R. v. Keegstra, [1990] 3 SCR 697

Her Majesty The Queen - Appellant v. James Keegstra - Respondent

The accused, an Alberta high school teacher, was charged under s. 319(2) of the Criminal Code with wilfully promoting hatred against an identifiable group by communicating anti‑semitic statements to his students. Prior to his trial, the accused applied to the Court of Queen's Bench for an order quashing the charge. The court dismissed the application on the ground that s. 319(2) of the Code did not violate freedom of expression as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The court, for want of proper notice to the Crown, did not entertain the accused's argument that s. 319(3)(a) of the Code violated the presumption of innocence protected by s. 11(d) of the Charter. Section 319(3)(a) affords a defence of "truth" to the wilful promotion of hatred but only where the accused proves the truth of the communicated statements on a balance of probabilities. The accused was thereafter tried and convicted. On appeal the accused's Charter arguments were accepted, the Court of Appeal holding that ss. 319(2) and 319(3)(a) infringed ss. 2(b) and 11(d) of the Charter respectively, and that the infringements were not justifiable under s. 1 of the Charter.