Freedom of Expression
R .v.Keegstra
Facts:
* James Keegstra, high school teacher in Alberta, taught his students that Jews were "treacherous", "sadistic", "child killers", etc. Also that the Holocaust never happened, etc.
* Charged under the "wilful promotion of hatred" provisions of the Criminal Code, s.319
Questions:
Should people who say things that (most) people find distasteful be protected by the Charter?
Were Keegstra's rights violated?
Irwin Toy test:
Step 1: did Keegstra's remarks have expressive content? They certainly did.
Step 2: does s.319 of the Criminal Code seek to restrict the content of expression? It certainly does.
THEREFORE: s.319 violates the Charter guarantee of freedom of expression (s.2(b))
BUT: can s.319 be saved under section 1 of the Charter?
Oakes Test
1) Significant Objective
Yes: racist propaganda harms identified groups
a) directly, by insulting or offending the people singled out.
b) indirectly, by fostering discrimination, which puts life and security of the person at risk; risks causing social discord;
Prevention of a) and b) is a significant objective
(see secs. 15 and 27 of Charter, anti-discrimination and multiculturalism provisions)
2) Proportionality
Preliminary remarks: what is freedom of expression for (purposive reading of right)?
i) truth
ii) self-expression and self-fulfilment
iii) political, democratic process
Does racist speech fulfil these functions?
i) No, unlikely to lead to truth
ii) yes, but at the expense of others (violates rights)
iii) yes, but profoundly undemocratic
*Thus, hate propaganda is not at the core of the kind of speech that must be protected
a) rational connection
Yes: criminal sanction signals social rejection of intolerance
but:
i) criminal prosecution gives publicity to racist propaganda,
ii) stirs up sympathy for those "persecuted",
iii) didn't work in Nazi Germany
*Majority acknowledges but rejects these views
b) minimal impairment
Yes:
i) private conversations are exempted
ii) promotion of hatred has to be "wilful" (stringent mens rea requirement)
iii) section 319 proposes defences: truth, public good and/or debate on religion, eliminating racism, etc.
iv) alternative methods: supplement rather than replace criminal sanctions.
c) proportionate effect
Yes: not least because hate propaganda is not at the core of values to be protected by Charter
Conclusion: s.319 is saved by s.1 of Charter
Ford v Quebec: the sign law case
Facts:
Several businesses displayed signs in English and French contrary to Quebec language law.
Issues:
a) does sign law legislation violate freedom of expression
b) does freedom of expression include the freedom to express yourself in the language of your choice
c) does commercial expression deserve protection
Complications:
a) what about the notwithstanding clause (invoked by Quebec legislature)
b) what about the Quebec Charter of Human Rights and Freedoms?
c) what about section 1 of the Charter (and the corresponding section 9.1 of the Que. Charter)
Answers:
a) freedom of expression includes right to express yourself in the language of your choice: *language is important to content of speech, not only its form.(Basis of Quebec law)
b) commercial speech is protected because it transmits (or can transmit) important information to consumers.
c) therefore the language legislation does indeed violate freedom of expression
Can the legislation be saved by a s.1 analysis?(Oakes, again)
Significant objective? Yes: to preserve the French identity of Quebec through maintenance of its "visage linguistique".
Proportionate? No. Not necessary to ban all languages other than French.
Enough to require that French be included.
Therefore not minimal impairment.
*Notwithstanding clause issues:
Que. legislature used the "notwithstanding clause" in passing the language law.
Therefore, the law is effective even though it violates freedom of expression.
BUT Quebec Charter of Human Rights and Freedoms doesn't have this kind of override provision.
Consequently, the legislation is invalid (not strictly unconstitutional, but violates province's own Charter of Human Rights)