-charged with violating s. 319(2) of the Criminal Code -- “wilfully
promoting hatred against an identifiable group by communicating anti-semitic
statements to his students.”
-convicted at trial
-AB Ct of Appeal: s. 319(2) violates S. 2 of Charter
-SCC: The violation of S. 2 can be justified under s. 1 of the
-4-3 decision: Majority is CJ Dickson, Wilson, L'Heureux-Dubé
and Gonthier; minority is La Forest, Sopinka and McLachlin JJ.
-Section 2(b) should be given a “large and liberal”
interpretation, and so it covers even hate speech.
-Part I: gov’t objective:
prevent harm caused by hate propaganda, is of suff imp
a) rational connection: yes. Prohibiting hate propaganda
prevents harm resulting from it. (historical examples)
b) fr of exp limited as little as necessary? Yes: only “most
severe” forms of hatred covered. Pte communications not covered.
There’s a defence of
if accused can prove on bal of probabilities. Promotion must be willful,
so mens rea protected.
c) good outweighs harm. Hate propaganda does not contribute to self-development,
quest for truth, participative democracy.
K’s communications offensive, but not threats.
Not violent, didn’t advocate violence. Difficult to draw line between
hate speech, and valid criticism. Speech that
advocates changing the basic
conceptions about our society must be protected.
-Part I: Gov’t objective
is of sufficient importance.
a) rational connection: not necessarily. Hate might just go
underground, or be disguised to fit the law. Prosecution might create
Publicizing the case might have the opposite of effect intended.
Valuable speech might be inadvertently supressed.
b) S. 319(2) is overbroad. Dn of “hate” is too subjective.
True statements about a group might result in hate.
c) Harm outweights good. Might have a “chilling effect.”
It prevents free and open debate. No proof that S.319(2) promotes
social harmony & indiv
-Reverse onus issue:
-can’t be convicted if you
prove statements are true. Maj: violates pres of innocense,
but passes Oakes test.
-Charged with violating S. 181 of Crim Code: publishing “a statement,
tale or news that he knows is false and causes or is likely to cause injury
or mischief to a
Zundel published pamphlet, “Did Six Million Really Die?”
-convicted at trial; upheld by Ont CA. Zundel: S. 181 violates
S. 2(b) of Charter: freedom of expression.
-SCC: 4-3 upholding Zundel’s claim.
-Majority: La Forest, L’Heureux-Dube, Sopinka, McLachlin.
(compare with minority in Keegstra decision) Dissenters:
Gonthier, Cory, Iacobucci.
(Dickson, Wilson gone).
-Majority: S. 181 infringes 2(b). All expression covered, except
violent. Purpose: free expression to promote truth, pol &
soc participation, and self-fulfillment.
Includes beliefs maj finds
wrong, false or unpopular. Content irrelevant.
-False statements that someone believes true can sometimes have value.
-Parliament’s purpose re 181: copied UK legis to prevent slander
against nobles, to preserve order. Rejects “shifting purpose” argument.
Even if accepted that
current purpose is to prevent
harm, that’s not specific enough to pass Part I of Oakes Test. S.
319(2) is more specific.
-Even if Part I had been passed, S. 181 fails on Part II.
a) rational connection:
no rational connection between promoting social harmony, and means used.
S. 181 could cover nearly any controversial statement.
It could have a chilling effect, producing the opposite of the result intended.
b) certainly does not restrict
rights as little as necessary to achieve objective
c) clearly S. 181 does more
harm than good.
-S. 181 violates S 2(b) of charter. However, it is saved by S.
-S. 181 is vague, but a judge’s job is to define vague phrases in law,
eg. “public interest.” “A ‘public interest’ likely to be harmed as
a result of contravention of
s. 181 is the public interest in a free and
democratic society that is subject to the rule of law.” A democracy
promotes free public discussion, equality, liberty and
-S. 181 is clear enough to provide a substantially important objective
(prevent harm [injury], promote tolerance) to pass Part I of Oakes.
purpose has changed, as Parl. has amended the legislation.
-Part II is also passed.
a) rational connection: rat connection between suppressing
deliberate lies that could result in unrest, and preventing harm.
Used rarely because test is hard to
b) not overbroad: courts can tell difference
between opinion and fact.
c) good outweighs harm. Spreading willful
lies does not further public debate.
-late 1990s, John Robin Sharpe of Vancouver was charged twice with possession
of pornographic materials, and with possession of these materials for the
purposes of distribution.
-Sharpe argued the legislation intended to protect children was over-broad,
unnecessarily interfering with his privacy and his freedom of expression.
Won at trial and CA, crown
appealed to SCC, heard in 2000
-SCC: 4-3 legislation valid, but majority “read in” two restrictions:
-the leg would not be construed
so as to apply to "
(1) self-created expressive material: i.e., any written material or visual
rep’tion created by the acc’d alone, and held by the acc’d alone,
his/her own personal use; and
(2) private recordings of lawful sexual activity ... created by or
depicting the accused, provided it does not depict unlawful sexual activity
and is held
by the accused exclusively for private use."