Entrenched within the Canadian Charter of Rights and Freedoms lies the fundamental rights that Canadian citizens share. The primary freedoms recognized within Section 2 of the Charter, such as the freedom of speech and expression, are necessary for a free and democratic society. Yet, a crucial conflict of rights exists within the system when the freedom of expression is used to perpetuate willful hatred against a certain individual or group. Controversy arises from this conflict first and foremost because the freedom of expression is meant to secure each person the right to express ideas and opinions without governmental interference, irrespective of what that opinion may be. In this paper, I will discuss the conflicting views of restricting the freedom of expression when it is used to promote hatred. I refer to the insights offered by Joel Feinberg and Joseph Raz to advance the view that the “right” to freedom of expression is not final and absolute, as expressions of hated do in fact cause real harm to people, and there rights too must be taken into consideration. Fundamental rights should be viewed as a privilege, which includes a responsibility to respect and value the rights of others to provide for a truly liberal democracy. I will refer to the landmark judicial decision in the Canadian Supreme Court case of R. v. Keegstra to argue that the rights of individuals and groups to be afforded the right to respect and dignity outweigh any claim to freedom of expression.
R v. Keegstra: s. 2 (b) of the Charter of Rights and Freedoms versus s. 319 (2) of the Criminal Code
The case, R. v. Keegstra, constructs a framework concerning whether the freedom of expression should be upheld in a democratic society, even when it is used to perpetuate deliberate hatred. In the Canadian Charter of Rights and Freedoms, underlined in section 2, are the fundamental freedoms that Canadian citizens share within the Canadian constitution. “Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association” (CITATION). S. 2(b) clearly states that Canadian citizens have a right to express their personal opinions and beliefs, free from government interference. Yet, it is noted in Section 1 of the Charter that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (CITATION). Therefore, the freedom of expression is only guaranteed in Canada when it adheres to the confinements of the law. The conflict arises when we turn to the Canadian Criminal Code. Section 319 (2) of the code, under the willful promotion of hatred, states that “ Every one who, by communicating statements, other than...