Treacherous, subversive, sadistic, money-loving, power-hungry child killers. That’s how Alberta teacher James Keegstra described Jews to his students before he was dismissed in 1982. All sane people would agree with Keegstra’s dismissal. The harder question was whether Keegstra should have faced the crushing weight of the criminal law for saying mere words, however ugly.
A jury decided that Keegstra was guilty of the offence of willfully promoting hatred, and he was fined $5,000. Keegstra appealed to the Supreme Court, arguing that the criminal hate speech provision put in place by the Pierre Trudeau government in 1970 was inconsistent with the Charter guarantee of freedom of expression. Keegstra lost and free speech advocates mourned.
In a 4-3 decision, Chief Justice Brian Dickson and three others found that although hate speech was protected by section 2(b), the wilful promotion of hatred provision was a reasonable limit. Historical evidence such as the Holocaust proved to Dickson that hate speech could cause enough pain, tension, and violence to justify nullifying some people’s free speech rights.
Justice Beverley McLachlin and two others disagreed. McLachlin saw the law as an unreasonable limit. She was concerned that the law did not require proof of any actual harm or incitement to violence before a person could be put behind bars.
McLachlin also thought that it was irrational to believe that criminalizing hateful speech would stop it. Hate speech prosecutions attract media attention so hateful messages that led to charges would reach more ears not fewer, and risked turning hatemongers into martyrs, she reasoned. Pre-Nazi Germany had hate speech laws, she pointed out. We all know how that turned out.
McLachlin’s bigger concern was that “hatred” has many meanings including “active dislike,” “detestation,” “enmity,” and “ill-will” so the provision outlawed a very wide range of speech. Valuable but controversial speech could lead to charges, fines, or imprisonment. One needed to look no further than the confiscation of Salman Rushdie’s Satanic Verses, a literary masterpiece that offended some Muslims, by border officials applying a similarly-worded customs provision.
McLachlin also worried that the uncertainty about what was captured by the word hateful would have a “chilling effect” on an even wider range of speech. In other words, people unsure about whether their opinions were captured by the law would be chilled into silence. “The combination of overbreadth and criminalization may well lead people desirous of avoiding even the slightest brush with the criminal law to protect themselves in the best way they can — by confining their expression to non-controversial matters,” she wrote. “Novelists may steer clear of controversial characterizations of ethnic characteristics… Scientists may well think twice before researching and publishing results of research … Given the serious consequences of criminal prosecution, it is not entirely speculative to suppose that even political debate on crucial issues such as immigration, educational language rights, foreign ownership and trade may be tempered,” she added. “These matters go to the heart of the traditional justifications for protecting freedom of expression.”
McLachlin understood that one of the purposes of the guarantee of free expression is to allow for debate of even the most controversial topics because debate is the best way to settle our disagreements including disagreements over who should lead government. Free debate on contentious issues can’t happen if the people currently in government are allowed to outlaw opposing points of view. As McLachlin put it: “Attempts to confine the guarantee of free expression only to content which is judged to possess redeeming value or to accord with the accepted values strike at the very essence of the value of the freedom, reducing the realm of protected discussion to that which is comfortable and compatible with current conceptions. If the guarantee of free expression is to be meaningful, it must protect expression which challenges even the very basic conceptions about our society.”
The point is that much of what we believe today will turn out to be wrong tomorrow. John Lilburne’s case, discussed in Chapter 1, illustrates McLachlin’s point. Lilburne was fined, jailed and pilloried for arguing that the King should have less power, there should be more separation of church and state, and that the vote should be extended to more people. These ideas challenged the basic conceptions of 17th Century British society, but many of us would now agree that Lilburne was correct. Aime Boucher’s case offers another example. Boucher’s view that Quebec was too cozy with the Catholic church certainly did not accord with the values of polite society in the 1940s, but that viewpoint became mainstream within a few decades. Expressing the idea that gay people should have equal rights in Canada was an unacceptable viewpoint 60 years ago. Now, thanks to those who insisted on their free expression rights, gay people have equal rights.
It’s admittedly difficult to see how Keegstra’s vile speech has much value beyond providing evidence that anti-Semitism exists in modern Canada, but as this book illustrates, it’s not hard to see the dangers of allowing governments and judges to decide which topics are up for debate.
Sadly but predictably, the Keegstra decision gave the federal government the confidence to criminalize even more speech. In 2022, Justin Trudeau’s Liberal government changed the Criminal Code to prohibit wilfully promoting anti-Semitism by “condoning, denying or downplaying the Holocaust.” The Holocaust is a black mark on human history but expressing a condemnable opinion on a historical event should not lead to prison in a free society.
Even more worryingly, a government appointee has proposed outlawing speech by those “attacking the credibility of Survivors’ truths about missing children, unmarked burials, and cemeteries at Indian Residential Schools as sensationalist.” This proposal to outlaw “residential school denialism” was made a time when no human remains had been unearthed, raising uncomfortable but legitimate questions about whether disturbances found by ground-penetrating radar were really human remains. Attorney General David Lametti said he was open to the idea.
In 2024, the Trudeau government proposed Bill C-63, the Online Harms Act, which is perhaps the biggest threat to free expression in Canada in decades. The act would increase possible sentences for advocating genocide from five years to life in prison, would create possible life sentences for other crimes with hate motivation, and would allow someone who fears a future hate speech crime, perhaps a controversial rally, to request that a judge put conditions on the would-be speaker such as putting them in an ankle monitoring bracelet and jailing them if they don’t comply. It’s difficult to imagine a law more likely to chill expression, but as the next chapter will reveal, human rights laws against “discriminatory” speech pose an even greater risk.
Excerpted from Free Speech in Canada: A beginner’s guide from ancient roots to current controversies, written by Christine Van Geyn and Josh Dehaas (available here).
