## Facts

- James Keegstra, a public high school social studies teacher in Alberta, taught students antisemitic views over many years, including claims of a Jewish conspiracy and the inherent evil of Jews.
- Students were examined and graded based on acceptance of these views.
- Keegstra was charged under former Criminal Code s. 281.2(2) (later s. 319(2)) for wilfully promoting hatred against an identifiable group by communicating statements other than in private conversation.
- He was convicted at trial.
- The Alberta Court of Appeal set aside the conviction, holding the hate-promotion offence unjustifiably infringed freedom of expression and the “truth” defence’s reverse onus unjustifiably infringed the presumption of innocence.
- The Crown appealed to the Supreme Court of Canada.

## Issues

1. Whether Criminal Code s. 319(2) infringes freedom of expression under Charter s. 2(b), and if so, whether it is justified under Charter s. 1.
2. Whether Criminal Code s. 319(3)(a)’s “truth” defence, requiring the accused to prove truth on a balance of probabilities, infringes the presumption of innocence under Charter s. 11(d), and if so, whether it is justified under Charter s. 1.

## Decision

- The Supreme Court of Canada, by a 4–3 majority, allowed the Crown’s appeal.
- The Court held that s. 319(2) infringes s. 2(b) because it is a content-based restriction on expression, but the limit is justified under s. 1.
- The Court held that s. 319(3)(a) infringes s. 11(d) by imposing a reverse onus, but the limit is justified under s. 1.
- The Court upheld the constitutionality of both provisions and restored the legal basis for Keegstra’s conviction.

## Legal Principles

- “Expression” under Charter s. 2(b) is interpreted broadly to include any non-violent activity conveying or attempting to convey meaning, regardless of content; hate propaganda is therefore protected expression at the threshold stage.
- A law that prohibits communication based on the meaning conveyed is a content-based restriction and infringes s. 2(b).
- Under Charter s. 1 (Oakes framework), a criminal prohibition on wilfully promoting hatred can be justified where:
  - the objective is pressing and substantial (preventing serious harms to target groups and to society, including equality and democratic participation);
  - the measure is rationally connected to reducing those harms; and
  - the impairment of expression is limited through narrowing features such as wilfulness, a public-communication requirement, exclusion of private conversation, and statutory defences.
- “Hatred” in the hate-propaganda offence is construed narrowly as extreme detestation or vilification, not mere dislike, offence, or hostility.
- A reverse-onus “truth” defence can violate the presumption of innocence by permitting conviction despite reasonable doubt, but may still be justified under s. 1 where requiring the Crown to prove falsity beyond a reasonable doubt would substantially impair enforcement and where the defence functions to narrow criminal liability.

## Conclusion

The Supreme Court of Canada held that the Criminal Code’s prohibition on wilfully promoting hatred and its reverse-onus truth defence infringed protected expression and the presumption of innocence, but both infringements were reasonable and demonstrably justified limits under Charter s. 1 given the targeted design of the provisions and the serious harms of hate propaganda.


R. v. Keegstra, [1990] 3 S.C.R. 697 (Can. 1990)