Hate & Free Speech: A Supreme Balancing Act

Jim Keegstra died in June 2014 at age 80. No cause of death was given but he suffered from a heart condition for a long time. He lived his last years in a small apartment with his wife in Red Deer. He remained bitter and unrepentant to the end.    

In the 1980s Keegstra’s name became synonymous not only with racial hatred but with the dissemination of that hatred. His actions touched off a sometimes emotional debate over the need to foster social harmony and racial justice while balancing the centrally important democratic principle of protecting freedom of expression. In the end the country turned to the Supreme Court of Canada for some sort of resolution and guidance on the issue.    

Between 1978 and 1982, Keegstra was a social studies teacher at Eckville High School, near Red Deer. In the course of his teaching, as outlined in the majority judgment written by Chief Justice Brian Dickson and in contemporary newspaper reports, Keegstra regularly vilified the Jewish people and sought to inflame his students by presenting as historical fact accusations that Jews were “treacherous”, and “sadistic”. He claimed that Jews wished to destroy Christianity and were responsible for economic depressions, wars and revolution. He also asserted that the Holocaust was a hoax, supported by “trick photography”. In class and on examinations he expected the students to repeat what he said. If they failed to do so, they lost marks. In December 1982 after repeated warnings, he was fired from his job.    

In 1984 he was charged under what is now s. 319(2) of the Criminal Code with unlawfully promoting hatred of an identifiable group. He entered into a long string of court cases. He argued that s. 319(2) was an unjustifiable infringement of his freedom of expression as guaranteed in 2(b) of the Charter.    

He lost in the lower court but in the Alberta Court of Appeal he won a unanimous judgment. The Appeal court found the hate speech section of the Criminal Code “fails adequately to respect free speech” and hence was of no force or effect. “There is a risk” the Alberta justices stated, “that prosecutions under this law which is designed to promote tolerance, might become a weapon of intolerance.” The Crown appealed to the Supreme Court.    

Keegstra’s case heard by the Supreme Court in 1990 forced a difficult decision on the justices and deeply divided a body committed to both equality and free speech. In the end the court overturned the Alberta Court of Appeal by a narrow 4-3 decision, the majority finding that “…s. 319 (2) of the Criminal Code does not unduly impair the freedom of expression." It reached that conclusion, in part, by deciding that while the law limited the Charter-guaranteed freedom of speech, that limit was minimal and acceptable in a free and democratic society.    

Evidence of the depth of the division in the court, and the recognition of the importance of the issues is demonstrated by the fact Brian Dickson delivered a 100-page majority judgement, one of the last he would write as Chief Justice. Beverly McLachlin, who 10 years later would become chief justice, wrote a 70-page dissent in which she like Dickson wrestled with the difficult and delicate balance that must be struck between the defence of free speech and the desire to create a harmonious and fair society. She wrote “[t]he evil of hate propaganda is beyond doubt”. But finally concluded the exact opposite of the majority. In McLachlin’s view any benefit of the hate law legislation “is outweighed by the significant infringement of the constitutional guarantee of free expression”. It has been observed that in Keegstra the majority decided there were some forms of free speech not worth protecting.    

Keegstra’s lawyer was Doug Christie of Victoria. Christie died in 2013. Until the end he remained passionate about what he viewed as his fight for freedom in Canada. The notoriety and enmity his controversial fight for freedom attracted, led him to board up the windows of his office because they were repeatedly smashed. He became the focus of unwanted attention because for over three decades he aggressively represented not only Keegstra but white supremacists, Holocaust deniers, Nazis and anti-Semites. Keegstra was just the first in Christie’s long list of unpopular clients.    

Christie was often accused of being not just an advocate for those he represented, but more of a fellow traveller in the world of Holocaust denial and racial hate. Christie asserted on several occasions that he did not necessarily embrace his clients’ ideas but “I share one idea with them. They should be allowed to share their ideas.” For Christie, Keegstra and many of his other cases were all about democracy, about the right to think and speak freely without state intervention. “It’s the individual’s right to say what they want” he insisted. It was his view, publicly at least, that the best constraint on hate speech is counter speech, not the courts or “various dubious human rights commissions”.    

Professor Lorraine Weinrib, from the University of Toronto law school has written on Keegstra. She doesn’t share Christie’s advocacy of wide-open free speech. “Speech is not the paramount right,” she says. Professor Weinrib points to a long history of laws in Canada and the democratic world restricting speech including prohibitions against defamation, treason, the incitement of violence, and obscenity and even, though archaic, blasphemous libel (s. 297 of the Criminal Code). She believes that s. 319 (2) of the Criminal Code recognizes the importance of free speech and is narrow enough on the issue of hate speech that the restrictions are reasonable. In spite of the divided Supreme Court judgment, Professor Weinrib believes the Keegstra case remains very important. She calls the judgment “well wrought” and says it remains a guide to the entire legal system in dealing with hate speech issues. She points to its frequent citation in the courts. “Keegstra,” she says “seems to have a good shelf life.”

A version of this story first appeared in The Lawyers Weekly in the spring of 2011.


Geoff Ellwand is a Calgary criminal lawyer with an MA in history. A former CBC reporter, he continues to write about the law and history. Geoff is also a member of the CBA Alberta Editorial Committee, and has leant his many talents to guest-editing this edition of Law Matters.