R. V. Keegstra Essay, Research Paper

Mr. Keegstra was a high school teacher in the small Alberta town of Eckville, where he also acted as mayor for a short duration.

Mr. Keegstra had toiled in obscurity as a social studies teacher until is dismissal in 1982 after allegations that his teachings were highly anti-semetic, referring to Jews as subversive , sadistic , money loving , etc. As well, Keegstra denied the holocaust and reinforced his views by giving grades to those who agreed with his teachings. If they failed to agree, their marks suffered greatly

1984, Mr. Keegstra was charged under s.319(2) of the criminal code with unlawfully promoting the hatred against an identifiable group by the communication of anti-sementic statement s to his students.

Applying to the Court of Queens Bench in Alberta , Keegstra demanded that the charges against him be quashed under the grounds that s.319 of the Criminal Code was an unjust infringement upon his s.2 Charter Right to the freedom of expression. Justice Quigley was quick to dismiss Keegstra s s.2(b) argument, stating that it is beyond doubt that breeding hate is detrimental to society for psychological and social reasons and that it can easily create hostility and aggression which leads to violence .

His decision provided an argumentative balance between freedom of expression and the much more collective social cohesion of the common good. Under this clause Quigley then justified that section 319(2) had a reasonable limit over section 2(b) under s.1 of the Charter. Keegstra was convicted and charged.

-Keegstra then appealed his case to the Alberta Court of Appeal in 1988. On top of the infringement argument of s.2(b) by s.319(2), Keegstra also argued that s.319(3) of the Code was an infringement of s. 11(d) of the Charter pertaining to the presumption of innocence.

- Section 319(3)(a) places a reverse onus on the accused to provide truth of the statements communicated. This automatically places responsibly on the accused to prove him/herself innocent. In defense this was seen as an infringement of charter rights particularly under s. 11(d) where the accused is presumed innocent until found guilty according to law in a fair and public hearing by an independent and impartial tribunal.

- On both issues Justice Kerans J.A. found that the Charter had been violated , and that s.319(2) had actually failed the proportionality test, reasoning that the section itself was to general in definition and failed to recognize sections 15 and 27 of the Charter dealing with multiculturalism, as he felt that they need not apply to the specific case. The appeal by Keegstra was allowed.

Keegstra s fate was then left in the hands of the Supreme Court of Canada

Issues:

The following constitutional questions were developed to help make the Supreme Court decision (pg. 90, course pack)

1) Is s.319(2) of the Criminal code Canada R.S.C., 1985, c. C-46) an infringement of freedom of expression as guaranteed under s.2(b) of the Canadian Charter of Rights and Freedoms?

2) If s.319(2) of the Criminal code Canada R.S.C., 1985, c. C-46) is an infringement of s.(2)(b) the Canadian Charter of Rights and Freedoms , can it be upheld under s.1 of the Canadian Charter of Rights and Freedoms as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society?

Is s.319(3)(a) of the Criminal code Canada R.S.C., 1985, c. C-46) an infringement of freedom of expression as guaranteed under s.11(d) of the Canadian Charter of Rights and Freedoms?

If s.319(3)(a) of the Criminal code Canada R.S.C., 1985, c. C-46) is an infringement of s.11(d) of the Canadian Charter of Rights and Freedoms , can it be upheld under s.1 of the Canadian Charter of Rights and Freedoms as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society?

All seven judges on the Supreme Court of Canada Panel agreed that s.319(2) of the Criminal Code was an infringement on s.2(b) of the Charter. Reasons for this decision include:

Following the precedence laid out in Irwin Toy, stating that expression has both content and form

when an activity attempts to convey a meaning, through non-violent forms of expression, such as the anti-semetic view points taught to students by Keegstra, it considered to consist of expressive content , and thus falls within the guidelines of the word expression as found in the guarantee of s.2(b)

The form of Expression conveyed by Keegstra was non-violent in nature, and therefore protected under s(2).

Although all judges agreed on section 319(2) as being an infringement of 2(b), they did not however when determining whether s.319(2) can be upheld as a reasonable limit under s.1 of the Charter.

The majority of the judges led by Dickson C.J. felt that s.319(2) should be upheld by a reasonable limit under s.1 of the charter. Reasons included:

The judgement of upholding a reasonable limit satisfied all three steps of the proportionality or Oakes test. First, there is an established objective; parliament has recognized the harm that hate propaganda can breed, and the pain suffered by those groups that are targeted. It is of the best interest of Canada that hate speech and propaganda be limited by law and demonstrably justified in a free and democratic society. Second, the limitation of s.(2)(b) also passes the minimal impairment test, but applied less rigorously then other contexts , suppression of hate literature causes an impairment of the individuals freedom of expression which is not of the most serious nature. Finally this individual freedom is balanced in proportionately to the basic interest of the common good and that of Canadian parliament when involving expression that is hateful in nature

Similarly as seen in the first question all seven Supreme Court judges felt that s.319(3)(a) of the Criminal Code was a violation of s.11(d) . Reasons included:

If the accused is required to prove some fact on the balance of probabilities to avoid a conviction, the impugned provision is a violation of the presumption of innocence because it permits an automatic conviction in spite of a reasonable doubt. The accused is presumed guilty until proven innocent. This reverse onus is a violation of 11(d) of the Charter.

In answering whether s.319(3)(a) of the Criminal code should be upheld as a reasonable limit under s.1 of the Charter, the majority decision of the judges felt that their was a reasonable limit to s.11(d). Reasons included:

- Once again the proportionality or Oakes test was used in upholding the reasonable limit.

First, there is a rational connection to the purpose of preventing harm caused by hate propaganda. The reverse onus makes it more difficult to avoid conviction where the promotion of hatred has been proven beyond a reasonable doubt. Second, in requiring the accused to prove the validity of his statements, on a balance of probabilities, the importance of truth is paramount to parliament. Thirdly, in order for Parliament to firmly prohibit hate propaganda effectively this limitation is needed, and the burden of proof must be placed on the accused

Is s.319(2) of the Criminal code Canada R.S.C., 1985, c. C-46) an infringement of freedom of expression as guaranteed under s.2(b) of the Canadian Charter of Rights and Freedoms?

Yes

If s.319(2) of the Criminal code Canada R.S.C., 1985, c. C-46) is an infringement of s.(2)(b) the Canadian Charter of Rights and Freedoms , can it be upheld under s.1 of the Canadian Charter of Rights and Freedoms as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society?

Yes

Is s.319(3)(a) of the Criminal code Canada R.S.C., 1985, c. C-46) an infringement of freedom of expression as guaranteed under s.11(d) of the Canadian Charter of Rights and Freedoms?

Yes

If s.319(3)(a) of the Criminal code Canada R.S.C., 1985, c. C-46) is an infringement of s.11(d) of the Canadian Charter of Rights and Freedoms , can it be upheld under s.1 of the Canadian Charter of Rights and Freedoms as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society?

Yes

Keegstra is convicted of all charges by the Supreme Court of Canada