The past year has tested the limits of Canadians’ tolerance for freedom of expression and peaceful assembly.
Since Oct. 7, 2023, there have been thousands of anti-Israel rallies and marches. Deeply offensive words have been chanted and offensive symbols like the Hamas-inspired upside-down red triangle have been common sights on Canadian streets.
Jewish-Canadians are justifiably fearful for their safety considering that many of the people at these marches openly endorse Hamas’s horrific terrorist attack that killed 1,200 people, mostly civilians, and took 251 hostages.
Yet there have been relatively few charges under Canada’s criminal hate speech laws. One exception was the recent arrest of two Toronto-area men accused of waving the flag of the terrorist group Hezbollah in a way that police allege was likely to lead to a breach of the peace.
The simple reason why there haven’t been many hate speech arrests is because most of this speech has been awful but lawful: it doesn’t rise to the level required to be outlawed without violating the constitutional guarantee of freedom of expression.
As the Supreme Court explained in its 2014 decision in Saskatchewan (Human Rights Commission) v Whatcott, only “those extreme manifestations of the emotion described by the words ‘detestation’ and ‘vilification’ … that risks causing discrimination or other harmful effects” count as hate speech. Merely “offensive” or “hurtful” speech cannot be criminalized.
Offensive speech is constitutionally protected by the Canadian Charter of Rights and Freedoms for good reason. Subjective offensiveness can be weaponized by those in power against their opponents. If today’s government can punish your enemies because of their speech, tomorrow’s government can punish you for yours.
When governments decide which ideas may be expressed, the public square ceases to be a forum where truth can be openly pursued in dialogue with our fellow citizens. Yet many Canadian municipalities don’t seem to understand this.
In recent years, several cities have passed bylaws that purport to give bylaw officers the power to fine people for offensive speech. As well-intentioned as these may be, they’re manifestly unconstitutional. Not only do these bylaws infringe the freedoms of expression and peaceful assembly, they usurp Parliament’s exclusive constitutional authority to make criminal law. These bylaws need to go.
Back in 2021, Edmonton become one of the first cities to pass a so-called anti-harassment bylaw, in response to a reported rise in attacks against women wearing hijabs.
These alleged attacks were accompanied by hateful comments, but they constituted actual crimes like assault or battery, which can already attract longer sentences if motivated by hatred. It’s unclear how a bylaw banning offensive speech, even if doing so complied with the Charter, would do anything to deter such crimes.
The Edmonton bylaw outlaws communicating in a way that makes another person feel “tormented, troubled, worried, plagued or badgered,” as a result of “objectionable or unwelcome conduct, comment, bullying or actions that could reasonably cause offence or humiliation.”
You read that correctly: merely holding up a sign at a protest that makes another person feel “troubled” can theoretically lead to a ticket ranging from $250 to $10,000, and up to six months in prison if unpaid.
This bylaw was soon copied by Calgary, which then decided to one-up Edmonton by passing an additional bylaw in 2023 banning protests that express “objection or disapproval” towards ideas or actions related to “race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation” within 100 metres of a recreation facility or a library.
It’s difficult to know what types of protests are truly banned, but few would dare risk finding out: violations can result in up to $10,000 in fines and up to a year in prison. The Canadian Constitution Foundation’s (CCF) challenge to Calgary’s anti-protest bylaw will be heard in early 2025.
The Regional Municipality of Waterloo, Ont., also passed a bylaw modelled after Edmonton’s in September 2023, despite concerns that it would chill legitimate democratic expression. Parental rights activist Miriam Awazi warned council that the bylaw “allows people to weaponize their feelings against the right of others to speak.”
Councillors then voted down a proposal to retain an independent legal opinion on the bylaw’s constitutionality, and ignored a letter from the CCF urging that the municipality to repeal the bylaw. The CCF is now challenging it in court.
These bylaws make law-abiding citizens fearful to speak out and protest while doing nothing to reduce the hatred in our streets. Rather than spending time and money on new speech-chilling bylaws, our municipal leaders should ensure police have the resources to investigate the actual crimes that are threatening our communities.
National Post
Josh Dehaas is counsel with the Canadian Constitution Foundation, a non-partisan legal charity dedicated to defending Canadians’ rights and freedoms.