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How the War in Gaza Is Testing Canada’s Hate Speech Laws

Legal experts say charging protesters has grave implications for free speech, even when speakers celebrate violent acts.

Jen St. Denis 29 May 2024The Tyee

Jen St. Denis is a reporter with The Tyee covering civic issues. Find her on X @JenStDen.

On the steps of the Vancouver Art Gallery, a woman with close-cropped hair is shouting into a microphone.

“Long live Oct. 7!” she exclaims.

“Long live Oct. 7!” the crowd chants back.

The people who launched the deadly attack on Israel that day are heroes “whose blood is being shed to defend humanity and to defend the world,” she told the crowd.

The woman was Charlotte Kates, the international director of Samidoun, a non-profit registered in Canada that describes itself as “an international network of organizers and activists working to build solidarity with Palestinian prisoners.”

After the video of Kates’s April 26 speech at a pro-Palestinian rally was posted on social media, the Jewish organization B’nai Brith reported it to Vancouver police. She was arrested and detained, then released with conditions that prohibit her from attending protests. Police say a criminal investigation is ongoing. No charges have been laid.

The Tyee reached out to Samidoun to request an interview with Kates or her lawyer, but did not hear back.

To many Canadians, praising the Oct. 7 attack is morally indefensible, akin to celebrating the 9/11 attack that levelled the Twin Towers in New York over 20 years ago. To B’nai Brith, her words were “a celebration of a massacre of Jews.”

But did Kates break Canada’s hate speech laws?

Ga Grant, staff litigation counsel for the BC Civil Liberties Association, told The Tyee the answers are complex. “There needs to be really nuanced understanding of the legal parameters for discussion.”

We need to distinguish between “criminal, wilful hate against a specific group of people, be it religious or otherwise, and what constitutes political speech against a state, be it Canada or another country,” Grant said.

“What constitutes people standing up against systems of power and oppression, which includes colonialism and human rights violations by Israel, as opposed to what constitutes hatred against a religious minority,” Grant said.

“It’s a really important political debate that our democracy benefits from having.”

The Vancouver police criminal investigation of Kates comes after several other attempts to charge pro-Palestinian protesters across Canada for chants at rallies, flags they’ve carried or protest actions they’ve carried out.

As Israel’s war in Gaza drags on, protests will continue. So we’re taking a close look at how and why Canada’s hate speech laws are being used in relation to pro-Palestinian protests, whether those charges have any chance of success and what’s at stake if police and prosecutors use criminal charges against activists.

Hate speech or legitimate protest?

To Kates and her supporters, the Oct. 7 attack by Hamas that killed about 1,200 people — over half of whom were civilians, including 33 children — was a successful military operation to advance the goal of Palestinian statehood, a point of view that has been repeated publicly at several rallies in Vancouver.

The attack — which included taking around 250 Israeli hostages — spurred Israel to launch a military assault on Gaza. That war has killed nearly 35,000 Palestinians, including at least 4,959 women and 7,797 children, according to the United Nations.

Israel’s conduct during the war has led to warnings from the United Nations and other humanitarian groups and sparked global protests. The International Criminal Court has applied for war crimes warrants for leaders of Hamas and Israel, including Israeli Prime Minister Benjamin Netanyahu and Hamas leader in Gaza Yahya Sinwar.

Sid Shniad is a member of Independent Jewish Voices, a group that has been involved with organizing and supporting the pro-Palestinian protests in Vancouver. He said he doesn’t agree with Kates’s views on Oct. 7, but he doesn’t think she should be facing criminal charges.

The Hamas offensive “included an attack on and the killing of civilians,” Shniad told The Tyee. “That is in opposition to international law and in opposition to what our organization stands for.”

“But even though I don’t like it, even though I disagree with it, this [speech] should not be subject to criminal sanctions.”

The criminal investigation of Kates is just the latest in a string of high-profile cases against pro-Palestinian protesters.

In Calgary, a man was charged with causing a disturbance with a hate motivation. In Canada, courts can consider whether hate was an aggravating factor when someone committed a crime, an option that can lead to a longer sentence for the offender.

While police have not confirmed what the man was saying during a Nov. 5 rally that was considered hateful, video showed him chanting “From the river to the sea, Palestine will be free,” according to news reports. The charge was later dropped by Alberta prosecutors.

In Toronto, police attempted to charge a man with publicly inciting hatred for holding the flag of the Popular Front for the Liberation of Palestine, an organization listed as a terrorist entity by Public Safety Canada. That charge was also dropped.

And 11 protesters were charged with mischief and criminal harassment after putting posters up at a Toronto Indigo store and splashing the windows with red paint. The posters accused the owner of the chain bookstore, Heather Reisman, of funding genocide. Reisman is Jewish, and police said the vandalism was hate motivated.

But supporters of the group say the action protested Reisman’s “indirect support of the Israeli military” through a foundation that supports foreigners to join the Israeli army.

Charges have now been dropped for four of those protesters.

The high bar for hate speech prosecutions in Canada

So what are you legally allowed to say at a protest or a rally in Canada?

The Criminal Code includes three hate speech offences. Section 319.1, incitement of hatred, says it’s illegal to communicate statements in a public space that incite hate against an identifiable group “where such incitement is likely to lead to a breach of the peace.”

Section 319.2, wilful promotion of hatred, says it’s an offence to make public statements to wilfully promote hatred against any identifiable group.

Section 319.3 specifically deals with the wilful promotion of antisemitism “by condoning, denying or downplaying the Holocaust.”

All of these offences have a high bar to convict. The Criminal Code defences for Section 319.2, wilful promotion of hatred, start with the person being able to establish the truth of their statements or that they attempted to argue, in good faith, on a religious subject or based on a belief in a religious text.

The law says anyone charged has a public interest defence and can argue the discussion was “for the public benefit” and that they believed their statements to be true.

Legal experts say it’s clear that charging a protester for saying “from the river to the sea” is an overreach.

“‘From the river to the sea’ has multiple meanings for different people,” said Richard Moon, a law professor at the University of Windsor.

“The reaction from some of the traditional elements of the Jewish community is that it is calling for the end of the Jewish state. And sometimes they translate that to mean, as well, the extermination of the Jewish people who reside there.

“But a perfectly reasonable interpretation — and certainly that taken by many people — is simply an aspirational statement about Palestinian liberation, the end of oppression.”

Camden Hutchison, a law professor at the University of British Columbia, called the attempt to charge the Calgary protester “overzealous.”

There’s a “real danger of creating a law enforcement environment where people perceive themselves to be at the risk of being arrested for engaging in political expression,” Hutchison said.

“That’s completely dystopian.”

Attempting to charge the man for holding the Popular Front for the Liberation of Palestine flag was also a problem, Moon said, because that protester was charged with public incitement of hatred. That speech must be public, must incite hatred against an identifiable group and must be “likely to lead to a breach of the peace” for a successful prosecution.

“This was one individual in the middle of a large crowd with no particular authority within the crowd. He was just one member of a larger demonstration,” Moon said.

“It’s difficult to imagine that his speech was likely to incite others to engage in immediate violence, because the incitement crime is about a breach of the peace that is likely to follow almost immediately from the speech.”

In the case of the speech Kates made on April 26, Moon and Hutchison said, the Criminal Code charge police are likely considering recommending to Crown prosecutors is 319.2, the wilful promotion of hatred.

As with the public incitement of hatred, there’s a high threshold, and B.C.’s attorney general will also have to approve the charge — a safeguard meant to prevent politically motivated use of the charge, or charges that are unlikely to hold up in court, according to Moon.

Examples of successful prosecutions of wilful promotion of hatred include James Keegstra, an Alberta school teacher who repeatedly taught antisemitic statements and conspiracy theories to his students; and Keith Noble, a B.C. man who published racist and homophobic screeds on the internet.

“It really has to be that you’re really going out there and wilfully promoting intense hatred of a specific group,” Hutchison said.

“What [Kates] is doing, it’s not quite that: she is justifying political violence in the context of a conflict that’s going on in the Middle East.”

But Hutchison said he can also understand why police might be concerned about Kates’s speech and its spread on social media.

“The fact that she was saying this at a public rally and people were chanting it back — that context is really important,” he said.

“Even though I’m a bit hesitant to characterize that as the wilful promotion of the hatred of Jewish people, over 1,000 Jewish people were killed in this attack and she’s out here promoting it and saying these people are heroes.”

Concerns about repression of pro-Palestinian speech

Aron Csaplaros, the British Columbia regional manager for B’nai Brith, reported Kates’s April 26 speech to police as soon as he saw the video.

Csaplaros said his organization has been concerned about Kates’s comments and Samidoun for years and has been urging the Canadian government to put Samidoun on its list of terrorist entities. Kates and other Samidoun supporters say Hamas, Hezbollah and the Popular Front for the Liberation of Palestine should not be included on Canada’s list of terrorist entities.

Despite the high bar for public incitement of hatred prosecutions, Csaplaros said he is confident that Kates’s comments at the April 26 rally met that bar.

“The way that Charlotte Kates phrased her words — I don’t think there was political value in them,” Csaplaros said.

“She could have criticized the Israeli government’s response to the massacre, which would have been appropriate — to criticize the Israeli government or the Israeli government’s actions. But celebrating the killing of Jews, I don’t think that serves much of a political purpose.”

B’nai Brith is a proponent of the controversial International Holocaust Remembrance Alliance’s definition of antisemitism, which critics say has been used to silence criticism of Israel. Under that definition, Csaplaros explained, B’nai Brith categorizes protest actions like occupying the offices of an Israeli shipping company or targeting Indigo stores as antisemitic because those businesses are owned by Jewish people.

B’nai Brith has repeatedly urged police to enforce laws protesters might be violating as some rallies have closed down a freeway or occupied a business.

“We have no problem with pro-Palestinian protests, as long as they’re within the confines of the law,” Csaplaros said.

“You can’t go into a private office and occupy that office.... That is something that we would like more police enforcement on, when protesters do cross the line and interfere with the use of private property.”

The organization also considers “from the river to the sea” to be an unequivocally antisemitic slogan. Csaplaros said B’nai Brith would like B.C.’s attorney general to consider hate speech charges when that phrase is being voiced at rallies.

“We are not advocating for everybody that says this chant to be arrested,” Csaplaros said. “We are advocating for the BC Prosecution Service to take a closer look at the use of this chant in certain contexts, particularly speeches where there’s many people present.”

Shniad disagrees strongly with B’nai Brith’s approach.

“Why is there any need for them to be policing or keeping an eye on trespassing or things like that, on the part of Palestinian solidarity activists?” Shniad asked.

“They’re trying to find everything they can to trip up and impede and castigate Palestinian solidarity work.”

Grant said she’s concerned about the level of repression of speech when it comes to recent pro-Palestinian protests in Canada, a situation she called “unparalleled” in recent Canadian history. Even when hate speech charges don’t proceed, Grant said, some people are being prevented from speaking through the use of police-imposed conditions while the charges are tested.

“This has a deeply chilling impact for everyone in Canada when it comes to having your confidence to go out and exercise your protected rights to freedom of expression and assembly without fear of police rights violations,” Grant said.

“Protest rights are so important in order to make sure there is peace. When you restrict legitimate expression and protest, it’s not going to help in terms of unrest in a society. You need to have these vessels of expression in order to have democracy.”

Hutchison said he’s not seeing a “draconian crackdown” in speech right now, but he is troubled by some of the individual attempts to prosecute protesters. Section 2 of the Canadian Charter of Rights and Freedoms establishes freedom of thought, belief, opinion and expression as one of four “fundamental freedoms,” while Section 1 describes the limits of those freedoms as “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

“As a society, true hate speech is against the law in Canada. Section 1 of the Canadian Charter allows for exceptions to the freedom of expression guaranteed in Section 2.... That’s the world we live in,” Hutchison said.

“The government can bring hate speech prosecutions against people in appropriate cases. But I think that law enforcement should be very careful and very prudent about bringing those charges, how it brings those charges and what type of expression it brings those charges for.”  [Tyee]

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