R. v. Andrews [1990] 3 S.C.R. 870: Criminal Code prohibiting wilful promotion of hatred against identifiable groups (s. 319(2)) -- Defence of truth to be established by accused on balance of probabilities (s. 319(3)(a)) -- Whether s. 319(2) of Code infringes s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1

Present: Dickson C.J. and Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Constitutional law -- Charter of Rights -- Freedom of expression -- Hate propaganda -- Criminal Code prohibiting wilful promotion of hatred against identifiable groups (s. 319(2)) -- Defence of truth to be established by accused on balance of probabilities (s. 319(3)(a)) -- Whether s. 319(2) of Code infringes s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter.

Constitutional law -- Charter of Rights -- Presumption of innocence -- Reverse onus provision -- Criminal Code prohibiting wilful promotion of hatred against identifiable groups (s. 319(2)) -- Defence of truth to be established by accused on balance of probabilities (s. 319(3)(a)) -- Whether s. 319(3)(a) of Code infringes s. 11(d) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter.

The accused were charged with the wilful promotion of hatred against an identifiable group under s. 319(2) of the Criminal Code. A was the leader and S the secretary of the Nationalist Party of Canada, a white nationalist political organization. Both were members of the party's central committee, the organization responsible for the publication of the Nationalist Reporter, which promoted the theory of white supremacy. The accused were convicted and their convictions upheld by the Court of Appeal. This appeal is to determine whether ss. 319(2) and 319(3)(a) of the Code are constitutionally valid.

Held (La Forest, Sopinka and McLachlin JJ. dissenting): The appeal should be dismissed. Sections 319(2) and 319(3)(a) of the Code are constitutional.

Per Dickson C.J. and Wilson, L'Heureux-Dubé and Gonthier JJ.: For the reasons given by the majority in Keegstra, s. 319(2) of the Code infringes the freedom of expression guaranteed in s. 2(b) of the Canadian Charter of Rights and Freedoms, and s. 319(3)(a) of the Code infringes the presumption of innocence entrenched in s. 11(d) of the Charter. Sections 319(2) and 319(3)(a) are both justifiable, however, under s. 1 of the Charter.

Per La Forest, Sopinka and McLachlin JJ. (dissenting): For the reasons given by the minority in Keegstra, s. 319(2) of the Code is an unjustifiable limit on the guarantee of freedom of expression in s. 2(b) of the Charter.

Per Sopinka and McLachlin JJ. (dissenting): For the reasons given by McLachlin J. in Keegstra, s. 319(3)(a) of the Code is an unjustifiable limit on the right to be presumed innocent in s. 11(d) of the Charter.

Per La Forest J. (dissenting): It is unnecessary to consider the issues respecting the right to be presumed innocent in s. 11(d) of the Charter.

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