R. v. Keegstra, [1995] 2 S.C.R. 381

Her Majesty The Queen Applicant

v.

James Keegstra Respondent

Indexed as: R. v. Keegstra

File No.: 24296.

1995: February 6; 1995: May 18.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

motion to quash an application for leave to appeal

application for leave to appeal

Criminal law ‑‑ Appeals ‑‑ Supreme Court of Canada ‑‑ Jurisdiction ‑‑ Court of Appeal setting aside accused's conviction and ordering new trial ‑‑ Crown appealing to Supreme Court as of right on basis of dissent on question of law ‑‑ Accused applying for leave to appeal to Supreme Court ‑‑ Accused's application based on constitutional and non‑constitutional grounds ‑‑ Whether accused's application should be quashed for want of jurisdiction ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 693(1)(a) ‑‑ Supreme Court Act, R.S.C., 1985, c. S‑26, s. 40(1).

Criminal law ‑‑ Appeals ‑‑ Supreme Court of Canada ‑‑ Supreme Court's jurisdiction to hear arguments in criminal appeals ‑‑ Difference for respondents between leave granted in criminal and in civil cases ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 674, 691, 693 ‑‑ Supreme Court Act, R.S.C., 1985, c. S‑26, s. 40.

K was found guilty of wilful promotion of hatred against an identifiable group contrary to s. 319(2) of the Criminal Code. The majority of the Court of Appeal allowed his appeal on the ground that the trial judge had erred in law in his response to questions from the jury and ordered a new trial. Based on the dissent, the Crown appealed to this Court as of right under s. 693(1)(a) of the Code. K, although his conviction was quashed by the Court of Appeal, filed an application for leave to appeal. His application contains three grounds, one of which raises a constitutional issue. These grounds were all raised by K in the Court of Appeal. The Crown filed a motion to quash K's application on the basis that this Court lacks the jurisdiction to hear the appeal on the issues raised. K filed a motion to amend his leave application to add another ground. This additional ground raises a constitutional issue.

Held: The Crown's motion to quash K's application for leave to appeal should be dismissed. K's application for leave to appeal should be dismissed.

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: When the constitutionality of a law is challenged in the context of criminal proceedings, the determinations of culpability and constitutionality are two distinct rulings. Under the dual proceedings approach developed in Laba, this Court has the jurisdiction to hear applications for leave to appeal under s. 40 of the Supreme Court Act on any ground questioning the constitutionality of a Criminal Code provision. The limitation imposed by s. 674 of the Code, and mirrored in s. 40(3) of the Supreme Court Act, is not aimed at rulings on constitutionality. Either party may seek leave to appeal rulings on constitutionality, regardless of whether the ruling on culpability is appealed. When a constitutional issue is put before this Court through any of the appeals provided for in the Code, there is no need to seek leave under s. 40.

As a general rule, a respondent is entitled in criminal appeals to this Court under s. 691 or s. 693 of the Code to raise any argument which supports the order of the court below. There is only one restriction: if the respondent makes a new argument, the Court may exercise its discretion not to hear it if there is not a sufficient evidentiary record to support the argument. This discretion, however, is not related to the Court's jurisdiction. Rule 29 of the Rules of the Supreme Court of Canada does not provide a respondent with an independent avenue of cross‑appeal. Finally, leave granted under the Criminal Code provisions differs from leave granted under s. 40 of the Supreme Court Act in civil matters. As a matter of policy, when restricted leave is granted in civil cases, the respondent will normally be limited to arguing those issues set out by the Court in its order granting leave.

The Crown's motion to quash K's application for leave to appeal is dismissed. K need not seek leave to argue the two non‑constitutional grounds contained in his original application for leave since they support the order for a new trial granted by the Court of Appeal. Both grounds were raised before that court, so there is an appropriate evidentiary basis for his arguments here. With respect to the constitutional ground, however, K's challenge to the constitutionality of ss. 319(2) and 319(3) of the Code based on ss. 2(b), 7 and 15 of the Canadian Charter of Rights and Freedoms does not appear to be supportive of the order below as success on this ground would likely preclude a new trial. Pursuant to the dual proceedings approach, K must thus seek leave to appeal under s. 40 of the Supreme Court Act to raise this ground. With respect to the additional constitutional ground, which challenges the constitutionality of s. 319(3)(a) based on s. 11(d) of the Charter, K need not seek leave since success on this ground would support the order below. The broadest possible remedy which could result from this challenge would be to strike out the words "he establishes" from s. 319(3)(a). K's original application for leave to appeal, reduced to a single constitutional ground, is denied.

Per L'Heureux-Dubé J.: Subject to the following reservation, Lamer C.J.'s reasons were agreed with. It is not necessary on the facts of these proceedings to determine whether it is appropriate to draw a distinction between the scope of the arguments that respondents can raise in criminal and in civil appeals. Accordingly, the resolution of this issue is left to another day.

Cases Cited

By Lamer C.J.

Applied: R. v. Laba, [1994] 3 S.C.R. 965; distinguished: Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; referred to: R. v. Finta, [1994] 1 S.C.R. 701; R. v. Wigman, [1987] 1 S.C.R. 246; Perka v. The Queen, [1984] 2 S.C.R. 232; R. v. Barnes, [1991] 1 S.C.R. 449; Guillemette v. The Queen, [1986] 1 S.C.R. 356; Meddoui v. The Queen, [1991] 3 S.C.R. ix; Vézeau v. The Queen, [1977] 2 S.C.R. 277.

Statutes and Regulations Cited

Canada Post Corporation Act, S.C. 1980‑81‑82‑83, c. 54 [now R.S.C., 1985, c. C‑10].

Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 7, 11(d), 15.

Constitution Act, 1982, s. 52(1).

Criminal Code, R.S.C., 1985, c. C‑46, ss. 319(2), (3), 674, 686(1)(b)(iii) [am. 1991, c. 43, s. 9 (Sch., item 8)], 691 [am. c. 34 (3rd Supp.), s. 10; am. 1991, c. 43, s. 9 (Sch., item 9)], 693 [am. c. 27 (1st Supp.), s. 146; am. c. 34 (3rd Supp.), s. 12].

Customs Tariff, R.S.C., 1985, c. 41 (3rd Supp.).

Immigration Act, 1976, S.C. 1976-77, c. 52 [now R.S.C., 1985, c. I‑2].

Supreme Court Act, R.S.C., 1985, c. S‑26, s. 40(1) [rep. & sub. 1990, c. 8, s. 37], (3).

Rules of the Supreme Court of Canada, SOR/83‑74, Rule 29 [rep. & sub. SOR/93‑488, s. 2].

MOTION by the Crown to quash the accused's application for leave to appeal from a judgment of the Alberta Court Appeal (1994), 1994 ABCA 293, 23 Alta. L.R. (3d) 4, 157 A.R. 1, 77 W.A.C. 1, 92 C.C.C. (3d) 505, allowing the accused's appeal from his conviction for wilful promotion of hatred and ordering a new trial. Motion to quash dismissed. APPLICATION for leave to appeal dismissed.

Jack Watson, Q.C., for the Crown.

Douglas H. Christie, for James Keegstra.

The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. was delivered by

Lamer C.J. --

I. Introduction

[1] These proceedings arise subsequent to the Crown filing a notice of appeal to this Court. Following that notice, Keegstra filed an application for leave on separate grounds. The Crown now moves to quash Keegstra's application for leave to appeal on the ground that this Court lacks the jurisdiction to hear the appeal on the issues raised. Keegstra's motion to amend his leave application was also heard at this time, as was argument on the merits of the leave application. I will address both of these motions, as well as the application for leave in these reasons. In addition, the Crown has objected to Keegstra's filing of a document entitled "The Hate Crimes Law in Canada", which I will also address. For the sake of clarity, given the procedural complexity of the issues, I will refer to the parties as the "Crown" and "Keegstra".

[2] The most important issue raised by these parties is the question of this Court's jurisdiction to hear argument in criminal appeals. Two categories of question of law are raised by Keegstra in his application for leave to appeal: (i) whether certain Criminal Code provisions are constitutional; and, (ii) whether the Court of Appeal made an error in law which does not raise a constitutional question. I will endeavour to clarify the principles which govern each of these categories below, and then apply them to this case.

II. Factual Background

[3] In 1982, Keegstra was dismissed from his position as a high school teacher in Alberta for giving anti-Semitic lectures. His appeal of this dismissal was dismissed by the Board of Reference in 1983: 45 A.R. 348. In 1984, Keegstra was charged with unlawfully promoting hatred against an identifiable group under s. 281.2(2) (now s. 319(2)) of the Criminal Code, R.S.C. 1970, c. C-34. The Crown proceeded by indictment in prosecuting this hybrid offence. Prior to his first trial, Keegstra challenged the validity of the section under ss. 2(b) and 11(d) of the Canadian Charter of Rights and Freedoms. This application was dismissed: (1984), 87 A.R. 200. He was tried and convicted by a jury, and sentenced to a $5,000 fine.

[4] Keegstra raised the same Charter issues on appeal and was successful: (1988), 1988 ABCA 234, 87 A.R. 177. The Crown appealed to this Court, which reversed the Court of Appeal on the constitutional questions by holding that the impugned provisions infringed ss. 2(b) and 11(d) of the Charter but constituted a reasonable limit, justifiable under s. 1: [1990] 3 S.C.R. 697. We remitted the case back to the Court of Appeal for determinations on other issues. The Court of Appeal quashed the conviction and ordered a new trial on the basis that the trial judge erred in not allowing Keegstra to challenge potential jurors for cause on account of significant pretrial publicity: (1991), 1991 ABCA 97, 114 A.R. 288.

[5] The retrial began in March 1992 and lasted four months. Twenty witnesses were called, of whom 17 were former students. Only two of these students had their memories sufficiently refreshed from their class notes to give independent evidence. The evidence of the other students was admitted under the past recollection recorded rule. Keegstra was again found guilty and was sentenced to a $3,000 fine.

[6] Keegstra appealed to the Court of Appeal which allowed his appeal on the ground that the trial judge had erred in law in his response to questions from the jury and ordered a new trial: (1994), 1994 ABCA 293, 157 A.R. 1. Foisy J.A. dissented on the ground that the trial judge's conduct in response to questions from the jury did not amount to a reversible error of law.

[7] Based on this dissent, the Crown appeals to this Court as of right under s. 693(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46. Keegstra, although his conviction was quashed by the Court of Appeal, filed an application for leave to appeal to this Court on October 31, 1994. He seeks leave to appeal on the following grounds:

1.Do ss. 319(2) and 319(3) of the Criminal Code infringe ss. 2(b), 7 and 15 of the Canadian Charter of Rights and Freedoms, and if so, are they justified under s. 1 given developments in the law since this case was last before this Court?

2.Did the learned trial judge err in his definition of public interest and public benefit and did the Court of Appeal err in not finding a new trial warranted for the lack of clarity in this definition?

3.Did the Court of Appeal misapply the principles of R. v. Stinchcombe to the circumstances of this case?

All of these grounds were raised by Keegstra in the Alberta Court of Appeal.

[8] The Crown responded to Keegstra's application for leave by filing a motion to quash the application on November 23, 1994. Keegstra filed a reply to this motion on January 11, 1995, as well as a motion to amend his application for leave to appeal by adding:

4.Does s. 319(3)(a) of the Criminal Code infringe s. 11(d) of the Canadian Charter of Rights and Freedoms?

[9] These two motions, as well as the application for leave, were heard by this Court on February 6, 1995, and judgment was reserved.

III. Relevant Statutory Provisions

Criminal Code, R.S.C., 1985, c. C-46

319. ...

(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

(3) No person shall be convicted of an offence under subsection (2)

(a) if he establishes that the statements communicated were true;

(b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject;

(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

674. No proceedings other than those authorized by this Part and Part XXVI shall be taken by way of appeal in proceedings in respect of indictable offences.

675. (1) A person who is convicted of an indictable offence and whose conviction is affirmed by the court of appeal may appeal to the Supreme Court of Canada

(a) on any question of law on which a judge of the court of appeal dissents; or

(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.

(2) A person

(a) who is acquitted of an indictable offence other than by reason of a verdict of not criminally responsible on account of mental disorder and whose acquittal is set aside by the court of appeal, or

(b) who is tried jointly with a person referred to in paragraph (a) and is convicted and whose conviction is sustained by the court of appeal,

may appeal to the Supreme Court of Canada on a question of law.

693. (1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 675 or dismisses an appeal taken pursuant to paragraph 676(1)(a), (b) or (c) or subsection 676(3) [appeals to courts of appeal], the Attorney General may appeal to the Supreme Court of Canada

(a) on any question of law on which a judge of the court of appeal dissents; or

(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.

(2) Where leave to appeal is granted under paragraph (1)(b), the Supreme Court of Canada may impose such terms as it sees fit.

Supreme Court Act, R.S.C., 1985, c. S-26

40. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court.

(3) No appeal to the Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.

Rules of the Supreme Court of Canada, SOR/83-74

29. (1) A respondent who seeks to set aside or vary the whole or any part of the disposition of the judgment appealed from shall apply for leave to cross-appeal....

(3) A respondent who seeks to uphold the judgment on a ground or grounds not raised in the reasons for the judgment appealed from may do so in the respondent's factum without applying for leave to cross-appeal, and the appellant may serve and file a factum in reply in accordance with Rule 41.

IV. The Motion to Quash Keegstra's Application for Leave to Appeal

[10] This motion raises the question of this Court's jurisdiction to hear argument from a respondent in an appeal in respect of an indictable offence. In other words, what grounds is a respondent permitted to argue in this Court. Appeals in respect of indictable offences are provided for under ss. 674, 691 and 693 of the Criminal Code. Keegstra's application for leave contains two categories of grounds for leave to appeal: (i) whether certain Criminal Code provisions are constitutional; and, (ii) whether the Court of Appeal made errors of law which do not raise constitutional questions. First, I will discuss the rights of respondents to raise constitutional issues in criminal appeals in respect of indictable offences. The capacity to raise these arguments is procedurally the same, regardless of which party is appealing or which provision of the Code governs other aspects of the appeal. Next, I will consider errors of law which do not involve constitutional concerns.

A. Grounds of Appeal Raising Constitutional Issues

[11] To begin, I will outline the jurisdiction of this Court to hear appeals of declarations made pursuant to s. 52(1) of the Constitution Act, 1982. In R. v. Laba, [1994] 3 S.C.R. 965, I elaborated a "dual proceedings, s. 40" approach to the jurisdiction of this Court in respect of proceedings involving indictable offences. This approach provides that criminal proceedings which raise constitutional issues have two aspects. As a consequence, a party to such a proceeding can, in some instances, apply for leave to appeal a ruling on constitutionality to this Court under s. 40 of the Supreme Court Act, R.S.C., 1985, c. S-26, when there is no appeal route provided by the Criminal Code. In Laba I stated (at pp. 977-78):

My analysis will be grounded in the following premise: when the constitutionality of a law is challenged in the context of criminal proceedings, there are effectively two proceedings -- the proceedings directed at a determination of culpability and the proceedings directed at a determination of constitutionality.

In Laba the proceedings dealing with constitutionality were separated from the proceedings in regard to culpability. This procedural aspect, however, is not the determinative feature of the dual proceedings approach. Even when the determinations of culpability and constitutionality arise in the same proceeding, the two rulings are separate and distinct. As I stated in Laba (at pp. 981-82):

... an appeal against a ruling on the constitutionality of a law is not an appeal from a judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence.

[12] The significance of this bifurcation is that appeals of the constitutionality of a law are not governed solely by the Criminal Code provisions regarding appeals, even when the appeal is from a judgment which also contains a ruling "acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence". An appeal of a ruling against the constitutionality of a Criminal Code provision is not proscribed by the Criminal Code. In particular, the limitation imposed by s. 674, and mirrored in s. 40(3) of the Supreme Court Act, does not apply.

[13] Since these two limiting provisions are not applicable to appeals of rulings on the constitutionality of Criminal Code provisions, these rulings are subject to s. 40(1) of the Supreme Court Act:

40. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court.

[14] Accordingly, where the highest court of final resort of a province has made a ruling on the constitutionality of a Criminal Code provision, either party may seek leave to appeal that ruling to this Court, regardless of whether a finding of culpability accompanied the ruling and, if there was an accompanying finding of culpability, regardless of whether that finding is appealable as of right or on granting of leave. Of course, the party choosing to seek leave to appeal a ruling of constitutionality will be the party whose interests are not served by the ruling on constitutionality below. Nonetheless, this dual proceedings approach insures that leave can always be sought to appeal rulings on constitutionality whether or not the party seeking leave "won" or "lost" in the ruling on culpability in the court below.

[15] In the majority of cases, to be sure, an accused who has been acquitted will not be interested in appealing, regardless of the ruling on the constitutionality of the provision he or she was charged under. Therefore, the accused will rarely take advantage of the opportunity to seek leave to appeal under s. 40 of the Supreme Court Act. (An accused who is convicted has various appeal routes under the Criminal Code which I examine below.) However, in the rare instance where the interest of an accused in a Criminal Code provision extends beyond the question of his or her own culpability, the dual proceedings approach ensures that leave may be sought and this Court, in deciding whether to grant leave or not, will weigh whether the acquitted accused's interest justifies hearing the constitutional arguments.

[16] The Crown is more likely to avail itself of the access to s. 40 of the Supreme Court Act highlighted by the dual proceedings approach. In any criminal proceeding where the constitutionality of a provision is ruled upon, two possible outcomes are adverse to the interests of the Crown: an acquittal and a ruling of unconstitutionality. The dual proceedings approach ensures an appeal route in each of these circumstances.

[17] I set out the policy concerns animating this approach in Laba, supra. The examples I set out there at pp. 982-84 are equally relevant, if not more so, in this case:

To find otherwise would be to accept an absurd consequence. Consider the following example. In a trial on a charge of operating a motor vehicle while impaired, a Superior Court judge in Ontario declares s. 256 of the Criminal Code (warrants to obtain blood samples) unconstitutional and inoperative and rules that the evidence obtained as a result of a warrant under this section is inadmissible. Despite this declaration, the accused is convicted on the remaining evidence. The accused chooses not to appeal this conviction. The Crown cannot appeal against the conviction through the Criminal Code (because no such appeal is provided for by Parts XXI and XXVI of the Code). Unless the analysis I propose is accepted, s. 256 will remain inoperative in Ontario unless and until one of the following four scenarios transpires. First, a case involving s. 256 of the Criminal Code comes before another Superior Court judge in Ontario, this second judge disagrees with the first judge and declares the section constitutional, the accused is convicted, the accused appeals the conviction to the Court of Appeal, and the Court of Appeal affirms the conviction. Second, a case involving s. 256 comes before another Superior Court judge in Ontario, this second judge agrees with the first judge on the constitutionality issue and acquits the accused, the Crown appeals the acquittal to the Court of Appeal, and the Court of Appeal declares the section constitutional. Third, a case involving s. 256 comes before a Superior Court judge of another province or territory, this judge declares the section unconstitutional, the accused is acquitted, the Crown appeals the acquittal to the Court of Appeal, the Court of Appeal affirms the acquittal, and the Crown successfully appeals against the Court of Appeal decision at the Supreme Court of Canada. Fourth, a case involving s. 256 comes before a Superior Court judge in another province or territory, this second judge disagrees with the first judge and declares the section constitutional, the accused is convicted, the accused appeals the conviction to the Court of Appeal, and the Court of Appeal affirms the conviction, and the accused successfully appeals against the Court of Appeal decision to the Supreme Court of Canada. If ever a finding of unconstitutionality coincides with a conviction, no appeal against the finding of unconstitutionality will be available if the accused chooses not to appeal.

To me, such a consequence is absurd. First, the constitutionality of a law is left dependent upon the resolution of an issue completely unrelated to constitutionality, i.e., the guilt or innocence of the accused and upon his or her decision to appeal a conviction. Second, a law can be struck down by a Provincial or Superior Court judge and then left to hang there inoperative until some time in the future when another case on point happens to come before another judge and happens to result in a verdict that provides for an avenue of appeal through the Criminal Code. Just as an accused is entitled to his or her day in court, so too is the legislature. The legislature does not properly get this day in court if its ability to get to court on the issue of the constitutionality of a law is dependent upon the contingency of a particular finding of guilt or innocence coinciding with a Criminal Code avenue of appeal.

[18] Although the reasoning in Laba was particularly directed to providing adequate appeal routes for the Crown, there is no policy reason why an accused who has been acquitted should not have access to the same appeal routes. The same absurdity results from making a ruling on constitutionality unappealable because the Crown chooses not to appeal it under the Criminal Code provisions, as would have resulted in Laba by making a ruling on constitutionality unappealable because the accused chose not to take advantage of existing Criminal Code appeal routes. Rulings on the constitutionality of Criminal Code provisions are subject to the dual proceedings approach whether the party who seeks the s. 40 route of appeal is the Crown or the accused, and whether the ruling sought to be appealed is one of constitutionality or unconstitutionality. We must recall that s. 40 does not provide a right of appeal, but rather a right to seek leave to appeal.

[19] R. v. Finta, [1994] 1 S.C.R. 701, illustrates the dual proceedings approach. In that case, the Crown had a statutory right of appeal on four grounds based on a dissent in the Court of Appeal. The Crown sought leave to appeal to add an additional three grounds of appeal. The respondent sought leave to appeal two rulings on constitutionality where the Court of Appeal had been unanimous and which were not put in issue by the Crown. Leave was granted to both parties, and the Court considered nine grounds of appeal.

[20] In summary, under the dual proceedings approach, this Court has the jurisdiction to hear applications for leave to appeal under s. 40 of the Supreme Court Act on any ground questioning the constitutionality of a Criminal Code provision. As rulings on constitutionality are distinct from rulings on culpability, either party may seek leave to appeal rulings on constitutionality, regardless of whether they are the appellant or respondent in proceedings regarding culpability, and regardless of whether the ruling on culpability is appealed.

B. Grounds of Appeal Which Do Not Raise Constitutional Issues

[21] Under the Criminal Code, an appeal to this Court in respect of an indictable offence may take five possible forms: (i) an accused may appeal as of right based on a dissent in the court of appeal; (ii) an accused may appeal as of right because the court of appeal overturned his or her acquittal, or the acquittal of a co-accused; (iii) an accused may appeal after obtaining leave to appeal; (iv) the Crown may appeal as of right on the basis of a dissent in the court of appeal; and (v) the Crown may appeal after obtaining leave to appeal. While the accused has an appeal as of right (reversal of an acquittal) which the Crown does not (reversal of a conviction), the Crown and the accused have identical rights as respondents in each of these forms of appeal. Consequently, the categories of appeal which need to be examined are: (i) appeals as of right based on a dissent in the court of appeal; (ii) appeals as of right based on the setting aside of an acquittal; and, (iii) appeals where leave is granted. As a general rule, a respondent is entitled to raise any argument which supports the order of the court below. For clarity, the non-constitutional arguments which may be raised by the respondent in each form of appeal are set out below.

1. Appeals as of Right Based on a Dissent in the Court of Appeal

[22] This appeal as of right arises in three situations. In the first instance, the accused was acquitted at trial and his or her acquittal was upheld, with a dissent in the court of appeal which gives the Crown a narrow appeal as of right. In the second case, the accused was convicted and the court of appeal overturned the conviction with a dissent, providing for a narrow appeal as of right for the Crown. Finally, when the accused was convicted and the court of appeal upheld the conviction with a dissent, the accused will have a narrow appeal as of right.

[23] Sections 691(1)(a) and 693(1)(a) provide a narrow right of appeal on the basis of court of appeal dissents. These provisions limit the arguments which may be raised by appellants in this Court. They do not, however, limit arguments which can be made by respondents. The respondent can raise any argument which supports the order of the court below. This includes presenting grounds on which the respondent was successful in the court below, re-arguing grounds which were unsuccessful or not dealt with below, and even making new arguments in this Court. If a respondent makes a new argument which lacks an appropriate evidentiary basis below, this Court may exercise its discretion not to hear the argument. This decision, however, is not related to the Court's jurisdiction. When a respondent in an appeal as of right raises an issue the appellant has not addressed, the appellant may seek leave to file a reply factum.

[24] If an appellant who has an appeal as of right based on a dissent wishes to raise other issues, he or she may seek leave under ss. 691(1)(b) or 693(1)(b). In Finta, supra, this procedure was followed by the appellant Crown who wished to address issues on which the Court of Appeal had been unanimous. Once leave has been sought, the Court may grant leave on narrow grounds or grant a general leave to appeal. The arguments which may be advanced are then governed by the same procedures as any case where leave is granted, set out below.

2. Appeals as of Right Based on the Setting Aside of an Acquittal

[25] Section 691(2) provides these appeals as of right to an accused on any point of law if the court of appeal set aside his or her acquittal, or the acquittal of a co-accused. Accordingly, these appeals are similar to appeals where leave is granted at large. The appellant may argue any point of law, including points of law raised by intervening decisions (R. v. Wigman, [1987] 1 S.C.R. 246). The respondent Crown in these appeals may argue any point of law which supports the order of the court below.

[26] In Perka v. The Queen, [1984] 2 S.C.R. 232, the appellants came before this Court under this provision. The Crown sought to present argument in respect of a point of law which the appellants had not raised. In ruling on the jurisdictional issue, Dickson J. (as he then was), writing for the majority, said (at p. 240):

In both civil and criminal matters it is open to a respondent to advance any argument to sustain the judgment below, and he is not limited to appellants' points of law. A party cannot, however, raise an entirely new argument which has not been raised below and in relation to which it might have been necessary to adduce evidence at trial.... Therefore, if we regard the Crown's submission as an argument to sustain the judgment below, this Court undoubtedly has jurisdiction to hear and decide this issue.

This clarifies that the only restriction on arguments by the respondent which support the order below will be whether there is a sufficient evidentiary record to support the argument. As noted above, this limitation is discretionary. The Court may choose to hear arguments on which there is no record below, although it normally will not. The question of an evidentiary record below does not affect this Court's jurisdiction.

[27] Our decision in R. v. Barnes, [1991] 1 S.C.R. 449, further clarifies the position of respondents in these appeals as of right. In Barnes the trial judge had entered a judicial stay for entrapment and the court of appeal had allowed the Crown's appeal and ordered a new trial. The Crown requested that, upon finding there was no entrapment, this Court enter convictions against the accused. Writing for the majority of this Court, I stated (at p. 466):

The Crown is not given by statute the ability to appeal to this Court a decision which allowed its appeal from an acquittal or judicial stay of proceedings, but which gave the Crown less than what had been requested. As a result, there is no statutory provision which would allow the Crown to appeal from the Court of Appeal's judgment. Absent a statutory right of appeal, there is no right of appeal. [Emphasis in original.]

This makes it clear that, while the respondent Crown in all of these appeals would undoubtedly prefer a conviction over a new trial, the Crown is not permitted to cross-appeal or otherwise argue in this Court for a conviction to be entered.

3. Appeals Where Leave Is Granted

[28] Where leave is sought under s. 691(1)(b) or s. 693(1)(b), the Court may choose to grant leave on restricted grounds or at large. Restricting the leave granted to specific issues constrains the arguments which may be raised by appellants. The arguments which may be raised by respondents are not affected by an order granting leave on narrow grounds. As is the case in the two forms of appeal as of right, the respondent here may make any argument which supports the order of the court below. A respondent who has won in the court below and been granted a new trial may not seek leave under these provisions to seek either a conviction (in the case of the Crown) or an acquittal (in the case of an accused). (See Meddoui v. The Queen, [1991] 3 S.C.R. ix.)

[29] Leave granted under the Criminal Code provisions differs from leave granted under s. 40 of the Supreme Court Act in civil matters. While appeal routes in civil cases are not at issue in this motion, it is useful to clarify that the decision in Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, is not relevant to criminal appeals. In Idziak, leave was granted on one ground only and both parties were restricted in their argument to addressing that ground. In civil matters, leave to appeal may be sought with respect to any finding adverse to the party in question. The number of such findings in a civil case is nearly always much greater than in a criminal case. Accordingly, as a matter of policy, when restricted leave is granted in civil cases, the respondent will normally be limited to arguing those issues set out by the Court in its order granting leave. A respondent who wishes to avoid this restriction should seek relief therefrom in the response to the application for leave to appeal or by application to the Court prior to the hearing. Such an application would succeed if, in the opinion of the Court, limited grounds of appeal would operate adversely to the respondent.

[30] Three final points will conclude the clarification of which arguments may be raised by respondents in criminal appeals.

[31] First, in some cases, two issues which may have been discussed separately at the court of appeal will be so inextricably linked as to form two aspects of the same question of law. In this case, an appellant who has a narrow right of appeal based on a dissent, or who has been granted leave to appeal on restricted grounds, will be able to address all aspects of the question, even if the court of appeal treated the different aspects separately. One example of this intertwining is the question of whether a particular error of law is so serious that it justifies setting aside the trial verdict. The provisions for taking account of the severity of errors (s. 686(1)(b)(iii) in the case of convictions, and the threshold set out in Vézeau v. The Queen, [1977] 2 S.C.R. 277, in the case of acquittals) will always be intertwined with any error of law considered by this Court.

[32] Second, the principles which are to govern permissible arguments in appeals relating to included offences are contained in the general rules. When an accused is convicted of an included offence, he or she has been acquitted of the offence originally charged. The accused can appeal the conviction and the Crown can appeal the acquittal. Appeals to this Court are then governed by the appropriate Criminal Code provisions. This is set out in my reasons, for the Court, in Guillemette v. The Queen, [1986] 1 S.C.R. 356. In Guillemette the accused was charged with second degree murder and convicted of manslaughter. He appealed his conviction but the Crown did not appeal his acquittal. The Court of Appeal erroneously ordered a new trial on the second degree murder charge. As the acquittal had not been appealed, this order was beyond the Court of Appeal's jurisdiction. Guillemette's appeal to this Court was as of right on the basis that the Court of Appeal had set aside his original acquittal on the second degree murder charge. I stated (at pp. 363-64):

The accused cannot challenge the verdict of manslaughter in this Court. The Court of Appeal did not affirm the conviction and, were it not for the error by the Court of Appeal in setting aside his acquittal for murder by ordering a new trial on that charge, the accused would not have been able to appeal to this Court under s. 618 [now s. 691]. On an appeal as of right under s. 618(2)(a) of the Code, the accused can only challenge the setting aside of his acquittal for murder and ask that the new trial be held on a charge of manslaughter. This Court therefore cannot rule on the other arguments put forward by the accused in support of an acquittal.

Though it made no appeal to the Court of Appeal, the Crown could have appealed in this Court, against the order for a new trial made by the Quebec Court of Appeal.... In addition to the limitations imposed on us by the nature of the accused's appeal, the jurisdiction of this Court is also limited by the Crown's decision not to appeal to the Court of Appeal against the acquittal for murder by the jury, and further by its decision not to appeal against the order for a new trial made by the Court of Appeal.

There are no special or additional rules which apply in the case of included offences. What is required, rather, is a careful consideration of which party has the right to appeal the implicit and explicit rulings of the trial court.

[33] The final clarification concerns the interaction between the dual proceedings approach to constitutional issues and the avenues of appeal provided in the Criminal Code. When a constitutional issue is put before this Court through any of the appeals provided for in the Criminal Code, there is no need to seek leave under s. 40 of the Supreme Court Act. The dual proceedings approach exists in order to ensure that rulings regarding constitutionality will not be made "unappealable" by the Criminal Code provisions, not to remove all constitutional questions from the Criminal Code routes of appeal.

[34] Counsel in this motion raised the question of whether Rule 29 of the Rules of the Supreme Court of Canada, SOR/83-74, provides an independent avenue of cross-appeal to respondents. While Rule 29 prescribes the procedural aspects of cross-appeals, it does not provide an avenue for cross-appeals which have no statutory foundation.

C. Application to this Motion

[35] The Crown moves that the Court quash Keegstra's application for leave to appeal on the basis that it is beyond the Court's jurisdiction. The Crown is appealing to this Court as of right on the basis of a dissent in the Court of Appeal. Keegstra seeks leave to appeal on three points, one of which raises a constitutional issue.

[36] I would dismiss the Crown's motion. Keegstra does not need leave to argue the two non-constitutional points contained in his original application for leave to appeal as these support the order for a new trial granted by the Court of Appeal. As well, he advanced both of these arguments on appeal, so there is an appropriate evidentiary basis for his arguments here. His challenge to the constitutionality of ss. 319(2) and 319(3) based on ss. 2(b), 7 and 15 of the Charter, on the other hand, does not appear to be supportive of the order below. Keegstra seeks to argue that the combined effect of ss. 319(2) and 319(3) is to create an offence which infringes freedom of expression, is unconstitutionally vague and does not provide equal protection of the law to all groups in Canadian society. Success on this ground would likely preclude a new trial. With respect to this ground of appeal, therefore, Keegstra must seek leave to appeal under s. 40 of the Supreme Court Act, pursuant to the dual proceedings approach.

V. The Motion to Amend the Application for Leave to Appeal

[37] Keegstra moves to add an additional ground to his application for leave to appeal. This additional ground challenges s. 319(3)(a) as contrary to s. 11(d) of the Charter because it creates a reverse onus on the issue of truth, thus allegedly infringing an accused's right to be presumed innocent. I need not address this motion because the broadest possible remedy which could result from this challenge would be to strike out the words "he establishes" from s. 319(3)(a). Success with respect to this challenge would support the order for a new trial and therefore Keegstra does not need leave to make this argument.

VI. The Application for Leave to Appeal

[38] As Keegstra need not seek leave to argue in support of the order of the Court of Appeal, this Court must consider whether to grant leave to appeal on the following ground:

1.Do ss. 319(2) and 319(3) of the Criminal Code infringe ss. 2(b), 7 and 15 of the Canadian Charter of Rights and Freedoms, and if so, are they justified under s. 1 given developments in the law since this case was last before this Court?

[39] I would deny leave to appeal on this ground.

VII. Request to Remove the Volume "The Hate Crimes Law in Canada" from the Record

[40] As part of its motion to quash the application for leave to appeal, the Crown requests that the Court remove from its record the volume entitled "The Hate Crimes Law in Canada" by Barbara Kulaszka, which Keegstra filed as volume 2 of "Applicant's Authorities". This volume reviews the application of a group of provisions it labels collectively as Canada's "hate crimes" laws, including s. 319(2) of the Criminal Code, and certain provisions of the Customs Tariff, R.S.C., 1985, c. 41 (3rd Supp.), the Canada Post Corporation Act, S.C. 1980-81-82-83, c. 54, and the Immigration Act, 1976, S.C. 1976-77, c. 52. The thesis of the study is that these provisions are applied inconsistently and unfairly by Canadian law enforcement officials.

[41] As this volume did not form part of the record below, and Keegstra has not sought leave to file it here, I would grant the Crown's motion and remove this volume from the Court's record for the application for leave to appeal.

The following are the reasons delivered by

[42] L'Heureux-Dubé J. -- I agree with the Chief Justice's disposition of these proceedings and substantially agree with his reasons in support of this disposition. Specifically, I agree that a respondent in a criminal appeal is free to raise any argument which supports the order below (subject to the discretion of this Court to decline to hear any argument for which there is not a sufficient evidentiary foundation).

[43] My only reservation with the Chief Justice's reasons concerns the distinction he draws between civil and criminal appeals. Specifically, after concluding that respondents in criminal appeals are free to raise any argument which supports the order below, he states (at p. 400):

... as a matter of policy, when restricted leave is granted in civil cases, the respondent will normally be limited to arguing those issues set out by the Court in its order granting leave.

I am not sure I see the underlying legal rationale for this distinction between the scope of the arguments that respondents can raise in criminal and civil appeals. Accordingly, I cannot agree with the Chief Justice's obiter comments on this issue. Instead, as this issue is not squarely raised by the facts of these proceedings, I would leave its resolution to another day. Subject to this reservation, however, I would dispose of these proceedings as does the Chief Justice.

Motion to quash application for leave to appeal dismissed. Application for leave to appeal dismissed.

Solicitor for the Crown: The Attorney General for Alberta, Edmonton.

Solicitor for James Keegstra: Douglas H. Christie, Victoria.