Since the Hamas attack on Israel on October 7, anti-Semitic or Islamophobic speeches and acts have increased rapidly in public space. This conflict gives rise to polarization and radicalization which have the effect of undermining the freedom to debate freely and in complete security, particularly on university campuses. Their effects affect members of groups targeted by conflicts as much as society as a whole.
On November 8, a fight between demonstrators from both camps degenerated at Concordia University. Between November 7 and 9, a synagogue was vandalized and two Jewish schools were targeted by gunfire. One of these schools was again the target of gunfire on the night of November 11 to 12. On November 9, the rector and professors of UQAM were accused of being “Zionist” in racist and threatening leaflets. The same day, a police investigation opened to determine whether Imam Charkaoui publicly incited hatred in an anti-Zionist speech given during a recent demonstration.
It has been repeatedly emphasized that we can criticize and condemn both the interventions of Hamas and the Israeli government, without targeting or accusing the Jewish or Palestinian civilian populations, who are subject to decisions to which they do not necessarily subscribe. However, many people conflate Jews and Zionists on the one hand, Muslims, Arabs, Palestinians and Hamas on the other.
Constructing a population as an enemy, essentializing it and demonizing it to overthrow or justify a power, this is the nature of racism, which, in its most extreme forms, leads to war, to the dehumanization of the other, to its extermination and genocide. Different “levels” of racism have been crossed, not only in Gaza, but also in hateful, anti-Semitic or Islamophobic speeches and gestures committed in Quebec and Canada in recent days.
If freedom of expression refers to the right to manifest and express ideas and opinions, this freedom has limits, marked out by the law and democratic principles. All citizens must have this freedom while respecting the laws, the rights of others and public order.
In Canada, freedom of expression is protected by the charters of rights, but not when the violent nature of the remarks is recognized, when the guarantee of equality is violated or threatened and when the effects on public order are real and are harmful to an identifiable group. Sections 318 and 319 (1) and (2) of the Criminal Code consider three offenses to be criminal: publicly encouraging genocide, publicly inciting hatred and willfully fomenting hatred towards an “identifiable group” i.e. who is differentiated (art. 318 (4)), “by color, race, religion, national or ethnic origin, age, sex, sexual orientation, identity or expression of gender or mental or physical disability.
The intention of the speaker is obligatory in criminal law, which only condemns those who really apprehend the risks that their words entail or who really want to provoke hatred or see that such will be the “certain or almost certain” effect of their words.
In human rights jurisprudence, the prohibition of hateful expression is justified less on the intention to incite hatred or discrimination than on the effect of the harm caused by hatred on an identifiable group. The Whatcott ruling states that courts “must focus the analysis on the effects of the remarks in question, namely whether they are likely to expose the targeted person or group to hatred by other people […] taking into account the legislative objectives of reducing or eliminating discrimination. In a context of war and strong social polarization, the social fragility of a targeted or “identifiable” group can be a contextual factor suggesting a detrimental effect.
If wars transform the other into an enemy, the democratic space is based on law, dialogue and negotiation with adversaries. Freedom of expression as a democratic value depends on the ability given to everyone to participate in public deliberations without violence, demonization, denigration or intimidation. It is not by reproducing the logic of racism that we combat racism and defend democracy, freedom of expression and peace.