oct2527.htm

Notes on R v Keegstra

A couple of things to bear in mind.

Don't get too hung up on the particular facts of Keegstra

Also, bear in mind the structure of rights as claims.

The General Formula of Claim Rights

A has a right to X against B by virtue of Y

A is the subject, the right holder

X is the object of the right, what you have a right to

B is the respondent of the right, the person(s) you hold the right against

Y is the justifying ground of the right, the reason we attribute the right to A.

What follows is a breakdown of how Charter litigation works in Canada. After this, I run through the opinions in Keegstra. First, we have the majority (or winning) opinion of then Chief Justice Brian Dickson. Second, is the dissenting opinion Justice Beverly McLaughlin (MacLaughlin recently became Chief Justice of the Supreme Court; she is the first woman to be appointed to this position).

In deciding whether or not a governmental restraint or action violates the Charter.

I. Does the governmental action infringe a Charter Right?

II. Is the infringement the government contemplates demonstrably justifiable in a free and democratic society? (this refers to s. 1)

s. 1 doesn't come with prepackaged instructions as to how it should be understood and applied. The Supreme Court, in R v. Oakes, developed its own account of s. 1 called the Oakes test. The infringement of a Charter Right must pass all the steps of this test if it is to be upheld by the court.

The Oakes test

The Objective: "[I]t must be established that the impugned state action has an objective of pressing and substantial concern in a free and democratic society."

In other words, is the government is trying to do something that is very, very important?

Proportionality:

P1) The means chosen to achieve the objective "must be rationally connected to the objective."

In other words, do the means actually work to achieve the objective?

P2) Even if the means are rationally connected to the objective, they should "impair 'as little as possible' the right or freedom in question..."

In other words, could the government have used other means that would have been less restrictive to the right in question?

P3) "[T]here must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of sufficient importance."

In other words, the court must balance the gains (achieving the objective), against the losses (such as infringing the right).

P1) and P2) are straightforward enough. But the Objective and P3) are pretty vague.

With regards to the Objective we may ask "What are the objectives that a free democratic society should pursue?"

With regards to P3) we may ask "How it is that we establish the relative weight or importance of these objectives?"

According to Chief Justice Dickson, a free and democratic society embodies such a ideals as the "inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society."

How we weigh these various values is a difficult matter, and the weighting varies from case to case. One important point to bear in mind, however, is Dickson's idea that these values are the "genesis" of the rights in the Charter. Not only do they prescribe limits on these rights, they also provide the underlying justification for these rights.

This justification is not laid out in terms of a clearly defined moral theory like the one we find in On Liberty. Dickson doesn't tell us whether or not Charter rights are ultimately grounded on a utilitarian justification, or on some conception of moral rights. Probably, its a bit of both. Overall well-being should be promoted, but the reference to human dignity seems to indicate that there are definite limits to the what we can demand of individual persons.

Its important to note that the American Bill of Rights, contains no balancing provision along the lines of section 1 of the Charter. Obviously, this indicates that there are important differences between Canadian constitutional litigation on the one hand, and U.S. constitutional litigation on the other.

But the differences can be overstated. Once again, in Canada, judges ask two questions.

I. Does the governmental action infringe a Charter Right?

II. Is the infringement the government contemplates demonstrably justifiable in a free and democratic society? (this refers to s. 1)

In the U.S., the only question is,

I' I. Does the governmental action violate a right from the Bill of Rights?

But, in answering this general question, American courts sometimes take into account many of the questions that Canadian courts consider under the label of a s. 1 analysis.

The court in Skokie considers many of the same issues that Chief Justice Dickson considers. The two sides simply reach different conclusions on these issues. Its also important to remember that Justice McLaughlin runs through her s.1 analysis in a way that leads her to many of the same conclusions as the U.S. courts.

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Chief Justice Dickson's opinion

I. Does the governmental action infringe a Charter Right?

In this case, is the willful promotion of hatred a form of expression covered by s. 2(b)?

In the earlier case, Irwin Toy the court held that the Charter protects all content of expression, but that it did not protect violence as a form of expression. The line between form and content is difficult to draw, but he concludes that threats of violence themselves do not use violence as a form of expression. Thus, even threats of violence are covered by Charter 2(b). Moreover, it is clear that CC s.319 targets Keegstra's ideas, not just manner or context of their expression. So he concludes that CC 319(2) does infringe the Charter.

Having reached this conclusion, Dickson must turn to s. 1 analysis.

II. Is the infringement the government contemplates demonstrably justifiable in a free and democratic society? (this refers to s. 1)

In this case, is restraining the willful promotion of hatred demonstrably justifiable in a free and democratic society? (the material for the Keegstra essay assignment starts here)

The Objective: "[I]t must be established that the impugned state action has an objective of pressing and substantial concern in a free and democratic society."Dickson confirms that restraining the willful promotion of hatred is a legitimate objective for a free and democratic society.

reasons:

i) Members of the target group are harmed by such expression ("emotional damage").

In my opinion, a response of humiliation and degradation from an individual targeted by hate propaganda is to be expected. A person's sense of human dignity and belonging to the community at large is closely linked to the concern and respect accorded the groups to which he or she belongs (see I. Berlin, "Two Concepts of Liberty", in Four Essays on Liberty (1969), 118, at p. 155). The derision, hostility and abuse encouraged by hate propaganda therefore have a severely negative impact on the individual's sense of self-worth and acceptance. This impact may cause target group members to take drastic measures in reaction, perhaps avoiding activities which bring them into contact with non-group members or adopting attitudes and postures directed towards blending in with the majority. Such consequences bear heavily in a nation that prides itself on tolerance and the fostering of human dignity through, among other things, respect for the many racial, religious and cultural groups in our society.

ii) Society itself is harmed by the possibility that hateful expressions may generate further support for racist movements.

A second harmful effect of hate propaganda which is of pressing and substantial concern is its influence upon society at large. The Cohen Committee noted that individuals can be persuaded to believe "almost anything" (p. 30) if information or ideas are communicated using the right technique and in the proper circumstances (at p. 8):

. . . we are less confident in the 20th century that the critical faculties of individuals will be brought to bear on the speech and writing which is directed at them. In the 18th and 19th centuries, there was a widespread belief that man was a rational creature, and that if his mind was trained and liberated from superstition by education, he would always distinguish truth from falsehood, good from evil. So Milton, who said "let truth and falsehood grapple: who ever knew truth put to the worse in a free and open encounter".

We cannot share this faith today in such a simple form. While holding that over the long run, the human mind is repelled by blatant falsehood and seeks the good, it is too often true, in the short run, that emotion displaces reason and individuals perversely reject the demonstrations of truth put before them and forsake the good they know. The successes of modern advertising, the triumphs of impudent propaganda such as Hitler's, have qualified sharply our belief in the rationality of man. We know that under strain and pressure in times of irritation and frustration, the individual is swayed and even swept away by hysterical, emotional appeals. We act irresponsibly if we ignore the way in which emotion can drive reason from the field.

Clearly, Dickson's account is in serious conflict with Mill's outlook.

iii) ss. 15 and 27 of the Charter show that Canada has a special commitment to multiculturalism and tolerance, which further reinforces the legitimacy of the government's aim.

s. 15 illustrates the government's commitment to equal respect for different religious, cultural, and ethnic groups.

s. 27 reminds us that the Charter must be interpreted in accordance with Canada's multicultural heritage.

Dickson refuses to use these Charter provisions to rule out the idea that hate expression is covered by 2(b), but at the end of the day, he works them back in under the heading s. 1.

Proportionality:

The grounds of freedom of expression

i) pursuit of truth

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.

ii) self-fulfillment

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 self-autonomy stems in large part from one's ability to articulate and nurture an identity derived from membership in a cultural or religious group.

iii) political equality and democracy

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 merelybecause 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 thepolitical 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.

P1) The means chosen to achieve the objective "must be rationally connected to the objective." Dickson confirms that censorship is rationally connected to Parliament's goals.

Reasons:

i) Banning hateful expressions reminds Canadians of our commitment to human dignity, and reinforces the confidence and security of the groups targeted by hate expression.

ii) Banning hateful expressions has the potential to prevent racist doctrines from gaining new adherents who may be susceptible to racist propaganda.

iii) Dickson disputes the claim that Canadians will see censorship as lending dignity or credence to hate expressions. McLaughlin, as we shall see, argues that Dickson can't help himself to both ii) and iii)

P2) Even if the means are rationally connected to the objective, they should "impair 'as little as possible' the right or freedom in question..." Dickson confirms that the proposed restraint is meets the minimum impairment test.

Reasons:

i) The restraint does not apply to private conversations.

ii) the subjective mens era requirment applies (this is as far you need to go for the Keegstra essay; the remaining elements of Dickson's reasoning weren't included in your readings).

iii) defence of truth is available

iii) The possibility of illegal police harassment has "minimal" bearing on the issue of proportionality.

Finding Dickson's treatment to this part of the test is a little difficult. He doesn't take up this issue, after he finishes with P2. I take it that his answer to this question comes earlier in his initial comments about proportionality.

I think his answer works as follows.

i) Generally leaving speech uncensored has good consequences, and promotes the truth. However, we need not regard obviously false doctrines as containing parts of the truth. Social conversation loses nothing of value if we restrain hateful expression.

ii) Moreover, as already noted, restraining hateful expression allows us to prevent racist doctrines from gaining new adherents.

iii) I don't think that this next part is explicitly stated, but I think it represents Dickson's view. We don't offend the human dignity of racists by preventing them from spreading hatred. Racists have to accept that our respect for their human dignity comes from the same source as our respect for the human dignity of all ethnic and cultural groups. They cannot demand that we respect their dignity and rights, while claiming a right to demean other human beings.

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Justice McLaughlin's dissent

I. Does the governmental action infringe a Charter Right?

In this case, is the willful promotion of hatred a form of expression covered by s. 2(b)? The first part of McLaughlin's argument concerns the argument that the willful promotion of hatred isn't covered by s. 2 (b) at all. She rejects these arguments, concluding that such expressions are covered by s. 2(b)

So far, she is still in agreement with the rest of the court. McLaughlin's dispute with the majority occurs under the heading of s. 1 analysis. Chief Justice Dickson brings up the idea that ss. 15 and 27 should lead us to conclude that hate expressions aren't covered by 2(b) in the first place. We don't see his reasons for rejecting those arguments, because the editors of our selection have omitted them. We do, however, get to see McLaughlin's reasons for rejecting these arguments.

s. 15, according to McLaughlin, should have nothing to do with defining s. 2(b)

Why? s. 32 of the Charter tells us who the respondents of the Charter Rights are; it tells us who these rights are held against. Charter rights are held against the federal and provincial governments, not private citizens.

Thus, McLaughlin concludes that s. 15 should play no role in defining Keegstra's right to freedom of expression [s. 2(b)]

s. 15 is a right held against the government, not private citizens such as Keegstra. It is not as if Keegstra has a right to free expression which must balanced against his duty not to discriminate against minority groups. Under the Charter, Keegstra has no such duties. In fact, the Charter doesn't impose any duties on Keegstra. So The Charter is not relevant to our understanding of his rights.

s. 27 doesn't play a role either. Here McLaughlin argues that there are many different ways in which we can understand the requirements of multiculturalism.

II. Is the infringement the government contemplates demonstrably justifiable in a free and democratic society? (this refers to s. 1)

In this case, is restraining the willful promotion of hatred demonstrably justifiable in a free and democratic society?

The Objective: "[I]t must be established that the impugned state action has an objective of pressing and substantial concern in a free and democratic society." McLaughlin does not dispute the legitimacy of the government's objective.

Proportionality:

P1) The means chosen to achieve the objective "must be rationally connected to the objective." McLaughlin is sketchy, here but she does not deny that there is some plausible connection between the government's chosen restraint and its intended goals. But she does questions whether 319 might have the opposite of its intended effect.

P2) Even if the means are rationally connected to the objective, they should "impair 'as little as possible' the right or freedom in question..." Here, McLaughlin comes right out and says that the government's restraints don't pass the test.

Reasons:

i) Other means, reparations for instance, might have been chosen.

ii) Responding to Dickson, she argues that, if people are gullible enough to be misguided by racist expressions, then they are gullible enough to think that the government only censors racist opinions because those opinions are true.

The argument that criminal prosecutions for this kind of expression will reduce racism and foster multiculturalism depends on the assumption that some listeners are gullible enough to believe the expression if exposed to it. But if this assumption is valid, these listeners might be just as likely to believe that there must be some truth in the racist expression because the government is trying to suppress it. Theories of a grand conspiracy between government and elements of society wrongly perceived as malevolent can become all too appealing if government dignifies them by completely suppressing their utterance. It is therefore not surprising that the criminalization of hate propaganda and prosecutions under such legislation have been subject to so much controversy in this country.

Dickson can't rely on the idea that people are gullible, and then turn around and rely on the claim that they are sophisticated, reasonable thinkers.

iii) The censorship provisions in question have provoked illegitimate actions by the police and other government officials:

The real answer to the debate about whether s. 319(2) is overbroad is provided by the section's track record. Although the section is of relatively recent origin, it has provoked many questionable actions on the part of the authorities. There have been no reported convictions, other than the instant appeals. But the record amply demonstrates that intemperate statements about identifiable groups, particularly if they represent an unpopular viewpoint, may attract state involvement or calls for police action. Novels such as Leon Uris' pro-Zionist novel, The Haj, face calls for banning: Toronto Star, September 26, 1984, p. A6. Other works, such as Salman Rushdie's Satanic Verses, are stopped at the border on the ground that they violate s. 319(2). Films may be temporarily kept out, as happened to a film entitled Nelson Mandela, ordered as an educational film by Ryerson Polytechnical Institute in 1986: Globe and Mail, December 24, 1986, p. A14. Arrests are even made for distributing pamphlets containing the words "Yankee Go Home": Globe and Mail, July 4, 1975, p. 1. Experience shows that many cases are winnowed out due to prosecutorial discretion and other factors. It shows equally, however, that initially quite a lot of speech is caught by s. 319(2).

iv) Racists may welcome the attention brought by criminal sanction, but innocent parties may hold back their expressions for fear of criminal penalty.

(McLaughlin's conclusion isn't included in the required readings; I summarize it below)

Again, I think that the answer to this question comes earlier. I take it that the government doesn't pass this test. McLaughlin doesn't necessarily dispute the idea that can we provide a solid moral foundation for the claim that censorship of racist expression is compatible with leaving freedom of expression otherwise untouched. Her criticism, at its core, is practical. Trying to root out racist expressions isn't worth the effort.