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Charter Case:
Legal Report
Citation
1. Write the citation below. Be sure to include all necessary punctuation.
R. v. Keegstra, [1990] 3 S.C.R. 697
Facts
2. Who is (are) the Appellant(s) in this action?
The Appellant in this action was Her Majesty The Queen.
3. Who is (are) the Respondent(s)?
The Respondent in this action is James Keegstra.
4. What happened to give rise to this action?
The accused, an Alberta high school teacher, was discovered to have been teaching his
students anti-semitic propaganda for over a decade. He was teaching his students that the
Holocaust never happened, and referred to Jewish people using derogatory terms. After the
superintendent found out, they requested Keegstra stop his hateful words. However, Keegstra
rejected this and continued with his racist words and harmful conspiracies. In December of 1982,
Keggstra was dismissed and expelled from the Alberta Teachers Association. This ended his
14-year teaching career. In 1984, Keegstra was taken to court and was charged with section
319(b) of the Criminal Code of Canada: criminally promoting hatred against an identifiable
group.
5. How did the trial judge decide the issue? Why?
In January 1984, Keegstra was criminally charged with the promotion of harmful ideas
(319(2) of the Criminal Code of Canada) against an identifiable group (anti-semitic rhetoric).
Keegstra attempted to defend himself by arguing that his freedom of expression was violated
under section 2(b) of the Canadian Charter of Rights and Freedoms and that his right to be
presumed innocent until proven guilty is protected by section 11(d) was violated. However, the
jury rejected Keegstra’s case and convicted him of violating the Criminal code. After the court of
Appeal struck down Keegstra’s conviction and the Crown appealed this decision, the case went
back to trial in the Alberta Court. The judge trying the case in the Alberta Court decided to
convict Keegstra for a second time, agreeing with the Supreme Court's argument that although
Keegstra’s freedom of expression protected by section 2(b) had been violated, this was a
reasonable limit under section 1 of the Charter, the reasonable limits clause.
6. If applicable, how did the Court of Appeal decide?
The first time Keegstra appealed to the Alberta Court of Appeal, the Court agreed with
his argument that his conviction violated his freedom of free speech and expression and his right
to be presumed innocent until proven guilty, protected respectively by section 2(b) and 11(d) of
the Canadian Charter of Rights and Freedoms. The Court of Appeal decided to strike down his
conviction. They argued that Keegstra’s right to the presumption of innocence protected by
section 11(d) of the charter had been violated, as well as his freedom of expression. The Crown
appealed against this verdict and the case, R. v. Keegstra was brought to the Supreme Court.
After the Supreme Court of Canada ruled against Keegstra and Keegstra was again found guilty
by the Alberta Court, Keegstra once again appealed to the Court of Alberta. For the second time,
the Court of Alberta sided with Keegstra and struck down his conviction.
Issues
7. What is the issue that the trial judge, the judges at the Court of Appeal, and the justices at
the Supreme Court of Canada are being asked to decide? (Start with the word “whether”)
Whether Keegstra should be convicted under section 319(2) of the Criminal Code of
Canada. Whether this conviction would violate Keegstra’s freedom of expression protected by
section 2(b) and Keegstra’s right to presumption of innocence protected by section 11(d) of the
Canadian Charter of Rights and Freedoms. Whether these violations could be considered
reasonable limits under section 1 of the Charter, the reasonable limits clause.
Decision
8. How did the LAST Appeal Court (Supreme Court of Canada) decide the issue? What was
their reasoning?
The Supreme Court upheld the Alberta Courts 1992 decision to convict Keegstra. There
were two main questions used to decide this case. The first question was whether or not section
319(2) of the Criminal Code infringed freedom of expression. This question was analyzed using
a two-step process developed using the Irwin v. Toy case. The two questions were
“Determination of whether the allegation of infringement of freedom of expression falls within
the ambit of Section 2(b) of the Charter” and “Whether the law could be upheld using section 1
of the Charter, the reasonable limits clause.” The Chief justice determined that the meaning of
the expression is irrelevant as long as it conveys a message. The majority of the judges agreed
with this question. Section 1 of the Charter was used as reasoning for this case. Keegstra’s
lawyer made the argument that Keegstra had the right to be presumed innocent until proven
guilty. The judges agreed that Keegstra’s rights had been violated, but their reasoning for
upholding Keegstra’s 1992 conviction by the Alberta Court was that these violations were
reasonable limits. Section 1 of the Charter of Rights and Freedoms, states that “subject only to
such reasonable limits prescribed by law as can be demonstrably justified in a free and
democratic society.” The Supreme Court decided the violation of Keegstra’s rights was a
reasonable limit under section 1 of the Charter, and so Keegstra was convicted. This decision
was because the Supreme Court reasoned the rights of groups in society to not be discriminated
against outweighed Keegstra’s right to presumption of innocence and freedom of expression
especially when his intent was hateful. Keegstra was convicted by a 4-3 voting majority.
Significance
9. What precedent does the ruling of this case set?
The case of R. v. Keegstra was one to test the balance between the right to freedom of
speech in the Canadian Charter of Rights and Freedoms, and the Canadian law’s limits on hate
speech. The precedent the ruling of this case set was one that said that those being charged for
hate speech could be convicted. The ruling of this case set the precedent that those being charged
with hate speech were indeed having their fundamental freedom of expression violated, but that
this violation was a reasonable limit under section 1 of Canada’s Charter of Rights and
Freedoms. This case set the precedent that hate speech would not be tolerated within Canada.
The freedom of the individual to be able to freely express themselves is less important than the
rights of groups within society to not endure hate speech. The ruling of this case set a precedent
for future cases that there should be a balance between the rights of the individual and the rights
of groups within society and that those facing trial for hate speech could and should be
convicted, regardless of the violation of their fundamental right of expression.
10. Give an example of the impact it has on society.
An example of the impact this case had on society is how society views and treats hate
speech. The R. v. Keegstra case was the first case in which someone was convicted of hate
speech. The impact this had on society was a wake-up call to many and a reassurance to others:
that hate speech against identifiable groups would not be tolerated within Canada and had real,
consequences such as being convicted of a serious crime. For minority groups especially
(identifiable groups that are often persecuted), this case helped them. It reassured those of
minority identity that those who subjected them to hate speech would face consequences. It also
benefitted these minority groups by preventing hate speech (as R.v Keegstra was a case to prove
hate crime as a crime), and the example of what happened to Keegstra likely prevented many
people from committing hate speech in the future. The following case also acted as a precedent
in which minorities were protected and justified.
References
Boyko, J. (n.d.). Keegstra Case. The Canadian Encyclopedia. Retrieved March 28, 2022, from
https://www.thecanadianencyclopedia.ca/en/article/keegstra-case
Columbia University. (n.d.). Global Freedom of Expression | R. v. Keegstra - Global Freedom of
Expression. Global Freedom of Expression |. Retrieved March 28, 2022, from
https://globalfreedomofexpression.columbia.edu/cases/r-v-keegstra/
Grossell, M. (n.d.). R. v Keegstra. CanLII Connects. Retrieved March 28, 2022, from
https://canliiconnects.org/en/summaries/33056
Legal Education and Action Fund (LEAF). (n.d.). R. v. Keegstra (1990) - LEAF. Women's Legal
Education and Action Fund. Retrieved March 28, 2022, from
https://www.leaf.ca/case_summary/r-v-keegstra-1990/
Norman, K., McAlpine, J. D., & Weinstein, H. (n.d.). R. v. Keegstra - SCC Cases. Supreme
Court of Canada. Retrieved March 28, 2022, from
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/695/index.do