R. v. Keegstra (J.), (1994) 157 A.R. 1 (CA)

• Judge: Harradence, Hetherington and Foisy, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 07, 1994
• Citations: (1994), 157 A.R. 1 (CA)

R. v. Keegstra (J.) (1994), 157 A.R. 1 (CA);

    77 W.A.C. 1

MLB headnote and full text

Her Majesty The Queen (respondent) v. James Keegstra (appellant)

(Appeal No. 13537)

Indexed As: R. v. Keegstra (J.)

Alberta Court of Appeal

Harradence, Hetherington and Foisy, JJ.A.

September 7, 1994.

Summary:

The accused was charged under s. 281.2(2) of the Criminal Code (now s. 319(2)) with communicating statements wilfully promot­ing hatred against an identifiable group (Jews). The accused applied to strike down s. 281.2(2) on the ground that it violated the right to freedom of expression under s. 2(b) of the Charter of Rights and Freedoms.

The Alberta Court of Queen's Bench, in a judgment reported 87 A.R. 200, dismissed the application. The court held that s. 281.2(2) did not violate s. 2(b) and, alterna­tively, if it did, it would be a reasonable limit prescribed by law under s. 1 of the Charter. The accused was subsequently convicted following trial by judge and jury. The accused appealed.

The Alberta Court of Appeal, in a judg­ment reported 87 A.R. 177, allowed the appeal, quashed the conviction and declared that s. 281.2(2) was of no force and effect pursuant to s. 52(1) of the Constitution Act. The court held that s. 281.2(2), as presently worded, violated freedom of expression (s. 2(b)) and the presumption of innocence (s. 11(d)). The court held that s. 281.2(2) was overly broad and therefore not a reasonable limit prescribed by law under s. 1. The Crown appealed.

The Supreme Court of Canada, McLachlin, Sopinka and La Forest, JJ., dissenting, in a judgment reported 117 N.R. 1; 114 A.R. 81, allowed the appeal and remitted that matter to the Court of Appeal to resolve those issues left unexamined as a result of its decision to strike down the impugned provi­sions.

The Alberta Court of Appeal, in a judg­ment reported 114 A.R. 288, allowed the appeal and ordered a new trial where, inter alia, the trial judge improperly deprived the accused of the right to challenge jurors for cause on the basis of pretrial publicity. The accused was retried and convicted by a judge and jury. The accused appealed, submitting, inter alia, that (1) s. 319(2) and (3) were void for vagueness contrary to s. 7 of the Charter; (2) the trial judge erred in defining the public interest and public benefit, as­suming the sections were constitutionally valid; (3) the trial judge unduly restricted the accused's right to cross-examination of witnesses; and (4) the trial judge erred in not providing the jury with a requested copy of the trial transcript of the testimony of one witness and a copy of s. 319(2) and (3) of the Criminal Code.

The Alberta Court of Appeal, Foisy, J.A., dissenting, allowed the appeal and ordered a new trial. The court stated that (1) even if s. 319(3)(c) was void for vagueness, it was severable and would have no effect on the offence and (2) any errors by the trial judge in restricting the accused's right to cross-examine witnesses were curable under s. 686(1)(b)(iii) of the Criminal Code. How­ever, the trial judge, in refusing the jury's request for the transcript and copy of the Criminal Code section, effectively gave the jury no assistance whatsoever. That error was not curable under s. 686(1)(b)(iii). The court ordered a new trial, notwithstanding it would be the third time the accused would be tried.

Criminal Law - Topic 4336.6

Procedure - Jury - The law - Leaving copies of statutes with jury - The accused was charged with wilfully promoting hatred (Criminal Code, s. 319(2)) - After deliberating several hours, the jury requested "to hear or see the Criminal Code of the charge" - Both the Crown and accused objected - The trial judge denied the request - The Alberta Court of Appeal stated that "there may be cases where the complexity of the relevant legal provisions would make it advisable for the jury to receive the text of those sections" - The court stated that given the complexity of s. 319(2) and (3), it would have been "pru­dent for the trial judge to provide copies of the Code sections to the jury" - The trial judge "should have at least reread the provisions or have given additional instruction on the law. The failure to do so is a reversible error as the jury request indicated that they were in need of addi­tional help with regard to the relevant Code provisions." - The court held that the error was not curable under s. 686(1)(b)(iii) of the Code - See para­graphs 114 to 132.

Criminal Law - Topic 4345

Procedure - Jury - Evidence - Jury request to review evidence or argument - Several hours after deliberations began, the jury requested a transcript of the testimony of one witness - Both the Crown and accused objected - The trial judge denied the request in a cursory manner, stating that too much emphasis might be placed on the transcript - The jury was invited to lead more specific questions - The Alberta Court of Appeal held that the trial judge breached his duty to assist the jury - They clearly needed assistance - The cursory refusal to provide the transcript would discourage the jury from asking specific questions about it or from making any further requests in connection with it - The court set out what the trial judge should have done - See paragraphs 67 to 113.

Criminal Law - Topic 4345

Procedure - Jury - Evidence - Jury request to review evidence or argument - The Alberta Court of Appeal stated that "first, since it is clear that questions or requests from juries normally indicate that they are experiencing difficulty in their deliber­ations, such questions ... must be given a 'full, careful and correct response'. Sec­ond, ... the trial judge must be careful when responding to jury requests. In most instances, this would be accomplished by simply ensuring that the jury receive any pertinent or qualifying evidence when providing a review of the requested testi­mony. Third, a trial judge must not simply deny a jury's request for evidence or other assistance. A judge presiding over a jury trial has an absolute duty ... to provide a jury with some form of assistance ... Fourth, the most appropriate method of assistance would ... depend on the circum­stances of the case. ... Fifth, the trial judge's obligation to provide assistance to the jury does not depend on the consent of counsel. ... Sixth, if the jury's request is interpreted as being too broad, the trial judge must then ascertain what the core of their difficulty really is, and ... then deter­mine what they reasonably need to resolve it. ... Finally, the jury must not be discour­aged from seeking further assistance." - See paragraphs 104 to 110.

Criminal Law - Topic 4941

Appeals - Indictable offences - New trials - General - The Alberta Court of Appeal, Foisy, J.A., dissenting, allowed the ac­cused's conviction appeal from a charge of wilfully promoting hatred contrary to s. 319(2) of the Criminal Code - The issue was whether to order a new trial (the third one) or substitute an acquittal - Harra­­dence, J.A., discussed the case law re­specting the court's discretion and deter­mined that an acquittal would best serve the interests of justice - However, Hether­ington, J.A., in concurring reasons, had ordered a new trial - Harradence, J.A., ultimately agreed to order a new trial "in order to avoid an unseemly impasse in the disposition of this appeal" - See para­graphs 133 to 146, 157 to 158.

Criminal Law - Topic 5058

Appeals - Indictable offences - Substitu­tion of verdict - Substitution of verdict of acquittal - [See Criminal Law - Topic 4941 ].

Evidence - Topic 4760

Witnesses - Examination - Prior incon­sistent statements - Cross-examination on prior written statements - An accused claimed that the trial judge erred in re­stricting his cross-examination of a wit­ness on a prior statement reduced to writ­ing - The Alberta Court of Appeal stated that under s. 10(1) of the Canada Evidence Act, there was no need to establish a con­tradic­tion between present testimony and a previous statement reduced to writing before the accused was entitled to cross-examine on it - The trial judge erred in preventing cross-examination "unless there was a serious discrepancy arising in the witness's testimony" - However, the error was of no importance where the accused accomplished what he set out to do with­out having to cross-examine directly on the prior statement - There was no mis­carriage of justice and the error was cur­able under s. 686(1)(b)(iii) of the Criminal Code - See paragraphs 49 to 57.

Evidence - Topic 7014

Opinion evidence - Expert evidence - Textbooks and treatises - The Alberta Court of Appeal stated that "the proper procedure to be followed in examining an expert witness on other expert opinions found in papers or books is to ask the witness if she knows the work. If the answer is 'no', or if the witness denies the work's authority, then that is the end of the matter. Counsel cannot read from the work, since that would be to introduce it as evidence. If the answer is 'yes', and the witness acknowledges the work's authority, then the witness has confirmed it by the witness' own testimony. Parts of it may be read to the witness, and to the extent they are confirmed, they become evidence in the case." - The court stated that this was a sensible approach to lay witnesses as well, although lay witnesses could not attest to the authority of the facts or opin­ions expressed in the documents - Such a witness could only testify that he knew the document existed and to what extent he knew its contents - See paragraph 60.

Statutes - Topic 4548

Operation and effect - Validity - Severability - [See Statutes - Topic 4552 ].

Statutes - Topic 4552

Operation and effect - Validity - Vague­ness - Section 319(2) of the Criminal Code made it an offence to wilfully pro­mote hatred - Section 319(3)(c) provided that there was no offence under s. 319(2) if the statements were relevant to any subject of "public interest", the discussion of which was for the "public benefit" - The accused claimed that s. 319(2) and (3) were void for vagueness - The Alberta Court of Appeal stated that all elements of the offence were contained in s. 319(2) - Section 319(3)(c) provided a defence - The doctrine of vagueness applied to Criminal Code defences - The words "public inter­est" were broad and undefined - There was no discernible way to distin­guish when the value to society inherent in the freedom of expression exceeded the value to society in prohibiting dissemina­tion of hatred - The court stated that "even if s. 319(3)(c) was unconstitutionally vague, severing the section from the defined offence in s. 319(2) would not have the effect of mak­ing the purview of the offence so wide as to violate the mini­mal impairment stage of the Oakes test" - See paragraphs 7 to 47.

Cases Noticed:

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91; 93 D.L.R.(4th) 36, refd to. [para. 7].

R. v. Morales (M.), [1992] 3 S.C.R. 711; 144 N.R. 176; 51 Q.A.C. 161; 77 C.C.C.(3d) 91, dist. [para. 7].

R. v. Paul, [1982] 1 S.C.R. 621; 42 N.R. 1 (S.C.C.), refd to. [para. 11].

Attorney General v. Lockwood (1842), 9 M. & W. 378; 152 E.R. 160, refd to. [para. 11].

R. v. Hunt, [1987] 1 All E.R. 1; 79 N.R. 220 (H.L.), refd to. [para. 15].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1; [1984] 6 W.W.R. 289; 42 C.R.(3d) 113; 13 D.L.R.(4th) 1; 14 C.C.C.(3d) 385, refd to. [para. 18].

R. v. Farinacci (L.W.) et al. (1993), 67 O.A.C. 197 (C.A.), refd to. [para. 28].

R. v. Branco (C.) (1993), 35 B.C.A.C. 201; 57 W.A.C. 201 (C.A.), refd to. [para. 28].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161, refd to. [para. 29].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1, refd to. [para. 31].

R. v. Olan, Hudson and Hartnett, [1978] 2 S.C.R. 1175; 21 N.R. 504, refd to. [para. 31].

Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241; 82 D.L.R.(4th) 321, refd to. [para. 43].

Cormier v. R. (1973), 25 C.R.N.S. 94 (Que. C.A.), refd to. [para. 53].

R. v. Valley (1986), 13 O.A.C. 89; 26 C.C.C.(3d) 207, leave to appeal denied (1986), 67 N.R. 158; 15 O.A.C. 240 (S.C.C.), refd to. [para. 54].

R. v. Savion (1980), 52 C.C.C.(2d) 276 (Ont. C.A.), refd to. [para. 54].

R. v. Whitford (1990), 105 A.R. 274 (C.A.), refd to. [para. 55].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161; 85 C.C.C. (3d) 193, refd to. [para. 60].

R. v. Bencardino (1973), 15 C.C.C.(2d) 342 (Ont. C.A.), refd to. [para. 61].

R. v. Vallillee (1954), 107 C.C.C. 405 (Ont. C.A.), refd to. [para. 64].

R. v. Taubler (1987), 20 O.A.C. 64 (C.A.), refd to. [para. 65].

R. v. Thorpe (1976), 32 C.C.C.(2d) 46 (Man. C.A.), refd to. [para. 65].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397; 3 C.R.(4th) 302, refd to. [para. 83].

R. v. Ostrowski and Correia, [1990] 2 S.C.R. 82; 107 N.R 230; 70 Man.R.(2d) 122, refd to. [para. 84].

R. v. Olbey, [1980] 1 S.C.R. 1008; 30 N.R. 152, refd to. [para. 85].

R. v. Cathro, [1956] S.C.R. 101; 113 C.C.C. 225, refd to. [para. 86].

R. v. Dorset (1980), 24 A.R. 76; 54 C.C.C.(2d) 490 (C.A.), refd to. [para. 87].

R. v. Wydryk (1972), 5 C.C.C.(2d) 473 (B.C.C.A.), refd to. [para. 88].

R. v. Thomas (1987), 20 B.C.L.R.(2d) 241 (C.A.), refd to. [para. 89].

R. v. Corriveau (1985), 8 O.A.C. 18 (C.A.), refd to. [para. 90].

R. v. De Bellefeuille (S.M.) (1994), 39 B.C.A.C. 276; 64 W.A.C. 276 (C.A.), refd to. [para. 94].

R. v. Andrade (1985), 6 O.A.C. 345 (C.A.), refd to. [para. 95].

R. v. Callaghan (1991), 51 O.A.C. 34; 5 O.R.(3d) 508 (C.A.), refd to. [para. 99].

R. v. Foti (R.G.), [1994] 1 W.W.R. 385; 88 Man.R.(2d) 218; 51 W.A.C. 218 (C.A.), refd to. [para. 101].

R. v. Wong (No. 2) (1978), 41 C.C.C.(2d) 196 (B.C.C.A.), refd to. [para. 101].

R. v. Read (1984), 53 A.R. 243; 31 Alta. L.R.(2d) 364 (C.A.), refd to. [para. 115].

R. v. Matt (1968), 60 W.W.R.(N.S.) 571 (Alta. T.D.), refd to. [para. 116].

R. v. Stanford (1975), 27 C.C.C.(2d) 520 (Que. C.A.), refd to. [para. 117].

R. v. Siu (S.W.M.) (1992), 11 B.C.A.C. 207; 22 W.A.C. 207; 71 C.C.C.(3d) 197 (C.A.), refd to. [para. 118].

R. v. Schimanowsky (1974), 15 C.C.C.(2d) 82 (Sask. C.A.), refd to. [para. 119].

R. v. Crothers (1978), 43 C.C.C.(2d) 27 (Sask. C.A.), refd to. [para. 119].

R. v. Flewwelling (1984), 63 N.S.R.(2d) 382; 141 A.P.R. 382 (C.A.), refd to. [para. 120].

R. v. Vawryk (1979), 46 C.C.C.(2d) 290 (Man. C.A.), refd to. [para. 120].

R. v. Decloedt and Widenmaier (1986), 40 Man.R.(2d) 126; 28 C.C.C.(3d) 7 (C.A.), refd to. [para. 120].

R. v. Tennant (1975), 23 C.C.C.(2d) 80 (Ont. C.A.), refd to. [para. 121].

R. v. Tuckey (1985), 9 O.A.C. 218; 46 C.R.(3d) 97 (C.A.), refd to. [para. 121].

R. v. Bordonaro et al. (1986), 20 O.A.C. 339 (C.A.), refd to. [para. 131].

R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881; 27 N.R. 153; 47 C.C.C.(2d) 93, refd to. [para. 134].

R. v. Sophonow (1986), 38 Man.R.(2d) 198; 25 C.C.C.(3d) 415 (C.A.), refd to. [para. 135].

R. v. Haslam (1990), 78 C.R.(3d) 23 (B.C.C.A.), refd to. [para. 136].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159; 47 C.R.(3d) 193; [1985] 6 W.W.R. 127; 21 C.C.C.(3d) 7; 20 D.L.R.(4th) 651, refd to. [para. 137].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165; 49 C.C.C.(3d) 289; 70 C.R.(3d) 209, refd to. [para. 138].

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122; 62 C.R.(3d) 349; 32 C.R.R. 269; 40 C.C.C.(3d) 481; [1988] 4 W.W.R. 97, refd to. [para. 139].

R. v. Mitchelson (1992), 78 Man.R.(2d) 134; 16 W.A.C. 134; 13 C.R.(4th) 73 (C.A.), refd to. [para. 140].

R. v. Grover (1990), 38 O.A.C. 219; 56 C.C.C.(3d) 532 (C.A.), refd to. [para. 175].

R. v. Desveaux (1986), 13 O.A.C. 1; 26 C.C.C.(3d) 88; 51 C.R.(3d) 173 (C.A.), refd to. [para. 178].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 10(1) [para. 52]

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 43]; sect. 2(b) [para. 2]; sect. 7 [para. 45]; sect. 11(d) [para. 2].

Constitution Act, 1982, sect. 52(1) [para. 8].

Criminal Code, R.S.C. 1985, c. C-46, sect. 34 [para. 20]; sect. 181 [para. 29]; sect. 265 [para. 20]; sect. 319 [para. 33]; sect. 319(2) [para. 2]; sect. 319(3)(a) [para. 2]; sect. 319(3)(b), sect. 319(3)(c), sect. 319(3)(d) [para. 15]; sect. 515(10)(b) [para. 26]; sect. 679(3)(c) [para. 45]; sect. 686(1)(b)(iii) [para. 66]; sect. 686(2) [para. 133].

School Act, R.S.A. 1980, c. S-3, generally [para. 1].

Authors and Works Noticed:

Canada, Special Committee on Hate Propaganda in Canada, Report of the Special Committee on Hate Propaganda in Canada (1966), generally [para. 33].

Mahoney, Richard, The Presumption of Inno­cence: A New Era (1988), 67 Can. Bar Rev. 1, generally [para. 18].

Counsel:

Jack Watson, Q.C., for the respondent;

Douglas H. Christie, for the appellant.

This appeal was heard before Harradence, Hetherington and Foisy, JJ.A., of the Alberta Court of Appeal.

On September 7, 1994, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Harradence, J.A. - see paragraphs 1 to 146;

Hetherington, J.A. - see paragraphs 147 to 158;

Foisy, J.A., dissenting - see paragraphs 159 to 196.