R. v. Keegstra, [1996] 1 S.C.R. 458

Her Majesty The Queen Appellant/Respondent on Cross-Appeal

v.

James Keegstra Respondent/Appellant on Cross-Appeal

and

The Attorney General of Canada, the Attorney General for Ontario and the League for Human Rights of B'nai Brith Canada Interveners

Indexed as: R. v. Keegstra

File No.: 24296.

1996: February 28.

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

on appeal from the court of appeal for alberta

Constitutional law -- Charter of Rights -- Right to fair trial -- Inciting hatred -- Reverse onus -- Accused not to be convicted if accused established truth of statements -- Whether applicable provision infringes right to fair trial -- If so, whether infringement justifiable -- Canadian Charter of Rights and Freedoms, ss. 1, 11(d) -- Criminal Code, R.S.C., 1985, c. C-46, s. 319(3)(a).

Cases Cited

Applied: R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697; distinguished: R. v. Laba, 1994 CanLII 41 (SCC), [1994] 3 S.C.R. 965.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 11(d).

Criminal Code, R.S.C., 1985, c. C-46, s. 319(3)(a).

APPEAL from a judgment of the Alberta Court of 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, dismissing an appeal from conviction by Lutz J. sitting with jury. Appeal dismissed.

Jack Watson, Q.C., and J. Steven Koval, Q.C., for the appellant/respondent on the cross-appeal.

Douglas H. Christie, for the respondent/appellant on the cross-appeal.

Robert J. Frater and Erin McKey, for the intervener the Attorney General of Canada.

Michael Bernstein, for the intervener the Attorney General for Ontario.

Mark J. Sandler and Marvin Kurz, for the intervener the Human Rights League of B'nai Brith Canada.

The judgment of the Court was delivered orally by

[1] Iacobucci J. -- We are all of the view that this appeal should be allowed. With respect to the handling by the trial judge of the requests made by the jury for a copy of the transcript of the evidence of Robert David and for a copy of the applicable section of the Criminal Code, we agree substantially with the dissenting reasons of Foisy J.A. in the Alberta Court of Appeal.

[2] With respect to the argument that the reverse onus contained in s. 319(3)(a) of the Criminal Code, R.S.C., 1985, c. C-46, contravenes s. 11(d) of the Canadian Charter of Rights and Freedoms, we are of the opinion that the decision of the Court in R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697, is a complete answer. In that decision, the Court concluded that, although s. 319(3)(a) was inconsistent with s. 11(d) of the Charter, it was justified as a reasonable limit within the meaning of s. 1. The decision of the Court in R. v. Laba, 1994 CanLII 41 (SCC), [1994] 3 S.C.R. 965, is distinguishable from the case at bar.

[3] With respect to the other arguments raised by the respondent in support of the Court of Appeal's decision, we reject these arguments as they are without merit. Specifically, the argument for a stay because of delay cannot be raised since it is a remedy that does not support the order of the Court of Appeal directing a new trial. The trial judge made no error in charging the jury with respect to the various elements contained in s. 319 of the Code. Notwithstanding any delay in disclosure of the evidence of Dr. Segal, we agree with the trial judge that there was no prejudice in the circumstances.

[4] Accordingly, the appeal is allowed and the cross-appeal is dismissed, the judgment of the Alberta Court of Appeal is set aside, and the conviction is restored, and the matter is remitted to the Court of Appeal so that the accused's sentence appeal can be disposed of.

[5] We would answer the constitutional questions (paraphrased) as follows:

1. Does s. 319(3)(a) of the Criminal Code, R.S.C., 1985, c. C-46, infringe s. 11(d) of the Canadian Charter of Rights and Freedoms?

Response: The answer is yes.

2. If so, is s. 319(3)(a) of the Criminal Code a reasonable limit on the s. 11(d) Charter right pursuant to s. 1 of the Charter?

Response: The answer is yes.

Judgment accordingly.

Solicitor for the appellant/respondent on cross-appeal: The Attorney General for Alberta, Edmonton.

Solicitor for the respondent/appellant on cross-appeal: Douglas H. Christie, Victoria.

Solicitor for the intervener the Attorney General of Canada: The Attorney General of Canada, Ottawa.

Solicitor for the intervener the Attorney General for Ontario: The Attorney General for Ontario, Toronto.

Solicitors for the intervener the League for Human Rights of B'nai Brith Canada: Cooper, Sandler, West & Skurka, Toronto.