Submitted in partial fulfillment of requirement for PHL613, Philosophy of Law
500 204 129
April 11, 2012
Table of Contents
Overview of R. V. Keegstra2
Why does Freedom of Speech in Democracy Matter?2
Factors of the Offense Principle3
Why not Moralism?4
Appendix 1 - Research and Methodology9
What does freedom of expression really mean? Why is it important to our democratic society? In the landmark case of R. v. Keegstra (1990), the issues of freedom of expression and hate speech is brought in front of the Supreme Court of Canada. The case also deals with issues of whether sections 319(2) and 319(3)(a) of the Criminal Code violated section 2(b) and section 11(d) of the Charter of Rights and Freedoms. The courts view that the objectives of having freedom of speech are correlated with democracy in the sense that for members of society to have their voices heard, they must be free to speak on matters that provide value back to society. This case has served as precedence for other freedom of expression cases. R. v. Keegstra can be looked at through many of the legal principles, but for the purposes of this essay, I will focus on the Offense Principle. This principle, brought forward by Joel Feinberg, is a tangent of John Mill’s Harm Principle, which deals with non-physical harm, such as hate speech. This is evident when looking at R. v. Keegstra, as the Offense Principle is the best principle to articulate why the dissenting judges ruled the way they did. I believe that the lead dissenting judge, Beverly McLachlin, ruled accurately in her judgement and I intend to support this ruling throughout this essay. As well, I will provide a summery of R. V. Keegstra, look at Philosophical principles as well as a philosophical analysis related to hate speech. This analysis will contain an overview of principles related to arguments connected to the case and criticisms of the rulings. Overview of R. V. Keegstra
James Keegstra, during his time as a public school teacher in Alberta, was charged under section 319 (2) of the Criminal Code for promoting hatred for an identifiable group, in this case, Jewish people. For a number of years, Keegstra made anti-Semitic claims such as Jews had created the Holocaust to gain sympathy as well as tested his students based on his claims and opinions. He was stripped of his teaching license and charged under the Criminal Code. Keegstra appealed the ruling and the case made it’s way to the Supreme Court of Canada, where a judgment was made on a 4 to 3 decision. In 1990, Keegstra was prosecuted under the Criminal Code for his actions. Why does Freedom of Speech in Democracy Matter?
The courts view that the objectives of having freedom of speech are essential in a democratic society. Hate speech is seen as limiting what it means to partake in society, as said by Montigny, “these messages (hate speech) are most likely to affect the perception and self-esteem of all members of these groups, thus precluding their full participation in Canadian society and the achievement of their full potential as human beings... (Montigny, 1990). In order for the Canadian society to thrive in the political system of democracy, the citizens of the nation must contribute through such means as voting, addressing issues, and through their speech. Without having that freedom, valuable thoughts, and thus progression in our society, are restricted. At the same time, the citizens of the society are subject to harm as stated by Dickson, “individuals subjected to racial or religious hatred may suffer substantial psychological distress, the damaging consequences including a loss of self-esteem, feelings of anger and outrage and strong pressure to renounce...