Joanna Baron: Pro-Hamas demonstrations may be despicable, but they are still legal—And that’s a good thing

Freedom of peaceful assembly is a constitutional right that belongs to everyone—even the vilest among us
People take part in a protest for Palestine in Montreal, Sunday, October 8, 2023. Graham Hughes/The Canadian Press.

Like so many others, I spent my Thanksgiving weekend in limbic shock as the magnitude of what happened in Israel set in. 

The shock was instinctual: I still have not gotten the image of that hapless four-year-old boy, the same age as my littlest niece, being poked by a stick and taunted with the Hebrew word for “mommy” out of my head.

It was ancestral: watching the images of babies in cages and body bags felt as though there were iPhones in full technicolour around in 1944 when my paternal grandmother’s entire family was forced from their village in Hungary and murdered at Auschwitz.

It was familial: I heard from relatives across Israel who were terrified in bomb shelters and I prayed for my cousin, a Tel Aviv cardiologist and newlywed, who has been called up for reserve duty as an army medic.

And it was intellectual. As I watched as colleagues on Twitter, including Canadian law professors, attempt to spin the worst massacre of innocent Jews since the Holocaust as “legitimate resistance” I thought about how to use my legal training to fight back.

But I couldn’t do much this weekend. By Monday around 5 p.m., I was exhausted, upset and overstimulated so I decided to shut down my laptop, lie down on my couch, and close my eyes. A few moments later, I heard chants outside my window on Bloor Street in Toronto; first inchoate, then clear: “Occupation is a crime! Free, free Palestine!”

I clambered up to see, in horror, that a few hundred of my fellow Torontonians had shown up on my doorstep to march in approval of this unspeakable massacre. For those who claim this was just a march in favour of Palestinian civilians, please give your head a shake. An Instagram post advertising the rally held earlier in the day at Nathan Phillips Square called the terrorists “heroic” and celebrated the “over 30 Zionist hostages captured.”

I remain utterly disturbed by the chants of “Allahu Akbar” that rang out in nearby Mississauga on Saturday night, and the countless individuals on social media who have shown themselves to so lack basic moral architecture that they are celebrating one of the most unambiguous acts of human cruelty in history.

And yet, I would not yield to the various calls over the weekend to suppress these demonstrations. For example, Toronto City Councillors Brad Bradford and James Pasternak wrote to Toronto Mayor Olivia Chow to urge her to “do what is necessary prevent an unlawful pro-Hamas rally” held at Nathan Phillips Square including by not allowing a permit for public space. Bradford and Pasternak pointed to a city-produced event manual that suggests permits will not be issued for events that endorse views that are “likely to promote discrimination, contempt or hatred.”

While the desire to shut down this hateful rally is understandable, what these councillors don’t appear to understand is that freedom of peaceful assembly is a constitutional right that belongs to everyone—even the vilest among us. As the Toronto Police have correctly noted, the Constitution including section 2(c) of the Charter of Rights and Freedoms is the supreme law of Canada and supersedes any municipal policy requiring a permit to gather.

Several legal intellectuals have mused that such demonstrations might reach the rare threshold of “counselling terrorist acts,” a crime under s. 83(01) of the Criminal Code, and thus should be forbidden. I’m skeptical of this claim. It’s true that “counselling terrorist acts” applies to such acts whether in Canada or abroad. However, there is scant case law on what “counselling” consists of. While no doubt images of crowds in London, Sydney, Toronto, and New York praising Hamas are broadly useful to the terror group’s purposes, simply attending a rally and chanting “Free, free Palestine” seems quite remote from actual terrorism. 

 Although anyone who lends their voice and body to support a movement that committed such atrocities is morally broken or at best extremely naïve, the protesters likely were not all terrorists. Judging from news coverage, they seemed to be an admixture of those praising Palestinian resistance and statehood, those condemning what they see as Zionist oppression, and even more repugnant elements who chant things like “Death to Jews”. It’s impossible to separate out the merely morally broken and duped from the murderous terrorists in any street protest, and the criminal law, which imposes the state’s most draconian restriction on liberty— imprisonment— requires clarity and precision.

This does not mean there shouldn’t be arrests. Although peaceful protest is a protected activity under the Charter rights to free expression and free assembly, unlawful acts may be committed in the course of exercising these rights. Police have the right to arrest people for breaches of the peace (s. 31(1) of the Criminal Code), mischief (s. 430), and taking part in a riot (s. 65). A man loudly confronting a small pro-Hamas rally in Calgary this weekend, for example, was charged under the broad police power to prevent breaches of the peace. 

Finally, hate speech—speech which rises to the standard of encouraging “intense detestation, vilification, and calumny” against a specified group, is, for good or for ill, also criminalized in Canada (unlike the United States) under section 319 of the Criminal Code. Given the notorious subjectivity entailed in recognizing when the threshold of hate speech has been crossed, most municipal police forces in Canadian cities have specialized hate crime units that have been deployed at the protests to make or to gather evidence that could lead to arrests later on. It would not surprise me to see arrests related to the pro-Hamas rallies in the coming days after Arabic-speaking officers review some of the footage.

But let’s be clear: acknowledging the rights of Hamas sympathizers to gather and protest does not mean we should lessen our vigilance in denouncing and tracking them. Quite the contrary. As a Jewish person who was imbued from birth with the knowledge that anti-Semitism is the most ancient form of hatred that has always lurked amongst humanity and always will, I see value in allowing these rallies to go ahead. First, it allows me to know who and how many of my fellow Canadians chose to spend their holiday weekend jubilantly celebrating atrocities committed against vulnerable and innocent Jewish civilians. I want to see their faces in full daylight and condemn their depravity with a full throat, not use the criminal law to suppress them and drive them to fester underground. 

Second, if some of these individuals progress from peaceful protesters to aiding and abetting hate crimes or even terrorist acts abroad, allowing them to march in public could create valuable circumstantial evidence that could be used to prevent them from gaining citizenship, or to prosecute them if they commit, conspire or attempt to commit terrorism abroad. I hope CSIS also attended Nathan Phillips Square on Monday.

Third, I agree with Sean Speer who trenchantly wrote earlier this week: “There are perspectives that should rightly be denounced, marginalized, and precluded from receiving public dollars.” I am in favour of publicly naming and shaming every academic who is going into class this week after spending the weekend arguing for the rightfulness of murdering the Israeli relatives of their Jewish students, and every local business owner and union leader who has supported Hamas’s brutality. A free society has other powerful and enduring responses to moral depravity at its disposal besides suppression and criminalization and now is the time to wield them.

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