R. v. Andrews, [1990] 3 S.C.R. 870
Donald Clarke Andrews
and Robert Wayne Smith Appellants
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General of Quebec,
the Attorney General for New Brunswick,
the Attorney General of Manitoba,
the Canadian Jewish Congress,
the League for Human Rights of
B'nai Brith, Canada, Interamicus,
the Women's Legal Education and Action Fund
and the Canadian Civil Liberties Association Interveners
indexed as: r. v. andrews
File No.: 21034.
1989: December 4, 5; 1990: December 13.
Present: Dickson C.J.* and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and McLachlin JJ.
on appeal from the court of appeal for ontario
Constitutional law -- Charter of Rights -- Freedom of expression ‑- Hate propaganda -- Criminal Code prohibiting wilful promotion of hatred against identifiable groups (s. 319(2)) -- Defence of truth to be established by accused on balance of probabilities (s. 319(3)(a)) -- Whether s. 319(2) of Code infringes s. 2(b) of Canadian Charter of Rights and Freedoms ‑‑ If so, whether infringement justifiable under s. 1 of Charter.
Constitutional law -- Charter of Rights -- Presumption of innocence -- Reverse onus provision -- Criminal Code prohibiting wilful promotion of hatred against identifiable groups (s. 319(2)) -- Defence of truth to be established by accused on balance of probabilities (s. 319(3)(a)) ‑‑ Whether s. 319(3)(a) of Code infringes s. 11(d) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter.
The accused were charged with the wilful promotion of hatred against an identifiable group under s. 319(2) of the Criminal Code. A was the leader and S the secretary of the Nationalist Party of Canada, a white nationalist political organization. Both were members of the party's central committee, the organization responsible for the publication of the Nationalist Reporter, which promoted the theory of white supremacy. The accused were convicted and their convictions upheld by the Court of Appeal. This appeal is to determine whether ss. 319(2) and 319(3)(a) of the Code are constitutionally valid.
Held (La Forest, Sopinka and McLachlin JJ. dissenting): The appeal should be dismissed. Sections 319(2) and 319(3)(a) of the Code are constitutional.
Per Dickson C.J. and Wilson, L'Heureux-Dubé and Gonthier JJ.: For the reasons given by the majority in Keegstra, s. 319(2) of the Code infringes the freedom of expression guaranteed in s. 2(b) of the Canadian Charter of Rights and Freedoms, and s. 319(3)(a) of the Code infringes the presumption of innocence entrenched in s. 11(d) of the Charter. Sections 319(2) and 319(3)(a) are both justifiable, however, under s. 1 of the Charter.
Per La Forest, Sopinka and McLachlin JJ. (dissenting): For the reasons given by the minority in Keegstra, s. 319(2) of the Code is an unjustifiable limit on the guarantee of freedom of expression in s. 2(b) of the Charter.
Per Sopinka and McLachlin JJ. (dissenting): For the reasons given by McLachlin J. in Keegstra, s. 319(3)(a) of the Code is an unjustifiable limit on the right to be presumed innocent in s. 11(d) of the Charter.
Per La Forest J. (dissenting): It is unnecessary to consider the issues respecting the right to be presumed innocent in s. 11(d) of the Charter.
Cases Cited
By Dickson C.J.
Applied: R. v. Keegstra, [1990] 3 S.C.R. 000, rev'g (1988), 60 Alta. L.R. (2d) 1; R. v. Whyte, [1988] 2 S.C.R. 3; referred to: R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369; R. v. Zundel (1987), 58 O.R. (2d) 129; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Holmes, [1988] 1 S.C.R. 914.
By McLachlin J. (dissenting)
R. v. Keegstra, [1990] 3 S.C.R. 000, rev'g (1988), 60 Alta. L.R. (2d) 1.
By La Forest J. (dissenting)
R. v. Keegstra, [1990] 3 S.C.R. 000.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 11(d), 27.
Criminal Code, R.S.C., 1985, c. C‑46, s. 319(2), (3) [previously R.S.C. 1970, c. C‑34, s. 281.2 [ad. c. 11 (1st Supp.), s. 1]].
Authors Cited
Canada. Special Committee on Hate Propaganda in Canada. Report of the Special Committee on Hate Propaganda in Canada. Ottawa: Queen's Printer, 1966.
APPEAL from a judgment of the Ontario Court of Appeal (1988), 65 O.R. (2d) 161, 28 O.A.C. 161, 43 C.C.C. (3d) 193, 65 C.R. (3d) 320, 39 C.R.R. 36, dismissing the appellants' appeal from their conviction on a charge of wilfully promoting hatred contrary to s. 319(2) of the Criminal Code. Appeal dismissed, La Forest, Sopinka and McLachlin JJ. dissenting.
J. David McCombs and David E. Harris, for the appellants.
Gregory J. Fitch, for the respondent.
D. Martin Low, Q.C., Stephen B. Sharzer and Irit Weiser, for the intervener the Attorney General of Canada.
Jean Bouchard and Marise Visocchi, for the intervener the Attorney General of Quebec.
Bruce Judah, for the intervener the Attorney General for New Brunswick.
Aaron Berg and Deborah Carlson, for the intervener the Attorney General of Manitoba.
John I. Laskin, for the intervener the Canadian Jewish Congress.
Mark J. Sandler, for the intervener the League for Human Rights of B'nai Brith, Canada.
Joseph Nuss, Q.C., Irwin Cotler and Ann Crawford, for the intervener Interamicus.
Kathleen Mahoney and Linda A. Taylor, for the intervener the Women's Legal Education and Action Fund.
Marc Rosenberg, for the intervener the Canadian Civil Liberties Association.
//Dickson C.J.//
The judgment of Dickson C.J. and Wilson, L'Heureux-Dubé and Gonthier JJ. was delivered by
DICKSON C.J. -- As in the companion appeal of R. v. Keegstra, [1990] 3 S.C.R. 000 (reasons delivered concurrently herewith), his appeal concerns the criminal prohibition of hate propaganda. These two appeals not only represent a divergence of authority among the Courts of Appeal concerning the validity of a provision in the Criminal Code, but also illustrate several different approaches to the interpretation of ss. 2(b) and 11(d) of the Canadian Charter of Rights and Freedoms. The main issue in each is whether s. 319(2) -- formerly s. 281.2(2) -- of the Criminal Code, R.S.C., 1985, c. C-46, offends the freedom of expression under s. 2(b) of the Charter and, if so, whether it is saved by s. 1 of the Charter. An ancillary issue is whether the defence of "truth" provided by s. 319(3)(a) -- formerly s. 281.2(3)(a) -- of the Code violates the presumption of innocence in s. 11(d) of the Charter in so far as an onus is placed on the accused to establish that the statements made are true.
The appeal courts in Alberta and Ontario are in clear conflict on both issues. Regarding the validity of s. 319(2), in Keegstra the Alberta Court of Appeal held that the section infringed s. 2(b) of the Charter and was not saved by s. 1: (1988), 65 Alta. L.R. (2d) 1. In contrast, in Andrews a majority in the Ontario Court of Appeal (Grange and Krever JJ.A.) held that s. 2(b) was not infringed, while Cory J.A. (as he then was) found that although s. 319(2) breached the freedom of expression it could be justified under s. 1 of the Charter: (1988), 65 O.R. (2d) 161.
In respect of the second issue, the Alberta Court of Appeal held that s. 319(3)(a) breached s. 11(d) of the Charter by requiring the accused to establish on a balance of probabilities that the statements communicated were true, then went on to find that this reverse onus provision was not a reasonable limit according to s. 1. The Ontario Court of Appeal rejected this approach, and instead ruled that s. 319(3)(a) did not infringe the presumption of innocence.
As in Keegstra, a number of interveners took part in the appeal. The Canadian Civil Liberties Association intervened in order to argue that the impugned provisions should be struck down as unconstitutional. The following interveners sought to sustain the validity of the challenged legislation: the Attorneys General of Canada, Quebec, New Brunswick and Manitoba, the League for Human Rights of B'nai Brith of Canada, the Canadian Jewish Congress, Interamicus and the Women's Legal Education and Action Fund.
I
Facts
The appellants belonged to the Nationalist Party of Canada, a white nationalist political organization. Mr. Andrews was the party leader and Mr. Smith its secretary. Both were members of the party's central committee, the organization responsible for publishing and distributing the bi-monthly Nationalist Reporter. This publication constitutes the primary subject-matter of the prosecution and was subscribed to by 43 individuals and 50 groups, clubs or organizations.
Pursuant to a search warrant, 89 materials were seized from the home of the appellants. Included in these materials were copies of the Nationalist Reporter, letters written by subscribers, subscription lists and mimeographed sticker cards containing such messages as "Nigger go home", "Hoax on the Holocaust", "Israel stinks" and "Hitler was right. Communism is Jewish". The ideology expressed by the material was summarized as follows by counsel for the appellants:
... the material argues that God bestowed his greatest gifts only on the "White people"; that if it were God's plan to create one "coffee-coloured race of `humanity' it would have been created from Genesis"; and that therefore all those who urge a homogeneous "race-mixed planet" are, in fact, working against God's will. In forwarding the opinion that members of minority groups are responsible for increases in the violent crime rate, it is said that violent crime is increasing almost in proportion to the increase of minority immigrants coming into Canada. A high proportion of violent crimes are committed by blacks. America is being "swamped by coloureds who do not believe in democracy and harbour a hatred for white people." The best way to end racial strife, an excerpt opines, is by a separation of the races "through a repatriation of non-whites to their own lands where their own race is the majority ..." The "Nationalist Reporter" also promulgated the thesis that Zionists had fabricated the "Holocaust Hoax" and that because Zionists dominate financial life and resources, the nation cannot remain in good health because the "alien community's interests" are not those of the majority of the citizens either culturally or economically.
Cory J.A. in the Ontario Court of Appeal, referring specifically to the contents of the Nationalist Reporter and other publications of the Nationalist Party, characterized this material as "rubbish and offal", and stated that the writings were "malodorous, malicious and evil".
On January 28, 1985, the appellants were charged under s. 319(2) of the Criminal Code with unlawfully communicating statements, other than in private conversation, which wilfully promote hatred against an identifiable group. After trial in the District Court of Ontario by the Honourable Judge E. Wren, the appellants were convicted on December 9, 1985. They were sentenced four days later, Mr. Andrews receiving twelve months incarceration and Mr. Smith being sentenced to seven months. As already mentioned, the appeal to the Court of Appeal was dismissed, although the terms of incarceration for Messrs. Andrews and Smith were reduced to three months and one month respectively.
II
Constitutional Questions
The following constitutional questions were stated on August 10, 1989:
1.Is s. 281.2(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) an infringement of freedom of expression as guaranteed under s. 2(b) of the Canadian Charter of Rights and Freedoms?
2.If s. 281.2(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) is an infringement of s. 2(b) of the Canadian Charter of Rights and Freedoms, can it be upheld under s. 1 of the Canadian Charter of Rights and Freedoms as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society?
3.Is s. 281.2(3)(a) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) an infringement of the right to be presumed innocent, as guaranteed under s. 11(d) of the Canadian Charter of Rights and Freedoms?
4.If s. 281.2(3)(a) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) is an infringement of s. 11(d) of the Canadian Charter of Rights and Freedoms, can it be upheld under s. 1 of the Canadian Charter of Rights and Freedoms as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society.
III
Judgments in the Ontario Courts
District Court of Ontario
In the District Court, no issue was taken with respect to the constitutional validity of s. 319(2) of the Code, although the Crown was prepared to argue the point and Wren Dist. Ct. J. indicated a predisposition to uphold the provision under s. 1 of the Charter as a reasonable limit upon the freedom of expression. Rather, the only point taken up by the defence concerned what is encompassed by the word "hatred". In this regard, Wren Dist. Ct. J. agreed with the submissions of the defence that "hatred" did not encompass less intense and extreme emotions such as ridicule, prejudice, dislike or contempt. He instead accepted the definition of "hatred" employed by MacKenzie J. in the charge to the jury in R. v. Keegstra, a definition which included reference to hate as "an emotion of extreme dislike or aversion, detestation, abhorrence."
As for the manner in which the intent to promote hatred was to be proved, Wren Dist. Ct. J. stated:
The conscious purpose of promoting hatred in the distribution of this material is correctly to be gleaned by reasonable inference upon a fair reading of the material, because willfullness [sic] or conscious purpose or intent are qualities of the mind and are rarely, though sometimes, proved by direct statements of intention.
It is also worth mentioning that Wren Dist. Ct. J. employed the interpretation of "wilfully" set out by Martin J.A. in R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont. C.A.), namely, that this mental element is satisfied only where an accused either: i) subjectively desires the promotion of hatred against an identifiable group; or ii) foresees such a consequence as certain or morally certain to result from the distribution of the material.
Turning his attention to the subject-matter of the case at hand, Wren Dist. Ct. J. stated that upon reading the material it was blatantly apparent that the appellants' objective was the promotion of hatred against an identifiable group, in particular Jews. In further commenting upon the material, he stated:
It repeats throughout, ad nauseum [sic], the unfounded and untrue and libelous calumnies of a worldwide Jewish conspiracy, co-ordinated with the spread of Communism, to control all aspects of, particularly, political and financial dealings throughout the world, but in particular in Western democratic countries, being Europe and North America, (the cause of this organization and its members and leaders being the belief in the total supremacy of the white race).
... There is found in the total material clear evidence of an active association with white nationalists throughout the world and with individuals and their causes, including, among others, Hitler, Mr. Zundel and Mr. Keegstra. In fact, those parts of the material which deal with the promotion of hatred against the Jews so clearly constitute the definition of hatred that the only adjective I can think of to indicate the degree of hatred is "obscene".
Incorporated in this material is the promulgated belief that it is a part of this so-called Jewish or Zionist conspiracy -- the two words being used interchangeably throughout the material -- to inflict upon the white Aryan races the infiltration into their societies of persons of Black, Indian, Pakistani and Vietnamese origin. As to these, the bulk of the material that deals with races other than the Jewish race, is predominantly directed against Blacks. They are repeatedly and unmistakeably [sic] identified as an inferior race of low intelligence, as unclean, as freeloaders on the social support system, and, paradoxically, because there are many such paradoxes in this garbage, that they take away jobs from Whites; further, that they have a marked criminal propensity which is displayed in our society, in our particular country and in other countries which are defined as being White or Aryan.
The message then that follows the characterizations that I have outlined is clearly this: that they are a threat to the economy, the culture, the safety and the very existence of the white race, and that it is encumbent [sic] upon the white race to stop immigration, particularly, of Blacks, but, as well, of African and Asian people of a different colour, and to bring about -- and one could realistically make the inference -- by force, if necessary, their repatriation to places of their origin.
On the basis of the above findings, Wren Dist. Ct. J. concluded that the material under examination "[c]learly . . . indicates not only hatred, but hatred to an unbelievable degree". He thus found that the Crown had proved its case against both accused beyond a reasonable doubt, and entered a verdict of guilt against Messrs. Andrews and Smith.
Ontario Court of Appeal
(a) Decision of Cory J.A.
Cory J.A. saw the appeal as raising two issues: first, whether s. 319(2) of the Criminal Code is an infringement of the freedom of expression guaranteed in s. 2(b) of the Charter and second, whether if the impugned provision infringes s. 2(b) it can nonetheless be upheld under s. 1 of the Charter as a reasonable limit demonstrably justified in a free and democratic society.
Cory J.A. began by making some general comments regarding freedom of expression and the dissemination of hate propaganda. In his opinion, it was important to emphasize the importance of freedom of expression in Canada's democratic society, and in this vein he said (at p. 167):
Freedom of thought is of limited value without the freedom to express that thought, to advocate the adoption of a new concept or the termination of an institution that has become outmoded or unfair. The exchange of ideas is vital to a democratic form of government and to its citizens. Without it democracy simply cannot survive.
Recognizing the crucial role played by open expression, Cory J.A. felt that the Charter must serve to protect the expression of new and different ideas no matter how upsetting those ideas may be to identifiable groups.
At the same time, however, Cory J.A. was sensitive to the importance of enabling Canadians who are members of identifiable groups to carry on their lives without being victimized by "the deliberate, vicious promotion of hatred against them" (p. 168). In support of this view, he quoted extensively from the 1966 Report of the Special Committee on Hate Propaganda in Canada, noting that although the Committee recognized the necessity of a strong presumption against limiting the freedom of expression, modest restraints on expressive activity in order to suppress hate propaganda were seen to be necessary and justifiable in the multicultured nation of Canada.
In commenting specifically upon the scope of s. 2(b), Cory J.A. felt that the Charter demanded a wide and liberal interpretation of the freedom of expression, and preferred to gauge the reasonableness of a government regulatory provision under s. 1 of the Charter. He noted that although the Ontario Court of Appeal had excluded from the scope of s. 2(b) the intentional spreading of false news in R. v. Zundel (1987), 58 O.R. (2d) 129, such exclusion was explainable on the grounds that the communications at issue in Zundel did not fall within any of the rationales for guaranteeing freedom of expression. In contrast, a conviction under s. 319(2) did not require proof that an individual knew his or her communications to be false. Indeed, in the case at bar the trial judge had found that the appellants were expressing a sincerely held belief, leading Cory J.A. to state (at p. 178):
Although it was utterly erroneous and expressed in the vilest of terms, it was none the less, an expression of a sincerely held opinion. As such it should not be held to come within that regulated area which must be very narrow and clearly antithetical to s. 2(b): see R. v. Kopyto.
Cory J.A. thus concluded that, "[o]ffensive as it may seem", the activity caught by s. 319(2) of the Criminal Code came within the purview of s. 2(b).
In applying s. 1 of the Charter, Cory J.A. assessed s. 319(2) in light of the underlying values of a free and democratic society as set out in R. v. Oakes, [1986] 1 S.C.R. 103. In particular, he felt that s. 27 of the Charter strongly impacted upon the s. 1 analysis, stating at p. 179 that:
It is our multicultural background that gives richness, depth and vibrance to Canadian society. The Charter has recognized and emphasized the importance of our background by providing that the Charter itself is to be interpreted so as to preserve and enhance our multicultural heritage. That clause 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.
Additionally, in approaching the s. 1 inquiry, Cory J.A. referred to the consensus in the international community that hate propaganda should be suppressed by the criminal law, a consensus evident in both international human rights conventions and the domestic law of many democratic societies.
Turning to the specific elements of the Oakes approach, Cory J.A. concluded that s. 319(2) was supported by a valid s. 1 objective. Instrumental in reaching this conclusion was his rejection of the argument that the dissemination of hate propaganda represents little harm to society. Cory J.A. was unable to discount the danger presented by such expression, noting that s. 319(2) was introduced into the Criminal Code only after extensive study by the Special Committee on Hate Propaganda in Canada (hereinafter "the Cohen Committee") and, in a passage which has been much quoted, stating (at pp. 179-80):
I would have thought it sufficient to look back at the quintessence of evil manifested in the Third Reich and its hate propaganda to realize the destructive effects of the promotion of hatred. That dark history provides overwhelming evidence of the catastrophic results of expressions which promote hatred. The National Socialist Party was in the minority in the Weimar Republic when it attained power. The repetition of the loathsome messages of Nazi propaganda led in cruel and rapid succession from the breaking of the shop windows of Jewish merchants to the dispossession of the Jews from their property and their professions, to the establishment of concentration camps and gas chambers. The genocidal horrors of the Holocaust were made possible by the deliberate incitement of hatred against the Jewish and other minority peoples.
It would be a mistake to assume that Canada today is necessarily immune to the effects of Nazi and other hate literature.
In light of the above comment, Cory J.A. concluded that the public and wilful promotion of hatred against identifiable groups was the very antithesis of all the essential values and principles stressed by this Court in Oakes, supra, and that the aim behind s. 319(2) clearly constituted a pressing and substantial objective under s. 1.
Considering next whether the proportionality of s. 319(2) to Parliament's valid objective met the requirements of Oakes, a number of factors led Cory J.A. to conclude that the provision was justifiable under s. 1. He noted, for instance, that the need for communications to promote "hatred" prevented an unduly wide limitation upon the freedom of expression, stating (at p. 179):
Hatred is not a word of casual connotation. To promote hatred is to instil detestation, enmity, ill-will and malevolence in another. Clearly an expression must go a long way before it qualifies within the definition in [s. 319(2)]. When an expression does instil detestation it does incalculable damage to the Canadian community and lays the foundations for the mistreatment of members of the victimized group.
Cory J.A. also observed that the scope of the impugned provision was restricted in so far as it did not apply to statements communicated in private conversation. Moreover, as interpreted in Buzzanga, supra, the word "wilfully" imported into the offence a stringent mens rea component requiring the conscious purpose of promoting hatred or foresight that the promotion of hatred was morally certain to result from the communication. Finally, Cory J.A. was of the opinion that the defences offered an accused under s. 319(3) further reduced the scope of the prohibition, and thus concluded that s. 319(2) constituted a reasonable limit which is demonstrably justified in a free and democratic society.
In the concluding part of his judgment, Cory J.A. explained why his position regarding s. 1 differed from that of the Alberta Court of Appeal in Keegstra, supra. Most importantly, he rejected the Alberta court's contention that s. 319(2) could not be saved under s. 1 because it did not require proof that acceptance of the hate-monger's message had caused actual harm or the serious risk of harm to the identifiable group. In the view of Cory J.A., much of the Criminal Code is aimed at crime where no harm has been occasioned, and he thus stated (at p. 187):
For example, the very serious crime of attempted murder may be established when no harm has been suffered by the intended victim. By some fortuitous circumstances the aimed bullet missed its mark, the pointed knife was deflected, the poison cup was spilled on the ground. Although there was no damage or injury occasioned, the serious crime was none the less committed. As well, a conspiracy to import a large amount of heroin constitutes a crime. This is so even if the conspiracy is not brought to fruition and the heroin was never imported. None the less the crime was committed, although no actual harm or even risk of harm was demonstrated. A driver with a blood alcohol count of over 80 is guilty of an offence although it has not been demonstrated that the particular accused has occasioned any danger to a victim or that his driving at the moment of apprehension constituted a danger in itself. Rather, the very basis for creating the offence of driving over 80 mg is founded upon empirical data as to the danger that people driving a motor vehicle with such a blood alcohol count constitute to members of the public.
The empirical data derived from the history of the Third Reich and the studies of the Cohen Committee are, I think, entitled to the same weight. They establish not only the risk of harm occasioned to identifiable groups by the promotion of hatred but the actual harm caused. They establish the need to restrain its promotion and they fully justify the application of s. 1 of the Charter to its provisions. The impugned section is not simply paternalistic, well-intentioned meddling by Parliament, cutting back on free speech for no real reason. It is based upon the hard, chilling facts of history.
(b) Decision of Grange J.A. (with whom Krever J.A. concurred)
While coming to the same result, the majority in the Ontario Court of Appeal disagreed with Cory J.A. to the extent that it held that s. 319(2) of the Criminal Code did not infringe s. 2(b) of the Charter. In the view of Grange J.A., freedom of expression, though a bastion and fundamental concept of our democratic civilization, was never intended by the framers of the Charter to be absolute. Quoting the Court of Appeal in Zundel, supra, at p. 147, he stressed at p. 189 that in interpreting the s. 2(b) freedom one must:
"... necessarily have regard to the corresponding rights and freedoms of other persons. [The s. 2(b) freedom] contemplates the existence of a social order in which other persons must not be denied similar rights."
As section 319(2) was enacted in response to a significant need, and only after much consideration by the Cohen Committee, Grange J.A. concluded that no protection was afforded by s. 2(b) to the activity of the appellants, and stated (at pp. 191-92):
It may have taken a Great War to persuade some of us but in my view, the Cohen Committee was right. The wilful promotion of hatred even more than the spreading of false news is entirely antithetical to our very system of freedom. It is perhaps not necessary to refer to s. 27 of the Charter . . . but if that section is to be of assistance in the interpretation of s. 2(b), it can only reinforce my view that no protection is offered by s. 2(b) to the conduct of the appellants.
As for the contrary conclusion of Cory J.A., Grange J.A. viewed as inconsequential the fact that an accused might sincerely believe in the truth or worth of the communications. Indeed, he stated that such a belief may make the communications "more dangerous if not more heinous" (p. 192). Accordingly, Cory J.A.'s restriction of the Court of Appeal's ruling in Zundel was rejected, for "the effect of promoting hatred is potentially more inimical to our society and our values than the spreading of false news" (p. 192).
In the reasons of the majority, reference was also made to the decision of the Alberta Court of Appeal in Keegstra, and in particular to the issue of whether the defence of truth unjustifiably infringes the Charter's presumption of innocence. In this regard, Grange J.A. stated that s. 319(3)(a) does not raise a true reverse onus. The essence of the offence described in s. 319(2) was the wilful promotion of hatred, and to extend a defence of truth to an accused who fell within the terms of that offence could not be seen to limit his or her s. 11(d) rights. The majority judgments of the Supreme Court of Canada in R. v. Holmes, [1988] 1 S.C.R. 914, were not seen to conflict with this view, and indeed Grange J.A. felt that the reasons of McIntyre J. supported his conclusion. Moreover, the subsequent decision in R. v. Whyte, [1988] 2 S.C.R. 3, was distinguishable, the onus in that appeal relating to the proof of an essential element of the offence (care and control of the vehicle proved by occupation of the driver's seat). In contrast to Whyte, in Holmes and the case at bar,
... the onus section relates only to a defence which need not be raised until after all elements of the offence have been proved beyond a reasonable doubt. The trier of fact must be convinced beyond reasonable doubt of all the elements of the offence. The "balance of probabilities" test arises only when a defence which is not an essential element of the offence is being considered.
Grange J.A. concluded his judgment by stating that, if he was wrong as to the scope of s. 2(b), he agreed with Cory J.A. that s. 319(2) was saved under s. 1 of the Charter, and was also willing to join Cory J.A. in rejecting the s. 1 arguments of the Alberta Court of Appeal in Keegstra.
IV
Analysis
For the reasons given in my judgment in Keegstra, supra, I am in agreement with the conclusion of Cory J.A. that s. 319(2) of the Criminal Code infringes the freedom of expression guaranteed in s. 2(b) of the Charter, but is saved by the Charter's s. 1. As for the constitutional validity of s. 319(3)(a) of the Code, I similarly rely upon my reasons in Keegstra in holding that the reverse onus in the defence of truth breaches the presumption of innocence entrenched in s. 11(d), yet is justified under s. 1.
V
Conclusion
I would dismiss the appeal, and answer as follows the constitutional questions:
1.Is s. 281.2(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) an infringement of freedom of expression as guaranteed under s. 2(b) of the Canadian Charter of Rights and Freedoms?
Answer: Yes.
2.If s. 281.2(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) is an infringement of s. 2(b) of the Canadian Charter of Rights and Freedoms, can it be upheld under s. 1 of the Canadian Charter of Rights and Freedoms as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society?
Answer: Yes.
3.Is s. 281.2(3)(a) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) an infringement of the right to be presumed innocent, as guaranteed under s. 11(d) of the Canadian Charter of Rights and Freedoms?
Answer: Yes.
4.If s. 281.2(3)(a) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) is an infringement of s. 11(d) of the Canadian Charter of Rights and Freedoms, can it be upheld under s. 1 of the Canadian Charter of Rights and Freedoms as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society.
Answer: Yes.
//La Forest J.//
The following are the reasons delivered by
LA FOREST J. (dissenting) -- I agree with Justice McLachlin to the extent noted in my reasons in R. v. Keegstra, [1990] 3 S.C.R. 000, issued concurrently.
//McLachlin J.//
The reasons of Sopinka and McLachlin JJ. were delivered by
MCLACHLIN J. (dissenting) -- The issue on this appeal, like its companion R. v. Keegstra, [1990] 3 S.C.R. 000 (delivered concurrently), is whether ss. 319(2) and 319(3) of the Criminal Code, R.S.C., 1985, c. C-46, creating the offence of wilfully promoting hatred, are constitutionally valid.
The appellants are members of the Nationalist Party of Canada, a "white nationalist political organization". Smith was the party secretary and Andrews the party leader. Both were members of the party's central committee which was responsible for the publication of the Nationalist Reporter, which was distributed to roughly 43 individuals and 50 groups, clubs or organizations, and which promoted the theory of white supremacy. The publication urged, inter alia, that "non-whites and non-Aryan groups" are inferior and unclean, that racial minorities are responsible for increases in violent crime and pose an economic threat to white communities because of their reliance on social support, that "non-whites" should be repatriated to "their own lands" and that Zionists have perpetrated the "Holocaust Hoax" upon the people of the world. Among the material seized pursuant to a search warrant were copies of the Nationalist Reporter, letters written by subscribers, subscription lists and mimeographed sticker cards containing such messages as "Nigger go home", "Hoax on the Holocaust", "Israel stinks" and "Hitler was right. Communism is Jewish".
The appellants were convicted of the offence of wilfully promoting hatred against an identifiable group (s. 319(2) of the Code). Wren Dist. Ct. J., at trial, was unconvinced that there was "any issue" as to the constitutional validity of the section. He further found that the material seized clearly constituted the wilful promotion of hatred, even on a strict definition of the term.
The Court of Appeal dismissed an appeal on the merits: (1988), 65 O.R. (2d) 161. Cory J.A. (as he then was) was of the view that the expressions used by the appellants, who were found by the trial judge to have been expressing a sincerely held belief, came within the purview of s. 2(b) of the Canadian Charter of Rights and Freedoms. He added, however, that the prohibition provided by s. 319(2) of the Criminal Code is a reasonable limit upon the freedom of expression guaranteed by s. 2(b) which is demonstrably justified in a free and democratic society. In his view, the requirements of the section, that hatred and not some lesser emotion be promoted, and that the promotion be wilful, ensured that the section did not in any way restrict criticism of public institutions. Rather, the expression reached by the section was the very antithesis of the essential values -- such as human dignity, equality, and respect for cultural identity -- identified by this Court as being a guide to the interpretation of the Charter. Furthermore, to interpret the Charter so as to strike down a law aimed at preserving Canada's multicultural heritage by limiting in a reasonable way freedom of expression would be to construe the Charter in a manner prohibited by s. 27. Cory J.A. further stated that he disagreed with the conclusion of the Court of Appeal of Alberta in R. v. Keegstra (1988), 60 Alta. L.R. (2d) 1.
Grange J.A. agreed with the result arrived at by Cory J.A. He stated, however, that, in his view, s. 319(2) of the Criminal Code did not infringe s. 2(b) of the Charter and that it was unnecessary to justify the impugned section under s. 1.
In the view of Grange J.A., "freedom of expression" in the Charter was not intended to give constitutional protection to hate-mongering such as that of the appellants. He observed that freedom of expression has never been absolute but that it must be regarded in the light of the corresponding rights and freedoms of other persons. He added that s. 27 of the Charter reinforces his opinion that s. 2(b) offers no protection to the appellants' conduct. He, also, expressed his disagreement with the Alberta Court of Appeal decision in Keegstra. Futhermore, Grange J.A. stated that, if he were wrong in his conclusion that s. 2(b) is not infringed by s. 319(2) of the Criminal Code, he was in agreement with Cory J.A. as to the effect of s. 1 of the Charter.
Leave to appeal to this Court was granted, [1989] 1 S.C.R. v. The following constitutional questions were stated by Dickson C.J. on August 10, 1989:
1.Is s. 281.2(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) an infringement of freedom of expression as guaranteed under s. 2(b) of the Canadian Charter of Rights and Freedoms?
2.If s. 281.2(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) is an infringement of s. 2(b) of the Canadian Charter of Rights and Freedoms, can it be upheld under s. 1 of the Canadian Charter of Rights and Freedoms as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society?
3.Is s. 281.2(3)(a) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) an infringement of the right to be presumed innocent, as guaranteed under s. 11(d) of the Canadian Charter of Rights and Freedoms?
4.If s. 281.2(3)(a) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) is an infringement of s. 11(d) of the Canadian Charter of Rights and Freedoms, can it be upheld under s. 1 of the Canadian Charter of Rights and Freedoms as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society?
Analysis
The issues raised in this case are identical to those in Keegstra, supra. For the reasons I gave in that case, and with the greatest of respect for the views so cogently expressed in the courts below, I am of the opinion that s. 319(2) must be struck down as an unjustifiable limit on the Charter guarantee of freedom of expression. In addition, for the reasons stated in Keegstra, s. 319(3)(a) infringes upon the right of an accused to be presumed innocent, and is not saved by s. 1. I would accordingly allow the appeal, and answer the constitutional questions as follows:
1.Is s. 281.2(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) an infringement of freedom of expression as guaranteed under s. 2(b) of the Canadian Charter of Rights and Freedoms?
Answer: Yes.
2.If s. 281.2(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) is an infringement of s. 2(b) of the Canadian Charter of Rights and Freedoms, can it be upheld under s. 1 of the Canadian Charter of Rights and Freedoms as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society?
Answer: No.
3.Is s. 281.2(3)(a) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) an infringement of the right to be presumed innocent, as guaranteed under s. 11(d) of the Canadian Charter of Rights and Freedoms?
Answer: Yes.
4.If s. 281.2(3)(a) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) is an infringement of s. 11(d) of the Canadian Charter of Rights and Freedoms, can it be upheld under s. 1 of the Canadian Charter of Rights and Freedoms as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society?
Answer: No.
Appeal dismissed, LA FOREST, SOPINKA and MCLACHLIN JJ. dissenting.
Solicitors for the appellants: Carter, McCombs & Minden, Toronto.
Solicitor for the respondent: The Ministry of the Attorney General, Toronto.
Solicitor for the intervener the Attorney General of Canada: John C. Tait, Ottawa.
Solicitors for the intervener the Attorney General of Quebec: Jean Bouchard, Marise Visocchi and Gilles Laporte, Ste‑Foy.
Solicitor for the intervener the Attorney General for New Brunswick: Paul M. LeBreton, Fredericton.
Solicitor for the intervener the Attorney General of Manitoba: The Department of Justice, Winnipeg.
Solicitors for the intervener the Canadian Jewish Congress: Davies, Ward & Beck, Toronto.
Solicitors for the intervener the League for Human Rights of B'nai Brith, Canada: Cooper, Sandler & West, Toronto.
Solicitors for the intervener Interamicus: Ahern, Lalonde, Nuss, Drymer, Montréal.
Solicitors for the intervener the Women's Legal Education and Action Fund: Kathleen Mahoney, Calgary; Code, Hunter, Calgary.
Solicitors for the intervener the Canadian Civil Liberties Association: Greenspan, Rosenberg, Toronto.