Present: Dickson C.J.* and Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

The judgment of Dickson C.J. and Wilson, L'Heureux-Dube and Gonthier JJ. was delivered by

DICKSON C.J.:-- This appeal was heard in conjunction with the appeals in R. v. Andrews, S.C.C., No. 21034, and Canada (Human Rights Commission) v. Taylor, S.C.C., No. 20462. Along with Andrews it raises a delicate and highly controversial issue as to the constitutional validity of s. 319(2) of the Criminal Code, R.S.C., 1985, c. C-46, a legislative 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 ethnic origin. In particular, the Court must decide whether this section infringes the guarantee of freedom of expression found in s. 2(b) of the Canadian Charter of Rights and Freedoms in a manner that cannot be justified under s. 1 of the Charter. A secondary issue arises as to whether the presumption of innocence protected in the Charter's s. 11(d) is unjustifiably breached by reason of s. 319(3)(a) of the Code, which affords a defence of "truth" to the wilful promotion of hatred, but only where the accused proves the truth of the communicated statements on the balance of probablities.

I FACTS

Mr. James Keegstra was a high school teacher in Eckville, Alberta from the early 1970s until his dismissal in 1982. In 1984 Mr. Keegstra was charged under s. 319(2) (then 281.2(2)) of the Criminal Code with unlawfully promoting hatred against an identifiable group by communicating "anti-semitic statements to his students. He was convicted by a jury in a trial before McKenzie J. of the Alberta Court of Queen's Bench.

Mr. Keegstra's teachings attributed various evil qualities to Jews. He thus described Jews to his pupils as "treacherous", "subversive", "sadistic", "money-loving", "power hungry" and "child killers". He taught his classes that Jewish people seek to destroy Christianity and are responsible for depressions, anarchy, chaos, wars and revolution. According to Mr. Keegstra, Jews "created the Holocaust to gain sympathy" and, in contrast to the open and honest Christians, were said to be deceptive, secretive and inherently evil. Mr. Keegstra expected his students to reproduce his teachings in class and on exams. If they failed to do so, their marks suffered.

Prior to his trial, Mr. Keegstra applied to the Court of Queen's Bench in Alberta for an order quashing the charge on a number of grounds, the primary one being that s. 319(2) of the Criminal Code unjustifiably infringed his freedom of expression as guaranteed by s. 2(b) of the Charter. Among the other grounds of appeal was the allegation that the defence of truth found in s. 319(3)(a) of the Code violates the Charter's presumption of innocence. The application was dismissed by Quigley J., and Mr. Keegstra was thereafter tried and convicted. He then appealed his conviction to the Alberta Court of Appeal, raising the same Charter issues. The Court of Appeal unanimously accepted his argument, and it is from this judgment that the Crown appeals.

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The relevant legislative and Charter provisions are set out below:

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 upon 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 towards 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,

"communicating" 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 invitation, express or implied;

"statements" includes words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or other visible representations.

318. ...

(4) In this section, "identifiable group" means any section of the public distinguished by colour, race, religion or ethnic origin.

Canadian Charter of Rights and Freedoms

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

2. Everyone has the following fundamental freedoms:

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

27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

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Irwin Toy can be seen as at once clarifying the relationship between ss. 2(b) and 1 in freedom of expression cases and reaffirming and strengthening the large and liberal interpretation given the freedom in s. 2(b) by the Court in Ford. These aspects of the decision flow largely from a two-step analysis used in determining whether s. 2(b) has been infringed, an approach affirmed by this Court in subsequent cases, for example Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), supra, and Royal College of Dental Surgeons, supra.

The first step in the Irwin Toy analysis involves asking whether the activity of the litigant who alleges an infringement of the freedom of expression falls within the protected s. 2(b) sphere. In outlining a broad, inclusive approach to answering this question, the following was said (at p. 968):

"Expression" has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning. That meaning is its content. Freedom of expression was entrenched in our Constitution and is guaranteed in the Quebec Charter so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expression of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection is, in the words of both the Canadian and Quebec Charters, "fundamental" because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual.

Apart from rare cases where expression is communicated in a physically violent form, the Court thus viewed the fundamental nature of the freedom of expression as ensuring that "if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee" (p. 969). In other words, the term "expression" as used in s. 2(b) of the Charter embraces all content of expression irrespective of the particular meaning or message sought to be conveyed (Reference re ss. 193 and 195.1(1)(c) of the Criminal Code of Canada (Man.), supra, at p. 1181 per Lamer J.).

The second step in the analysis outlined in Irwin Toy is to determine whether the purpose of the impugned government action is to restrict freedom of expression. The guarantee of freedom of expression will necessarily be infringed by government action having such a purpose. If, however, it is the effect of the action, rather than the purpose, that restricts an activity, s. 2(b) is not brought into play unless it can be demonstrated by the party alleging an infringement that the activity supports rather than undermines the principles and values upon which freedom of expression is based.

Having reviewed the Irwin Toy test, it remains to determine whether the impugned legislation in this appeal -- s. 319(2) of the Criminal Code -- infringes the freedom of expression guarantee of s. 2(b). Communications which wilfully promote hatred against an identifiable group without doubt convey a meaning, and are intended to do so by those who make them. Because Irwin Toy stresses that the type of meaning conveyed is irrelevant to the question of whether s. 2(b) is infringed, that the expression covered by s. 319(2) is invidious and obnoxious is beside the point. It is enough that those who publicly and wilfully promote hatred convey or attempt to convey a meaning, and it must therefore be concluded that the first step of the Irwin Toy test is satisfied. Moving to the second stage of the s. 2(b) inquiry, one notes that the prohibition in s. 319(2) aims directly at words -- in this appeal, Mr. Keegstra's teachings -- that have as their content and objective the promotion of racial or religious hatred. The purpose of s. 319(2) can consequently be formulated as follows: to restrict the content of expression by singling out particular meanings that are not to be conveyed. Section 319(2) therefore overtly seeks to prevent the communication of expression, and hence meets the second requirement of the Irwin Toy test.

In my view, through s. 319(2) Parliament seeks to prohibit communications which convey meaning, namely, those communications which are intended to promote hatred against identifiable groups. I thus find s. 319(2) to constitute an infringement of the freedom of expression guaranteed by s. 2(b) of the Charter. Before moving on to see whether the impugned provision is nonetheless justified under s. 1, however, I wish to canvas two arguments made in favour of the position that communications intended to promote hatred do not fall within the ambit of s. 2(b). The first of these arguments concerns an exception mentioned in Irwin Toy concerning expression manifested in a violent form. The second relates to the impact of other sections of the Charter and international agreements in interpreting the scope of the freedom of expression guarantee.

Beginning with the suggestion that expression covered by s. 319(2) falls within an exception articulated in Irwin Toy, it was argued before this Court that the wilful promotion of hatred is an activity the form and consequences of which are analogous to those associated with violence or threats of violence. This argument contends that Supreme Court of Canada precedent excludes violence and threats of violence from the ambit of s. 2(b), and that the reason for such exclusion must lie in the fact that these forms of expression are inimical to the values supporting freedom of speech. Indeed, in support of this view it was pointed out to us that the Court in Irwin Toy stated that "freedom of expression ensures that we can convey our thoughts and feelings in non-violent ways without fear of censure" (p. 970). Accordingly, we were urged to find that hate propaganda of the type caught by s. 319(2), insofar as it imperils the ability of target group members themselves to convey thoughts and feelings in non-violent ways without fear of censure, is analogous to violence and threats of violence and hence does not fall within s. 2(b).

The proposition in Irwin Toy that violent expression is not afforded protection under s. 2(b) has its origin in a comment made by McIntyre J. in Dolphin Delivery Ltd., in which he stated that the freedom of expression guaranteed picketers would not extend to protect violence or threats of violence (p. 588). Restricting s. 2(b) in this manner has also been mentioned in more recent Supreme Court of Canada decisions, in particular by Lamer J. in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.) and by a unanimous Court in Royal College of Dental Surgeons. It should be emphasized, however, that no decision of this Court has rested on the notion that expressive conduct is excluded from s. 2(b) where it involves violence.

Turning specifically to the proposition that hate propaganda should be excluded from the coverage of s. 2(b), I begin by stating that the communications restricted by s. 319(2) cannot

be considered as violence, which on a reading of Irwin Toy I find to refer to expression communicated directly through physical harm. Nor do I find hate propaganda to be analogous to violence, and through this route exclude it from the protection of the guarantee of freedom of expression. As I have explained, the starting proposition in Irwin Toy is that all activities

conveying or attempting to convey meaning are considered expression for the purposes of s. 2(b); the content of expression is irrelevant in determining the scope of this Charter provision. Stated at its highest, an exception has been suggested where meaning is communicated directly via physical violence, the extreme repugnance of this form to free expression values justifying such an extraordinary step. Section 319(2) of the Criminal Code prohibits the communication of meaning that is repugnant, but the repugnance stems from the content of the message as opposed to its form. For this reason, I am of the view that hate propaganda is to be categorized as expression so as to bring it within the coverage of s. 2(b).

As for threats of violence, Irwin Toy spoke only of restricting s. 2(b) to certain forms of expression, stating a p. 970 that,

[w]hile the guarantee of free expression protects all content of expression, certainly violence as a form of expression receives no such protection. It is not necessary here to delineate precisely when and on what basis a form of expression chosen to convey a meaning falls outside the sphere of the guarantee. But it is clear, for example, that a murderer or rapist cannot invoke the freedom of expression in justification of the form of expression he has chosen.

While the line between form and content is not always easily drawn, in my opinion threats of violence can only be so classified by reference to the content of their meaning. As such, they do not fall within the exception spoken of in Irwin Toy, and their suppression must be justified under s. 1. As I do not find threats of violence to be excluded from the definition of expression envisioned by s. 2(b), it is unnecessary to determine whether the threatening aspects of hate propaganda can be seen as threats of violence, or analogous to such threats, so as to deny it protection under s. 2(b).

The second matter which I wish to address before leaving the s. 2(b) inquiry concerns the relevance of other Charter provisions and international agreements to which Canada is a

party in interpreting the coverage of the freedom of expression guarantee. It has been argued in support of excluding hate propaganda from the coverage of s. 2(b) that the use of ss. 15 and 27 of the Charter -- dealing respectively with equality and multiculturalism -- and Canada's acceptance of international agreements requiring the prohibition of racist statements make s. 319(2) incompatible with even a large and liberal definition of the freedom (see, e.g., Irwin Cotler, "Hate Literature", in Rosalie S. Abella and Melvin L. Rothman, eds., Justice Beyond Orwell (1985), p. 117, at pp. 121-22). The general tenor of this argument is that these interpretive aids inextricably infuse each constitutional guarantee with values supporting equal societal participation and the security and dignity of all persons. Consequently, it is said that s. 2(b) must be curtailed so as not to extend to communications which seriously undermine the equality, security and dignity of others.

Because I will deal extensively with the impact of various Charter provisions and international agreements when considering whether s. 319(2) is a justifiable limit under s. 1, I will keep my comments here to a minimum. Suffice it to say that I agree with the general approach of Wilson J. in Edmonton Journal, supra, where she speaks of the danger of balancing competing values without the benefit of a context. This approach does not logically preclude the presence of balancing within s. 2(b) -- one could avoid the dangers of an overly abstract analysis simply by making sure that the circumstances surrounding both the use of the freedom and the legislative limit were carefully considered. I believe, however, that s. 1 of the Charter is especially well-suited to the task of balancing, and consider this Court's previous freedom of expression decisions to support this belief. It is, in my opinion, inappropriate to attenuate the s. 2(b) freedom on the grounds that a particular context requires such; the large and liberal interpretation given the freedom of expression in Irwin Toy indicates that the preferable course is to weigh the various contextual values and factors in s. 1.

I thus conclude on the issue of s. 2(b) by finding that s. 319(2) of the Criminal Code constitutes an infringement of the Charter guarantee of freedom of expression, and turn to examine whether such an infringement is justifiable under s. 1 as a reasonable limit in a free and democratic society.

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From the outset, I wish to make clear that in my opinion the expression prohibited by s. 319(2) is not closely linked to the rationale underlying s. 2(b). Examining the values identified in Ford and Irwin Toy as fundamental to the protection of free expression, arguments can be made for the proposition that each of these values is diminished by the suppression of hate propaganda. While none of these arguments is spurious, I am of the opinion that expression intended to promote the hatred of identifiable groups is of limited importance when measured against free expression values.

At the core of freedom of expression lies the need to ensure that truth and the common good are attained, whether in scientific and artistic endeavors or in the process of determining the best course to take in our political affairs. Since truth and the ideal form of political and social organization can rarely, if at all, be identified with absolute certainty, it is difficult to prohibit expression without impeding the free exchange of potentially valuable information. Nevertheless, the argument from truth does not provide convincing support for the protection of hate propaganda. Taken to its extreme, this argument would require us to permit the communication of all expression, it being impossible to know with absolute certainty which factual statements are true, or which ideas obtain the greatest good. The problem with this extreme position, however, is that the greater the degree of certainty that a statement is erroneous or mendacious, the less its value in the quest for truth. Indeed, expression can be used to the detriment of our search for truth; the state should not be the sole arbiter of truth, but neither should we overplay the view that rationality will overcome all falsehoods in the unregulated marketplace of ideas. There is very little chance that statements intended to promote hatred against an identifiable group are true, or that their vision of society will lead to a better world. To portray such statements as crucial to truth and the betterment of the political and social milieu is therefore misguided.

Another component central to the rationale underlying s. 2(b) concerns the vital role of free expression as a means of ensuring individuals the ability to gain self-fulfillment by developing and articulating thoughts and ideas as they see fit. It is true that s. 319(2) inhibits this process among those individuals whose expression it limits, and hence arguably works against freedom of expression values. On the other hand, such selfautonomy stems in large part from one's ability to articulate and nurture an identity derived from membership in a cultural or religious group. The message put forth by individuals who fall within the ambit of s. 319(2) represents a most extreme opposition to the idea that members of identifiable groups should enjoy this aspect of the s. 2(b) benefit. The extent to which the unhindered promotion of this message furthers free expression values must therefore be tempered insofar as it advocates with inordinate vitriol an intolerance and prejudice which views as execrable the process of individual self-development and human flourishing among all members of society.

Moving on to a third strain of thought said to justify the protection of free expression, one's attention is brought specifically to the political realm. The connection between freedom of expression and the political process is perhaps the linchpin of the s. 2(b) guarantee, and the nature of this connection is largely derived from the Canadian commitment to democracy. Freedom of expression is a crucial aspect of the democratic commitment, not merely because it permits the best policies to be chosen from among a wide array of proffered options, but additionally because it helps to ensure that participation in the political process is open to all persons. Such open participation must involve to a substantial degree the notion that all persons are equally deserving of respect and dignity. The state therefore cannot act to hinder or condemn a political view without to some extent harming the openness of Canadian democracy and its associated tenet of equality for all.

The suppression of hate propaganda undeniably muzzles the participation of a few individuals in the democratic process, and hence detracts somewhat from free expression values, but the degree of this limitation is not substantial. I am aware that the use of strong language in political and social debate -- indeed, perhaps even language intended to promote hatred -- is an unavoidable part of the democratic process. Moreover, I recognize that hate propaganda is expression of a type which would generally be categorized as "political", thus putatively placing it at the very heart of the principle extolling freedom of expression as vital to the democratic process. Nonetheless, expression can work to undermine our commitment to democracy where employed to propagate ideas anathemic to democratic values. Hate propaganda works in just such a way, arguing as it does for a society in which the democratic process is subverted and individuals are denied respect and dignity simply because of racial or religious characteristics. This brand of expressive activity is thus wholly inimical to the democratic aspirations of the free expression guarantee.

Indeed, one may quite plausibly contend that it is through rejecting hate propaganda that the state can best encourage the protection of values central to freedom of expression, while simultaneously demonstrating dislike for the vision forwarded by hate-mongers. In this regard, the reaction to various types of expression by a democratic government may be perceived as meaningful expression on behalf of the vast majority of citizens. I do not wish to be construed as saying that an infringement of s. 2(b) can be justified under s. 1 merely because it is the product of a democratic process; the Charter will not permit even the democratically elected legislature to restrict the rights and freedoms crucial to a free and democratic society. What I do wish to emphasize, however, is that one must be careful not to accept blindly that the suppression of expression must always and unremittingly detract from values central to freedom of expression (Lee C. Bollinger, The Tolerant Society: Freedom of Speech and Extremist Speech in America (1986), at pp. 87-93.

I am very reluctant to attach anything but the highest importance to expression relevant to political matters. But given the unparalleled vigour with which hate propaganda repudiates and undermines democratic values, and in particular its condemnation of the view that all citizens need be treated with equal respect and dignity so as to make participation in the political process meaningful, I am unable to see the protection of such expression as integral to the democratic ideal so central to the s. 2(b) rationale. Together with my comments as to the tenuous link between communications covered by s. 319(2) and other values at the core of the free expression guarantee, this conclusion leads me to disagree with the opinion of McLachlin J. that the expression at stake in this appeal mandates the most solicitous degree of constitutional protection. In my view, hate propaganda should not be accorded the greatest of weight in the s. 1 analysis.

The judgment of Sopinka, and McLachlin JJ. was delivered by

McLACHLIN J. (dissenting):--

D. The Scope of s. 2(b) -- Summary

I cannot accept the arguments which have been advanced for the proposition that s. 2(b) does not afford protection to statements wilfully promoting hatred under s. 319(2) of the Criminal Code. Instead, I return to the affirmation in Irwin Toy that if the activity being regulated has expressive content, and does not convey a meaning through a violent form, then it is prima facie protected by s. 2(b) of the Charter. Provided that the further condition is established that the purpose or effect of the government action in issue is to restrict freedom of expression, the case for infringement of s. 2(b) has been made out. Both conditions are met in this case. Section 319(2) is directed at the content of certain statements. It applies where the meaning is conveyed in a non- violent form. And finally, its purpose is to curtail what people may say.

The infringement of s. 2(b) is established, and the analysis must proceed to the test of justification under s. 1 of the Charter.

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IV. The Analysis under s. 1

A. Section 1 and the Infringement of Freedom of Expression

The Court's function under s. 1 of the Charter is that of weighing and balancing. Before reaching s. 1, the Court must already have determined that the law in question infringes a right or freedom guaranteed by the Charter. The infringement alone, however, does not mandate that the law must fall. If the limit the law imposes on the right infringed is "reasonable" and "can be demonstrably justified in a free and democratic society", the law is valid. The demonstration of this justification, the burden of which lies on the state, involves proving that there are other rights or interests which outweigh the right infringed in the context of that case.

The task which judges are required to perform under s. 1 is essentially one of balancing. On the one hand lies a violation or limitation of a fundamental right or freedom. On the other lies a conflicting objective which the state asserts is of greater importance than the full exercise of the right or freedom, of sufficient importance that it is reasonable and "demonstrably justified" that the limitation should be imposed. The exercise is one of great difficulty, requiring the judge to make value judgments. In this task logic and precedent are but of limited assistance. What must be determinative in the end is the court's judgment, based on an understanding of the values our society is built on and the interests at stake in the particular case. As Wilson J. has pointed out in Edmonton Journal, this judgment cannot be made in the abstract. Rather than speak of values as though they were Platonic ideals, the judge must situate the analysis in the facts of the particular case, weighing the different values represented in that context. Thus it cannot be said that freedom of expression will always prevail over the objective of individual dignity and social harmony, or vice versa. The result in a particular case will depend on weighing the significance of the infringement on freedom of expression represented by the law in question, against the importance of the countervailing objectives, the likelihood the law will achieve those objectives, and the proportionality of the scope of the law to those objectives.

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(1) The Objective of s. 319(2) of the Criminal Code

In Oakes Dickson C.J., speaking for the majority, stated that the first consideration in an analysis under s. 1 is that the objective be "of sufficient importance to warrant overriding a constitutionally protected right or freedom" (p. 138). Quoting from R. v. Big M Drug Mart Ltd., supra, he observed that the standard must be high in order to ensure that objectives of a trivial nature do not gain s. 1 protection. The objective must be of a pressing and substantial nature before it can be characterized as sufficiently important to override a Charter right.

The objective of s. 319(2) of the Criminal Code is to prevent the promotion of hatred toward identifiable groups within our society. As the Attorney General of Canada puts it, the objective of the legislation is, "among other things, to protect racial, religious and other groups from the wilful promotion of hatred against them, to prevent the spread of hatred and the breakdown of racial and social harmony, and "to prevent the destruction of our multicultural society". These aims are subsumed in the twin values of social harmony and individual dignity.

These are laudable goals and serious ones. The objectives are clearly of a substantial nature. Given the history of racial and religious conflict in the world in the past fifty years, they may be said to be pressing, even though it is not asserted that an emergency exists in Canada. The Report of the Special Committee on Hate Propaganda in Canada (1966), at pp. 11-15, (the Cohen Report) provides an empirical foundation for the submission that defamation of particular groups is a pressing and substantial concern in Canada. Evidence of current and continuing public concern about racial and religious tension in Canada generally and the subject matter of s. 319(2) in particular, is found in Equality Now! (1984), the report of the House of Commons Special Committee on Participation of Visible Minorities in Canadian Society, at pp. 1-6 and 69-74.

The continued existence of hateful communication in Canada is symptomatic of an unfortunate reality that while Canadians often pride themselves for maintaining a tolerant and welcoming society, it is undermined by the persistence of racial and religious division. The conflict is harmful both to the individuals and groups who are the target of prejudice, and to society as a whole. Members of minority groups are inclined to consider themselves outsiders in their country, and may be inhibited from contributing to the extent of their desire and ability. The loss of this potential talent and ability threatens to deprive Canada of the skills and talents of those who feel excluded and unwelcome. Moreover, the animosity created by ignorance and hatred further exacerbates the divisions of a nation.

The problem is not new, but neither is it quickly disappearing. As the Annual Report 1989 of the Canadian Human Rights Commission strongly remarked, intolerance among Canadians towards members of different groups remains a serious problem (at p. 22):

The demons of racial and cultural prejudice have never been either officially or unofficially exorcised from Canadian society. We may, on occasion, have been marginally more enlightened than our southern neighbours, but instances of racism and intolerance are deeply etched in the historical record and, for that matter, not hard to find in the daily newspapers.

Given the problem of racial and religious prejudice in this country, I am satisfied that the objective of the legislation is of sufficient gravity to be capable of justifying limitations on constitutionally protected rights and freedoms.

(2) Proportionality

(a) General Considerations

The real question in this case, as I see it, is whether the means -- the criminal prohibition of wilfully promoting hatred -- are proportional and appropriate to the ends of suppressing hate propaganda in order to maintain social harmony and individual dignity. The objective of the legislation is one of great significance, such significance that it is capable of outweighing the fundamental values protected by the Charter. The ultimate question is whether this objective is of sufficient importance to justify the limitation on free expression effected by s. 319(2) of the Criminal Code. In answering this question, the Court must consider not only the importance of the right or freedom in question and the significance of its limitation, but whether the way in which the limitation is imposed is justifiable. How serious is the infringement of the constitutionally guaranteed freedom, in this case freedom of expression? Is the limiting measure likely to further the objective in practice? Is the limiting measure overbroad or unnecessarily invasive? In the final analysis, bearing all these things in mind, does the benefit to be derived from the legislation outweigh the seriousness of the infringement? These are the considerations relevant to the question of the proportionality of the limiting law.

I have said that the contest in this case lies between the fundamental right of free expression on the one hand, and the values of social harmony and individual liberty on the other. In approaching the difficult task of determining where the balance lies in the context of this case, it is important not to be diverted by the offensive content of much of the speech in question. As this Court has repeatedly stated, even the most reprehensible or disagreeable comments are prima facie entitled to the protection of s. 2(b). It is not the statements of Mr. Keegstra which are at issue in this case, but rather the constitutionality of s. 319(2) of the Criminal Code. That must be our focus.

Another general consideration relevant to the balancing of values involved in the proportionality test in this case relates peculiarly to the nature of freedom of expression. Freedom of expression is unique among the rights and freedoms guaranteed by the Charter in two ways.

The first way in which freedom of expression may be unique was alluded to earlier in the context of the philosophical underpinnings of freedom of expression. The right to fully and openly express one's views on social and political issues is fundamental to our democracy and hence to all the other rights and freedoms guaranteed by the Charter. Without free expression, the vigourous debate on policies and values that underlies participatory government is lacking. Without free expression, rights may be trammelled with no recourse in the court of public opinion. Some restrictions on free expression may be necessary and justified and entirely compatible with a free and democratic society. But restrictions which touch the critical core of social and political debate require particularly close consideration because of the dangers inherent in state censorship of such debate. This is of particular importance under s. 1 of the Charter which expressly requires the court to have regard to whether the limits are reasonable and justified in a free and democratic society.

A second characteristic peculiar to freedom of expression is that limitations on expression tend to have an effect on expression other than that which is their target. In the United States this is referred to as the chilling effect. Unless the limitation is drafted with great precision, there will always be doubt about whether a particular form of expression offends the prohibition. There will always be limitations inherent in the use of language, but that must not discourage the pursuit of the greatest drafting precision possible. The result of a failure to do so may be to deter not only the expression which the prohibition was aimed at, but legitimate expression. The law-abiding citizen who does not wish to run afoul of the law will decide not to take the chance in a doubtful case. Creativity and the beneficial exchange of ideas will be adversely affected. This chilling effect must be taken into account in performing the balancing required by the analysis under s. 1. It mandates that in weighing the intrusiveness of a limitation on freedom of expression our consideration cannot be confined to those who may ultimately be convicted under the limit, but must extend to those who may be deterred from legitimate expression by uncertainty as to whether they might be convicted.

I make one final point before entering on the specific tests for proportionality proposed in Oakes. In determining whether the particular limitation of a right or freedom is justified under s. 1, it is important to consider not only the proportionality and effectiveness of the particular law in question, but alternative ways of furthering the objective. This is particularly important at stages two (minimum impairment) and three (balancing the infringement against the objective) of the proportionality analysis proposed in Oakes.

Against this background, I turn to the three considerations critical to determining whether the limitation on freedom of expression effected by s. 319(2) of the Criminal Code is reasonably and demonstrably justifiable in a free and democratic society.

(b) Rational Connection

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Section 319(2) may well have a chilling effect on defensible expression by law-abiding citizens. At the same time, it is far from clear that it provides an effective way of curbing hatemongers. Indeed, many have suggested it may promote their cause. Prosecutions under the Criminal Code for racist expression have attracted extensive media coverage. Zundel, prosecuted not under s. 319(2) but for the crime of spreading false news (s. 181), claimed that his court battle had given him "a million dollars worth of publicity" : Globe and Mail, March 1, 1985, p. P1. There is an unmistakable hint of the joy of martyrdom in some of the literature for which Andrews, in the companion appeal, was prosecuted:

The Holocaust Hoax has been so ingrained in the minds of the hated "goyim" by now that in some countries ... challenging its validity can land you in jail.

(R. v. Andrews (1988), 65 O.R. (2d) 161, at p. 165 (C.A.).)

Not only does the criminal process confer on the accused publicity for his dubious causes -- it may even bring him sympathy. The criminal process is cast as a conflict between the accused and the state, a conflict in which the accused may appear at his most sympathetic. Franz Kafka was not being entirely whimsical when he wrote, "If you have the right eye for these things, you can see that accused men are often attractive" (The Trial (1976), at p. 203).

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(c) Minimum Impairment

Two questions are pertinent to the inquiry into whether s. 319(2) impairs freedom of expression as little as possible. The first is whether s. 319(2) is drafted too broadly, catching more expressive conduct than can be justified by the objectives of promoting social harmony and individual dignity. The second is whether criminalization of hate mongering may in itself be an excessive response to the problem, given the alternatives. I will deal with each in turn.

Despite the limitations found in s. 319(2), a strong case can be made that it is overbroad in that its definition of offending speech may catch many expressions which should be protected.

The first difficulty lies in the different interpretations which may be placed on the word "hatred." The Shorter Oxford English Dictionary defines "hatred" as: "The condition or state of relations in which one person hates another; the emotion of hate; active dislike, detestation; enmity, ill-will, malevolence." The wide range of diverse emotions which the word "hatred" is capable of denoting is evident from this definition. Those who defend its use in s. 319(2) of the Criminal Code emphasize one end of this range -- hatred, they say, indicates the most powerful of virulent emotions lying beyond the bounds of human decency and limiting s. 319(2) to extreme materials. Those who object to its use point to the other end of the range, insisting that "active dislike" is not an emotion for the promotion of which a person should be convicted as a criminal. To state the arguments is to make the case; "hatred" is a broad term capable of catching a wide variety of emotion.

It is not only the breadth of the term "hatred" which presents dangers; it is its subjectivity. "Hatred" is proved by inference -- the inference of the jury or the judge who sits as trier of fact -- and inferences are more likely to be drawn when the speech is unpopular. The subjective and emotional nature of the concept of promoting hatred compounds the difficulty of ensuring that only cases meriting prosecution are pursued and that only those whose conduct is calculated to dissolve the social bonds of society are convicted.

But "hatred" does not stand alone. To convict, it must have been "wilfully promote[d]". Does this requirement sufficiently constrain the term to meet the claim that s. 319(2) is overbroad?

In R. v. Buzzanga and Durocher, supra, the Ontario Court of Appeal held that the requirement of "wilful promotion" may be satisfied in either of two ways: (1) by proof of intention or conscious purpose of promoting hatred; or (2) by proof that the accused foresaw that the promotion of hatred against an identifiable group is certain, or "morally certain", to result from the communication.

It is argued that the requirement of "wilful promotion" eliminates from the ambit of s. 319(2) statements which are made for honest purposes such as telling a perceived truth or contributing to a political or social debate. The difficulty with this argument is that those purposes are compatible with the intention (or presumed intention by reason of foreseeability) of promoting hatred. A belief that what one says about a group is true and important to political and social debate is quite compatible with and indeed may inspire an intention to promote active dislike of that group. Such a belief is equally compatible with foreseeing that promotion of such dislike may stem from one's statements. The result is that people who make statements primarily for non-nefarious reasons may be convicted of wilfully promoting hatred.

The absence of any requirement that actual harm or incitement to hatred be shown further broadens the scope of s. 319(2) of the Criminal Code. This, in the view of the Court of Appeal, was the section's main defect. In effect, the provision makes a crime not only of actually inciting others to hatred, but also of attempting to do so. The Court of Appeal accepted the argument that this made the crime, at least potentially, a victimless one. In the view of Kerans J.A., while a prohibition on expression that actually spread hatred would be justified, a prohibition on attempts to spread hatred was not.

Though I regard this breadth as a relevant factor, I would be hesitant to treat it as constitutionally determinative. To view hate propaganda as "victimless" in the absence of any proof that it moved its listeners to hatred is to discount the wrenching impact that it may have on members of the target group themselves. For Jews, many of whom have personally been touched by the terrible consequences of the degeneration of a seemingly civilized society into unparalleled barbarism, statements such as Keegstra's may raise very real fears of history repeating itself. Moreover, it is simply not possible to assess with any precision the effects that expression of a particular message will have on all those who are ultimately exposed to it. The process of "proving" that listeners were moved to hatred has a fictitious air about it. These considerations undermine the notion that we can draw a bright line between provisions which are justifiable because they require proof that hatred actually resulted, and provisions which are unjustifiable because they require only an intent to promote hatred.

The breadth of s. 319(2) is narrowed somewhat by the defences. Statements made in good faith on religious subjects and statements on matters of public interest which the accused reasonably believed to be true, as well as statements made for the purpose of removing hatred, are exempted.

Quite apart from the fact that the onus lies on the accused to prove these defences, it is far from clear that in practice they significantly narrow the ambit of s. 319(2) of the Criminal Code. The most important defence is truth -- if the accused establishes that his statements are true, s. 319(2) is not violated. On the other hand, as already mentioned, conviction may result for true statements given that the onus of proof lies on the accused. Moreover, the concepts of "truth" and "reasonable belief in truth" may not always be applicable. Statements of opinion may be incapable of being classified as true or false, communicating not facts so much as sentiments and beliefs. Polemic statements frequently do not lend themselves to proof of truth or falsity. As for the defence of reasonable belief, how is a court to evaluate the reasonableness of diverse theories, political or otherwise? The defence of statements in the public interest poses similar problems. How is a court to determine what is in the public interest, given the wide range of views which may be held on matters potentially caught by s. 319(2)?

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In summary, s. 319(2) of the Criminal Code catches a broad range of speech and prohibits it in a broad manner, allowing only private conversations to escape scrutiny. Moreover, the process by which the prohibition is effected -- the criminal law -- is the severest our society can impose and is arguably unnecessary given the availability of alternate remedies. I conclude that the criminalization of hate statements does not impair free speech to the minimum extent permitted by its objectives.

(d) Importance of the Right versus Benefit Conferred

The third consideration in determining whether the infringement represented by the legislation is proportionate to the ends is the balance between the importance of the infringement of the right in question and the benefit conferred by the legislation. The analysis is essentially a cost-benefit analysis. On the one hand, how significant is the infringement of the fundamental right or freedom in question? On the other hand, how significant is the benefit conferred by the impugned legislation? Weighing these countervailing considerations, has the state met the burden upon it of establishing that the limit on the constitutionally guaranteed freedom or right is reasonable and demonstrably justified in a free and democratic society?

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In my opinion, the result is clear. Any questionable benefit of the legislation is outweighed by the significant infringement on the constitutional guarantee of free expression effected by s. 319(2) of the Criminal Code.