R v. Keegstra: What Scanlon says about Freedom of Speech in Canada?

Freedom of expression is central value in free and democratic society. In the philosophical level, T.M. Scanlon argues that the need to protect freedom of expression follows from the importance of person’s autonomy. The state must treat and respect citizens as capable of making up their own minds. As a result, it cannot have one person responsible for something that others do because of reasons they have offered them. However, in the legal level, courts can have different reasoning for dealing hate propaganda targeting on certain group of people.

R v. Keegstra: Challenge to Charter of Rights and Freedoms

In R v. Keegstra (1990), Mr. James Keegstra was a high school teacher who was unlawfully promoting hatred idea against an identifiable group by communicating anti-Semitic statements to his students with words “treacherous”, “subversive”, “sadistic”, “money-loving”, “power hungry”, and “child killers” for describing Jews. He also provided information to his classes that “Jewish people seek to destroy Christianity and are responsible for depressions, anarchy, chaos, wars, and revolution.” He also describe Jews as a group of people profound evil who had “created the Holocaust to gain sympathy.” In the exam, he tested his students on his theories and opinion of Jews.

One of the main questions in this case was whether or not section 319 (2) of Criminal Code violated the right to freedom of expression which was protected in section 2(b) of the Charter. The Supreme Court found that section 319(2) in Criminal Code violated section 2(b) of the Charter, as it was designed to suppress expression in Canada.  According to the majority, Chief Justice Dickson, stated that the prohibition of hate propaganda was a pressing objective of a real and very important feature in society. This objective was supported by international human rights law and documents to which Canada is a party. Such objective was also supported by section (15) and section (27) of the Charter, which was the section about equality rights and recognition of multiculturalism.  The impugned section was reasonable and the limitation on expression was minimal.

However, that was not the end of the case. In section (1) of the Charter “guaranteed the rights and freedoms” and this section applied to every section of the Charter. It allowed the limition on our rights and freedoms when the limitation could be justified by the Canadian government. Yet, this section also stated that in order for a Charter right to be lawfully limited, the limited must be “demonstrably justified in a free and democratic society.” This implied that when the Supreme court decided to limit someon’s Charter Rights, it must be reasonable and it must seek to address an issue of pressing or substantial concern. In other words, the Supreme Court could not make a disproportionate or bad impact or effect.

Mr. Keegstra challenged section 319 (2) of the Criminal code as an unjustified limitation on section 2 (b) of the Charter. Indeed, without section (1) of the Charter, Mr. Keegsta’s argument would have been successful, and he certainly had his right to express his opinion, which included the right to say things that other people might disagree with. However, the Supreme Court decided that it was reasonable to limit Mr. Keegsta’s freedom of expression because the rights and freedoms guaranteed in the Charter could not be absolute. It was essential to limit Mr. Keegstra’s freedom of speech for upholding his students’ rights to be protected from discrimination. The decision in this court also limited rights and freedoms in consideration of the relative interest of other rights holders in society.

Philosophical Level Analysis: Autonomy

In this case, Chief Justice Dickson paraphrased his own reasoning from R v. Oakes in order to identify the reasonable limits. He believed that certain values of the Charter should be used as the standard for interpretation of section 1, and the values included:

[R]espect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

This court found that that willful promotion of group hatred caused two kinds of harm. First, such expression could have severe psychological and dignitary injury on members of the target group. Second, the expression caused harm to the society at large by creating “serious discord” between social groups.

This reasoning nevertheless consists to the T.M. Scanlon’s philosophical argument from autonomy values freedom of expression on the grounds that freedom of expression indeed protects individuals autonomy because it allows people to form their own opinions about their beliefs and actions. However, we respect to have freedom of expression because we treat individuals with the equal concern and respect due to independent moral actors.

Last Words

It is true that Mr. Keegstra has a right to express his own opinion, but he promotes hatred against certain identifiable group. The speech may promote Mr. Keegstra’s own fulfillment in the certain way, but it attacks or causes harm to other citizens. Moreover, the hate propaganda is inimical to any democratic values because it promotes “a society in which democratic process is subverted and individuals are denied respect and dignity simply because of racial or religious characteristics.” If these are all the reasoning, Mr. Keegstra’s speech targeting on Jews cannot be justified. Indeed, freedom of expression can give people to form their own opinions, but the idea that freedom of expression needs to be limited only where it causes harm to other. For these reasons, the Supreme Court is legitimate to reject Mr. Keegsta’s challenge to the law.

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