Keegstra, Butler, and Positive Liberty: A Glimmer of Hope for the Faithful

VICTOR V. RAMRAJ

ABSTRACT

Through an examination of two recent decisions of the Supreme Court of Canada on the freedom of expression guarantee in the Canadian Charter of Rights and Freedoms, R. v. Keegstra and R. v. Butler, the author argues for a unitary vision of the Charter grounded on the concept of positive liberty. Positive liberty, understood as the ability of individuals to be their own masters and to participate in society with equal dignity and respect, is to be contrasted with negative liberty, or the absence of external impediments, which informed the dissent in Keegstra. Legislation that impairs the negative liberty of one individual still may be consistent with the goal of enhancing the positive liberty and, correspondingly, the political equality of other members of society. Moreover, as implied in Butler, to the extent that positive liberty is a fundamental political value in a free and democratic society, the courts are bound to uphold it under the Charter. By recognizing the importance of legislation designed to enhance respectively the political equality of ethnic minorities and women, the majority decisions in Keegstra and Butler represent a return to this earlier vision of the Charter in which the two stages of analysis---the establishment of an infringement by the rights-claimant and the attempted justification of the infringement by the state---are unified under the concept of positive liberty.

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Citation: (1993) 51(2) U.T. Fac. L. Rev. 304.
Copyright © 1993. University of Toronto Faculty of Law Review.
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