Prosecuting Hate Speech: Keegstra, Zundel, And The Criminal Law's Ability To Protect Vulnerable Communities
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Abstract
There has been an alarming increase in hate speech in recent years, both in Canada and abroad. There is wide consensus that increased emphasis on criminal law will help suppress harmful expression. Numerous countries have proposed or enacted new criminal laws targeting hate speech. But there is little evidence of governments and policymakers taking into account the experience of countries that have long had criminal laws aimed at harmful expression. Canada, which has criminalized hate speech since 1970, is one such country. The Canadian experience may hold lessons regarding whether the criminal law has proved an effective tool for countering racism and uplifting vulnerable groups.
This question—whether the criminal law is an effective tool for countering racism and uplifting vulnerable groups—forms the core inquiry of this dissertation. I explore this question through the cases of R v Keegstra and R v Zundel. Both prosecutions commenced in 1985 and both were ultimately decided by the Supreme Court of Canada. Both involved antisemitism and Holocaust denial. They remain the leading cases in Canadian law on the scope and limits of freedom of expression.
Keegstra and Zundel have received attention primarily from scholars interested in the proper ambit of freedom of speech in a liberal-democratic society. Missing from this scholarship is any significant assessment of whether hate-speech laws serve the goals of the criminal sanction and how hate-speech prosecutions impact victim groups.
This dissertation fills this gap by providing a history of these cases from the perspective of the Canadian Jewish community. The Keegstra and Zundel prosecutions had a profound impact on Canada’s Jews. Yet no comprehensive history of these prosecutions has been written. I provide that account here.
This dissertation makes three main findings. First, to understand and respect vulnerable communities, we must acknowledge divisions within these groups. Second, the criminal law is a poor mechanism for countering hate speech. Third, civil law remedies and non-legal approaches should be relied on to supplement the criminal law in the fight against harmful expression.