R v Keegstra

R v Keegstra, [1990] 3 S.C.R. 697 is a landmark freedom of expression decision of the Supreme Court of Canada where the court upheld the Criminal Code provision prohibiting the wilful promotion of hatred against an identifiable group as constitutional under the freedom of expression provision in section 2(b) of the Canadian Charter of Rights and Freedoms. It is a companion case to R v Andrews.

Background

James Keegstra was a public school teacher in Eckville, Alberta. In 1984, he was charged under section 281.2(2) of the Criminal Code [now 319(2)] ("Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group")^[1] for "promoting hatred against an identifiable group by communicating anti-Semitic statements to his students". During classes, he described Jews as a people of profound evil who had "created the Holocaust to gain sympathy." He also tested his students in exams on his theories and opinion of Jews.

Keegstra believed in a Jewish conspiracy and held anti-Semitic views. This conspiracy theory is the notion of world domination by Jews and their plan to annihilate Christianity. He has asserted that the current historical information being taught in universities and schools is a trap set by the Jews to mislead the public. He claims that the education system has failed because of their awareness regarding Jewish conspiracy with the Holocaust. Keegstra believes he is one of the few chosen individuals who is aware of this treachery and must put a stop to it. Keegstra would teach his classes concepts that were not a part of the Alberta Social Studies Curriculum.^[2]

Keegstra had applied to have the charge quashed for violation of his freedom of expression; however, this motion was denied and he was eventually convicted at trial. The conviction was then appealed to the Court of Appeal of Alberta under the auspice that Criminal Code section 319(2) breached the constitutional right to freedom of expression, section 2(b). The Appeals court ruled that indeed section 319(2) did breach section 2(b) of the Charter. The Crown appealed this decision to the Supreme Court of Canada.

The issue before the Supreme Court was whether sections 319(2) and 319(3)(a) of the Criminal Code violated section 2(b) and section 11(d) of the Charter and, if so, whether they could be saved under section 1.

Reasons of the court

The Court found that section 319 clearly did violate section 2(b) as it was legislation designed to suppress expression. In this, the Court wrote that freedom of expression within section 2 would not be limited by section 15 (equality rights) and section 27 (recognition of multiculturalism) of the Charter. As the Court explained, using sections 15 and 27 in this way would contradict "the large and liberal interpretation given the freedom of expression in Irwin Toy" and moreover, "s. 1 of the Charter is especially well suited to the task of balancing".

The Court found that the violation of freedom of expression was justified under section 1 as the law had a rational connection to its objective, it was not overly limiting, and the seriousness of the violation was not severe as the content of the hateful expression has little value to protect.

Aftermath

Effect on the town of Eckville

The town of Eckville was scrutinized with countless media attention due to this case. The residents of the town felt that the ongoing trial tarnished their image. They were called anti-Semites by the media and received negative attention. Townsfolk of Eckville declared that this was unfair treatment thrust upon the entire town due to the actions of one man.^[3]

Implications of the Supreme Court case for similar issues

The case provided precedent for other freedom of expression and hate speech cases. In R v Butler (1992), a case considering laws against obscenity, the Supreme Court cited Keegstra to note that freedom of expression should be interpreted generously and was infringed in that case. In another hate speech case, R v Krymowski (2005), the Court noted that Keegstra had demonstrated hate speech laws were constitutional. Building on expectations that there must be evidence of promotion of hatred against a group, the Court added in Krymowski that courts should then consider the "totality of the evidence" to conclude whether a group had fallen victim to hate speech.

Action by the Alberta Teachers' Association

The Alberta Teachers' Association had modified its code of ethics in order to prevent any hate crime against an ethnic group. This included the right to protect the self-respect of any individual or group regardless of any prejudgment to race, religion age or other physical characteristics. New requests were made to qualify new teachers through constant assessments and there was a council formed to establish the Alberta Teacher Standards. The council’s main focus was to devise procedures for classroom checkup of teacher proficiency. Keegstra was fined $5000 and his professional teaching certificate was suspended. The guilty verdict in the trial did not necessarily prove justice for the offended group. James Keegstra's beliefs stay obstinate despite the accusations and faults found in his teachings against Jews.^[4]

In popular culture

The 1988 US made-for-TV film Evil in Clear River dramatises a very similar story of a Holocaust-denying high school teacher in small town Alberta who is prosecuted under section 281.2(2). It was made before R. v. Keegstra reached its ultimate conclusion in the Supreme Court of Canada.

The film Evil in Clear River narrates a parallel truth of James Keegstra’s criminal offence charges. The story starts off in Clear River, a Canadian farming town that is moderately small. There is a local high school that has an average amount of 120 students. The popular sport remains to be ice hockey and overall the town seems to be an ideal place to raise a family. Kate McKinnon, a transplanted resident of the small town from New York City, starts to realize that her son and his colleagues are learning concepts she has never heard of. She finds out that their history teacher and mayor Pete Suvak is teaching this content. She goes on to approach him regarding these delicate matters however much of her concern was indirectly unheeded. As the storyline progresses McKinnon begins to discover some of Suvak’s claimed historical incidents such as the Talmud being a Jewish symbol for world domination. Also that the Holocaust had never occurred and Adolf Hitler was simply protecting himself. McKinnon protests against Suvak’s teachings due to the insufficient information he is providing to the students. Scholarly sources prove him wrong and much of his teachings derive from his own judgements and beliefs rooted from anti-Semitism.^[5]

See also

• List of Supreme Court of Canada cases (Lamer Court)

References

1. ↑
2. ↑ Bercuson, David J, and Douglas Wertheimer. A Trust Betrayed: The Keegstra Affair. Toronto, Canada: Doubleday Canada, 1985. 44. Print.
3. ↑ "Keegstra's Town Tired of Scrutiny." The Globe and Mail (1936-Current): 3. May 21, 1985. ProQuest. Web. 3 Apr. 2014 .
4. ↑ A Trust Betrayed: The Keegstra Affair, p. 191
5. ↑ O'Connor, John,J. "TV Reviews; 'Evil in Clear River,' with Lindsay Wagner." New York Times, Late Edition (East Coast) ed.Jan 11 1988. ProQuest. Web. 3 Apr. 2014 .

• Full text of Supreme Court of Canada decision at LexUM and CanLII
• IMDB: Evil in Clear River, 1988