Group M: R v Keegstra
Purpose: To discuss how each of the theoretical perspectives discussed in this course apply to key issues discussed in our case and the approach the court took.
- 1 Case Overview: R v Keegstra
- 2 Traditional Natural Law Theory: Law for the Common Good - St. Thomas Aquinas
- 3 Legal Positivism - Austin, Hart, Bentham, Raz
- 4 The Separation Thesis - HLA Hart
- 5 The Morality of Law - Lon Fuller
- 6 Law as a System of Rights - Ronald Dworkin
- 7 Liberty & Paternalism - John Stewart Mill
- 8 Law and Economics: Law as Efficiency
- 9 Feminist Jurisprudence: Law as a Patriarchal Institution - Catherine MacKinnon
- 10 Critical Legal Studies and Critical Race Theory - Raymond Wacks
Case Overview: R v Keegstra
R v. Keegstra  3 S.C.R. 697  S.C.J. No. 131 (http://canlii.ca/t/1fsr1)
James Keegstra was a high school teacher in Eckville, Alberta from 1970 to 1982 who communicated anti-Semitic statements to his students. His teachings attributed evil qualities to Jews, stating they were “treacherous, subversive, sadistic, power hungry” (Keesgstra at para 3). He taught his students that Jewish people seek to destroy Christianity and are responsible for war and revolution. He taught students that they “created the Holocaust to gain sympathy” (Keegstra at para 3), expand ected his students to reproduce his teachings in exams.
Keegstra was charged under s.319 of the Criminal Code with willfully promoting hatred against an identifiable group. He argued that hate-literature law violated s. 2(b) of the Charter, which guarantees freedom of expression and s. 11(d) of the Charter, which guarantees the right to be presumed innocent. Section 11(d) was raised in connection with the defence included under s.319 (3)(a), which contains a reverse onus requiring the acc’d prove on a balance of probabilities that his or her speech is true in order to avoid being convicted. Section 11(d) was not a main legal issue at the Supreme Court level and therefore, our analysis primarily rests on s. 2(b) freedom of expression. Chief Justice Dickson, for the majority, held that s. 319 of the Criminal Code s. 2(b) and 11(d) were both infringed, but both were justified as reasonable limits under s.1 of the Charter.
Section 319(2) of the Criminal Code prohibits the communication of statements in public other than in private conversations that promote hatred against an identifiable group in society distinguished by colour, race, religion, or ethnic origin. It makes it an indictable offence punishable by imprisonment up to two years, or punishable by a summary conviction.
Analysis (Dickson CJ):
The Irwin Toy test for infringement of s.2(b) was used to find that the Keegstra’s hate speech fell within the protected scope of the freedom of expression because it conveyed a meaning and the purpose of government action was to restrict freedom of expression.
Under the s.1 analysis, the court held that the harm done to members of the targeted group and to society at large as evidence by the Cohen Report, rendered the objective of preventing harm caused by the content of expression promoting hatred of identifiable groups “pressing and substantial.” The legislation was also proportionate to its objective, considering the need to ensure truth and the common good are obtained, ensuring individuals the ability of self-fulfillment, and connection to the political process. The means are rationally connected, minimally impairing, and do not produce an effect of such severity so as to make impairment unjustifiable.
The theories that follow can be used to provide different perspectives on R v. Keegstra and the underlying tensions between s.319 of the Criminal Code, s. 2b of the Charter, and s.1 of the Charter.
Traditional Natural Law Theory: Law for the Common Good - St. Thomas Aquinas
Natural Law theory states that true law is ultimately derived from a higher, external non-human source, which may be god, nature, or reason. Morality is inherent in natural law; therefore, to be consistent with natural law, human law must have parallel morally right aims. According to Aquinas, law is teleological, meaning it can only be understood with reference to its proper end or function: the rational pursuit of the common good. Law which does not have this function is unjust and is no law at all, meaning it need not be followed.
St. Thomas Aquinas - Four elements of a valid law
According to Aquinas, law is “nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”
1. Directed towards the common good- the Charter v. the Criminal Code
For a law to be just and thus valid, it must be directed towards the common good. The common good is the good of the community, as opposed to a specific individual, or even the will of the majority. Although, in Aquinas’ time, the will of the majority and the common good did not always coincide, this will usually be the case today in our system of a parliamentary democracy. The order imposed by law is also a necessary element of the common good; human happiness is only possible in a stable community.
Although Aquinas did not have the Charter to guide him historically, we believe that he may see our entrenched system of rights as a source of the “common good”. The Charter embodies principles which our society as a whole regards as “good”, such as life, liberty and security of the person, the right not to be arbitrarily detained or imprisoned, and the right not to be subject to cruel and unusual punishment. Section 2(b) of the Charter guarantees freedom of thought, belief, opinion and expression. As explained in R v. Keegstra, this is a broad right that can only be limited in accordance with limits prescribed in a free and democratic society as per section 1. One underlying Charter value reflective of our society is the view that seeking and attaining the truth is an inherently good activity. This is an example of how the Charter embodies our notion of the “common good” because the rights enshrined in it are supported by underlying values that accord with the principle of a common good for society.
The Criminal Code is a statute that also seeks to direct individuals toward the common good. In determining the role of s.319 of the Criminal Code according to Thomas Aquinas, it is important to note his conceptual distinction between laws mala in se, and mala prohibitia. Mala in se refers to human laws that are derived deductively from natural law. They are universal and do not vary between communities. Violation of these laws is both a legal offense and an offence against morality. Mala prohibitia refers to human laws that are mere determinations and have only the force of human law. They are legal, but not moral offences. They can be justified as law derived by natural law by having a purpose towards the common good.
It is difficult to determine under which of the two categories Aquinas would classify s. 319 of the Criminal Code. Although a more modern conceptualization of hate speech would lead one to believe it is clearly inherently immoral due to its extremely negative effects on targeted groups, this characterization may be inconsistent with Aquinas’ conception of morality as universal and unchanging. From his historical perspective, Aquinas would likely classify the provision as a law mala prohibitia. Hate speech is not prohibited across jurisdictions universally and its purpose is not to punish an inherently immoral act, but to put a bar on the willful promotion of hatred, which will have adverse effects on any section of the public distinguished by color, race, religion or ethnic origin. As demonstrated in R v. Keegstra, whether hate speech is immoral is a contested issue that involves balancing of societal interests and individual rights. Unlike murder, it is not universally accepted by society as a crime against morality. This is evidenced by the dissenting judgment in R v. Keegstra, which chose not to save the provision under s.1; a provision against hate speech would not be upheld because it violates a Charter right. Interestingly, McLachlin in dissent seems to classify a prohibition against hate speech as a law mala in se. She states that hate speech is "intrinsically offensive to people" (Keegstra at para 196) and goes as far as to say the problem is not peculiar to Canada, it is universal (Keegstra at para 195).
However, Aquinas would classify the hate speech prohibition as a law mala prohibitia. Section 319 of the Criminal Code can be justified as derived from natural law because it clearly has a purpose towards the common good, as it strives to prevent the harmful effects of hate speech on society as a whole and disadvantaged groups within society. As such, s.319 is a legal, but not a moral offence.
Section319 of the Criminal Code is directed towards the common good. It seeks to prevent the substantial harm that can flow from hate propaganda to targeted group members and society as a whole through promotion of discrimination. The harm done to members of the targeted group comes in the form of psychological and social consequences. Victims are left feeling isolated and have a diminished sense of self-worth. There is also a negative influence on society as a whole, which can result in discrimination and violence against minority groups. Children are particularly impressionable and polluting the minds of our young people, who form the future of our society is also a type of harm. Section 319 is a means by which the values beneficial to a free and democratic society such as the value of equality, worth and human dignity are preserved.
In addition, s. 319 imposes order in society, which would be disrupted if individuals were free to express hatred against other members of society. McLachlin supports this in her judgement, stating that insofar as hate speech persuades others to also adopt the negative view, social stability may be threatened (Keegstra at para 196). Segregation would occur and minority groups would be singled out, creating separation and disorder in society.
The issue comes down to a case of the rights of an individual, balanced with the common good. In this case, although these individual’s rights are enshrined in the Charter, the Criminal Code provision presents a reasonable limit on Keegstra’s right in accordance with the common good.
2. Practical Reason
According to Aquinas, Natural Law is the natural product of man’s reasoning correctly exercised in accordance with the desire to struggle towards the common good, planted in us by God. Man’s nature, as crafted by God, inclines him towards the common good; man’s reason, as crafted by God, allows him to devise the steps to lead him there.
An analogy may be drawn to the s.1 Oakes test, which allows reasonable limits on Charter rights only when they are prescribed by law and can be demonstrably justified in a free and democratic society. Whether s.319 of the Criminal Code is a reasonable limit on Keegstra’s 2(b) freedom of expression is guided by our practical reasoning. The requirement in the first part of the Oakes test for the objective to be “pressing and substantial in a free and democratic society” is analogous to the common good. Parliament's objective of preventing the harm caused by hate propaganda is directed at the common good because it seeks to prevent harm done to members of the targeted group, and harmful influence on society at large. It is also consistent with s. 15 (equality rights) and s. 27 (multiculturalism of Canadians), which represent a strong commitment to values of equality and multiculturalism. The second, proportionality requirement, that the “means chosen are reasonable and demonstrably justified” is analogous to steps of practical reason. Essentially, the Oakes test sets out the logical steps to follow to achieve the common good. In R v. Keegstra, when considering whether the infringement was proportionate, the majority explicitly stated that “At the core of freedom of expression lies the need to ensure that truth and the common good are attained (Keegstra at para 87).” This aspect was the key to the majority’s decision that willful promotion of hatred should not be struck down as a violation of 2(b). There is very little chance that statements intended to promote hatred against an identifiable group are true, or that their vision of society will lead to a better world. Allowing this form of expression under s.2(b) would, according to Aquinas, be inconsistent with the pursuit of the common good because the promotion of hate speech actually deters us from this goal. For s. 319 to be consistent with our pursuit of the common good, it must be (a) rationally connected to its objective, (b) it must minimally impair, and (c) the salutary effects of the provision must outweigh the deleterious effects. Aquinas would agree with the majority decision that these three factors are met and the provision should be upheld under s.1.
3. Valid lawmakers: the ruled and the ruler
According to Aquinas, legislation is supreme, not because of parliamentary supremacy, but because the “few” legislators possess greater authority and are therefore more likely to possess wisdom. These are the “natural” rulers who know what is in the common good and what will achieve universal happiness. The role of judges, on the other hand, is simply to apply the written law, unless it contains anything contrary to natural law, which makes it unjust and therefore should not be applied. Although judges are the ultimate figures who apply the law for the common good, they are not permitted to stray too far from the intention of the legislature.
Aquinas would give significant deference to the legislature in the s. 1 analysis. He would define the government objective in enacting s.319 broadly and highlight the importance of prohibiting the promotion of hate speech. He would see the Criminal Code as a product of the “few” wise who have put their minds to a law and are unaffected by emotions of individuals in a court room. He would say that a general abstract law prohibiting hate speech is more moral that the judge interpreting the provision in any way other than that intended by the legislature. The role of the Supreme Court is simply to apply the Criminal Code provision. The only situation in which this law should not be applied is when it is inconsistent with natural law. Therefore, the s. 319 of the Criminal Code, as a law mala prohibitia should only be struck down in situations where it is inconsistent with the Charter, which embodies both human and natural law and is a source of “the common good”. Aquinas’ requirement that judges can apply the law for the common good, but must not stray too far from the legislature’s intent, is consistent with the majority decision in Keegstra. Although s. 2(b) is classified as a broad right and therefore infringement is easily made out, the s.1 analysis allows the provision to be upheld as a reasonable limit.
Aquinas distinguishes between the letter and the spirit of the law, the latter of which is most important. We must use general laws while recognizing that exceptional cases arise in which obedience to the letter of the law must give way to the spirit of the law, which aims at the common good. Aquinas’ spirit of the law seems to refer to the underlying purpose for which the legislation was enacted, while the letter is the actual legislation. Aquinas would hold that in Keegstra, the letter and spirit of the law were entirely consistent, with an aim of preventing harm against victims of hate speech. This spirit was not colorable.
Promulgation is the requirement that laws be written down. The purpose of the law is to compel obedience to result in the common good, which it not possible when the law is not known to all. This is not at issue in Keegstra, as the Criminal Code is available to the public and s. 319 is made by the Federal Dominion as the appropriate legal body, making it intra vires. This law is not retroactive, and it written in a way that clearly outlines what one has to do to commit the offense, what penalty they will receive, and exceptions or defences to the offence.
Legal Positivism - Austin, Hart, Bentham, Raz
Positivism as a reaction to teleological nature of natural law - positivists are concerned with what the law is and not what it should be.
As a case dealing strongly with morality and the harm principle, R v Keegstra introduces an interesting challenge to a positivist approach.
Positivist’s Approach to R v Keegstra
John Austin sees the law as a command; a product of human action and not merely the embodiment of greater authority. According to Austin, it doesn’t matter that something is immoral, it can still be legal, based on the separatism thesis which states that “unjust and immoral laws may be as valid as any other law within the legal system”. He would support the Criminal Code provision, s. 319 since it is a command made by a superior authority (Federal government) to subordinates (citizens), and there are sanctions for not following the rule. Therefore, any infringement on Charter Rights, including section 2(b), would be justified by the Criminal Code provision since it is a positive law, but the rights outlined in the Charter of Rights of Freedoms does not have sanctions. Furthermore, the sovereign, in this case the Government of Canada, cannot be bound by the Constitution as a condition of law’s validity since it is a command issued by them to subordinates, such as provincial governments and government personnel. On the other hand, the Sovereign may not be bound by the Constitution because it is not an intelligent being, and the Sovereign should not be bound by any positive laws. In Austin’s time, the constitution was unwritten, so it constituted positive morality since it was not created by a sovereign entity and could not formally bind anyone, but was normative based on what the courts or the government at that time considered to be right or wrong. The Canadian Constitution, including the Charter of Rights and Freedoms is written and since it was created by the Parliament of Canada, which can be considered to be a sovereign entity, it can be seen as a positive law. However, the Charter of Rights and Freedoms monitors the behavior of the state and provincial legislatures, as opposed to individuals to ensure that these governments do not infringe on the rights guaranteed in the Constitution, so it is not a command given to subordinates, unless the state is considered to be a subordinate, in which case the superior could be the Prime Minister, or Queen. Therefore, Austin would not likely view the written Canadian Constitution, including the Charter of Rights and Freedoms as a command, backed by sanctions and given by a superior to subordinates, since Parliament as the superior is bound by the Constitution, and cannot be the subordinate simultaneously, and there are no explicit sanctions stated in the document, such as fines or imprisonment for breaching those fundamental freedoms. Perhaps common law can be viewed as having created sanctions against Charter breaches, but since judges operate in the service of the legislature, the laws they create are not real commands since they can be overridden by Parliament. He would see the Constitution as a positive morality since no clear Superior commands the rules that are part of it, and it is a descriptive document, however since the Canadian governments are bound by the Constitution, in application, it seems to function as a positive rule in some aspects.
Austin would likely have upheld the Criminal Code provision prohibiting hate propaganda, regardless of whether it was immoral or not. He wouldn't have convicted Keegstra for the same reasons the court did, in reference to the violation being upheld under section 1 of the Charter, since he would not have regarded the Constitution as positive law. Most likely,he would have convicted Keegstra because the Criminal Code provision is valid law, and would not have implicated the Constitution. The reasons behind the law would not have mattered for Austin, since the law was a command that had to be followed.
This contrasts with Aquainus, and natural law, who believed a valid law is directed towards a common good and is moral, and outlines reasonable steps to reach the goal. Whereas, for Austin it is about the command itself, and not the content of it, since morality and law are separate according to the separation thesis. Positivists reject teleology, since there can be immoral laws that people still have to obey.
Austin could perceive a conflict between the Criminal Code provision prohibiting hate literature, and the Charter of Rights and Freedoms section 2b, promoting freedom of expression, since both can be viewed as positive laws. However, since 2b only outlines the right to express one’s opinion, it would not be considered a “command”, and it also lacks sanctions, therefore lacking the authority to be considered positive law, so Austin would follow the Criminal Code provision prohibiting hate speech.
HLA Hart believes that all governed practices, like law, must be understood in terms of the rule governed practice that gave rise to them. This was so that decisions would be impartial, consistent and fair. With such complicated processes, such as the s.1 analysis, Hart would likely see this as inviting room for error. For Hart, unlike Austin, laws are not commands, but are made up of primary rules, which explain what people can and cannot do, and secondary rules which establish the rules that govern the political system, and explain how laws can be changed. Where the Charter and the Criminal Code gives us primary rules, judicial decisions give rise to secondary rules that can have a shifting effect on the law. People only follow the rules they recognize and do so because they feel they must. This could be why the law shifts and changes as becomes easier to know how to act through analogous grounds, such as issues in our case where it was not yet established how the law works in such an example of hateful expression. As a believer in the “penumbra” in the law and a judge’s importance in filling in the ambiguous pieces, Hart would appreciate the attempt to make sense of the separate provisions which made up the decision in the Keegstra case. As a “hard case,” it was the judge’s interpretation of the law that made Keegstra’s expressions unacceptable in the eyes of the law. The s.1 test was set out to promote consistency, and it is likely that any judge would have decided this case in the same way. Where this is possible, Hart is likely to agree with the outcome and would likely find Keegstra’s conviction as justified.
Jeremy Bentham embraced utilitarianism, and would believe that the Criminal Code provision maximizes utility by providing the greatest good for the greatest amount of people. By prohibiting hate literature and avoiding social fragmentation through preventing stigmatization of a select group of people, this purpose is met. While hateful expressions do not affect the whole population, Bentham is likely to agree that it has no benefit to anyone and by restricting it completely is better than allowing it. It is better to help some people than none. He would likely convict Keegstra for spreading hateful messages about a minority group, because he was promoting hate which is not useful for society, or helpful for people to attain their potential. He would have believed that "psychological damage is caused by hateful propaganda, because it is not beneficial for the most individuals" [Keegstra para 58]
Joseph Raz believed that a law was justified where it performed a service for people and allowed them to act better than they would without the benefit of the law. In this case, without the Criminal Code provision os s.319, Keegstra would continue to communicate hateful propaganda against Jewish people through his teachings. The provision helps Keegstra to act better by guiding his conduct for the better. The longer an individual is permitted to spread hateful messages to society at large, the more damage it can do. He would have made Keestra liable as soon as possible, possibly skipping the s.1 analysis and only needing s.319 of the Code in order to convict.
Response to the Legal Realists Hart states that when facts of cases do not fall within the settled core meaning, but within the penumbra, judges must decide and take responsibility for that meaning and its consequences. The legal realist’s idea that judges find and not make law is a childish fiction. Judges are not automatons or mere vessels applying legal rules; they must decide penumbral cases in accordance with the needs of society.
Traditional positivists would say that only the settled core is the “law”. Legal Realists would claim that laws are “incurably incomplete” and judges should decide penumbral cases with reference to social aims. Hart says that judges draw on terms of the rule governed practice (law) to decide the hard cases in the penumbra; those things which are true and important of the legal system as a whole. Unlike Austin’s stringent requirements for law, these are not essential characteristics that every rule must have and they may change with circumstances. Terms of the rule governed practice are part of what we mean when we talk about the law, bring consistency to decision making in the penumbra, and what judges mean when they talk about “finding” the law- the principles and outcome they produce as recognised.
Legal realists would claim that judge Dickson wants Keegstra to be found guilty of hate speech. Therefore, he is using a judicial hunch, based on his own rules and principles, preferences, sympathies, memories, temperaments, and experiences, much like Lord Denning in Miller v. Jackson. Hart would reject this proposition, and affirm the analysis undergone above, showing that Dickson was drawing on terms of the rule governed practice to “find” the law.
Positivism versus Naturalism
The Keegstra case is not easy to look at without morality being introduced into the discussion. Many provisions, such as s.319, are in place primarily for moral reasons. Whereas positivists can say that as long as a law is a rule, it is admissible, this is a shallow reading and does not go to the core of the law.
One such critic of positivism, Ronald Dworkin, was a strong believer that the law is rules combined with principles. His basis for deciding Keegstra’s liability would likely rest on this moral dilemma that the principle of hateful expression is negative and should create liability simply for this reason. Principles such as these provide the answer whereas Hart’s idea of a penumbra would create ambiguity- essentially these principles are the missing factor and help decide the outcome. So whereas Austin/Hart/Bentham/Raz would likely find Keegsta liable simply because the law states that public hateful expression is illegal, Dworkin would find him liable for the principle of the matter, largely considering the underlying purpose of the enacted law, which is to prohibit spreading hate in society. Dworkin’s conception of the law as a chain novel is similar to the positivist approach, however. Hart thought that focusing on the rule-governed practice was the best way to promote consistency and this follows Dworkin’s mentality that each judge who deals with an issue picks up where the preceding judge left off. The difference here is that the naturalist approach would allow for more evolution in their thinking whereas positivists would likely keep the law as it is and less likely to allow it to shift. Both emphasize consistency, but use it in different ways. So where society is slowly moving towards preventing moral harms through the law, positivists are likely to avoid this notion and simply view Keegstra’s conviction as a result of s.319- with no need to look at the past decisions or morality principles.
Another modern naturalist, Lon Fuller’s three main planks [expanded upon below] would suggest that Keegstra was implicated for his lack of morality, which the law punishes. The purpose of the law in Fuller’s mind is to create order in society. Where past incidents of hateful expression led to such chaos as the holocaust, he is likely to understand and uphold the purpose of s.319 and s.1 of the Charter as justified. Unlike the positivist approach which found that a law is to be followed for the simple reason it is enacted, Fuller would see that these laws should be followed so that society will not lose faith in the justice system. Where a law is not acceptable in the eyes of the community, it is invalid and society is likely to see Keegstra’s actions are deplorable. This would suggest that Fuller would see s.319 as the correct method of dealing with Keegstra and restraining his hateful expression. To only act because a law says so stands directly against what Fuller believes in- not understanding the law and only following it, such as in a positivist approach, leads only to society dysfunction and chaos.
The Separation Thesis - HLA Hart
HLA Hart’s separation thesis is a response to the positivist’s claim that there is no necessary connection between law and morality. The separation thesis states that law and morality are two separate systems. They will frequently run parallel, but they are not the same thing. We can evaluate legal rules with reference to moral rules. This supports the legal positivists’ separation claim because if law embodies morality, there is no moral basis on which we can judge the law.
If there is a clash between morality and law, as individuals we must decide whether the obligation to follow the moral rule is greater by weighing competing obligations. Law is not morality, but it does not displace morality; law may be law but too evil to be obeyed.
Law as a “rule governed practice”
If legal and moral rules are separate, we must decide what the nature of the legal rule system is, if not a moral rule. Laws consist of “ought claims”, meaning we ought to follow them, analogous to the way other morally neutral rules, such as sports rules or etiquette compel us to follow them. These rules grant rights and duties. This premise is grounded in Hart’s “rule of recognition”, which holds that most people, along with officials implementing the law, must recognize that they ought to follow the law and do it.
Hart would say that the Criminal Code has no necessary connection with morality. Although many principles of morality are found in the Criminal Code, such as a prohibition against killing people, this is because law and morals often run parallel. Section 319 of the Criminal Code in particular can therefore be evaluated with reference to moral rules. It can be decided whether it is a moral or immoral law based on its content. If s. 319 of the Criminal Code, is an immoral law, Keegstra would have to decide whether his obligation to follow the moral rule is greater. He may argue that s. 319 is too evil a rule for him to obey. This will be a very difficult argument because, when weighing competing obligations, it is clear that a prohibition on hate speech is a good, not a bad law.
The reason Keegstra is compelled to follow the s.319 is not because it would be immoral for him not to follow it. Hart would say that the law has an “ought” claim on Keegstra, grounded in the rule of recognition. Keegstra ought to follow the law because it is recognized as a law in society. Other Canadians in society are aware of this law and know that they ought to follow it and they do follow it. Hate speech of a public nature does not regularly go unpunished. Officials, such as police, who implement this law also recognize that it ought to be followed and ensure it is followed.
Hart would also say that the Charter has an ought claim on the state. They are compelled to make laws that are consistent with the Charter and are bound by this law. If they make legislation that is inconsistent with the Charter, the courts have authority to strike down this law as punishment.
The Penumbra and Terms of our Rule Governed Practice
Hart states that legal rules are expressed in general terms so as to apply generally. There will be a “settled core of meaning” but factual situations presented in cases may fall outside that settled meaning. This area is called the “penumbra”, a partial shadow between regions of complete shadow and complete illumination. In the penumbra, “hard cases” fall to the judges to decide whether the particular case falls within the settled core of meaning or not.
Natural Law Theorists argue that judges apply morals to fill in the “gaps” outside the settled core, which causes law and morality to coincide. Oliver Wendell Holmes states that judges apply their own opinions in the penumbra; good judges will do this in accordance with good social policy. However, Hart argues that all laws must be understood in “terms of the rule governed practice” which gave rise to them. Judges draw on and apply these “terms” when exercising discretion in the penumbra as a consistent set of principles underlying decisions. These “terms” are not morality, as the natural law theorists would say, nor is this an exercise of mere inconsistent discretion.
Terms of our rule governed practice include principles of justice, such as natural justice, which is justice in the procedure of law. These principles include autonomy, arbitrariness, and the requirement that each person be treated fairly under the law. In our legal system, certain moral principles overlap completely with terms of our rule governed practice.
Hart would agree that the terms of our rule governed practice have been embodied in the Charter. These rights cannot be said to be the same thing as morality, nevertheless they underlie our entire legal system as fundamental principles. S.7 makes reference to “principles of fundamental justice”, which include both substantive and procedural rights. It offers residual protection in addition to the rights enumerated in ss.8-14. Our s. 2(b) right to freedom of expression may also be a term of the rule governed practice that judges consider when applying the law. Hart would say that it is not only Charter rights that make up the terms of our rule governed practice, but also underlying Charter values. The proportionality
In essentially all Supreme Court cases, the factual situations have fallen outside the “settled core meaning” and decisions must be made in the penumbra. In this case, the penumbral reasoning mainly occurs in s.1. It is clearly within the core settled meaning of s. 319 of the Criminal Code that Keegstra’s anti-semitic declarations fall within the conduct contemplated as prohibited under this section. It was uncontested that Keegstra was in violation of s. 319 for the willful promotion of hatred against an identifiable group.
The next issue was whether s.319 of the Criminal Code infringes Keegstra’s 2(b) freedom of expression. This issue would be on the edge of complete illumination, but would still fall slightly within the penumbra. Although it was conceded by the majority and dissent that Keegstra’s 2(b) freedom of expression was violated, there was discussion of the possibility of Keegstra’s conduct not falling within the scope of 2(b). One argument addressed was the exception that expressions manifested in a violent form are not within the protected sphere. The court determined that, although violent acts are excluded, threats of violence are not. Chief Justice Dickson stated that the line between form and content is not always easily drawn, but in his opinion, threats of violence can only be classified with reference to the content of their meaning. Hart would say that Dickson looked to principles of our rule governed practice, such as fairness to the Accused, to determine that threats of violence cannot be considered as violence because this must involve a physical element.
The test for infringement of s.2(b) is consistent with Hart’s view because it explicitly directs judges to consider terms of the rule governed practice. Where a law has the effect of limiting expressive activity, a violation of 2(b) will occur only if the claimant can establish that the restricted expression advances one of the values underlying the guarantee. The three values underlying s. 2(b) are democracy and participation in politics and community; truth; and self-realization and individual autonomy. The judges apply these terms of the rule governed practice to determine whether s. 2(b) is violated.
The most important issue, which falls within the realm of the penumbra is whether s. 319 of the Criminal Code can be justified as a reasonable limit under s.1 of the Charter. The proportionality analysis in Oakes, in particular, involves judges applying terms of our rule governed practice to make decisions within the penumbra. At the “rational connection” stage, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair, or based on irrational considerations. At the “minimal impairment” stage, the means must impair as little as possible the freedom in question. At the final “balancing” stage, the salutary and deleterious effects are measured against the objective. With regards to this proportionality analysis, it was held in Oakes that a free and democratic society embraces the very values and principles which Canadians have sought to protect and further by entrenching specific rights and freedoms in the Constitution, although the balancing exercise in s. 1 is not restricted to values expressly set out in the Charter. When deciding whether a limit on a right should be justified under s.1, judges look to values both within and outside the Charter on which to base their decision. Hart would say that this is judges applying terms of the rule governed practice to cases lying within the penumbra. In his analysis in R v. Keegstra, Dickson engages with the three values underlying freedom of expression: democracy, truth, and self-realization. He bases his decision primarily on the value of democracy, stating that hate propaganda repudiates and undermines democratic values and, in particular, condemns the view that citizens should be treated with respect and dignity to make participation in the political process meaningful. Using these principles, he comes to the determination that, given the negative effect on underlying values, an infringement of s.2(b) is justified.
Natural law theorists would say that Judge Dickson was merely applying his own morals to the issue in question. He believed that hate speech is morally wrong and therefore, overriding Keegstra’s freedom of expression is justified. Holmes would claim that Dickson was acting in accordance with good social policy, which encourages democratic freedom and participation in politics, and therefore decided it would be best for society to infringe on this right.
The Morality of Law - Lon Fuller
The three main planks in Lon Fuller’s Argument are as Follows:
1. Social Acceptance of Legal Rules Depends on Grounding in External Morality
Fuller believes the only way to explain the social fact that people follow rules is by recognizing an association between legal rules and morality. External morality is a shared morality, a social consensus. It lies in distinction to law’s inner morality. Hart’s “rule of recognition” claims that law’s authority is grounded on the acceptance of law as valid, and lawmaker’s “recognition” of themselves as obligated to enforce and obey the law. Fuller says this is nonsense. He argues that any such recognition is ultimately grounded in morality- that “the appeal must be to a moral standard independent of and prior to the law”; the recognition itself must be grounded in morality. The ultimate reason that these rules and principles bind us and the reason we recognize them as good is because we recognize they have some connection with morals.
Fuller’s external morality theory is strongly planted in the decision of the court as Dickson CJ stressed the requirement that the accused have the intent of wilfully promoting hatred and that the Attorney General approve any prosecution that restricts the reach of the provision. Parliament can act to prevent the serious harms caused by racial and religious hatred and to respond to the "severe psychological trauma suffered by members of those identifiable groups targeted by hate propaganda.” Such measures fit with Fuller’s notions of morality and he would see it as a suitable use of the Oakes test to validify the infringement of Keegstra’s freedom of expression (2(d)).
We recognize s. 319 (2) of the Criminal Code, not because they are a command exerted upon us by the sovereign, and not because we recognize we are obligated and enforced to obey the law and thus accept it as valid. We recognize it as law because it is connected with external morality. It is socially harmful and immoral for society to allow individuals to express hate speech against members of a disadvantaged group. The view that intentionally causing harm to others is immoral is shared by members of Canadian society and is reflected in other areas of law, such as tort law, in addition to other provisions in the Criminal Code. Hate speech is clearly and action that is inherently immoral, which makes it very difficult to separate morality and law in this sense. Keegstra should be compelled to obey s. 319 (2) of the Criminal Code, not because he is compelled to do so by the fact that others follow this law and recognize themselves as obligated to do so, but because it is inherently immoral to elicit hate speech against a targeted group. Other members of Canadian Society recognize this as good, and Keegstra should share this view. The tension lies in the fact the Keegstra’s views of what is “immoral” do not coincide with the rest of society.
2. The Law Itself has an Inner Morality
Lon Fuller thinks of lawmaking as a purposeful activity, the function of which is to produce good order, or in fact any order at all. There is something intrinsic to the nature of legal systems, such as coherence, rationality, consistency, the requirement that law be known, and capable of explanation, which tends towards internal morality. A law must possess these characteristics in order to function.
The purpose of law is to produce order, and to be effective in doing so it must conform to these internal requirements of law’s inner morality. When these are missing, “law” does not act like law and is something else. There are certain “qualities”, according to Fuller, which a law must have in order to be valid. Although it seems obvious that a provision in the Criminal Code, a statutory enactment that has been present for many years, would meet the requirements of a “valid” law, a closer look at Rex’s story at the end of this submission may enlighten us as to otherwise.
3. Immoral Laws Cannot Actually be Explained by the Separation Thesis Lon Fuller states that the Positivist’s separation thesis does not provide an adequate explanation of the dilemma between the duty to obey the law and the moral duty not to obey immoral laws, and cannot provide a coherent theory of when one is obliged to follow one over the other. Hart would say that the dilemma would result in the individual balancing morality with an “ought” claim. The positivist response that some laws are so immoral you do not need to follow them is no answer at all.
Hart would argue that Keegstra may not have to obey s. 319 of the Criminal Code if it is so immoral it need not be followed. It is still a valid law, however, its departure from morality may mean that Keegstra can disregard the “ought” claim and choose not to follow the law based on its immorality. Lon Fuller, on the other hand, would say that if s. 319 of the Criminal Code is not to be obeyed, it is because the law is invalid because it lacks the characteristics of a valid law. This is much more consistent with our current system of law in Canada. Individuals are not permitted to follow the law because their moral claim trumps their compulsion to follow the law. Rather, they are only bound not to follow it if it is found to be invalid and thus struck down for various reasons. One of these reasons, which was discussed by Lon Fuller, is consistency. If s. 319 of the Criminal Code is inconsistent with Canada’s supreme law: The Charter, it will be invalid law.
Fuller attacked Hart’s separation thesis, which claims that law and morality are separate, and instead Fuller argued that people accept laws because they believe they are morally good and will produce a good order in society, which is known as external morality. Therefore, for him morality was the foundation of law in society, and furthermore, the purpose of lawmaking is to produce good order, and harmony which Fuller considers to be the inner morality of the law which gives every law its structure. The role of judges for Fuller was to adopt a purposive interpretation of legal rules, by considering the good for which the law was created, in reference to the inner and external morality of the law.
The Core and the Penumbra- Positivism and fidelity to law - reply to Hart
According to Fuller, there is no core of settled meaning, and therefore no penumbra. Law is always interpreted in context, and with reference to the purpose of the rule and the good it was to accomplish. Judge’s fidelity to law includes making law what it ought to be. Law is a collaborative effort toward this end. Just as the Nazis failed in their duty to the law, Keegstra failed in his duty to the law because he was opposing the good the law is to accomplish.
Fuller’s famous example of a businessman falling asleep in a train station while waiting for a train versus a homeless person sleeping in the station through the night exemplifies this concept. Judges have to make a decision about what is actually prohibited based on the context. There is a core of meaning on what sleeping means, but what is more important is the context and how it relates to the goal of the legislation. The importance to context to judges’ reasoning was on display in Keegstra, where it was held that a classroom of young children was an especially sensitive environment for hate speech. Context played a large factor in determining the outcome of this case.
Lon Fuller says that the fear of morality assumes that you may take a bad idea and express it as a law in the same manner as a good idea. Therefore, if one tried to take an evil racist idea and express it as rational law, it could not be done. Even if a bad idea comes into the law, the legal process will work to improve it in a justification process. This is seen in Keegstra when the s. 2(b) right to freedom of speech is used for bad. Keegstra’s racist and hateful ideas take advantage of the right to freedom of speech. However, this abuse of freedom is reigned in by s. 1, thus supporting Fuller’s theory that the legal process works toward improvement.
According to Fuller, laws are always interpreted according to the purpose they are intended to have, both on an individual level and with regard for the larger purpose of the legal system. There is no core of settled meaning and therefore, there is no penumbra, therefore, laws are always interpreted in context and with reference to the purpose of the ratio and the good it was set out to accomplish. The `hard cases` are those in which the purpose is uncertain, or competing purposes are in play. Interpretation of the law will refer to external morality and inner morality. In Supreme Court cases, there will often be conflicting purposes, as either side will want to choose the purpose that is more consistent with the end that they are trying to achieve. In Keegstra, the purpose of s.319 was characterized as being to restrict the content of expression by singling out particular meanings that are not to be conveyed. Following this purpose, the judge determined that s.319 overtly seeks to prevent the communication of expression. If this purpose was characterized differently, the judge may have arrived at a different conclusion regarding whether s. 2(b) was violated.
The judge`s fidelity to law includes making law what it ought to be, though carrying out this duty; it is a collaborative effort towards this end that requires multiple players in the legal system.
Fuller claims that `when men are compelled to explain and justify their decisions, the effect will be to pull these decisions toward goodness.`
The first part of the Oakes test asks whether the legislation relates to concerns that are pressing and substantial, which in this case asks whether harm is caused by expression that promotes hatred against an identifiable group. Dickson separates this harm into two categories, (1) harm done to members of the targeted group, and (2) The influence on society at large. He is appealing to both the inner morality and the external morality of the law in the sense that he is considering individual interests and interests on a larger level of society as a whole. It will have a negative impact on society at large because prejudiced messages have the possibility of gaining some credence when they are communicated to society and therefore, society may actually believe them, which can result in violence against minority groups. Dickson has used Fuller`s concept of external morality to assist in justifying the violation of freedom of expression by s.319 of the Criminal Code. Using this basis, he determines that parliament`s objective in enacting s. 319 is of utmost importance.
Moral Foundations of a Legal Order
While for Hart, law-making authority rests on the general acceptance of fundamental rules that outline procedures for creating laws, Fuller argued that Hart neglected to discuss how law and morality interact to influence why people accept those fundamental rules. The idea of fidelity to law is that people accept rules because they believe they are good, so Fuller gives the example of the Constitution, and how in order for it to be successful in governing a population it must be accepted by the masses as a good law, that is necessary. In our case, the Charter is a part of the Constitution, so the freedom of expression outlined in 2(b) is accepted by people because they believe it is a good law. In order for legislation, such as the Criminal Code to override the fidelity of law that is part of the Constitution, people must believe that it will create more good than harm. It could be argued that Fuller would perceive s.319 of the Code as aimed at creating harmony and a positive social order in society by not tolerating forms of expression that discriminate openly against others in public. Although s.2(b) can be seen as a provision similarly aimed at promoting good, if Keegstra’s freedom of expression was allowed to flourish at the expense of the good of society, s.319 would have been upheld under s.1 of the Charter as a reasonable limit in a democratic society . Fuller’s principle of fidelity of law identifies why people should obey the law, by looking at the social good which it serves and its morality, as opposed to Hart’s fundamental rules which only identifies people’s acceptance of the law as separate from morality.
The Moral Implications of Legal Positivism
Fuller explored whether legal positivism, influenced or helped the Nazis to gain power in Germany, by separating law from morality and focusing on law for law’s sake. He argued there was no fidelity to their laws, because they lacked an inner morality since they were not aimed at a good, and judges themselves did not follow the rules in crating laws, thereby devaluing the structure of the laws. Fuller would argue that the Oake’s test is essential to the inner morality of the Constitution, by ensuring that laws which violate principles in the Charter will only be upheld if they are enacted for the greater good of society, and if the means used by Parliament to enact the law are proportionate to its effects which in in our case is a violation of freedom of expression. Fuller would uphold s. 319 of the Code as a reasonable limit on people’s freedoms because the law has both inner and external morality.
"Internal- morality of the law"
Fuller argued that a law is incomplete without its internal morality, which gives it its structure and purpose which is aimed at producing a good social order. The more a system of law embraces inner morality, the more effective it is, and the external morality of law and internal morality interact influence one another. This is the idea behind the fidelity of the law. Fuller would view s. 319 of the Code as having inner morality because it is aimed at limiting forms of expression that are hateful against members of society, and is effective because it has penalties and is clearly articulated. He would also view the Charter provisions as having an inner morality because they too are aimed at creating a positive order in society. By looking at the reasons why s. 310 was enacted, it is clear that Fuller would understand why it should take precedence over allowing people to express themselves regardless of the content of their message. Eight ways to make a law Fail (Rex’s Story)
Lon Fuller’s story of Rex the king is an allegory of how a legal system fails in the real world. Following even one of these examples would disavow a system of law from genuinity.
- 1. Rex made ad hoc decisions for the law and did not set forth a system
- 2. Rex had a system of rules but did not make them public
- 3. Rex would make some actions illegal after they had been performed
- 4. Rex made the laws incomprehensible for which the public could not understand
- 5. Rex’s laws contradicted themselves
- 6. Rex’s laws were impossible for everyone to obey such as making sneezing illegal
- 7. Rex’s laws were changed rapidly and made it impossible for the public to adjust their behaviour to fit them
- 8. Rex’s laws were not administered in a way consistent with how they were announced
As a form of common law, Canada is constantly amending laws in regards to new issues and cases. While these laws are changing, it is a slow process and can only go so fast in establishing weaknesses and contradictions within itself. We analogize Rex’s story to the Keegstra case in the following ways:
The fifth failure in Fuller’s list, enacting contradictory rules, is the one that stands out as most prevalent. S. 319(2) of the Criminal Code makes it an offence to “promote hatred against an identifiable group”, which seems contradictory and infringes section 2(b) of the Charter which says everyone has the freedom of thought, belief, opinion and expression. So, section 2(b) protects all freedom of expression and s. 319 (2) attempts to limit content of expression.
Fuller may think that both the Charter and the Criminal Code should not be law because they are inconsistent. Therefore, the s. 319 of the Criminal Code could be declared to not to be law at all. It is inconsistent with already established law, the Charter of Rights and Freedoms, which is the supreme law of Canada. However, Fuller would most likely allow the contradiction because of internal morality. Also, internal morality that generates good order is okay in Fuller’s opinion. Most people would agree on s. 2(b) overruling s. 319(2).
Section 1 in Canada’s Charter of Rights and Freedoms seems to predict contradictions and sets out a plan to deal with them. It allows a contradiction to be justified if there is a pressing and substantial objective and it is proportional. Fuller did not consider the reasonable limit under s.1 for a contradiction between two statues. The Charter guarantees people’s rights and freedoms, but only to, “reasonable limits.” This is why s. 319(2) of the Criminal Code took precedent over s. 2(b). Fuller did not have the luxury of s.1 when he was theorizing, but it is apparent his perspective on the issue would have been no different. Section 319(2) should still rule as a valid law and Keegstra should have been convicted of hate speech.
Section 52 (1) of the Constitution shows another aspect of this issue. This section of the Constitution gives the courts the power to rule that a particular law is not valid if it violates the Charter, which is itself part of the Constitution. While section 52(1) is not part of the Charter, it provides courts with an important power to strike down laws that violate Charter rights. If only part of the law violates the Constitution, only that part will be ruled invalid. This is similar to Fuller’s position that inconsistent laws can be no law at all. Therefore, section 2(b) of the Charter would be struck down because it is inconsistent with s. 319(2).
Law as a System of Rights - Ronald Dworkin
Reference Book: Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto: Pearson Prentice Hall, 2002).
Ronald Dworkin criticized H.L.A. Hart’s legal positivist theory, and instead stated that law “in not merely a system of rules but also principles”, and furthermore there is no separation between law and morals (Dimock, 235). Dworkin countered three of the key points of Hart’s legal positivist theory:
Firstly, Dworkin disagreed that law is a set of rules defined by a master rule, like Hart’s rule of recognition, and instead he views law as including both rules and principles, the latter being outside of the notion of master rules. Secondly, Dworkin argued that Judges should not use their discretion to decide hard cases, for which no precedent rules exists, but instead should use principles to guide their decision making. Thirdly, Hart stated that rights and obligations are the outcome of legal rules, and without a legal rule to apply to a novel case, no party can win unless judges use their discretion. For Dworkin, even if no rule exists to be applied to a particular case, Judges can refer to principles to come up with a right answer (Dimock, 236).For Dworkin, principles include notions of fairness and justice, and they are a part of the law as opposed to an external standard.
Policies, Principles, Rules
Dworkin differentiated between policies, principles, and rules. He saw policies as the social goals legislators pursue to benefit a segment of the population, while principles are notions of justice and fairness that judges used to decide hard cases. Furthermore, rules are “all or nothing” in the sense that they establish what is required for something, such as to have a valid contract, and include some exceptions to the rule as well. For Dworkin, the Charter of Rights and Freedoms codified principles in our society, such as freedom of expression, which can be overridden by more important principles as per the Oake’s test under section 1 of the Charter. In contrast, the Criminal Code establishes rules which are used to limit people’s freedoms and establish order in society. Rules, in turn are established through policies which Parliament deem important, and in our case s. 319 was established in order to prevent individuals from spreading hateful statements in society, thereby increasing tension among groups and isolating people based on their backgrounds, whether they be ethnic, or cultural, or social. He also viewed principles as binding, similar to rules.
“Law as Integrity”
Dworkin established the system “law as integrity”, in which judges interpret past decisions and link them to present cases by presenting the law in the best possible right, and interpreting people’s rights in terms of the principles of justice, fairness, and procedural due process. By viewing law as an ongoing story, the law is portrayed by Dworkin as a narrative constantly being updated by Judges.
Application: R v Keegstra
According to Dworkin, section 319 of the Criminal Code is a rule, but it does not decide the issue in our case since a violation of a principle of the Charter can be only be upheld under section 1 if there is a more pressing legislative objective or policy reasons for enacting it. Not only do the principles in the Charter have to be evaluated, but the policy reasons behind enacting the Criminal Code provision have to be considered in light of evaluating the prohibited action of promoting hate speech. Most likely, Dworkin would perceive the policy behind the Criminal Code provision, as relevant and would want judges to evaluate it in relation the Charter freedom which it suppresses, in terms of fairness and whether enacting s. 319 would promote equality of treatment in society.
Section 2(b) of Charter embodies the principle of freedom of expression, so although the Criminal Code provision prohibiting hate speech is a violation of this Charter principle, it fulfills the overarching policy principles of the Charter provision which is to promote dialogue in our society by not inhibiting forms of expression based on their content. The policy for enacting s. 319 corresponds with the policy for enacting freedom of speech, since Parliament was seeking to ensure constructive dialogues in society, and not allow types of speech that intimidate others from expressing their opinions. If Keegstra would have been allowed to make those hateful statements without being punished, it would have violated the policy behind both the s. 2(b) of the Charter and the Criminal Code provision, and would have upset the notion of law as integrity since Keegstra’s rights would not have corresponded to the policy reasons. The only difference between the policy considerations of the Criminal Code provision and for enacting a freedom of expression section in the Charter, is that the Criminal Code is aimed at limiting freedom of speech based on its content, whereas the s. 2(b) of the Charter is aimed at promoting expression regardless of its content. Although, s. 319 was found to violated section 2(b) of the Charter, it was upheld under section 1 as per the Oak’s test because the overriding policy behind it was to promote social harmony and order as well as fairness, which is also in accordance with policy considerations that judges must consider.
In order to determine whether section 2(b) was infringed in our case, the two part test from Irwin Toy was used which included the following: 1) Identify whether the activity falls under freedom of expression, by looking at whether “it attempts to convey meaning” (397), so the content is not important, but only the form, 2) determine whether the purpose of the legislative action is to restrict freedom of expression. Section 319 of the Code meets both parts of this test, and Dworkin would view a violation of section 2(b) as a threat against the policy behind enacting it which was to encourage a diversity of opinions regardless of how contrary they were, because in a democratic society freedom of opinion is encouraged. The Charter embodies principles which protect group and individual rights, and the Criminal Code enacts rules which are influenced by policy reasons, and aimed at promoting the rights of society as a whole. In our case, the principles of the Charter can be overridden under s.1 of the Charter, which allows the legislation (policy) to stand despite contradicting fundamental principles, which can potentially include freedom of expression. Dworkin might argue that policy cannot override the principles of justice and fairness in our society, but they could potentially take precedence over other principles such as freedom of expression, so long as the policy considerations behind the enactment of the Code, correspond or are not in conflict with the policy considerations for enacting section 2(b). Dworkin does not discuss what would happen if policy considerations were to conflict with each other, in terms of which one would take precedent, but he would likely state that the principles of justice and fairness would dictate which policy consideration would most likely fulfill those principles the best. The state’s policy for enacting the s. 319 was aimed at promoting the goals important in our community, which include cohesions and free exchange of dialogues free from fear of oppression, and the Oake’s test was used in our case to justify its application at the cost of violating a Charter entrenched freedom. If Keegstra was permitted to speak his mind while being employed in the public function of a teacher, the interests of a minority of people such as himself would have been promoted at the expense of the majority in society who desire an open and functional exchange of ideas.
Liberty & Paternalism - John Stewart Mill
According to Mill’s harm principle, the liberty or freedom of individuals can only be restricted by the state in order to prevent significant harm to others. This is in part because liberty is seen as one of the founding principles of a democratic society, and as such, a high threshold has to be met in order to justify interference with it. Our textbook also lists three other reasons for interfering with people’s liberty, which is not supported by Mill, and they include: 2) paternalism-preventing people from harming themselves, 3) legal Moralism-preventing others from doing things which conflict with values of the majority in society, and 4) the offence principle-preventing other from offending people in public spaces whereas in private spaces it may be justified (Dimock, 303).
The Charter of Rights and Freedoms codifies people’s liberty and as per section 1, only allows the state to interfere with one’s rights if is subjects them to “such reasonable limits by law as can be justified in a free and democratic society”. Mill would argue that in R v Keegstra, section 2(b) of the Charter, guaranteeing freedom of thought, belief, opinion and expression, could only be interfered with by the State through legislation or action, in order to prevent harm to others. It is probable that Mill would likely approve of section 319 of the Criminal Code, which makes it an indictable or summary offence to communicate statements that “wilfully promotes hatred against an identifiable group” in society, other than in private conversation, because although it interferes with section 2b, or one’s freedom of expression, it does so for the purpose of preventing harm in society.
It would be interesting to ponder if the kind of harm Mill had in mind, was more likely to be physical violence, or could encompass emotional and psychological harm, since Keegstra polluted the minds of his students with false statements about Jewish people, which could constitute psychological and emotional harm, but it is questionable if this would have resulted in physical violence in society. However, Mill was of the view that “if anyone does an act hurtful to others, it is a prima facie case for punishing [them] by law,” and Keegstra violated the Criminal Code provision by making statements in an arguable public space, such as an educational facility, as opposed to his own house, so this would justify the state interfering with his liberty, and punishing him (Dimock, 307). In our case, the Cohen Committee found that hate propaganda causes minority groups to feel isolated from the majority, and “causes sufficient harm to justify legislative intervention” since people may be inclined to act violently against groups they perceive as being “bad” as a result of false statements being made Dimock, 398).
Mill identified three kinds of liberties as existing: 1) liberty of consciousness, which includes liberty of thought and opinion, and is encompassed in section 2(b) of the Charter, 2) freedom of taste to live as one likes as long as it doesn’t harm others, and 3) freedom of assembly. Mill also stated that everyone’s opinions should be heard, and no one should be silenced since it is through adverse opinions that truth is discovered (308). Mill would have allowed Keegstra to express his opinions about Jewish people in a private setting, as long as it was not presented in public educational settings which have the possibility of creating stereotypes in society, which can lead to harming others as opposed to harming one’s self.
The purpose of Parliament enacting s. 319 of the Criminal Code reflects Mill proposition that in exchange for society protecting its members, people must engage in conduct that does not harm others, and also bear cost of protecting others from injury (Dimock, 311). So, when a person’s behavior negatively impacts others, society has the right and obligation to interfere with the person’s freedom, however if their behavior only affects themselves and no one else (constructive injury), society cannot interfere. Clearly, Keegstra’s teaching content negatively affected the opinions of his students with regards to Jewish individuals, and since his statements were not based on evidence, but on stereotypes, the state had an obligation to interfere with him. It is implied that the school which employed him would have likely also interfered by reporting him to authorities, and Mill would have seen this as one of the duties that each member has in society, which is to prevent harm to others. Mill acknowledged that when the majority in society interferes with the freedoms of individuals, they are likely wrong because they follow their own version of morality, but most of the time they will be right and justified. However, this differs from the majority interfering with the freedom of minorities, since in those situations they are likely to be biased in evaluating their behavior based on their own values and notions of justice.
In our case, the State interfered with Keegstra’s freedom of communication by enacting s.319 of the Criminal Code, but they enacted it with a view to place a limit on the majority of people’s behavior so as to prevent social disharmony from ensuing. On the facts of Keegstra, Mill would not punish Keegstra for the words themselves, but because of the fact that his words are harming the children’s development. The provision prohibits hate speech in public because it is recognized by the legislature as socially harmful behavior that promotes hatred, alienation of minorities, and a dysfunctional society. If hate speech only affected the person doing it, Mill would not justify interfering with an individual’s freedom, since past childhood, restrictions should not be placed on people’s liberty beyond preventing harm to others.
Mill stated that justification of infringement of liberty may no longer be as necessary as it was in the past because we now have authority delegated by the people, which creates a unity of interest between the governing and the governed. Originally, the concept of liberty referred to protecting people from the whim of political leaders. Section 319 of the Criminal Code is enacted by the state and therefore can be seen as the state imposing the law on Keegstra through the power of majority rule, and s.2 (b) of the Charter can be seen as preventing the problem of tyranny of the majority by making elected bodies subject to the Constitution. The overarching societal purpose of the Criminal Code provision was to prevent harm to society, and as such it was upheld. Similarly, Mill would view section 2(b) of the Charter as a right which can only be interfered with if it harms others, and clearly hate speech was demonstrated to be harmful as per the Cohen Report, so an infringement of the freedom of expression could be interfered with as per the Oak’s test since preventing hate speech is a pressing social goal, the means of which is proportional to achieve the goal.
Gerald Dworkin’s notion of Paternalism is in contrast to Mill’s Harm Principle, since the former stated that interference with individuals’ liberty can be justified in some cases if it is aimed at preventing harm to one’s self, so preventing harm to others is not the only goal for which the State can interfere with people’s liberty. He argued that the state can help people pursue their own goals by interfering with their liberty. In our case, Keegstra was not harming himself by making anti-Semitic statements, but instead was causing harm to children whose minds were still developing. Therefore, Mill’s Harm Principle would be more applicable than Dworkin’s to justify interference with person’s freedom of expression, if it causes harm to others.
Law and Economics: Law as Efficiency
Canada adopted s.319 of the Criminal Code to prohibit hate speech, which clearly violates the s. 2(b) freedom of expression. The cost of recognizing a right to freedom of expressing hate speech has been deemed too high for society to bear. The alternative would be to treat the rights as absolute and indefeasible.
Economics and criminal law intersect at three different points. First, it is crucial to ask when it is efficient to use criminal sanction as opposed to other forms of behaviour control. It is arguable whether hate speech be made criminal or it should be regulated in another way, such as in torts.
Next, it needs to be determined what overall expenditure on crime control and what distribution is most efficient. When deciding on this issue, one must ask what the probability of a given crime is and multiply it by the loss that would be suffered from the crime occurring. Only if the cost of preventing the crime is less than the cost of suffering it should be use criminal law. In the case of statements that willingly promote hatred against an identifiable group, the probability of this crime occurring is not extremely high. There are many exceptions embedded in the provision, such as requiring that it is spoken in public, along with the four defences outline in s.319(3)(a-d). This is not a common crime, when compared to more minor offences. The loss that is suffered by the crime occurring is substantial. There is a massive loss suffered, not only by the identifiable group who is affected, but by society as a whole. Jewish people as a whole suffered greatly from the statements made by Keegstra, which insist that one of the most horrible events in history and certainly in the history of their faith never occurred. Humiliation and degradation of their faith diminishes their sense of human dignity and belonging to the community at large. Even more vast is the loss to society through promotion of hatred against an identifiable group. Individuals can be persuaded to believe almost anything; young students are particularly susceptible when it is a professor, who is seen as a mentor, who is communicating these statements. Prejudiced messages will be likely to gain some credence, resulting in discrimination against minority groups.
Lastly, it needs to be asked what level of enforcement will induce compliance with the law. The offence of public promotion of hatred is a hybrid offence, punishable by way of summary conviction (s.319(2)(b)) or indictable offence with a maximum two year prison sentence and no minimum (s.319(2)(a)). Penalties must be set at an efficient rate to fulfill their function, one of which is deterrence. This penalty is efficiently set because as a hybrid offence it gives the judge more deference in deciding an appropriate sentence. The nature of the crime is such that it could be on a less serious scale, or more serious scale. Although it sets a maximum penalty, two years is sufficient to deter people from committing this crime.
R. v. Keegstra exemplifies the concept of pareto superiority. In this case, one state of affairs (Keegstra being banned from teaching) is better than another (Keegstra retaining his right to teach), because more people are better off. Far more people are better off in society when hate speech is disallowed. This case is an example of a win-lose situation, but since the good for the majority of society far outweighs the bad for Keegstra, there is an overall net-increase.
Regardless of the loss of one individual, efficiency is concerned with upholding the good of society as a whole. In this situation Keegstra is worse off. This may be inconsistent with pareto-optimality, which requires that at least one person be better of, and no one be worse off. However, there is still efficiency due to the value to society in removing hate speech, From a global perspective, and a pareto-superior position perspective, this is efficient.
Externalities are a problem for the law and economics theory. According to the rational-man theory, the rational man will never choose loss for which he is not compensated. However, third parties are often affected by externalities that result from transactions between two parties. The Kaldor-Hicks test explains this transaction as efficient if the overall benefit of the transaction outweighs the cost to the neighbours affected. The law works to require compensation for the parties not involved in the transaction. In Keegstra, Keegstra should be forced to compensate for the negative externalities his hateful words create. At the conclusion of the case, he is forced to compensate by being restricted from teaching. This is a different type of compensation than a manufacturer paying neighbouring businesses for the pollution the manufacturing plant is causing, but it compensation nonetheless.
The question that must be considered is whether the competing values in issue, s. 319 of the Criminal Code, and s. 2(b) of the Charter, give the greatest value to the greatest number of people and produce the most efficient outcome. We must consider the freedom of speech for the individual as against the social costs of upholding this guaranteed right, not only for minorities, but for society at large who suffers costs and damage as a result of Keegstra’s hateful exercise of his freedom of speech. It is efficient though s.1 of the Charter, to regulate Keegstra’s freedom of expression.
One alternative to using criminal to punish people for speaking hatefully is to sue through tort law. If people who do not take reasonable caution to avoid harming others do not have to pay for the harm they are creating, the creation of harm is artificially encouraged. This is an inefficient outcome. Tort law would achieve the objective of compensation. If individuals had the ability to sue in civil action against a person who incites hate speech against them, this would allow these individuals to be compensated. However, indeterminate liability problems would arise because every Jew would be able to bring suit. Tort law is concerned with addressing private wrongs against the individual and compensating them for their individual losses. The reason the hate speech provision is in the Criminal Code because it is a danger to society. Criminal law functions to protect society as a whole from the actions of the person communicating hate speech by making it a criminal offence. It deters individuals from committing crimes like this in the future.
Another aspect of tort law is vicarious liability. The School Board benefitted from Keegstra teaching for them, and therefore should internalize the costs of teachers speaking hatefully. This is similar to the Mary M v. City of Los Angeles case, where it was held that the people of Los Angeles should take responsibility for the actions of an officer who committed sexual assault because the people overall benefitted from the police force. Criminal law protects interests that we see as inalienable or vitally important and individuals will be willing to pay substantial resources for that protection. Having an organized criminal law system with centralized enforcement mechanisms is efficient in itself due to economies of scale; if individuals were left to provide their own protection, they would achieve their end less effectively but at the same cost. Protection against crime, which encompassed the protection of individual rights is a good attainable only collectively.
In Alberta, the School Board should internalize the cost by creating a more thorough screening process for professors they hire. It may increase transaction costs in the short term, but would benefit society as a whole overall and be efficient. The Board could also create a policy that encompasses prohibition of hate speech by teachers. This would address the problem in relation to teachers communicating hateful statements to students, however it is much more narrow. The Criminal Code allows the issue to be addressed on a federal level, which is much more efficient because it is relevant to society as a whole.
The coase theorem states that where transaction costs are low and neither party engages in “strategic” distorting behaviour and where information is “perfect”, individuals will reach efficient results by behaving as if each had compensable property rights. Rights are generally conferred and recognized to an extent that this is efficient. Anti-hate speech legislation violates rights of freedom of speech, but many would argue that allowing Keegstra’s rights of freedom of speech to prevail would be inefficient because of the social cost his speech brings.
Feminist Jurisprudence: Law as a Patriarchal Institution - Catherine MacKinnon
Patricia Smith, Law as a Patriarchal Institution Catherine A. Mackinnon, Law as a Male Power
Feminist jurisprudence has different variations but agrees over two central themes: 1) The world is structured by patriarchy; the systematic and systemic domination of women by men; and 2) Patriarchy is bad for women, morally unjustified, and ought to be eliminated. It saturates our world from when we are born, so we do not recognize it as a structure to achieve a goal. It appears natural. The patriarchal system is relevant to R. v. Keegstra because for centuries we did not recognize that there was anything wrong with hate speech. Only in the 20th century did we realize that racism and hate speech is wrong and hurtful for society. Just as men pretend as though the patriarch is natural, caucasian men pretended for years that race superiority was completely natural. It was ingrained in society so thoroughly that it was difficult to distinguish.
In Keegstra, Jewish people are being demoted as a race. There is harm done to the minority group, in this case Jewish people. This is analogous to what feminists say is being done to females. Females are oppressed, but it is made to look natural. Many people believe it is natural and the proper order of society because they have grown up in the patriarchy, and therefore know no different. The young students taught by Keegstra in the classroom would also grow up to think hateful thoughts about Jews are completely normal.
Classic liberal feminists maintain the core idea that subordination of women causes blocks to success in public spheres. They think that as soon as these blocks are removed, there will be equality. Modern liberal feminists recognize the significance of informal discrimination such as stereotypes and requirement for re-organization of domestic life to provide realistic and attainable opportunities for public participation. In short, they think there is more than just blocks standing in the way of females. This is analogous to Keegstra in that some people would say we should remove the blocks to racism. They argue that as soon as we stop seeing different races, everything will be fine. More modern theorists put forward the view that we should not pretend there are people in our world that do not view race the way Keegstra does, and that we should provide opportunities for people of all races.
The feminist perspective, like legal realism, challenges a number of core, traditional legal values and characterizes them as pernicious falsehoods, constructs of the patriarchy that render the inequality of men and women both invisible and legitimate.
One of these principles is the neutrality of law. The feminists argue that law can never be neutral or objective. It always takes the side of the more powerful in society, those who are aligned with the patriarch; most notably wealthy, Caucasian men. Judges in reality may not make decisions align with the patriarch, however, the decisions they make are not always objective or neutral. It is clear that perspectives and backgrounds of judges come into play when they are making decisions, which affects the outcome of the decision. Ultimately, some judges individual perceptions will come into play and the law can never be completely neutral. Patricia Smith may argue that freedom of expression as protected under s. 2 (b) of the Charter is a veil behind which white, male, dominant views prevail and are used to justify making statements in society regardless of their content and the consequences they might have on minorities or groups that have been discriminated against. Smith might view s. 319 of the Criminal Code as necessary check on the unlimited freedoms of expression, with regards to content, that are protected by s. 2 (b). The fact that Keegstra was a male using freedom of expression as a tool to justify spreading false information about Jewish people, a minority group,can be construed as reinforcing the idea of law as a patriarchal institution that is used by the majority as a means of exercising their biases.
Another principle is the model of judicial reasoning as logical deduction. Lon Fuller believed that judicial reasoning is a superior, logical way of thinking and if you do it properly, you will achieve the right, and fair and just, outcome. Feminists disagree with this proposition, claiming that judicial reasoning is really a way of advancing the interests of the powerful in society, to align with the patriarchy. The dissenting judgement in R. v. Keegstra could be seen as pretending to achieve a just and fair outcome and promoting freedom of speech, but feminists would maintain that the dissent was really trying to maintain the patriarchal hierarchy in society.
The fact that Keegstra was a teacher in society could be evidence of the fact that the law is trying to decide in favour of him as part of maintaining the hierarchy in society. Keegstra was the Mayor of Red Deer, Alberta before he was a teacher. He is a caucasian male and held a position of power in society. He is using his position of power to influence the system and reinforce the patriarch.
Another idea is the separation of law from morality. Feminists say that law pretends that it has nothing to do with morality, but really, it is enforcing the morality or patriarchy. This is similar to the facts of Keegstra. Keegstra would pretend that the lessons he was teaching the students about the Holocaust have nothing to do with morality and that they were just facts. Many others, however, would say that by teaching these lessons to the children, he was in fact enforcing the twisted morality of the patriarchy and those who viewed Caucasians as superior.
Feminist perspectives resonate closely with legal realism in that they challenge a number of core traditional legal values. Feminist characterize them as falsehoods and constructs of patriarchy. The well-known Miller v. Jackson cricket case in which Lord Denning ruled was a great example of legal realism. He used “judicial reasoning” to achieve a certain end. He wanted to privilege a certain group of people, and he was able to do so in his position of power.
Critical Legal Studies and Critical Race Theory - Raymond Wacks
Race is real and exerts power as a social and cultural reality that racialized groups are compelled to live with and live out.
Critical race theory sees race as non-natural, but a social construct, or an "invention" of the englightenment period. Critical Legal Theoriests see the critical feature of the legal structure as being the protection and maintenance of the powerful in society. The theory looks into the reason why social constructs such as separation of race in society exist.
In application to R v. Keegstra, Jewish people are both a race and religion that has been subject to historical disadvantage. Such perpetuations of hate are likely to be seen as deplorable. Critical Race Theorists acknowledge the deep-seeded discrimination in the Canadian legal system. However, there are measures in place slowly taking Canada towards the recognition of racism in society and the need to combat it- including holding Keegstra liable for his promotion of such hateful expression.
The Nine Themes of Raymond Wacks
To see how Raymond Wacks might decide the Keegstra case, it is important to look at his theory.
1. Critique of liberalism
Dworkin would see Keegstra as a liberal rights bearer and the law’s job is to enforce his right of free speech. However, CRT would see this as completely false. The Charter is said to embody the underlying values of individuals in society, however these values may not be those of every individual. Raymond Wacks may decide that the Charter embodies the white male who is in power as the basis for deciding what rights and values are central to members of Canadian society. By pretending these rights are universal and not looking to the history of the disadvantaged people,Canada is only perpetuates the view that the white male is the only word of law. Keegstra was the major of Eckville Alberta prior to his prestigious occupation as a professor. It is especially interesting that Keegstra himself embodies the typical individual of power in society. McLachlin's dissenting judgement holding that s.319 cannot be upheld under the s.1 analysis is consistent with maintaining the power structure in our society. Wacks would say that McLachlin is using the Charter, which encompasses the values of the powerful in society, to uphold Keegstra's freedom of expression, to the detriment of a disadvantaged minority group- the Jewish people.
2. Storytelling (importance of subjective accounts of racism)
It is important for Jewish people to tell stories of their historical disadvantage and the harm and torture they endured during WWII. Keegstra took advantage of their learning position to place subjective stories, which were completely untrue, promoting his hateful views onto the students. Learning is largely done through use of stories and by denying the holocaust, Keegstra continued to perpetuate false truth and enforce the negative perception that some people may have for the Jewish race.
3. Revisionism (questioning the “accepted/official story” about anti-discrimination laws)
S.319 of the Criminal Code could be seen as a form of anti discrimination law, however it is not effective in eliminating the roots of the discrimination, it is only a reactive approach. However, there may be a deterrent effect in having the provision in place.
4. Understanding race and racism as social, cultural
The Jewish race has been disadvantaged socially based on past events. A social construct has been created through certain individuals beliefs and stereotyping.
5. Structural determinism: how does structure of legal concepts (as objective, rational, impersonal) influence its content (in support of status quo)?
Courts are needed to create a country free of racist behaviour. People who perpetuate such hate are punished as a means of deterrence. While freedom is important in a democratic country, multiculturalism is also important. Balance must be made and social practices that enforce damaging stereotypes add nothing to society. They should not be the status quo in any way, shape or form. Equality is challenging to promote where people are socially constructed automatically in society’s mind. It is therefore important that hate speech is persecuted where it exists.
6. Intersectionality of race, gender, class
The case of Keegstra looks at how a white male teacher chooses to promote the negative view of Jewish people to his high school students. How the teacher or students intersect with the Jewish people is not established, but by promoting negative images of them diminishes the steps taken to stop racist behaviour and promote equality.
7. Anti-essentialism: no (essential) “black community” (many communities, identities, perspectives)
Social constructs cannot cover all people of a race as oppression differs for each person. This is especially true for sub groups, such as Jewish women or impoverished people of the same race. Does not directly apply to the Keegstra case as he spoke of the whole population.
8. Cultural nationalism: are racialised minorities best served by separating from the majority, building separate structures?
Racialised minorities are not best served by separating them from the majority, although Wacks suggests this as a possible solution. This creates a nexus of tolerance as people are more likely to fear what they do not know. By promoting hate speech, segregation is created, directly or indirectly. This is why hate expression is something that has no redeeming qualities and should be punished.
9. Legal institutions: examining reasons why racialised minorities are under-represented in legal practice and education? This is not applicable to our case.
While this theory has several intersecting factors with the Keegstra case, it also proves ambiguous to the legal side of the issues. While CRT believes that historical racism has an ongoing resonance in contemporary law, it is likely that Wacks would be pleased that an offender perpetuating such hateful stereotypes actually receive punishment for doing so. It is likely he would agree with the Supreme Court and find the limitation of Keegstra’s expression as justified and an important step in our legal system.
Critical Race Theory versus Feminist Theory
The current system favours the status quo and hierarchy as established- both theories push for a change in this respect. These two theories intersect quite well, each dealing with the disadvantages of a marked grouping of people. Each theory has a unique perspective and operates within the bigger perspective of law, namely that made by a white male. Women are not one homogenous group but differ by race, religion, class etc. and it is clear that feminist theory would push for the eradication of discrimination in any form. Where feminist legal theories would mainly want a different standard than to be compared to than a man, critical legal theory is the exact same but with a white man. The white male truly is the status quo and who the law operates for, at least in the eyes of these theories. White males have been long known to be less discriminated against in almost every way. Could this be a factor in the Keegstra case? While there is no evidence that he was able to say what he did because he was a white male, he had expressed his hateful expressions for several years before any of his students came forward. This may suggest his place in society influenced how people saw him and reacted to his conduct.
Legal Realism versus Critical Race Theory
For legal realism, the importance of the individual and understanding the individual’s location in the construction of power and how this can dictate their behaviour as a legal actor. It is not a conspiracy, it is simply part of the way the world works.
Legal realism and CRT are similar in that they believe that the law is constructed by factors outside of our control- there are psychological biases in which judges are predisposed to make. Realism strives for an appreciation of context in advancing the public interest, much like the proceedings of the Keegstra case. Keegstra was seen by society as a deplorable influence for attempting to promote these psychological biases which plague society, also known as a social construct in CRT. Both theories are strongly connected in this manner, however, there are movements for the best where a legal system can justify limiting a person’s right to expression where it is harmful. The popular will in society is that such expression is harmful and both theories pose to share society’s mentalities in the progression towards equality in the legal system.