By Christine Van Geyn, January 22, 2024
One of the greatest challenges in liberal democracies is the tension between curbing hatred and protecting free speech. The 1977 case of a planned Nazi rally in Skokie, Illinois, is one of the most famous examples.
Skokie was a nearly half Jewish town and home to hundreds of Holocaust survivors. The Nazis planned to appear with banners and in uniforms with swastika armbands. Skokie officials tried to block the demonstration, and this led to a series of lawsuits. Famously, the American Civil Liberties Association (ACLU) took up the free speech rights of the Nazis, who were represented by Jewish lawyer David Goldberger. The case tested the ACLU’s commitment to the value of free speech in the face of abhorrent and hateful conduct by a small group of repugnant bigots.
Courts ruled that the Nazi march must be permitted under the First Amendment (although the march was ultimately moved to Chicago). Though hard to swallow, the courts got this difficult question right. And now, pro-Hamas protests which are unfolding across Canada are raising similar tough questions.
As Canadian cities face increasingly confrontational protests related to Israel’s war on Hamas in Gaza, we may be approaching our own “Skokie moment.” It was disturbing to witness demonstrations by Palestinian groups in the immediate aftermath of the Hamas massacre of hundreds of innocent Israeli civilians, before Israel had even responded to defend themselves. Those demonstrations can be understood as little more than a celebration of the massacre of Jews.
As Israel’s military response has intensified, and the civilian loss of life in Gaza has risen, the protests have only become more hateful. At an October 28 rally in Montreal, Adil Charkaoui gave a speech in Arabic that called on Allah to “kill the enemies of the people of Gaza and spare none of them.” There have been blockades at Avenue Road and Highway 401 in Toronto, cutting off access to a largely Jewish community – an apparently intentional choice from the blockaders.
Echoing the horrors of Kristallnacht, Jewish businesses have been targeted with violence. A Jewish deli in North York was burned in a suspected arson; the words “Free Palestine” were spray painted outside. Since October 7, Toronto police say they have managed 308 protests, arrested 54 people and laid 117 charges which they allege have been hate motivated.
The situation is tense for everyone and terrifying for Canada’s Jewish community. Those who engage in violence must be arrested and prosecuted. But after weeks of under-reacting to the concerns of the Jewish community, police may now be responding in ways that unjustifiably limit speech, even if that speech is repugnant.
On January 11, police announced that they had arrested a 41-year-old man named Maged Sameh Hilal Al Khalaf and charged him with public incitement of hatred for carrying the flag of a terrorist organization. While the Toronto police originally refused to say which terrorist organization’s flag, they quickly reversed course telling CBC news that it was the flag of the Popular Front for the Liberation of Palestine (PFLP). The PFLP is a Palestinian Marxist-Leninist terror group that became notorious for hijacking commercial airliners in the 1960s and 70s. It has been involved in terror attacks targeting civilians, suicide bombings, shootings and assassinations. The goal of the PFLP, according to the federal government, which lists the group as a terrorist organizations, is “the destruction of the state of Israel and the establishment of a communist government in Palestine.”
Flying the flag of a terrorist organization like the PFLP is odious and reprehensible. It should trigger action by CSIS and reveals the undercurrent of support for terrorism in Canada that many had swept under the rug. This violence and support for terror is a real threat to Canadian security and must be taken more seriously.
But without more than a flag, it is questionable whether the elements of the crime of incitement to hatred are made out. Section 319(1) of the Criminal Code prohibits communicating statements in a public place to incite hatred against any identifiable group, where such incitement is likely to lead to a breach of the peace.
An immediately obvious analogy is to a Nazi flag, since both the Nazis and PFLP are antisemitic and genocidal. But flying a Nazi flag is not a criminal offence under section 319(1) unless it is combined with the intent to incite hatred that could lead to a breach of the peace. There have been many cases across Canada over the years dealing with the flying of reprehensible flags where charges were not laid. A judge will need to rely on the evidence and context of the protest to determine whether Al Khalaf’s intention was to target an identifiable group, like Jews, rather than, for example, capitalism, the west as a whole, or whether he had some other intention. To be fair to the police, it is entirely possible there was sufficient context to make the arrest. A person so lacking in decency as to fly a terrorist group’s flag could very well also engage in other disturbing behaviour that could result in this charge. But this information hasn’t been released at the time of writing.
The law’s requirement to show that the incitement is likely to lead to a breach of the peace may also present problems for the prosecution. Violence lies at the core of the concept, and at common law, a breach of the peace has always involved “danger to person.” The criminalization of speech is reserved for the most severe and extreme cases.
The facts in the handful of 319(1) cases that have resulted in conviction for incitement to hatred are much clearer cut because they show a clear nexus between the identifiable group and violent rhetoric. In R v Rehberg from Nova Scotia in 2010, the accused was convicted of incitement for burning a cross on the home of a interracial Black and Caucasian couple and their five children while shouting racial slurs and calling for their death. In the 2022 Quebec case of R v Têtu, the accused was convicted of incitement for his public statements about Muslims, which included the calls for the death of Muslims. In R v Rioux, the accused was convicted of incitement for exchanges and comments on a Facebook page with violent language, again about killing Muslims. In the 2017 Ontario case of R v M.G., the accused pleaded guilty to incitement to hatred for spray painting hateful messages on places of worship calling for the death of Jews using racial slurs. In Dion v R, a 2020 case that went to the Quebec Court of Appeal, the accused was convicted of incitement for statements on YouTube glorifying mass murderer Alexandre Bissonnette, who had killed worshippers at a Mosque, as well as blaming Muslims for the problems of society and saying they are a threat, engaging in illegal activities, criminals and liars.
It is uncomfortable to think that it is not a criminal act for Al Khalaf to wave the flag of a terrorist group that would not hesitate to blow up civilian airplanes or use suicide bombs, just as it is uncomfortable to think that flying a Nazi flag is not a criminal offence, or that Nazis in 1977 would be permitted to march through a neighbourhood of Holocaust survivors. The instinct among most of us is to silence the speech of those expressing reprehensible views. But the lawyers in the famous Skokie case were right to defend maximum free speech. Goldberger has written that the case still brings up difficult feelings about representing a client whose constitutional rights were being violated but who represented the hatred and bigotry that continues to erupt into America’s consciousness. But the laws used in the attempt to silence the Nazis could be, and were, used to silence many other voices that should never have been censored.
The same can be said of an ever-broadening meaning of hate speech and expanded enforcement of Canada’s s. 319(1). Even in the awful case of Al Khalaf’s alleged PFLP flag, it is better to be able to see our enemies in plain sight; it is better not to make a practice of restricting speech. We should not let our instincts lead us to cheer short sighted policing decisions which undermine a free society.
A better approach is to fight bad speech with good speech, as the Holocaust survivors in Skokie did by opening the beautiful Illinois Holocaust Museum. That powerful memorial remains today, while the words and names of the Illinois Nazi fools have faded into obscurity.
Christine Van Geyn is the Litigation Director for the Canadian Constitution Foundation, a legal charity that fights for the fundamental freedoms of Canadians in the courts of law and public opinion. She is also host of the national television show ‘Canadian Justice’, that covers Canada’s most important legal news stories.