On Monday, Prime Minister Mark Carney said: “Canada’s civic compact is failing Jewish Canadians; if that covenant fails for one of our communities, it fails us all.” He was right. It is failing. But it doesn’t have to. Carney announced an Advisory Panel. All that the panel has to do is ensure the enforcement of the following.
Freedom of expression is one of the cornerstones of Canadian democracy. Section 2(b) of the Canadian Charter of Rights and Freedoms guarantees that “everyone has freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” Canadians rightly cherish that freedom as essential to political debate, artistic creativity, academic inquiry, journalism, and the open exchange of ideas.
But unlike the absolutist conception of free speech often associated with the United States, freedom of expression in Canada has always existed within limits. The Charter itself recognizes this. Section 1 states that rights and freedoms are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
In practical terms, that means freedom of expression is not unlimited. Canadians are free to criticize governments, advocate unpopular opinions, challenge orthodoxies, and protest peacefully. They are not free to threaten violence, incite hatred, intimidate others, or use expression as a weapon to deprive fellow citizens of their own rights and security.
Unfortunately, too many police authorities in Canada appear either unwilling or unable to understand this distinction when dealing with antisemitic conduct at some pro-Palestinian demonstrations. Police officials often justify inaction by invoking “freedom of expression,” as though the Charter requires authorities to stand helplessly by while demonstrators glorify terrorism, intimidate Jewish citizens, harass students, blockade synagogues or community institutions, or chant slogans that many reasonable people understand as advocating violence or eliminationism against Jews and the Jewish state.
The Charter does not require such paralysis. Canadian constitutional law says precisely the opposite.
The Supreme Court of Canada has repeatedly upheld the principle that freedom of expression can be limited where expression crosses into hatred, intimidation, threats, or serious risks to public order. In the landmark case of R. v. Keegstra (1990), the Court upheld Canada’s hate propaganda laws, recognizing that certain forms of expression undermine the dignity and safety of targeted groups and threaten social harmony itself. Chief Justice Dickson observed that hate propaganda can “lay the groundwork for later, broad attacks on vulnerable groups.” The Court further recognized that hate speech can silence minorities and drive them from meaningful participation in democratic life.
Similarly, in Saskatchewan (Human Rights Commission) v. Whatcott (2013), the Supreme Court confirmed that expression exposing protected groups to “detestation and vilification” can legitimately be restricted. Justice Rothstein emphasized that expression promoting hatred can “delegitimize group members in the eyes of the majority” and poison the social environment itself.
These principles are directly relevant to what Canadians have witnessed over the past year in Montreal, Toronto, Ottawa, Vancouver, and on university campuses across the country.
Calls for “globalizing the intifada,” praise for Hamas following the October 7 atrocities, harassment of visibly Jewish citizens, masked demonstrators surrounding Jewish institutions, and efforts to prevent access to campuses or places of worship are not automatically immunized by simply labelling them “political protest.” Context matters. Intent matters. Impact matters.
The Supreme Court confirmed this in R. v. Krymowski (2005), involving racist anti-Roma demonstrations. The Court held that wilful promotion of hatred can be inferred from context, slogans, symbols, and surrounding conduct. Police therefore cannot avoid enforcement merely because demonstrators avoid explicit phrasing while conveying unmistakable threats or hatred through coded slogans, glorification of violence, or mob intimidation.
Nor does freedom of expression include unlimited rights to occupy or obstruct public and private property. In Montréal (City) v. 2952-1366 Québec Inc. (2005), the Court affirmed that freedom of expression does not grant the right to use property “however one wishes.” Encampments, blockades, obstruction of Jewish institutions, and preventing safe access to campuses, synagogues, or businesses are not constitutionally protected simply because political slogans accompany them.
Canadian jurisprudence has also recognized the concept of a “poisoned environment.” In Ross v. New Brunswick School District No. 15 (1996), the Supreme Court upheld sanctions against a teacher whose antisemitic writings outside the classroom nevertheless poisoned the educational atmosphere for Jewish students. The Court recognized that discriminatory expression itself can create exclusion, fear, and inequality even absent direct physical violence.
That principle applies equally to demonstrations outside synagogues, Jewish schools, community centres, or universities. A democratic society cannot function if minorities are intimidated into withdrawing from public participation because authorities refuse to enforce existing laws.
The Criminal Code already provides police with substantial powers to intervene. Sections 318 and 319 prohibit advocating genocide and publicly inciting hatred. Section 423 criminalizes intimidation. Section 430 addresses mischief and obstruction of property. Sections 63 through 68 govern unlawful assemblies and riots. Section 264 prohibits criminal harassment. Section 83.221 criminalizes counselling terrorism offences.
Police do not lack legal tools. What is increasingly lacking is the willingness to use them.
Too often authorities behave as though the Charter prevents enforcement rather than authorizes balanced enforcement. This represents a profound misunderstanding of Canadian constitutional law. Freedom of expression protects the right to advocate for Palestinian statehood, criticize Israeli government policy, oppose military actions, or support ceasefires. It does not protect criminal intimidation, threats, harassment, glorification of terrorism, or conduct that effectively terrorizes a minority community.
Protest is protected. Harassment is not.
Political advocacy is protected. Hate propaganda is not.
Demonstration is protected. Intimidation is not.
The Charter was never intended to become a shield for coercion or antisemitic mob conduct.
Canadian courts have consistently recognized that rights must coexist. Freedom of expression exists alongside freedom of religion, equality rights, freedom of association, and the right to security of the person. No democracy can survive if one group’s “expression” effectively silences another group through fear.
Indeed, selective non-enforcement risks creating a dangerous double standard. Canadians increasingly see authorities acting swiftly against some forms of hate or extremism while hesitating conspicuously when Jews are the targets. That perception corrodes confidence not only in policing but in the equal application of the law itself.
The Charter is not a suicide pact. It does not require democratic societies to tolerate conduct that undermines the security and equal citizenship of minorities.
A democratic society must be capable of defending both liberty and order simultaneously. If freedom of expression is interpreted as meaning there can be no consequences for threatening, hateful, or coercive conduct, then the very conditions necessary for free debate begin to erode.
The Canadian Charter protects freedom of expression because democracy depends on vigorous debate. But democracy also depends on civility, public safety, and equal citizenship. The Charter guarantees freedom — not licence. And preserving that distinction is essential if Canada is to remain both free and democratic.
Beryl P. Wajsman, B.C.L., LL.B., KCR, is President of the Institute for Public Affairs of Montreal
Photo: Courtesy Evan Solomon
