James Keegstra Freedom Of Expression In Canada

Freedom of expression is the right to communicate ideas without restraint, whether orally or by other methods of communication (Duhaime). In Canada, section 2(b) of the Charter of Rights and Freedoms protects “freedom of thought, belief, opinion and expression” it also includes freedom of press and other means of communication (Canadian Civil Liberties Association), however James Keegstra took his freedom of expression to a limit, which forced the Supreme Court of Canada to decide his fate. Keegstra was a high school teacher in Eckville, Alberta. In 1984, he was charged with the unlawful promotion of hatred against an identifiable group under section 319(2) of the Criminal Code. These charges were based on his communication of anti-Semitic

(anti-Jewish) statements to his students. After being convicted of hate propaganda, the accused felt that his section 2(b) and section 11(b) rights were violated by his conviction under section 319(2) and s. 319(3) of the Criminal Code (Prezi, 2011). The court saw these violations of the Charter as constitutional because “the law had a rational connection to its objective, it was not overly limiting, and the seriousness of the violation was not as severe as the content of the hateful expression”. Supreme Court of Canada overstepped in its conclusion that there are limits to Keegstra’s right of expression because section 2 of the Charter is supposed to protect speech that promotes hatred towards an identifiable group, Keegstra’s statements did not constitute any threats, section 319(2) of the Criminal Code did not pass the proportionality test and section 2 does not protect only justified or meritorious expression.

According to Dickson C.J and Wilson, statements that willfully promote hatred towards an identifiable group are protected under the section 2(b) of the Charter.

As found in the Charter, when an action suggests meaning, through a non-violent form of expression, it has an expressive content and is embedded under the word “expression”. Thus, the hate propaganda against the Jews by Keegstra is a form of non-violent crime of expression. The charges against Keegstra were ultra vires as section 2 of the Charter protects all content of expression. This section protects all content regardless of the meaning, no matter how offensive it may be (page 4). The hate propaganda that was directed at the Jews should not be considered as an expression in the form of violence because violence requires physical contact. In section 2(b) there are exceptions regarding expression in a violent form, which only applies to expression passed across through physical harm (page 2). Considering this, threats of violence are not omitted from meaning of expression under section 2. Hate speech is not analogous to violence. Although the meaning it conveyed was offensive, it was not from the way the message was formed but the meaning that was attached to it. Society is democratic and everyone is entitled to his or her right to freedom of expression, however the Charter does not state that people have the right not to be offended. Section 2 (b) guarantees “freedom of thought, belief, opinion and expression”. The minority found that the expression conveyed meaning which means it is protected by s.2 (b) of the

Charter.

Although Keegstra’s communications were repugnant, they held no intention to physically harm, so they were not a threat. His intentions were clear because he did not have plans of causing any harm to the Jews or compelling his students to do anything violent (page 4). According to Dolphin Delivery and Irwin Toy, violence means “actual or threatened physical interference with the activities with others”. The accused actions did not constitute any form of violence thus his actions were justified because the hate propaganda in this case does not fall outside the protection of section 2(b) of the Charter (page 4).

Section 319(2) of the Criminal Code did not pass the proportionality test because this section was too general in its context and did not recognize sections 15 and 27 of the charter. These sections deal with equality and multiculturalism, which is not supposed to be used as a limit upon the freedom of expression. If this were the case, a lot of citizens of the state would be affected as well as the exchange of ideas and beliefs would be limited. The prevention of racism should not have applied to section 2 of the Charter. It is completely irrelevant because the value of equality and multiculturalism does not correspond to the values of freedom of expressions. To be able to compare sections 15 and 27 and the international agreements signed by Canada on the prevention of racism, means the protection comments in section 2(b) would be excluded which is aimed at protecting anyone from having their freedom of expression infringed by the government (page 4) One of the reasons the government implemented the s.319 (2) was to limit the freedom of expression by controlling what people are entitled to say (page 4). By doing this, section 319 (2) deviated from its main motive by limiting lawful expression. The minority found out that there is a weak relation between the consideration of hate speech as a criminal offence and its actual prevention.

The protection under section 2 extends to more than just speech. Speech is a subset of expression in that expression is more than just speech. The limitation of freedom of expression, which does not correlate with the American concept of freedom of speech, should not be applied in this case though the statement made by Keegstra was negative to the public and the identified group. In this case, it could be agreed that the statement by Keegstra did not contribute anything positive to the society but experience makes it clear that it might be difficult to distinguish between speeches that have value to social issues and speeches that does not. Section 319(2) would have an effect on the public because it could prohibit defensive expressions. It could also prevent what should be a lawful expression because the law is not specific about what is legal or not. For freedom of expression to be meaningful and guaranteed, it must be able to protect every expression even if it questions very basic notion about the society. A true commitment to freedom of expression demands nothing less.

The court’s decision on Keegstra’s case is unjustified. The suppression of hate propaganda signifies an infringement of individual’s freedom of expression. An activity that conveys a message through non-violent forms of expression is protected under the s.2 of the Charter regardless of how offensive it is (page 2). Moreover, there was a misapplication of the Charter, which made s.319 (2) of the Criminal Code to fail the proportionality test. There was no relation between the criminalization of hate speech and its suppression. Although his comments were offensive, they did not pose any threats the way violence or violent threats would have. The meaning Keegstra’s comment conveyed was offensive but it was not from the way the message was formed but the meaning that was attached to it. Section 319(2) does not regulate the tone of expression because it strikes directly at its content.