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Justice

Are the pro-Hamas protests in violation of Canada’s hate speech and terrorism laws?

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19 minute read

From the MacDonald Laurier Institute

By Joe Adam George

Regardless of how one feels about free speech, pro-Hamas protests have revealed some hidden, uncomfortable truths about many of our fellow Canadians

Rallies blocking traffic at major intersections. Protestors intimidating businesses and community centres. Radicalized student unions paralyzing college and university campuses. Hateful and incendiary messages dominating social media. Pro-Palestine agitators ripping down posters of hostages and waving the flags of banned terrorist organizations like Hamas and Taliban.

These sustained public acts of malice – specifically targeting Israel and the Jewish community –have become the new norm in Canada in the aftermath of the Oct. 7 terrorist attacks that Hamas, a listed foreign terrorist organization in Canada, committed against 1,400 unsuspecting civilians in Israel, in addition to taking over 240 hostages. Calls for a global “Day of Jihad” and similar rabble-rousing by Hamas sympathizers and pro-Palestine groups have only added fuel to the raging fire.

Invigorated by the brutal events of that fateful day, a populist, mostly Muslim Arab faction, has found a “solidarity ally” in the radical left – a rather odd symbiosis given these groups have very little in common (barring of course, their mutual sadistic hatred of Jews and desire to see the annihilation of Israel). Their oft-frightful vituperations, which include ostensible acts of glorifying terrorism, antisemitism, and intimidation of Jews (a protected minority community in Canada) has left many mild-mannered Canadians aghast, drawing parallels with Kristallnacht (a wave of coordinated pogroms that took place 85 years ago in Nazi Germany and its annexed territories).

From leftist students cheering for “intifada” (violent resistance) and branding Hamas terrorists as “martyrs”, to multiple instances of arsonshootingsassaultdeath threats and calls for the boycotting of Jewish-owned businesses, the last few weeks have been a living nightmare for Canadian Jews as they continue to be inundated with vitriol in the streets and on social media.

Much ink has been spilled debating whether these acts and their perpetrators are in violation of Canada’s hate speech and terrorism laws, considering that Canadians (Jewish and non-Jewish alike) are quickly becoming accustomed to seeing blatant expressions of antisemitism and hatred on a daily basis.

Do flying Hamas and Taliban flags cross a line of criminality into “supporting” a listed terrorist entity? Can the infamous “machine gun earrings lady” be prosecuted for glorifying and promoting terrorism for publicly singing the praises of the Hamas terrorists? Should the former Carleton University economics professor who tweeted that Israelis brought the horrific events of Oct. 7 “on themselves” be charged for hate speech? Can the actions of the protestors who targeted and harassed Jewish coffee shops and delis in Toronto be construed as the “public incitement of hatred”? Could those who chant the unambiguously genocidal slogan “From the river to the sea, Palestine will be free” be viewed as “advocating genocide”?

The answer to all these questions is a likely “no”.

Josh DeHaas, counsel with the Canadian Constitution Foundation, told me in an interview last week that Canada’s existing hate speech laws are poorly understood by many. Moreover, he pointed out that the recent explosion of vitriol caused by the Israel-Hamas conflict is “a new phenomenon” not just for regular Canadians, but also for the law enforcement agencies grappling with the unprecedented wave of vitriol.

“They have their work cut out for them because hatred is a notoriously difficult concept to define,” DeHaas said. “We know the bar for criminal hate speech in Canada is very high but, despite multiple court decisions discussing hate speech, we still don’t know exactly how high”.

“If you look at Twitter, you’ll quickly see that what counts as hateful is in the eye of the beholder. Feminists who advocate against wearing hijabs are often accused of engaging in hateful conduct against Muslims; but, to those feminists, advocating that women must or should wear hijabs is hateful towards women,” DeHaas explained. “Another example comes from the debate over whether transgender women should be in certain spaces—both sides accuse the other side regularly of engaging in hate speech. It’s unlikely this is illegal in Canada but it’s hard for regular people to know.”

“This difficulty with defining hatred leads to a chilling effect, since people fearing they will cross the line into criminality are worried about saying anything controversial. And that’s a huge problem for freedom of expression, since the purpose of freedom of expression is to allow for controversial ideas to be debated, and we can’t debate these things if people are afraid to speak,” he added.

“The subjective nature of what counts as hatred is one of the reasons why we at the Canadian Constitution Foundation are wary of legal restrictions on speech,” explained DeHaas. “That said, the Supreme Court of Canada has stated that hatred can be outlawed if it’s limited to those extreme manifestations of the emotion as described by the words ‘detestation’ and ‘vilification’.”

DeHaas cited the example of the 2013 R v Whatcott case, wherein then-Justice Marshall Rothstein of the Supreme Court offered some guidance on when speech will cross the line from merely offensive or humiliating into something that warrants placing a “reasonable limit” on freedom of expression. Criminal hate speech, wrote Justice Rothstein in the decision, includes “representations that expose a target group to detestation tend to inspire enmity and extreme ill-will against them, which goes beyond mere disdain or dislike.”

Justice Rothstein added that such outlawed speech may be identified by looking for the “hallmarks of hatred.” This may include “vilify(ing) the targeted group by blaming its members for the current problems in society, alleging that they are a powerful menace, arguing that they are carrying out secret conspiracies to gain global control or plotting to destroy western civilizations, saying that they are a parasitic race, liars, cheats, criminals or thugs, genetically inferior, lesser beasts, or sub-human filth.”

“‘Hatred’ is objectively defined so it is not supposed to matter whether an individual found the speech or tweet hateful,” DeHaas explained. “What is supposed to matter is whether a reasonable person, aware of the context and circumstances surrounding the expression, would view it as exposing the protected group – for example, Jews and people of Israeli origin – to hatred by others.”

“According to the Court, hate speech laws aren’t meant to censor; they’re meant to prevent harm that can result from exposing a group to hatred, which, in the Court’s view, can lead to exclusion of members of the group from society or even worse consequences like the Holocaust,” he added. “However, it’s still very difficult to know exactly where the line between merely offensive speech, which is legal, and speech that counts as the most extreme forms of vilification and detestation, which can land a person in prison.”

While Section 319 (2) of the Criminal Code is the main hate speech provision outlawing “wilful promotion of hatred”, charges and convictions under this section are relatively rare. Section 319 (2.1) is a new and untested provision specifically targeting antisemitism. Passed by Parliament just last year, it prohibits any individual or group from “communicating statements, other than in private conversation, [that] wilfully promotes antisemitism by condoning, denying or downplaying the Holocaust”. Both offences carry a two-year term of imprisonment.

Another relevant statute, Section 318 (1), carries a five-year prison sentence for anyone “advocating or promoting genocide”, defined as: “committing with intent to destroy in whole or in part any identifiable group [by] killing members of the group or deliberately inflicting on the group conditions of life calculated to bring about its physical destruction”.

DeHaas said the comments made by Montreal-based Imam Adil Charkaoui to a crowd on Oct. 28, which have been translated online as “Allah, destroy the arrogant Zionists…Allah, count every one of them, and kill them all, and do not exempt even one of them” may have breached Section 318 (1). That will likely depend on whether “Zionists” counts as a section of the public distinguished by race, religion or national or ethnic origin, he added.

This stated, DeHaas also cautioned that individuals have rarely been charged or convicted under any of the three hate crime statutes mentioned above as they all have high legal bars for prosecutors to prove criminal intent beyond a reasonable doubt. Besides, these offences are also unusual in the sense that they require the Attorney General of the province where the alleged offense took place to sign off before prosecution. (DeHaas noted that the police, not the Crown, lay charges in the case of most criminal offenses).

In addition to these provisions, any criminal offence that is motivated by hatred (e.g., assault, criminal harassment) can have the aggravated hate charge applied, possibly leading to a harsher sentence in the case of a conviction. For example, Calgary police charged a protester last week with “uttering threats” against two Jewish community organizations. Toronto Police, meanwhile, have pressed charges against a man who allegedly assaulted a person affixing pro-Israel posters to a utility pole. Both men, if convicted, could receive a tougher sentence if found to have been motivated by hatred.

Some lawyers have raised the possibility that those who publicly voice support for Hamas could be charged under Section 83 of the Criminal Code, which prohibits promoting terrorist activity. For example, some have suggested that the “machine gun earrings lady” (identified in media reports as Essra Karam) can be charged under Section 83 for saying “I support Hamas” and calling Hamas terrorists “true fighters” in an interview with The Rebel’s David Menzies.

DeHaas, who stresses that he is not an expert in terrorism laws, is nonetheless skeptical that merely stating support for a listed terrorist group, as this woman has clearly done, would violate the terrorism provisions of the Criminal Code.

“However, I do think it would be appropriate for authorities to investigate whether she is supporting Hamas in a more material sense by fundraising or recruiting for Hamas at the rally, because that is clearly illegal, and if she is not a Canadian citizen, it is possible that she could be inadmissible to Canada under the Immigration and Refugee Protection Act”, DeHaas added.

Dan Stanton, Director of the National Security Program at the University of Ottawa and a former Canadian Security Intelligence Service (CSIS) manager, agreed with DeHaas’ assessment and on that same note, expressed bewilderment at how dangerous and unreformed jihadists like Montreal’s Charkaoui could acquire full Canadian citizenship and walk around freely spewing hate; especially given his criminal track record, which includes stints in prison for alleged al-Qaeda ties and promoting radical Islam with the goal of exhorting people to go overseas to join terror groups.

Stanton also raised a worrying point – the pro-Hamas rallies and demonstrations are likely to have radicalized and galvanized certain left-wing and Islamic extremists, which could potentially pose a serious threat to the national security of Canada and its allies, should these individuals conduct lone-wolf attacks, fundraise, recruit or travel abroad to participate in overseas conflicts.

Since its vicious attack on Israel, Hamas has made its aspirations to create a “global Islamic caliphate” quite clear. It is little wonder why Hamas is viewed as “the new ISIS” – an observation FBI Director Christopher Wray made during his testimony before the U.S. Senate Homeland Security and Governmental Affairs Committee late last month, telling the Committee, “We assess that the actions of Hamas and its allies will serve as an inspiration, the likes of which we haven’t seen since ISIS launched its so-called caliphate several years ago”.

This warning should be taken seriously by the Trudeau government as, unlike in Europe, where terror attacks have generally been carried out by refugees or illegal immigrants, Canada’s most serious threats are likely to come from radicalized homegrown extremists. However, Phil Gurski, a former senior strategic terrorism analyst with CSIS, said the Trudeau government’s inept handling of the conflict and general apathy towards its imperiled Jewish community proves it hasn’t learned from its recent experiences with Chinese and (alleged) Indian interference and, instead, continues to prioritize vote-bank politics over Canada’s national security and longstanding ties with Israel.

So, what does all this mean for Canada’s Jews and other Canadians? Do they continue to put up with these despicable acts of vitriol and violence and wait until someone is grievously hurt or killed like the 69-year-old Jewish man in Los Angeles?

Both Gurski and Stanton remarked that the top priority for law enforcement agencies and all levels of government should be to reassure Jewish communities by taking meaningful preventive measures to ensure their safety and security. They added that CSIS is likely to be tracking suspicious individuals and extremists who were already under the scanner, and also investigating for clues that indicate any fundraising or recruitment activities being conducted by Hamas, Hezbollah and ISIS sympathizers in Canada.

At a campaign reception in Minnesota last week, U.S. President Joe Biden said rather profoundly: “You know, about every six, eight generations, we go through a phenomenal change. What happens in the next two, three, four years is going to determine what the next four or five decades are going to look like.”

Regardless of how one feels about free speech and the hate crime statutes, the pro-Hamas protests have revealed some hidden, uncomfortable truths about many of our fellow Canadians – their blind hatred of Jews and contempt for law and order, historical facts (pertaining to the Israel-Palestine conflict), and western values and principles. Undeniably, the ancient evil of antisemitism poses an existential threat to Canadian values, unity and security but we can remain optimistic that these violent protests would serve as the inflection point Canada desperately needs to dismantle such deep-rooted, hideous ideologies and the systems that perpetuate them; which would determine if its long-term future remains in the civilized world or with those who lionize the women-raping and baby-killing barbarians of Hamas.

Joe Adam George is a former foreign policy and national security research intern with the Washington, D.C.-based policy think tank, Hudson Institute, and a communications strategist.

COVID-19

ArriveCAN charges dropped, shielding the controversial program from constitutional scrutiny

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News release from the Justice Centre for Constitutional Freedoms 

The Justice Centre for Constitutional Freedoms announces that City of Mississauga prosecutors have withdrawn five charges against four Canadians who refused to comply with ArriveCAN requirements at the Toronto Pearson International Airport.

The withdrawn charges include those against Elim Sly-Hooten of British Columbia. After arriving in Toronto from the Netherlands, Mr. Sly-Hooten felt that his personal medical information should remain private and chose not to disclose his vaccination status via ArriveCAN. In response, Peel Regional Police and Public Health Agency of Canada personnel detained him. Under pressure and without counsel, Mr. Sly-Hooten broke down and revealed his vaccination status. He received a $5,000 ticket for violating the Quarantine Act and was ordered to quarantine in his home for 14 days.

With help from the Justice Centre, Mr. Sly-Hooten launched a constitutional challenge against ArriveCAN, citing his right to liberty, his right to be protected from unreasonable search and seizure, his right to be free from arbitrary arrest and detention, and his right to counsel after arrest and detention – all protected by the Canadian Charter of Rights and Freedoms.

Prosecutors also withdrew tickets against Mark Spence, Aaron Grubb, and Evan Kraayenbrink. Like Mr. Sly-Hooten, each were charged for choosing not to provide information via ArriveCAN and were ordered to quarantine for 14 days. Prosecutors have withdrawn the charges because they believe it is not in the public interest to expend further resources on a trial. This outcome follows a similar pattern of ArriveCAN-related charges being dropped before their trials in what appears to be an attempt to shield the controversial program from constitutional scrutiny. In other words, charges are being dropped before the merits of constitutional challenges to ArriveCAN can be heard by the courts.

Beside the constitutional question, ArriveCAN has been dogged by bad publicity since its implementation. Canada Border Services Agency launched ArriveCAN in April 2020 in response to the World Health Organization’s declaration of a global pandemic. Since then, ArriveCAN has cost Canadians an estimated $59.5 million (not counting in-house costs), according to the Auditor General of Canada in her February 12, 2024 performance audit report.

ArriveCAN was mandatory for all air, land, and marine travellers between November 2021 and October 2022. During that time, the program erroneously ordered 10,000 Canadians to quarantine in a significant breach of the Privacy Act, according to a 2023 report from the Office of the Privacy Commissioner of Canada. The program violated many of the rights and freedoms protected by the Canadian Charter of Rights and Freedoms.

Lawyer Chris Fleury stated, “This outcome is bittersweet for each of our clients. It is positive for each of them personally. On the other hand, they were deeply interested in seeking a determination of the constitutionality of the irrational and unscientific decision forcing unvaccinated Canadians to quarantine. The federal government has again escaped accountability for Covid policy decisions that breached Canadians’ Charter rights.”

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COVID-19

Ontario judge rules in favor of woman who refused COVID nasal swab test

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From LifeSiteNews

By Clare Marie Merkowsky

‘I do decide that the nasal swab test, which the screening officer in this case required or demanded Ms. Fernando submit to, was an unlawful requirement or demand,’ wrote Ontario Court Justice Paul Monahan in his June 26 ruling.

An Ontario court has ruled in favor of a woman who was charged and convicted for refusing to submit to a COVID nasal swab test upon returning home to Canada in 2022.

In a June 26 ruling, Ontario Court Justice Paul Monahan decided in favor of Canadian woman Meththa Fernando, who was charged in 2022 for refusing a COVID nasal swab test when returning to Canada from abroad and subsequently found guilty. Monahan concluded that in Fernando’s case, requiring her to submit to such an invasive test was unlawful and ordered her conviction be overturned.

“I do decide that the nasal swab test, which the screening officer in this case required or demanded Ms. Fernando submit to, was an unlawful requirement or demand,” wrote Monahan in his ruling.   

“Ms. Fernando’s refusal to comply with the requirement or demand was lawful on her part,” he continued. “Because the requirement or demand made of her by the screening officer was not lawful, Ms. Fernando should not have been found guilty by the Justice of the Peace.”  

Fernando began her legal journey in 2022 when she refused a nasal swab at Pearson International Airport in Toronto, Ontario. Upon her return home to nearby Mississauga, a screening officer from the Canadian Public Health Agency randomly selected her to undergo the nasal test.  

However, Fernando, who told the officer she was already vaccinated against COVID, refused the test. She was charged and later convicted of failing to comply with an order under Section 58 of the Quarantine Act and fined a total of $6,255. 

Canada’s Quarantine Act was used by Prime Minister Justin Trudeau’s government to enact severe draconian COVID travel rules on all returning travelers to the country. 

Fernando chose to take her case to an appeal court following conviction, arguing that the Quarantine Act did not “authorize a screening officer to use a screening test which involved the entry into the traveller’s body of an instrument or other foreign body.”   

As LifeSiteNews previously reported there have been several instances of injuries after receiving the swabs, including leaking brain fluid due to the test puncturing the brain tissue.   

“The prosecution raised the point that perhaps the insertion into the nasal cavity did not involve the entry into the body,” Monahan stated. “I disagree. The insertion of a nasal swab into the nasal cavity is most definitely an insertion into the body.”  

“I am reversing the Justice of the Peace’s decision and entering a finding of not guilty,” he concluded. “Those are my reasons.”  

Besides potential brain tissue damage, COVID-19 nasal tests have been flagged for seriously questionable accuracy rates. One study authored by British and American scientists last year found that PCR nasal swab testing has only around 63% sensitivity. 

Severalotherstudies, as well as federalguidelines, have identified major accuracy issues with PCR tests and other means of testing for coronavirus. The most common PCR testing protocol for COVID-19 also has come under fire in December, when a coalition of scientists called for the retraction of the original article detailing the method, due to a lack of a properly peer-reviewed report. 

Pro-freedom lawyer Daniel Freiheit celebrated the decision, telling LifeSiteNews, “This ruling is a stark reminder that many laws may have been broken during COVID. I think this was caused by a collective fear of the unknown and a kind of mass panic.” 

“In times like that, it’s utmost to rely on first principles: basic freedoms that I had always been taught would act as checks and balances: freedom to speak, freedom to associate, freedom to deny novel medical treatment, right to retain counsel,” he continued.   

He explained that the ruling will give Canadians a sense of vindication since many knew the tests were invasive and unjust but complied out of fear.  

“Many people knew it was wrong and unlawful at the time but had no choice except to comply,” he said.  

“It was either that or face detainment at the border, harassment, fines, threats of more fines, threats of quarantine, etc,” Freiheit explained. “Submitting to this unlawful treatment was the easiest way out, especially for people coming into the country with medical conditions, tired children or frustrated travel partners.”  

This ruling is not the first time actions taken by the Trudeau government during COVID were found to be unlawful.

In January, the Trudeau government’s use of the Emergencies Act to end the Freedom Convoy protest against COVID mandates was ruled to have violated the Charter of Rights and Freedoms by Federal Court Justice Richard Mosley.  

According to the January ruling, the EA is meant to be reserved as a last resort if all other means fail. In Mosley’s judgement, this threshold was not met and thus, the Trudeau government violated the rights of Canadians.    

Shortly after the ruling, Trudeau announced that the government was appealing to the Federal Court of Appeal, a court where he has appointed 10 of the 15 judges. 

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