R. v. Keegstra
|R. v. Keegstra|
|Hearing: December 5, 6, 1989
Judgment: December 13, 1990
|Full case name||Her Majesty The Queen v. James Keegstra|
|Citations|| 3 S.C.R. 697|
|Ruling||The appeal should be allowed.|
|Chief Justice: Brian Dickson
Puisne Justices: Antonio Lamer, Bertha Wilson, Gérard La Forest, Claire L'Heureux-Dubé, John Sopinka, Charles Gonthier, Peter Cory, Beverley McLachlin
|Majority||Dickson C.J., joined by Wilson, L'Heureux-Dubé, and Gonthier JJ.|
|Dissent||McLachlin J., joined by Sopinka and La Forest JJ.|
|Irwin Toy Ltd. v. Quebec (Attorney General) (1989); R. v. Whyte, (1988); R. v. Oakes, (1986); R. v. Morgentaler, (1988); Rocket v. Royal College of Dental Surgeons of Ontario, (1990)|
R. v. Keegstra,  3 S.C.R. 697 is a landmark freedom of expression decision of the Supreme Court of Canada where the Court upheld the Criminal Code of Canada provision prohibiting the wilful promotion of hatred against an identifiable group as constitutional under the freedom of expression provision in section 2(b) of the Canadian Charter of Rights and Freedoms. It is a companion case to R. v. Andrews.
James Keegstra was a public school teacher in Eckville, Alberta. In 1984, he was charged under section 281.2(2) of the Criminal Code [now 319(2)] ("Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group") for "promoting hatred against an identifiable group by communicating anti-semitic statements to his students". During class, he would describe Jews as a people of profound evil who had "created the Holocaust to gain sympathy." As well, he tested his students in exams on his theories and opinion of Jews.
Keegstra had applied to have the charge quashed for violation of his freedom of expression; however, this motion was denied and he was eventually convicted at trial. The conviction was then appealed to the Appeals Court of Alberta under the auspice that Criminal Code section 319(2) breached the constitutional right of free speech, section 2(b). The Appeals court ruled that indeed section 319(2) did breach section 2(b) of the charter. The Crown appealed the Appeals Court decision to the Supreme Court of Canada.
The issue before the Supreme Court was whether sections 319(2) and 319(3)(a) of the Criminal Code violated section 2(b) and section 11(d)of the Charter and, if so, whether they could be saved under section 1.
Reasons of the court
The Court found that section 319 clearly did violate section 2(b) as it was legislation designed to suppress expression. In this, the Court wrote that freedom of expression within section 2 would not be limited by section 15 (equality rights) and section 27 (recognition of multiculturalism) of the Charter. As the Court explained, using sections 15 and 27 in this way would contradict "the large and liberal interpretation given the freedom of expression in Irwin Toy" and moreover, "s. 1 of the Charter is especially well suited to the task of balancing."
The Court found that the violation of freedom of expression was justified under section 1 as the law had a rational connection to its objective, it was not overly limiting, and the seriousness of the violation was not severe as the content of the hateful expression has little value to protect.
The case provided precedent for other freedom of expression and hate speech cases. In R. v. Butler (1992), a case considering laws against obscenity, the Supreme Court cited Keegstra to note that freedom of expression should be interpreted generously and was infringed in that case. In another hate speech case, R. v. Krymowski (2005), the Court noted that Keegstra had demonstrated hate speech laws were constitutional. Building on expectations that there must be evidence of promotion of hatred against a group, the Court added in Krymowski that courts should then consider the "totality of the evidence" to conclude whether a group had fallen victim to hate speech.
In the Media
The 1988 film "Evil in Clear River" dramatises a very similar story of a Holocaust-denying high school teacher in small town Alberta who is prosecuted under section 281.2(2). It was made before R. v. Keegstra reached its ultimate conclusion in the Supreme Court of Canada.