R. v. Keegstra, [1990] 3 SCR 697

James Keegstra, a schoolteacher, was charged with the willful promotion of hatred under Section 319(2) of the Criminal Code, for allegedly anti-Semitic statements made during class. Mr. Keegstra successfully challenged the Criminal Code section in the Alberta Court of Appeal, which held that it was an infringement on freedom of expression, as protected by Section 2(b) of the Charter of Rights and Freedoms.

The Crown appealed Keegstra’s acquittal to the Supreme Court of Canada, which overruled the Alberta Court of Appeal decision, holding that although Canada’s criminal “hate speech” law was an infringement on Section 2(b) of the Charter, it was an infringement which could be justified under Section 1 thereof by way of the Oakes test.

Although certainly a blow to the right to freedom of expression, and a divergence from the American model of protecting all political speech regardless of its content, the Keegstra precedent might not be as broad as the government would like us to think. Even if “hate speech” laws are constitutional in the narrow context of a schoolteacher preaching to a captive audience of students, the legal line remains murky. Whether Section 319(2) applies to internet speech, for example, or whether voluntary digital communication is more tantamount to “private conversation” remains to be decided by Canada’s highest court.