Joanna Baron says yes
Executive director, Canadian Constitution Foundation
Der Stürmer was a German newspaper in the 1930s that published virulently anti-Semitic tirades. In Weimar Germany Der Stürmer and its publisher, Julius Streicher, were prosecuted for hate speech no fewer than 36 times. Yet each time, Streicher’s notoriety and martyrdom grew—the courts became an arena for him to display his odious views. As for the other German laws criminalizing anti-Semitic speech, history has delivered a clear verdict on their efficacy in preventing the Holocaust.
Despite this historical failure, European countries maintain strict laws against Holocaust denial, anti-Semitic hate speech and displaying Nazi symbols. Yet these same countries struggle with high rates of anti-Semitic hate crimes. Canada is now poised to follow this path: the Carney government (with its Bill C-9) proposes to criminalize “wilfully promoting hatred” by displaying specified symbols, including Nazi symbols, in public.
Holocaust survivors and Jewish communities rightly feel threatened and degraded when Nazi symbols appear in public spaces. The question is not whether such displays cause pain—they clearly do—but whether criminalization is the appropriate or effective response. I argue it is neither.
Hate and bigotry have always existed, irrespective of government attempts at suppression. And criminalizing hateful symbols doesn’t make these views disappear. It drives them underground, where they attract the allure of forbidden fruit and generate sympathy from state attempts at suppression. When hate is visible, civil society can respond with counter-protests, education and social ostracism—tools far more persuasive than government bans. Hidden from view, hate becomes harder to identify, monitor and effectively counter.
Visibility serves another crucial function: law enforcement can track connections between symbolic expression and genuinely illegal activity. Canada already properly criminalizes hate speech closely connected to violence or true incitement. Banning symbols divorced from immediate physical harm actually undermines those efforts.
Perhaps most troubling are the inevitable enforcement problems. Who decides what constitutes “wilfully promoting hatred”? Criminal law can’t capture the nuances of context. Is a museum displaying Nazi symbols for education guilty? What about political satire or anti-Nazi art? If Nazi symbols are criminalized, why not Confederate flags, Soviet hammer-and-sickles or “F*** Trudeau” signs? Speech bans depend on the state drawing arbitrary and subjective lines, chilling expression that people fear could be punished under vague categories.
Our Charter provides for reasonable limits on speech when genuine harm occurs. It addresses true threats and incitement, including provisions criminalizing the advocating of genocide, wilful promotion of hatred, uttering of threats, intimidation, harassment, mischief and unlawful assemblies. Creating special criminal categories for symbols risks politicizing enforcement and inviting inconsistent application based on whoever holds power. Sunlight and social revulsion work better than martyr-making prosecutions over a patch on a jacket.
Richard Robertson Says No
Director of research and advocacy, B’nai Brith Canada
Few symbols trigger as much emotion in Canada as the Hakenkreuz (“hooked cross”), commonly thought of as a swastika, or other Nazi iconography. Wherever they appear, these symbols invoke the memory of the Third Reich and the horrors of the Holocaust. In some contexts it is appropriate to use Nazi symbols for artistic, historical and educational purposes. But when such iconography is used to wilfully promote hatred, the Government has a clear imperative to act.
As a matter of principle, our democracy has no business censoring sentiments that are unpopular or even detestable. But our fundamental freedoms have reasonable limits; when rights are abused to promote hatred, an appropriate balance must be struck. This is a founding principle of our constitutional system. A limited prohibition on the public display of Nazi symbols is paramount if Canadians are to continue living together in a society of diverse opinions, cultures and faiths.
In Canada it is already accepted that our freedoms aren’t absolute. In R. v. Oakes the Supreme Court held that the federal government may impose reasonable limitations on the fundamental freedoms enumerated in the Charter of Rights and Freedoms. This would be the case for a prohibition on the public display of Nazi symbols, provided it is rational and measured and that the impact on freedom of expression is minimal and proportional to the harm such displays cause.
Bill C-9, the Combatting Hate Act, proposes to criminalize the act of using Nazi symbols in a public space to wilfully promote hatred against any identifiable group. That such an amendment, if enacted, would infringe on Section 2 of the Charter, which guarantees Canadians’ right to freedom of expression, is not up for debate. It is, moreover, incontrovertible that, in our Charter system, it is permissible to create legislation that infringes on our fundamental rights, provided it is done within the parameters set out in the Oakes test (a framework for deciding whether government action that infringes a Charter right is justified). In this instance, the law would only apply to specific symbols, such as the Hakenkreuz, when used in a specific context. Courts have applied a similar limitation to other forms of expression, including obscenity.
The proliferation of Nazi symbols isn’t a theoretical dilemma. A growing number of neo-Nazi movements and other nefarious actors, exploiting societal divisions, are using Nazi iconography to promote hatred. With increasing frequency, Nazi symbols have been displayed in public spaces with hateful intent. This alarming trend demonstrates an urgent need to amend the Criminal Code to deter the use of Nazi symbols to promote hate, and to hold perpetrators of such acts accountable.
Amid the ongoing crisis of anti-Semitism and the worsening hatred plaguing our society, our government has a vested interest in restricting the public display of Nazi symbols that are being used to wilfully promote hate. The impact of the proposed legislation on individuals’ Charter rights is justifiable under Section 1 and would reflect Parliament’s sincere commitment to combating hate and protecting human rights.
joanna baron responds to richard robertson
Richard Robertson and I share the conviction that Nazi ideology led to the worst crime in history and is despicable. We also agree that Holocaust survivors and Jewish communities deserve protection from hatred. Where we differ is on whether Bill C-9’s criminalization of Nazi symbol displays advances legitimate government objectives while minimally impairing free expression. I argue it fails on both counts.
Robertson writes that C-9 would criminalize using Nazi symbols “to wilfully promote hatred against any identifiable group.” But Canada already criminalizes the wilful promotion of hatred, under section 319(1) of the Criminal Code. The Supreme Court upheld this provision in R. v. Keegstra, and clarified in Saskatchewan (Human Rights Commission) v. Whatcott that it captures expression that is “ardent and extreme” in its derogation of an identifiable group. If displaying Nazi symbols with intent to promote hatred already violates this law, what exactly does Bill C-9 add?
The logical inference is that C-9 targets displays that don’t currently meet the threshold for “wilful promotion of hatred.” This means it aims to criminalize either displays without intent to promote hatred, or displays that lower the bar for what constitutes such promotion. Even if a judge uses discretion and declines to convict for displays without hateful intent, the bill raises the spectre of enforcement problems, inviting police to view simple displays of symbols as criminally culpable, and chilling protected expression.
My interlocutor’s own claims undermine his case for criminalizing symbols. He writes that Nazi symbols appear “with increasing frequency” in public spaces “with hateful intent.” If these displays truly constitute wilful promotion of hatred under existing law, why aren’t they being prosecuted? Crown prosecutors have discretion to lay charges under section 319(1) when they believe there’s a reasonable prospect of conviction. The perceived need for C-9 suggests these displays don’t meet the current legal threshold, which means the bill’s purpose is to criminalize speech currently considered protected.
Simple displays of symbols could be viewed as criminally culpable, chilling protected expression.
Robertson also asserts that C-9 would satisfy the Oakes test for justifiable Charter violations. The Oakes test, however, requires not just a pressing objective but also that the law be rationally connected to its objective, with minimal impairment of rights and with benefits exceeding the harms. Other democracies’ experiences suggest banning hate symbols won’t further the objective of reducing hate. It instead grants them a mystique that attracts more people to the cause. Germany’s post-war symbol bans have allowed neo-Nazi movements to flourish there despite criminal prohibitions. France’s strict laws haven’t prevented that country from suffering some of Europe’s highest anti-Semitic hate-crime rates.
The comparison to obscenity law also is irrelevant. Obscenity typically involves private material and commercial transactions, not political expression, in public spaces. Nazi symbols, however odious, are inherently ideological and political expression: at the core of what the Charter protects. Courts have consistently held that political speech, even when deeply offensive, receives heightened protection.
Robertson dismisses practical enforcement concerns by gesturing to “similar limitations” courts have applied to other forms of expression. But he provides no mechanism for making the distinctions his framework requires. Who decides whether a display promotes hatred or is educational? Police at a demonstration? A Crown prosecutor reviewing charges? A judge at trial? At what point does someone know they’re safe from prosecution?
He also ignores the potential for enforcement creep. If Nazi symbols can be banned based on historical atrocities and potential for promoting hatred, what principled basis exists for not banning other symbols? Indeed, justice minister Sean Fraser indicated he is open to widening the legislation to ban other symbols associated with hate. We can speculate: the hammer and sickle represents regimes responsible for the Holodomor, the Great Purge and the gulag, killing tens of millions. The Rising Sun flag offends many Koreans and Chinese, given Japan’s wartime atrocities. What would prevent these from also attracting criminal sanctions in Canada?
Canada already has good ways to address genuinely harmful conduct such as criminal harassment, uttering threats, assault, incitement to violence and, yes, wilful promotion of hatred. These address conduct and true threats while leaving mere offensive expression to social response. It is vigilance against bad actors, and confidence in the resilience of an open society, that will keep us safe and free, not new layers of state-enforced censorship.
richard robertson responds to joanna baron
Joanna Baron is right to raise concerns about freedom of speech, but her analysis mischaracterizes Bill C-9, the government’s proposed Combating Hate Act, as well as its historical parallels and precedents.
What Parliament has proposed is far less extreme than Baron would have readers believe it is. The government is not contemplating a law that would criminalize hateful speech—one of the proposed amendments identifies specific Nazi symbols, including the Hakenkreuz, and only under certain circumstances. For the proscription to be applicable, the accused would have to publicly display the symbol in a way that “wilfully promotes hatred.” That is a high threshold, and it will help courts distinguish acts that are intentionally hateful from those which, although objectionable, cannot be considered criminal under our Charter of Rights and Freedoms.
Still, Baron is no doubt expressing an instinctual skepticism shared by many Canadians. Government decisions that limit our freedoms should never be taken lightly and must always be questioned. But in this case, the law has clearly defined which symbols it proscribes and under what circumstances. Baron’s suggestion that the proposed amendments would be used to ban symbols that have not already been enumerated in Bill C-9 is unfounded. Any additional proscriptions would need to be implemented through the development of novel legislation that would be subject to the checks and balances inherent to our democratic process.
It is difficult to comprehend how Baron could describe these as “vague categories” based on “arbitrary” lines. In some instances, she’s simply wrong: she posits that Bill C-9 might prevent a museum from curating Nazi iconography, even though the legislation contains explicit exemptions for purposes that are “educational or artistic” in nature.
We will safeguard Canadians’ basic freedoms while contributing to a system of respectful discourse.
The notion that Bill C-9 or similar anti-hate laws would make policing more difficult is dubious. The legislation doesn’t prevent anyone from owning Nazi flags or materials, nor does it criminalize Nazi ideology. The law only concerns public displays of defined symbols when used to wilfully promote hatred. Our courts have already set a high threshold for what constitutes such conduct.
It’s not unreasonable for Baron to question how effective Bill C-9 would be in practice. But she misrepresents the results of similar efforts in Europe, where symbols such as the Hakenkreuz are already illegal. These laws tend to be more expansive than the reforms to Canada’s Criminal Code that Parliament has introduced. Moreover, it is logical to assume that, when a country introduces laws criminalizing anti-Semitic conduct, the documented number of anti-Semitic hate-crimes in that country will increase. Baron cites the phenomenon as proof that anti-hate laws do not work. In fact, it’s just the opposite.
Underlying Baron’s objections and misrepresentations is an apparent critical misreading of the relevant historical context. In her opening she argues that laws against anti-Semitic speech in the Weimar Republic failed to prevent the Holocaust, and that this is one reason to question the merit of similar legislation in the 21st century. This is absurd. The Holocaust happened because the Nazis overthrew the Weimar system and replaced it with a totalitarian regime. She also implies that these rules may have backfired and allowed Nazis such as Julius Streicher to depict themselves as martyrs. But this omits critical context about interwar Germany. Numerous scholars have shown that the Weimar-era anti-hate laws were too lenient to serve as a deterrent, while the authorities rarely enforced them, in part because the Republic was unstable and perceived as illegitimate, for manifold reasons.
Modern Canada, by contrast, has robust enforcement, a constitutionally entrenched Charter of Rights and Freedoms and a strong, democratic national ethos. Our society also has the benefit of hindsight: for most Canadians, the hakenkreuz is a symbol inextricably linked to the Holocaust and abuse of human rights. Banning its public display would reflect a consensus on the need for legislative reform to address the proliferation of hatred.
The effect of the legislation will not be to drive hate underground, as Baron contends, because Nazi ideology is already on the fringes of Canadian society. There is a difference between objectionable views that some individuals may hold and movements that openly use hate symbols to stir up violence against minorities and undermine democracy. Such practices endanger freedom of expression in ways that are far more pernicious and egregious than a reasonable limitation on public displays involving specific symbols. The government is being proportional and balanced, safeguarding all Canadians’ basic freedoms while contributing to a system of discourse that is respectful and peaceful for all parties involved.
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