Underneath the Golden Boy - Robson Hall Faculty of Law

22 Underneath the Golden Boy
PART I
The debate over the extent freedom of expression can legitimately be restricted
in order to protect equality and social harmony continues. In 1990, the Supreme
Court of Canada, by a 4-3 majority, upheld the “wilfull promotion of hatred
against any identifiable group” provision in s. 319(2) of the Criminal Code 3 in R.
v. Keegstra. 4 That provision, through a definition in s. 318(4), then only covered
“colour, race, religion or ethnic origin.” While acknowledging its interference
with freedom of expression under s. 2(b) of the Canadian Charter of Rights and
Freedoms 5 , the Court held that it was a “reasonable limit” under s. 1. In so
holding, it emphasized the importance of protecting the constitutionally and
internationally protected values of equality and multiculturalism and our
obligations to prohibit certain forms of hate messages under Article 20(2) of the
International Covenant on Civil and Political Rights 6 and Article 4 of the
Convention on the Elimination of All Forms of Racial Discrimination. 7 It relied
on the strict mens rea requirement derived from the word “wilfull”, its attempts
to narrow the concept of “hatred”, and the defences in s. 319(3)—particularly
those of “religious opinion” in (b) and “reasonable belief” in (c) 8 —to uphold the
proportionality of the legislation.
On the same day, that Court also upheld, by a 4–3 majority, s. 13 of the
Canadian Human Rights Act 9 (to the extent that it dealt with race or religion,
the other “prohibited grounds of discrimination” were not dealt with in that
decision) in Canadian Human Rights Commission v. Taylor. 10 Section 13(1)
reads:
3
Section 319(2) of the Criminal Code reads: “Everyone who, by communicating statements
other than in private conversation, willfully promotes hatred against any identifiable group is
guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two
years; or (b) an offence punishable on summary conviction.”
4
[1990] 3 S.C.R. 697.
5
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 schedule B [Charter].
6
International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S.171.
7
International Convention on the Elimination of All Forms of Racial Discrimination, 21
December 1965, 660 U.N.T.S. 195.
8
Section 319(3)(b) then read “if, in good faith, he expressed or attempted to establish by
argument an opinion on a religious subject.”
Section 319(3)(c) reads: “if the statements were relevant to any subject of public interest, the
discussion of which was for the public benefit, and if on reasonable grounds he believed them to
be true;”
9
Canadian Human Rights Act, R.S., 1985, c. H-6.
10
[1990] 3 S.C.R. 892.