Testing the Limits of Freedom of Expression:
The Keegstra Case
Eckville, Alberta
December 13, 1990
Does freedom of expression mean you can say anything to anyone? If not,
what can you say and to whom? James Keegstra would push his freedom of
expression to the limit and force the Supreme Court of Canada to answer
these difficult questions.
Keegstra was a high school teacher in the small Alberta town of Eckville.
In 1984, he was charged with unlawfully promoting hatred against an identifiable
group under s. 319(2) of the Criminal Code. The charges stemmed from Keegstra's
anti-Semitic (anti-Jewish) statements to his students.
He had described Jews as "revolutionists," "treacherous,"
"impostors," "communists," "secret," "
sneaky," " manipulative," and " deceptive." He
taught that Jewish people were "barbaric," "subversive,"
"sadistic," " materialistic," " money-loving,"
and " power hungry." He advised the students that they were
to accept his views as true unless they were able to contradict them.
Students who echoed his views generally received better grades than those
who didn't. Under the Criminal Code, Keegstra could have made such statements
legally if certain conditions applied , but none of them did. He made
the statements in public, in his capacity as a teacher. He made them solely
to attack Jewish peoples and not in any effort to generate discussion
for public benefit.
How did Keegstra defend his actions? He argued that s. 319(2) of the
Criminal Code violated his right to freedom of expression guaranteed under
the Canadian Charter of Rights and Freedoms.
He almost won his case.
By a 4 to 3 margin, the Supreme Court ruled:
- Communications which wilfully promote hatred against an identifiable
group are protected by s. 2(b) of the charter. Section 319(2) of the
Criminal Code, therefore, represents an infringement of the charter.
- Section 319(2) of the Criminal Code constitutes a reasonable limit
upon freedom of expression under Section 1 of the charterbecause a)
there is obviously a rational connection between restricting hate propaganda
and fostering harmonious social relations between Canadians b) it doesn't
unduly impair freedom of expression and c) its harmful effects don't
outweigh the advantage gained from limiting freedom of expression.
The Supreme Court ruled that Keegstra's rants exceeded his freedom of
expression simply because there was no precedent for hate as justifiable
means to a productive and moral end. Hitler had used hate to advance his
theories. Keegtra would not be allowed to do the same.
James Keegstra is no longer a teacher.
Did you know?
According to Keegstra, Jews "created the Holocaust to gain sympathy".
Did you know?
Under the Criminal Code, Keegstra could have legally made such statements
if any of the following conditions had applied:
- he promoted hatred in a private conversation by stating facts he believed
to be true
- he made the statements honestly and was just trying to express an
opinion upon a religious subject
- he reasonably believed the statements were true, and the statements
were relevant to a subject of public interest, the discussion of which
was for the public benefit
- he was trying to point out things that tended to promote hatred towards
a group, but only to help remove those hateful feelings
Section 2(b) of the Charter
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
Subsections 319 (2) and (3) of the Criminal Code:
319. ...
(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.
Want To Know More?
See:
Backgrounder: Freedom of Expression
R. v. Keegstra [1990] 3 S.C.R. 697
Section 319(2) and (3) of the Criminal Code
| 
