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Published online by Cambridge University Press: 09 June 2015
........[he] pointed out the skill and art of the orator—how everything important to his purpose was said at the exact moment when he had brought the minds of his audience into the state most fitted to receive it; how he made steal into their minds, gradually and by insinuation, thoughts which, if expressed in a more direct manner would have aroused their opposition.
From the Autobiography of John Stuart Mill
The author wishes to express his gratitude to his thesis supervisor Professor A. Brudner, Professor K. Swinton, and Professor C. Orwin for their comments on earlier drafts of the essay.
* The terms “freedom of speech” and “freedom of expression” are used interchangeably throughout this essay.
1. R. v. Keegstra (1988), 60 Aha. L.R. (2d) 1,5 W.W.R.211,87 A.R. 177 (Alb. C.A.), reversing 19C.C.C. (3d)254(Alb. Q.B.) (Hereafter Keegstra cited to C.A. and W.W.R. unless otherwise stated).
2. The Criminal Code, R.S.C. 1970, c. C–34 (hereafter Code). The section considered in Keegstra was then numbered s. 281.2(2). It has since been re–enacted as s. 319(2) by R.S.C. 1985, c. C-46. The precise citation for the relevant provisions of the Code is R.S.C. 1970 (1st Supp.) c. 11, s. 1. The subsections most relevant to the discussion are set out below. The present section numbers are given first, followed by the old section numbers enclosed in square brackets. Only the most recent Code section numbers are used throughout this essay, except where a section has been both renumbered and otherwise amended, in which case old section numbers are also cited.
318. [281.1] (1) Every one who advocates or promotes genocide is guilty of an indictable offence and is liable to imprisonment for five years.
(2) In this section, “genocide” means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,
(a) killing members of the group; or
(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.
(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General.
(4) In this section, “identifiable group” means any section of the public distinguished by colour, race, religion or ethnic origin.
319. [281.2] (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace 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.
(2) Every one who, by communicating statements, other than in private conversation, wilfully 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.
(3) No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject;
(c) 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; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred towards an identifiable group in Canada.
(6) No proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General.
(7) In this section, “communicating” includes communicating by telephone, broadcasting or other audible or visible means; “identifiable group” has the same meaning as in s. 318 [s. 281.1]; “public place” includes any place to which the public have access as of right or by invitation, express or implied; “statements” include words spoken or written or recorded electronically, or electromagnetically or otherwise, and gestures, signs or other visible representations.
3. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 (hereafter Charter).
4. Keegstra, supra n. 1 at 216–22. Charter, supra n. 3 at s. 11 (d). The text of s. 11 (d) is:
11. Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
5. Id. at 216, 221–2 and 222–25.
6. Charter, supra n. 3 at s. 1. The full text of s. 1 is:
(d) The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
7. Keegstra, supra n. 1 at 267–8Google Scholar (Q.B.) and at 228–9 (C.A.) See, Retail, Wholesale and Department Store Union, Local 5S0 v. Dolphin Delivery Limited (1986), 2 S.C.R. 573; 33 D.L.R. (4th) 175 (S.C.C.) (hereafter Dolphin Delivery cited to D.L.R.). Compare R. v. Andrews and Smith, (1988), 65 O.R. (2d) 161,28 O.A.C. 161 (Ont. C.A.) (hereafter Andrews) in which the Ontario C.A. upheld s. 319(2) against an attack based on s. 2(b) of the Charter. Cory J. (at 179) said that the law offended freedom of expression, but that s. 27 “…in itself gives a very clear indication that s. 1 of the Charter should be applied in this case. The clause coupled with the Canadian multicultural heritage gives the strongest possible direction to apply s. 1. ”Grange and Krever JJ. A. held that s. 319(2) did not offend s. 2(b). Grange J. said (at 192) that s. 27 “…can only reinforce my view that no protection is offered by s. 2(b) to the conduct of the appellants”.
8. Id. at 221–2,225,226–9,231 and 232–4.
9. Id. at 216, 228–30, 233–34 and 236–38.
10. The phrase “private communication” is defined by s. 183 of the Code, supra n. 2. Among other things, a private communication is one “made under circumstances in which it is reasonable for the originator thereof to expect that it will not be interpreted by any person other than the person intended by the originator thereof to receive it. ”
11. The argument that the section was designed to protect individual privacy is reinforced by noticing that an authorization to intercept private communications is not available in respect of an offence committed under s. 319(2), although it is available in respect of the offence of advocating or promoting genocide under s. 318: presumably the gravity of the latter offence justified an intrusion on privacy which could not similarly be justified in the case of s. 319(2).
12. This view is adopted by the Law Reform Commission of Canada which recommended that the seemingly awkward phrase “other than in private conversation” be replaced by the straightforward word “publicly”. See, Law Reform Commission of Canada Report: Recodifying Criminal Law (Ottawa: Law Reform Commission, 1987)Google Scholar (President: Mr. Justice Allen M. Linden) at 100 (hereafter LRC Report).
13. See e.g. s. 319(7) of the Code, supra n. 2.
14. Sykes, J.B., ed.. The Concise Oxford Dictionary, 7th ed. (Oxford: Oxford University Press) at 832 Google Scholar (hereafter Concise Oxford) defines “public” in its primary sense as “of or concerning the people as a whole”. It defines “people” in its primary sense as persons “composing community, tribe, race or nation. ” “Public” in this context is a synonym for the “Canadian nation or people”. The definitions of “public department”, “public officer” and “public stores” found in s. 2 of the Code, id. support this interpretation. All three definitions refer to activities or institutions operated on behalf of the Canadian people. Furthermore, the word appears in s. 319(1) and (7) as part of the phrase “public place”, where it is given the same meaning as it has in s. 150 (the definition section for Part V of the Code), which applies to “Sexual Offenses, Public Morals and Disorderly Conduct” and s. 197 (the definition section for Part VII of the Code), which applies to “Disorderly Houses, Gaming and Betting”. In all these sections an interpretation of the word public to mean anything other than the Canadian public would extend the Code’s jurisdiction far beyond the reach of Canadian law enforcement, and also the legitimate reach of Canadian law.
15. Keegslra, supra n. 1 at 221. The quolation is from a speech delivered May 14,1940 as the French army crumbled before the Nazis. The passage quoted in Keegstra occurs in the penultimate paragraph of the speech, and reads, in context, as follows: Side by side, unaided except by their kith and kin in the great Dominions and by the wide Empires which rest beneath their shield – side by side, the British and French peoples have advanced to rescue not only Europe but mankind from the foulest and most soul–destroying tyranny which has ever darkened and stained the pages of history. Behind them – behind us – behind the Armies and fleets of Britain and France – gather a group of shattered states and bludgeoned races: the Czechs, the Poles, the Norwegians, the Danes, the Dutch, the Belgians – upon all of whom the long night of barbarism will descend, unbroken even by a star of hope, unless we conquer, as conquer we must; as conquer we shall.
James, R.R., ed., Winston S. Churchill His Complete Speeches, (New York: Chelsea House with R.R. Bowker, 1974) vol. 6 6220 at 6224.Google Scholar
16. Fowler, H.W., Modern English Usage, SirErnest, Gowers, ed. (2d rev’d ed., Oxford: Oxford University Press, 1968) at 48–9.Google Scholar
17. Kerans J. only deals with this requirement in an aside: supra n. 1 at 240.
18. R. v. Buzzanga and Durocher (1979), 101 D.L.R. (3d) 488; 49 C.C.C. (2d) 369 (Ont. C. A.) at 381 –3 (hereafter Buzzanga cited to C.C.C).
19. Id. at p. 386. See also Andrews, supra n.7 at 184.
20. Id. at 381.
21. For this reason Cory J. ’s examples in Andrews, supra n.7 at 168 are inapplicable to s. 319(2). Cory J. cites the attempts of religious men to ban the works of Darwin and Galileo to support the conclusion that “The protection provided for freedom of expression must be wide enough to permit persons to set forward new and different ideas no matter how upsetting those ideas may be to identifiable groups” Cory J. argues that the expression of provocative new ideas can only be protected if hatemongering is also protected by s. 2(b). However s. 319(2) does not allow a new idea to be treated as hate promotion only because an identifiable group feels enmity towards it, or even because the idea leads to enmity against an identifiable group. The section does not apply to those who intend only to tell the truth.
22. Defences which an accused must prove on a balance of probabilities will be referred to as “accused onus defences”. The Supreme Court of Canada in R. v. Holmes (1988), 1 S.C.R. 914; 41 C.C.C. (3d) 497 (S.C.C.) (hereafter Holmes cited to S.C.R.); considered whether a section of the Code imposed an onus on the accused to prove a defence on a balance of probabilities. A majority of the court decided that the section imposed no extraordinary burden of proof on the accused. Mclntyre J. (at 947–9) and the Chief Justice (at 933–36) both ruled on the constitutionality of defences which an accused must prove on a balance of probabilities. Mclntyre J. said that some accused onus defences do not offend the Charter’s presumption of innocence; the Chief Justice held that all such defences offend the presumption of innocence. Kerans J. was left to choose between these opposing views. He chose to follow the Chief Justice, but only halfway: Kerans J. could have eliminated the offence to s. 11(d) by excising the offending word “establish” from s. 319(3)(a) of the Code, as the Chief Justice excised (Id. at 941) the offending words “the proof of which lies upon him” from s. 351(1) of the Code. See, Keegstra, supra n. 1 at 219–20. See also Mahoney, R., “The Presumption of Innocence: A New Era” (1988), 67 Can. Bar Rev. 1 Google Scholar (hereafter Mahoney “Presumption”); see also R. v. Appleby (1971), [1972] S.C.R. 303, 3 C.C.C. (2d) 354 (S.C.C); R. v. Oakes (1986), ’l S.C.R. 103; 50 C.R. (3d) 1 (S.C.C.) (hereafter Oakes cited to C.R.).
23. See Mahoney, , “Presumption”, id . at 9–10.Google Scholar
24. See e.g. R. v. Godfrey (1984). 39 C.R. (3d) 97; 26 Man. R. (2d) 61, (Man. C.A.) al 103–5.
25. It is unlikely that the Supreme Court’s decision in R. v. Whyte (1988), 2 S.C.R. 3; 5 W.W.R. 26 (S.C.C.) (hereafter Whyte cited to W.W.R.) settled the question any more than Holmes supra n. 22 did. See Andrews, supra n. 7 at 193. Cf. Whyte at 37–39.
26. Mahoney argues that any attempt to distinguish true defenses from the elements of an offence constitutes a free standing moral inquiry into the degree of guilt borne by a particular accused. See Mahoney, “Presumption”, supra n. 22 at 8 – 10. Mahoney is right to suggest that such a free standing inquiry would be difficult to carry out with any precision. The question is whether there is another way to asses offenses than by measuring them against some comparative standard of evil. In s. 7 and s. 12 cases the Courts already do assess the internal coherence or rationality of offences without engaging in free standing moral inquiry. See e.g. R. v. Vaillancurl (1987), 2 S.C.R. 636; 81 N.R. 115 (S.C.C); and R. v. Smith (1987), 1 S.C.R. 1045; 75 N.R. 321) (S.C.C); and Reference Re Section 94(2) of the Motor Vehicle Act (B.C.). (1985) 2 S.C.R. 486; 23 C.C.C. (3d) 289 (S.C.C.) (hereafter Motor Vehicle cited to C.C.C.).
27. See e.g. Oakes, supra n. 22 at 12 – 14 and Whyte. supra n. 25 at 33.
28. The word “establish” also appears in s. 319(3)(b). However, as used there it is clearly meant to describe the activity of persuasion, not impose an extraordinary burden of proof.
29. Of the s. 319(3) defences those stated in subsections (b), (c) and (d) are made available in any event by the requirement of wilfulness. Two of the defences require that the accused have acted in good faith; it is difficult to understand how such defences could apply to anyone who intended to arouse haired. The third contains a more highly specified requirement of good faith, namely, that an accused “on reasonable grounds” believed his statements to be true. The presence of honest belief, even if not on reasonable grounds, is inconsistent with the existence of a mens rea of wilfulness.
30. See Andrews, supra n. 7 al 192–3. But cf. Whyle, supra n. 25 at 38: “The trial of an accused in a criminal matter cannot be divided neatly into stages, with the onus of proof on the accused at an intermediate stage and the ultimate onus on the Crown. ” The argument is that the Crown has not succeeded in proving wilful hate promotion until a judge or jury has found guilt, yet an accused must decide whether to raise the defence before the jury has even begun to deliberate. The presumption of innocence must therefore be applied as though a man were factually innocent until a verdict of guilt is pronounced against him. See Mahoney, “Presumption”, supra n. 22 at 13–18 and Holmes, supra n. 22 at 934. This argument rests, however, on an incomplete view of the trial process. A proper jury instruction in a s. 319(2) case would be that the validity of a s. 319(3)(a) defence should not be considered until the jury has found, beyond a reasonable doubt, that the accused wilfully promoted hatred. In practice, no burden is cast on an accused until after a provisional finding of guilt is made. The only practical effect of the defence is on tactical decisions; in particular, whether to call evidence, and, if so, of what kind. This is a decision that need not be made until after the Crown’s case is in, and has withstood any motion brought for a directed verdict. It is also a decision which every accused must make in every criminal case. Most importantly, an accused may select his own defence. Only an accused who cannot credibly deny an intention to promote hatred would rely on the statutory defence of truth. An accused who did not intend to promote hatred would simply raise a defence of no intent.
31. See also discussion supra under the heading (i) Other than in private conversation.
32. Whyte, supra n. 25 at 40.
33. Id. at 41.
34. Id. n. 25.
35. See supra nn. 17 and 32 and accompanying text. See infra under the heading “The Marketplace of Ideas.”
36. See supra under the heading “Other than in private conversation”. See infra n. 46 and accompanying text.
37. See infra text accompanying n. 40. See also infra under the headings “Freedom of Expression and Persuasion” and “Hate Promotion and Ordinary Opinion. ”
38. Oakes, supra n. 22 at 26.
39. Whyle, supra n. 25 at 44–5.
40. Harrison, Jim, (New York: Delacorte Press, 1979), at 40.Google Scholar
41. The Keegstra trial judge charged the jury that hatred is “an emotion of extreme dislike or aversion, detestation, abhorrence”. This charge was approved in Andrews, as was the reasoning of the Andrews trial judge that “…hatred went farther than such emotions as prejudice, mere dislike, ridicule or contempt. ” Andrews, supra n. 7 at 166 and 179. Hate propaganda is not the same thing as libel, although s. 319(2) is often said to attack group defamation. See e.g. Cohen, S., “Hate Propaganda – The Amendments to the Criminal Code” 17 McGill LJ. 740.;Google Scholar Cohen, M., “The Hate Propaganda Amendments – Reflections On A Controversy” (1970) Alia L. Rev. 103;Google Scholar MacGuigan, M., “Proposed Anti-Hate Legislation”, (November, 1967) Chitty’s LJ. 302.Google Scholar See also Cliaplinsky v. New Hampshire (1942), 315 U.S. 568; 62 S. Ct. 766 (U.S.S.C.) Beauharnais v. Illinois (1952), 343 U.S. 250; 72S. Ct. 725 (U.S.S.C). Kerans J. wrongly assumed that s. 319(2) is exactly analogous to the tort of defamation, see e.g. Keegstra, supra n. 1 at 221 and 236. A better analogy is to the criminal law descendants of the common law offence of scandalum magnatum. See, Report of the Special Committee on Hate Propaganda in Canada, (Ottawa, Queen’s Printer, 1966) (Chair: M. Cohen) Appendix I, p. 73 (hereafter Cohen Report); R. v. Zundel (1987),58 0.R. (2d) 129; 56 C.R. (3d) 1 at 16–19 (Ont. C.A.) (hereafter Zundel cited to C.R.); F.R. Scott, “Publishing False News” (1952), 30 Can. Bar Rev. 37; Boucher v. The King (1950), 1 D.L.R. 657 (S.C.C.), reheard at (1951), S.C.R. 265,2 D.L.R. 369 (S.C.C.); and, Code, supra n. 2 at s. 59 and s. 181. See also Marlins Criminal code 1955, Martin, J.C., Q.C. ed., (Toronto, Cartwright & Sons, 1955) at s. 60 and s. 166 with accompanying annotations.Google Scholar
42. The “clear and present danger” rule was popularised by Justices Holmes and Frankfurter of the United States Supreme Court and is closely associated with the concept of a marketplace of ideas. See: Abrams v. United States (1919), 250 U.S. 616,40S.Ct. 17 (U.S.S.C); Schenck v. United States (1919), 249 U.S. 47; 39 S. Ct. 247 (U.S.S.C): Debs v. United States (1919), 249 U.S. 211; 39 S. Ct. 252 (U.S.S.C); Frohwerk v. United States (1919), 249 U.S. 204; 39 S. Ct. 249 (U.S.S.C); Gitlow v. New York (1927), 268 U.S. 652; 45 S. Ct. 652 (U.S.S.C); and Whitney v. California (1927), 274 U.S. 357; 47 S. Ct. 641 (U.S.S.C). The Alberta Court of Appeal’s version of the rule differs from the American. American law would probably not accept the protection of reputation as justification for a criminal law which limits freedom of speech: Set Andrews, id. at 170–72.
43. The relation of the “marketplace of ideas” theory to s. 2(b) of the Charter is explained in Keegstra, supra n. 1 at 225, 226–8,231 and 233–4. Another decision, also written by Kerans J., is cited in Keegstra for its explication of the phrase: Grier v. Alberta Optometric Association et. al. (1987), 79 A.R. 36; 5 W.W.R. 539 at 554–45 (Alb. CA.) (hereafter Grier cited to W.W.R.). Grier advances a number of theoretical bases for s. 2(b) and Kerans J. does not explain why he relied on only the “marketplace” theory in Keegstra. A possible explanation emerges on a comparison of his reasons in Black et. al. v. Law Society of Alberta (1986), 68 A.R. 259; 3 W.W.R. 590 (Alb. C. A.) at 635–9 and 641 with Keegstra, id. at 255,228 and 230–31. Kerans J. appears to apply the “clear and present danger” test to all laws which prohibit the expression of opinions. Other judgments, authored by Kerans J., which shed light on his understanding of s. 2(b) are Edmonton Journal v. Attorney General of Alberta et. al. (1987), 78 A.R. 375; 5 W.W.R. 85 (Alb. C.A.); R. v. Jahelka and R. v. Stagnitta (1987), 79 A.R. 44; 54 Alta L.R. (2d) 1 (Alb. CA.) (hereafter Jahelka cited to Alta L.R.).
44. Wilson, J.Q., Thinking About Crime, 1st ed. (New York: Vintage Books, 1977) at p. 8.Google ScholarPubMed
45. The hypothetical is not fanciful. Cf. Andrews, supra n. 7 at 165 under heading “Excerpts portraying members of racial minorities as responsible for increases in the rate of violent crime” with Wilson, J.Q., Thinking About Crime, 2d ed. (New York: Basic Books. 1983) at 17–23, 34–7, 96–8 and 254–60.Google ScholarPubMed
46. The Law Reform Commission of Canada shares this view. See LR.C. Report, supra n. 12 at title V, p. 100, s. 21(1). S. 21(1) is meant to replace s. 319(2) and reads as follows:
21(1) Stirring up hatred. Everyone commits a crime who publicly stirs up hatred against any identifiable group. The comment to s. 21(1) explains why none of the existing statutory defences to hate promotion are retained:
The defences contained in subsection 281.2(3) have also been omitted as unnecessary. In most cases where an accused knows that what he says is true, expresses in good faith an opinion on a religious subject, points out on reasonable grounds matters relevant to the public interest or intends to remove matters tending to produce hatred towards an identifiable group, he does not have the purpose of stirring up hatred. In the rare case, however, where such a purpose could be proved, conviction would be merited – if extremists of one religion make true statements in order to stir up hatred against members of another, does their truthfulness detract from their stirring up hatred?
But cf. Canada, Law Reform Commission, Hate Propaganda (Working Paper 50) (Ottawa: Law Reform Commission of Canada, 1986) at 38–9.Google ScholarPubMed
47. The same point was made by the Ontario Court of Appeal in Buzzanga, supra n. 18 at 387.
48. “Chilling effect” is a term of art in American constitutional law. It refers to laws which serve some legitimate purpose but which are also, in theory, capable of infringing on constitutional rights. See e.g. Brandenburg v. Ohio (1969), 395 U.S. 444; 89 S. Ct. 1827 (U.S.S.C). In the context of free speech, the doctrine is applied to laws which, read literally, apply to a wide range of circumstances. The fear is that such laws inhibit free speech because of uncertainty about their real scope. Potential speakers may, for example, remain silent because a law appears to apply to their proposed speech, even though it does not. See Lockhart, W.B., Kamisar, Y. and Choper, J.H., Constitutional Law: Cases-Comments-Questions. (5th ed., St.Paul, , Minnesota: West Publishing, 1982) at 730–38.Google Scholar
49. See Dolphin Delivery, supra n. 7; Canavan, F., Freedom of Expression: Purpose As Limit (Carolina: Carolina Academic Press, 1984) at xiv and 87;Google Scholar Himmelfarb, G., On Liberty and Liberalism (New York: Alfred A. Knopf, 1974) at 284–5.Google Scholar
50. See Keegstra, supra n. 1 at 224–5 and 239. The text quoted below is from Mill, J.S. On Liberty (Indianapolis: Hackett Publishing Co., 1978) at 51–2.Google Scholar The part of the text cited by Kerans J. is enclosed in square brackets [ ].
Undoubtedly, the manner of asserting an opinion, even though it be a true one, may be very objectionable and may incur severe censure. But the principal offenses of this kind are such as it is mostly impossible, except by accidental self–betrayal, to bring home to conviction. The gravest of them is, to argue sophistically, to suppress facts or arguments, to misstate the elements of the case, or to misrepresent the opposite opinion. But [ all this, even to the most aggravated degree, is so continually done in perfect good faith by persons who are not considered, and in many other respects may not deserve to be considered, ignorant or incompetent, that it is rarely possible, on adequate grounds conscientiously to stamp the misrepresentation as morally culpable, and still less could law presume to interfere with this controversial misconduct. ] With regard to what is commonly meant by intemperate discussion, namely invective, sarcasm, personality, and the like, the denunciation of these weapons would deserve more sympathy if it were ever proposed to interdict them equally to both sides; but it is only desired to restrain the employment of them against the prevailing opinion; against the unprevailing they may not only be used without general disapproval, but will be likely to obtain for him who uses them the praise of righteous zeal and honest indignation. Yet whatever mischief arises from their use is greatest when they are employed against the comparatively defenceless; and whatever unfair advantage can be derived by any opinion from this mode of asserting it accrues almost entirely to received opinions. The worst offence of this kind which can be committed by a polemic is to stigmatize those who hold the contrary opinion as bad and immoral men. To calumny of this sort, those who hold any unpopular opinion are peculiarly exposed, because they are in general few and uninfluential, and nobody but themselves feels much interested in seeing justice done them; but this weapon is, from the nature of the case, denied to those who attack a prevailing opinion: they can neither use it with safety to themselves, nor, if they could, would it do anything but recoil on their own cause. In general, opinions contrary to those commonly received can only obtain a hearing by studied moderation of language and the most cautious avoidance of unnecessary offense, from which they hardly ever deviate in the slightest degree without losing ground, while unmeasured vituperation employed on the side of the prevailing opinion really does deter people from professing contrary opinions and from listening to those who profess them.
51. The Oxford English Dictionary (Oxford: Oxford University Press, 1981) at 435–6 defines “sophistically” as “(to argue) in a sophistical manner, fallaciously;Google ScholarPubMed with deceptive subtlety”. “Sophistical” means, primarily, “given to the use or exercise of sophistry”. “Sophistry” is primarily defined as “specious but fallacious reasoning; employment of arguments which are intentionally deceptive.” See also Mill’s use of the word “sophisticating” in On Liberty, Id. at 32.
52. Supra n. 41. s. 319(2) has its origin in the Cohen Report.
53. See Keegstra, supra n. 1 at 226–28. Kerans J. did not fully represent the two sides of the Cohen Report’s argument. The Cohen Report emphasized the harm that hate promotion causes vilified groups. It put less emphasis on the nature of the threat which hatemongers pose to a multicultural society, like Canada. This was prudent, for the latter argument is easy to misunderstand as it appears to have been in Keegstra at 227.
The Cohen Report argued that in a multicultural society friction is inevitable. Many citizens of mass democracies feel powerless but cannot even discern the real causes of their dissatisfaction. Confused and unhappy, they tend to seek simple answers; i.e. to the cast blame for their own powerlessness on minority groups. Therefore, the conditions for successful hate promotion are always present in a multicultural mass democracy; hate promotion is always a real threat to social order. It is prudent to attack the threat rather than wait for actual harm; the potential consequences of successful hate promotion are so awful that we cannot justify a social experiment in absolute tolerance, it is not, however, fair to view the Cohen Report’s argument as opposing the marketplace of ideas. The Cohen Report does not assume, as Kerans J. says it does, that society is unconcerned with truth. Rather, it argues that it is difficult, if not impossible, to reach the hatemonger’s audience and correct the damage done after he has spoken. He who speaks first in a mass democracy is likely to speak most effectively. The Cohen Report is careful to note that there is good reason to believe that truth will triumph in the long run, if we vigilantly defend against hate promotion now. Cohen Report, id. at 7–10, 14, 18, 25–29, 31–2, 59–61, 64 and 175–76. Cf. Andrews, supra n. 7 at 168–9 and 190–92.
54. Keegstra, id. at 227. The Cohen Report does not argue that we should silence hate promoters simply to forestall a violent reaction from their opponents. Rather, it argues that maligned identifiable groups are justified in expecting legal protection from hate promotion. A violent response to hate promotion is as much a product of legal inaction as of hate promotion.
55. Keegstra, id. at 228–30. The phrase “reputational integrity” is from Richards, David A.J., Toleration and the Constitution (Oxford: Oxford University Press, 1986) at 197 (hereafter Toleration).Google Scholar Richards’s view of reputation is derived from Rawls, John, A Theory of Justice (Oxford: Oxford University Press, 1972) (hereafter Theory).Google Scholar See Theory at 175–82 and 440–46 for the theoretical basis of the concept “reputational integrity”. See also the passage cited by Kerans J. from Richards’s book. See also, R. Moon, “The Scope of Freedom of Expression” (1985) 23 Osgoode Hall L. J. at 331. “Reputational integrity”, according to Toleration, is an aspect of “equal treatment” which is capable of being offset against free speech rights: “equal respect must accord appropriate weight to general goods defined by our interests in reputational integrity and control over information central to the autonomous self–definition of a personal life.” (Toleration at 196.) The concept “reputational integrity” is an interpretation of equality, and, in particular, of equal respect among private persons. Kerans J. therefore contradicted himself by introducing this notion into the judgment as a s. 1 justification for a s. 2(b) breach, after rejecting the argument that s. 15 of the Charter provides s. 1 justification for s. 319(2) of the Code.
56. Code, supra n. 2 at s. 298(1).
57. Oakes, supra n. 22 at 13.
58. Supra n. 50 and following text.
59. The author acknowledges, with gratitude, his debt to Professor C. Orwin of the University of Toronto for introducing him to the ideas which appear prominently in this section of the essay. See C. Orwin, “Democracy and Distrust” (Summer 1984), The American Scholar 313 and C. Orwin, “The Just and the Advantageous in Thucydides” (June 1984), American Political Science Review 485.
60. John Stuart Mill was acutely aware of the problem of persuasion. His awareness is evident in the epigraph to this essay; in the reasoning underlying his distinction between “sophistical” and “intemperate” speech (supra text following n. 50), and, in Mill, J.S., Autobiography (New York: Bobbs Merrill, 1957) at 30.Google Scholar
61. Hitler’s Mein Kampf makes cunning use of precisely these rhetorical techniques. See Hitler, Adolf, Mein Kampf, trans. Dr. Alvin Johnson (New York: Book of the Month Club with Houghton Mifflin, 1939) vol. I, c. II “Years of Study and Suffering in Vienna” at 66–84.Google Scholar
62. See e.g. the summary of the facts in Zundel, supra n. 41 at 13–15.
63. This is similar to an argument made in the Cohen Report. (See supra n. 53). See also Beauharnais v. Illinois, supra n. 41; Andrews, supra n. 7, and Terminiello v. Chicago (1949), 69 S. Ct. 894; 337 U.S. 1 (U.S.S.C), particularly at U.S. pp. 6– 7 and pp. 13–24. In these cases, the actual words of the individuals charged with fomenting race hatred are reproduced. Further examples of hate propaganda which has been distributed in Canada are found in the Cohen Report at Appendix III at 260.
64. Charter, supra n. 3 at s. 2. The text of s. 2 is:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly;
(d) freedom of association.
65. R. v. Big M Drug Mart, (1985), 1 S.C.R. 295; 18 C.C.C. (3d) 385 at 423–24 (S.C.C.).
66. See Andrews, supra n. 7 at 175.
67. This is essentially the position taken in Zundel, supra n. 41 at 20–24 and 28–29. Kerans J. rejected this approach arguing that it reads s. 2(b) as though it merely codified the law which preexisted the Charter, see Grier, supra n. 43 at 84. However, the Ontario Court of Appeal did nol read s. 2(b) as Kerans J. says they did. Rather, the court argued that none of the wide range of material it considered in Zundel, including pre–Charter Canadian case law, supported the view that freedom of expression is an unlimited right. The Court explicitly avoided defining the scope of s. 2(b) protection, holding only that s. 2(b) did not protect the knowing dissemination of lies contrary to the public interest. With this conclusion Kerans J. expressly agreed in Keegstra, supra n. 1 at 223–24. See also Andrews, supra n. 7 at 173–18, 176–78 and 189–92. Mr. Justice Kerans also objects to Zundel’s definition of a “freedom” as the residue which remains after the scope for legitimate intrusion on freedom of expression has been defined. However, Kerans J. agrees that s. 2 should not be interpreted as protecting everything someone wants to do, which is the same as saying that a freedom is what remains after the scope of legitimate incursion has been defined. The real dispute is about the breadth of the remainder, not its character as remnant.
68. No specific interpretation of the word “freedoms” is advanced herein. The use of the plural implies that section 2 is meant to protect a number of different things, not one thing called “freedom”. Mr. Justice Kerans treats freedom as a synonym for “human autonomy”, a phrase which he says controls the meaning of all the other words of s. 2. He recognizes that this view creates enormous problems for the application of s. 2(b), as it renders the concrete wording of the section meaningless. Interpreting s. 2(b) as though it reads “everyone has human autonomy” extends the protection of the section to virtually anything that anybody wishes to do; see Grier, supra n. 43 at 545.
69. The argument is supported by the ordinary meanings of the terms thought, belief and opinion. See the Concise Oxford, supra n. 14.
70. Kerens J. equates conscience and expression, see Grier and Jahelka, supra n. 43. Cory J. and Grange J. disagree in Andrews, supra n. 7 about the nature of the relation between conscience and expression. Cory J. distinguished (at 178) the accused in Andrews (who expressed “a sincerely held opinion”) from the accused in Zundel, supra n. 41 (“who wilfully published a statement known to be false”). The latter was not protected by s. 2(b), although the former was. To this view Grange J. replied (Andrews at 192): “…assuming that there was a sincere belief, that in my view does not minimize the offence. Indeed, it may make it more dangerous if not more heinous. Certainly the effect of promoting hatred is potentially more inimical to our society and our values than the spreading of false news”. It is submitted that the dispute illustrates the danger of reducing freedom of expression to freedom of conscience: the latter is all encompassing, the former is not. Conscience levels the distinctions which are implicit in the structure of s. 2, particularly the distinction between privately held belief and publicly expressed opinion. In effect, Kerans J. and Cory J. acted as though section 2(b) said that all beliefs “expressed” should be treated equally simply because they are beliefs; in contrast, Grange J. ’s reading of the section makes sense both of the words used in s. 2(b), and of the distinction between conscience and expression.
While the distinction advocated does not reduce free expression to the protection of political expression, narrowly conceived, it does reject the “individual autonomy” rationale for free expression as an interpretation of s. 2(b). See supra a. 68. Insofar as “autonomy” is a synonym for self–consciousness, or conscience simply, it is a matter dealt with under s. 2(a). S. 2(b) focuses not on the internal satisfaction attendant on communication but rather on communication as the process by which reason links different men in conversation, and acts to shape internal consciousness.
71. See: United States v. O’Brien (1968), 391 U.S. 367, 88 S. Ct. 1673 (U.S.S.C); Tinker v. Des Moines School District (1969), 393 U.S. 503, 89 S.Ct. 733 (U.S.S.C); Spence v. Des Moines School District (1974), 418 U.S. 405, 94 S.Ct. 2727 (U.S.S.C). See also Cox, A., Freedom of Expression (Cambridge, Massachusetts: Harvard University Press, 1981) at 59–62.Google Scholar
