This case concerned the prohibition of hate speech under the Criminal Code

LEAF intervened before the Supreme Court of Canada. 

Facts 

James Keegstra, an Alberta high school teacher, communicated anti-semitic statements to his students. He was charged under the Criminal Code for willfully promoting hatred against an identifiable group. The Criminal Code allowed defendants to put forward a defence that their statements were true and therefore not hate speech, but only if they could prove the truth of the statements on a balance of probabilities (meaning there was a more than 50% chance the statements were true).  

Before his trial, Mr. Keegstra applied to the Court of Queen’s Bench for an order getting rid of the charge against him. He argued that the Criminal Code provision violated his right to freedom of expression under s. 2(b) of the Charter. The Court dismissed that application, and Mr. Keegstra was later convicted after a trial. 

Mr. Keegstra appealed his conviction to the Alberta Court of Appeal. He argued that the Criminal Code provision criminalizing hate speech violated his right to freedom of expression. He also argued that the requirements of the “truth” defence violated his right to be presumed innocent under s. 11(d) of the Charter. The Court of Appeal allowed his appeal and set aside Mr. Keegstra’s conviction, finding that the provisions violated Mr. Keegstra’s Charter rights. The Crown appealed to the Supreme Court of Canada. 

LEAF’s arguments 

LEAF argued that the willful public promotion of group hatred did not fall under s. 2(b) of the Charter. The promotion of hate was discriminatory and a violent form of expression. It perpetuated inequality, and violated s. 15 of the Charter. The criminal prohibition of hate speech was grounded in s. 15, which is meant to protect vulnerable groups.  

Outcome 

The Supreme Court of Canada allowed the appeal and restored Mr. Keegstra’s conviction. The Court held that the prohibition on willfully promoting hatred infringed s. 2(b) of the Charter, but that the limit was justified under s. 1. It held that the requirements of the “truth” defence violated s. 11(d) of the Charter, but were also justified under s. 1. 

LEAF is grateful to Kathleen Mahoney and Linda Taylor, counsel in this case.  

Download LEAF’s factum here

Read the Supreme Court of Canada’s Decision here

Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].