Hate speech not protected in Canada

In a ruling on whether or not an individual could claim that anti-Muslim statements are immunized from civil liability because they are protected political commentary, Justice Shaun Nakatsuru has provided one of the clearest decisions yet that the constitutional protection of free expression does not extend to hate speech. And in a Canadian twist, the court relied on a 30-year-old Supreme Court judgment on anti-Semitic hate speech to rule that the public is best served in the suppression of communications of racial, ethnic or religious hatred.

The case centres on a defamation suit brought by prominent restaurateur Mohamad Fakih against two notorious anti-Muslim advocates. Last summer, Ranendra “Ron” Banerjee and Kevin J. Johnston showed up at a Mississauga location of Paramount Fine Foods to purportedly “protest” during a fundraiser Paramount was hosting that day for the leader of the Liberal Party of Canada, Prime Minister Justin Trudeau.

Banerjee and Johnston filmed themselves harassing guests as they arrived and talking to the camera about the event, videos of which were later posted across dozens of websites and social media platforms. Banerjee is filmed saying that one would have to be a “jihadist” and “raped your wife a few times” to enter the restaurant. Johnston, who has already been charged with wilfully promoting hatred against the Peel Muslim community, was there providing his own comments.

Banerjee tried to stop the lawsuit from proceeding by claiming that he was expressing his viewpoint on a matter of public interest and invoking Ontario’s new anti-SLAPP (Strategic Litigation Against Public Participation) legislation passed in 2015. Banerjee claimed he was at the fundraiser to protest the government’s $10.5 million settlement with Omar Khadr and shouldn’t face civil liability for freely expressing his political views.

But the judge saw through the argument and provided analysis that not only allows the lawsuit to proceed (though Banerjee can still appeal), but also provides important clarity for others targeted by defamatory hate speech including racist stereotypes.

“This is a case about freedom of expression,” wrote Nakatsuru. “But it is also about the limits to that constitutionally protected right. Expressions of hatred and bigotry towards racial, ethnic, religious, or other identifiable groups have no value in the public discourse of our nation.”

This latest judgment reinforces what many of us instinctively know – hatred will never serve the public interest and to claim otherwise is out of step with the law.

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