If Canada enforces the Criminal Code against hate speech

Michael TaubeSince the Palestinian terrorist organization Hamas attacked Israel on Oct. 7, there have been rallies and protests around the world, including in Canada. Some of them have been supportive of Jews and Israel. The vast majority have involved supporters of Palestine, Hamas and everything in between.

If the pro-Israel and pro-Palestinian rallies and protests had been nothing more than large crowds marching and chanting with a few scattered flags and placards in the air, it would have been acceptable to most Canadians. Obviously, you could agree or disagree with the motives of each gathering. It would have been difficult to argue they didn’t have the right to speak out freely.

That’s not been the case with pro-Palestinian rallies and protests in Ontario cities like Toronto and Mississauga.

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There have been Hamas flags in the crowds – and, in one notable instance, that of the Taliban. Placards and signs have bashed Israel as supporting apartheid in Gaza or worse. Several activists painted a “river of blood” at the Israeli consulate in Toronto. One protester was photographed wearing machine gun earrings and supporting Hamas. A recent rally included a sign of a Star of David on a wastebasket with the words “Keep the World Clean.”

There have also been many chants of “From the river to the sea, Palestine will be free.”

This controversial slogan has been interpreted in different ways by different people. Its origins are rooted in Palestinian liberation, and has long been used by terrorist groups like Hamas and Palestine Islamic Jihad to justify calls for Israel’s destruction. Others claim the chant is nothing more than a rallying cry for a free Palestine.

It’s all in the eye and tongue of the beholder.

Some have argued these controversial statements and images constitute hate speech. This would go against Section 318 (1) of the Criminal Code of Canada, or advocating genocide, in which “Every person who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.”

It would also go against Section 319 (1) of the Criminal Code, or public incitement of hatred. In this case, “Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.”

Should hate speech be a criminal offence?

I’ve never thought so. It’s way too much of a slippery slope to attempt to define concepts like “hate” and “genocide” within specific legal terms that properly protect free speech in Canada. Everyone’s level of acceptance and tolerance is different, after all.

The U.S. has handled the issue more appropriately, in my view. Its Supreme Court determined that hate speech laws were unconstitutional and violated the First Amendment in R.A.V. v. City of St. Paul (1992).

This was a case involving a group of teenagers who had burned a cross on a black family’s lawn. One of the teenagers, R.A.V., was charged under a local bias-motivated criminal ordinance which prohibits the display of a symbol which “arouses anger, alarm or resentment in others on the basis of race, colour, creed, religion or gender.” It was dismissed by a trial court, reversed in the state supreme court and sent to the U.S. Supreme Court.

By a vote of 9-0, the ordinance was declared invalid.

As Justice Antonin Scalia wrote, there are “a few limited categories of speech such as obscenity, defamation, and fighting words that have traditionally been subject to regulation on a basis of content.” Nevertheless, “regulation of fighting words and other proscribable categories of speech may, however, be under inclusive addressing some offensive instances and leaving other equal offensive instances alone so long as the selective prescription is not based on content or there is no realistic possibility that regulation of ideas is afoot. In light of these principles, we conclude that the ordinance, even as narrowly construed by the State Supreme Court, is facially unconstitutional because it imposes special prohibitions on those speakers who express views on the disfavored subjects of race, colour, creed, religion, or gender.”

Scalia also made this important distinction. “Let there be no mistake about this Court’s belief that burning a cross in someone’s front yard is reprehensible. But, St. Paul has sufficient means at its disposal to prevent such behaviour without adding the First Amendment to the fire.”

Will Canada follow the U.S.’s important lead with respect to free speech and so-called hate speech? No. Hence, some people could be in serious legal trouble if Canada’s Criminal Code is ever enforced at these pro-Palestinian rallies and protests.

Michael Taube, a Troy Media syndicated columnist and Washington Times contributor, was a speechwriter for former Prime Minister Stephen Harper. He holds a master’s degree in comparative politics from the London School of Economics.

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