
dren (Chairman: Robin F. Badgley) (Ottawa: Minister of Supply and Services, 1984) at 180-83
[hereinafter Badgley Report].
108See the Fraser Report, supra, note 91; L. Clark & D. Lewis, Rape: The Price of Coercive
Sexuality (Toronto: Women’s Press, 1977) at 61, state that incidents of rape increased by 174%
between 1961 and 1971 in Canada. In the period 1969-1973, it increased 76%. S. Armstrong, in
“Wife Beating: Let’s Stop it Now” Canadian Living (July 1985) 89, states that one women in ten
is beaten by her husband or common law spouse; and the Badgley Report, ibid., states that 50%
of women and 30% of men are victims of unwanted sexual acts or incidents occurring before
adulthood.

’09See L. Bollinger, The Tolerant Society: Freedom of Speech and Extremist Speech in America

(New York: O.U.P., 1986) at 87-93.

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To the extent that the majority in Keegstra made a clear finding that deg-
radation and humiliation fall into the category of serious harms rather than mere
offensiveness, it will be difficult for pornographers to argue that pornography’s
harms are trivial or within the victim’s control. In Keegstra, the harms caused
by hate propaganda were analogized to the harms of sexual harassment, an indi-
vidualized harm which also promotes group disadvantage. ” It would follow
that pornography’s harms, which affect women as a class as well as individual
women, should at the very least be equivalent to the harms caused by hate
propaganda.

In summary, when an equality analysis is used to determine what is a rea-
sonable limit prescribed by law in the context of a free and democratic society,
courts allow the government to alleviate the harmful effects of discrimination.
From an equality perspective, the means chosen by Parliament to alleviate dis-
crimination through obscenity laws are rationally connected to the objectives of
protecting society and individuals from dehumanization and degradation. The
limitations which the obscenity laws place on expression minimally impair the
freedom because pornography is contrary to the principles and values which
underlie its protection. Any limit on freedom of expression is slight when com-
pared with the deleterious effect pornography has on women and on society as
a whole. An equality analysis further recognizes that the legislative action to
deter degradation and dehumanization of women goes some way to redress the
imbalance of power between the sexes.

Conclusion

Canadian judges are in the process of challenging existing thought about
the constitutional protection of freedom of expression. The assumption that
human behaviour can be generalized into natural universal laws is being chal-
lenged by the analytical approach which favours context rather than detached
objectivity. It rebels against linearity and inevitability. It does not accept that
certain truths exist and that it is futile to try and change them. By expanding the
perimeters of the discussion, previously hidden underlying facts and issues are
being exposed. As a result, decisions as to which facts are relevant, how the
issue is framed and which legal principle is binding, are changing. Obscenity
laws like hate propaganda laws should be refrained in equality terms and
defended as such in constitutional litigation. The question of harm should be
addressed in a way that recognizes the experience of inequality and
subordination.

Equality is an emerging right. Establishing it requires reciprocity of respect
and parity of regard for physical dignity and personal integrity. Legal interpre-

Mi0 n Janzen, supra, note 28, Dickson C.J. drew a clear connection between sexual harassment

and sex inequality generally.

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269

tation must be guided by these values and goals and must not further entrench
social realities to the contrary if the constitutional mandate of equality is to be
met. Hopefully, the Supreme Court will continue in the direction mapped by the
Keegstra decision in deciding what is and is not constitutionally protected
speech in Butler. If they do, equality will be enhanced, rather than inequality
entrenched.