Disclaimer: These resources are not a substitute for legal advice. This information is NOT a substitute for legal advice — federal and provincial law differ, laws may change, and the application of all laws depends on the specific facts of a case. Be aware that some of this information may be specific to different provincial laws or out of date. Make sure to consult with an attorney before relying on any information you find here. This guide is meant to provide basic information on legal issues that Palestinian rights activists may face, and tips on how to navigate them. It provides some generally applicable information and some campus-specific information for student activists. If you have questions about a specific issue that you are facing, please contact us.
We thanks Palestine Legal USA for allowing us to use information from their documents, and update with Canadian context.
Practical Tips for Activism
- PREPARE Plan your activities in advance to ensure that you have the necessary permits and authorizations from local and/or campus authorities, that you understand what regulations may apply, and that you’re prepared for possible backlash, with supporters lined up to back you, a media strategy, and any necessary legal advice in advance, when possible.
- THINK Consider the potential legal implications of your activities, including possible civil or criminal sanctions. Review this guide for information about issues that might arise in your activism, and contact us with questions.
- RECORD Create a record of incidents that you believe target your speech activities — such as attempts to repress your speech by government/ university officials / private groups. Record details, such as date, time, location, witness names and contact information, law enforcement names and badge numbers, what was said/done, pictures and other evidence. Confirm in writing any understanding reached in in-person meetings by emailing and asking for a response. Make notes while the event is fresh in your mind. Record all incidents — big and small.
- FOCUS Focus on your activism! Media work, public actions, advocacy campaigns and legislative work are most effective in getting your message out. Legal action is a last resort in most cases.
- GET SUPPORT Contact us when you or your group needs legal or advocacy support, and to report incidents. We may be able to provide you with additional resources and connect you with organizational support or other lawyers in your area who understand the political and legal issues, if necessary, email firstname.lastname@example.org
Section 2(b) Charter Free Speech Rights
- Section 2(b) of the Canadian Charter of Rights and Freedoms limits how government actors can restrict your speech. Like all other Charter rights, it generally does not apply to private actors. Section 2(b) protections apply to all individuals in the Canada regardless of citizenship or immigration status.
- Expressive conduct (like wearing a t-shirt with a message, holding a banner, or performing street theatre) is also considered protected speech activity. There are different levels of protection, with pure political speech getting the highest level, and commercial speech getting the least protection from government and court interference. Some forms of speech and expressive conduct are unprotected from government restrictions
- Generally, you can say WHAT you want, but not necessarily WHEN, WHERE and HOW you want to say it.
- A government regulation that restricts speech based on WHAT it’s expressing (i.e., its CONTENT or its VIEWPOINT,) is highly likely to be struck down in court if challenged. This is because it’s unusual for the government to be able to meet its high burden of showing that a rule targeting a certain viewpoint serves a “compelling” government interest and is narrowly focused on achieving that interest. It takes an extremely important reason, and a rule that is focused enough that it does not sweep in more speech than it intends to restrict, for a court to accept it. Courts are also suspicious of rules that require prior review (censorship) by government officials of any form of speech or expression. For example, permits are unconstitutional “prior restraints” when they are granted or denied based on the content of the speech rather than on other “content-neutral” reasons (see Time, Place and Manner Regulations)
- Some types of speech are NOT protected by Section 2(b), and can be restricted or punished:
- incitement, or “fighting words,” that are intended and likely to provoke others to immediately commit illegal acts that “breach the peace,” or that 6 provoke others to immediately react violently to the speaker’s invective. Speech that creates a public emergency, such as a stampede from a theater after a person falsely yells, “FIRE!” is also not protected. These doctrines are narrowly interpreted and rarely used;
- defamation, which means spreading damaging information about others that is false, and for which the defamed individual can sue for money damages (see more below);
- obscene speech or conduct that a reasonable person would find has no literary, artistic or scientific value;
- speech that shows an agreement with others to commit an illegal act can be the basis for criminal charges of conspiracy
- “Hate speech” is a term used to describe speech aimed at an individual or group that is offensive or even hateful and may have no value other than to disparage the person or group based on their identity, such as race, national origin, religion, etc. Even such speech that is offensive and hurtful cannot be prohibited or punished unless it is incitement, defamation, obscenity, or amounts to harassment. Courts have struck down laws that attempt to ban “hate speech” on university campuses and otherwise.
- Speech critical of Israeli policies is not “hate speech” aimed at disparaging a religious or ethnic group’s identity, as many detractors claim. Rather, criticism of Israel is political speech addressing an issue of domestic and international importance. Speech that condemns Israel as an apartheid state is not anti-Semitic. Criticism of Jewish people as a whole because of Israel’s actions is, on the other hand, anti-Semitic. Disparagement of an individual based on stereotypes of Jewish people may also be anti-Semitic “hate speech.” Similarly, a generalized denunciation of Palestinians or Muslims as “terrorist” may be Islamophobic “hate speech.” But criticism of Israeli policies is not hateful towards Jewish people.
- Consider responding to racist and offensive speech in ways that expose it for what it is and reveal the effect it has on the targeted community. An effective direct response to a message of hate can have a big positive and educational public impact
- It is important to avoid as much as possible any language promoting or defending violence. Section 318 of the Criminal Code prohibits advocating or promoting “genocide.” Genocide is defined as intending to destroy, in whole or in part, any “identifiable group” by killing members of the group or deliberately inflicting on the group conditions of life calculated to bring about its physical destruction. The “identifiable groups” covered by this provision were expanded in 2014 to include sections of the public not only distinguishable by ethnic origin, but also by national origin. Shortly afterwards, the Canadian government issued an MOU with Israel in which it claims ‘that the selective targeting of Israel reflects the new face of anti-Semitism.’” This suggests the 2014 amendment was made with a view to silencing criticism of Israel.
Criminal Issues You May Face
Disorderly conduct – s. 151(1)
If you cause a disturbance in or near a public place by fighting, screaming, shouting, swearing, using insulting or obscene language, impeding or molesting other persons, or you loiter in a public place and obstruct people in that place, you may be charged with disorderly conduct. This is a common charge laid against protesters during a rally, march or other form of direct action.
Mischief – s.430(1)
If you obstruct or interfere with the use of property, such as by preventing students from attending their classes on a university campus, you may be charged with mischief.
Unlawful assembly – s 66(1)
If you assemble with three or more people with the intent to do something that will cause others around you to reasonably fear that they will “disturb the peace tumultuously” or provoke others to do so, you can be charged with unlawful assembly. This law gives significant discretion to police, but has typically only been used in mass protests such as the 2012 Quebec student protests.
Taking part in a riot – s 65(1)
A riot is an unlawful assembly that has begun to disturb the peace tumultuously. If you take part in a riot, you may be charged.
Resisting arrest – s. 129
If you resist being arrested or try to prevent a police officer from arresting someone else, you may be charged with resisting arrest.
Assaulting an officer – s.270(1)
If you assault a police officer who is engaged in their police duties, such as performing an arrest, you may be charged. This is different from the standard charge of assault because it applies to police officers performing their public duties.
Obstructing justice – s. 139
If you somehow interfere with the judicial system, such as by obstructing a court proceeding, you may be charged with obstructing justice.
Potential Lawsuits By or Against You
- An individual can sue another for money damages and other remedies for making false statements, spoken (slander) or written (libel), to others about them. The person suing must be able to prove that the statement was false and that spreading it caused some actual harm to him/her (e.g. loss of employment, harm to reputation, etc.).
- Truth is always a defense to a defamation claim, no matter how personally devastating it is to the person. Showing that a statement was an “opinion” or “political hyperbole” is also usually a defense.
Assault and Battery
- If you were threatened and reasonably believed you were in immediate physical danger (assault), or if you were actually physically touched and the contact was uninvited (battery), there may be a civil claim for assault and/or battery. Even an action that doesn’t physically harm the other person, such as spitting at someone, or grabbing something they’re holding, can be a battery.
Benefits and Problems with Litigation
- Lawsuits for violations of constitutional rights may help to advance the law on social justice issues and protect movements for social change.
- Lawsuits can result in good precedent that advances social justice, or can create bad precedent and present a legal setback. In either case, movements often continue to press for justice in other ways to create an environment that will be favorable to the changes they seek. The often unfavorable legal climate for many social justice causes makes using the law more difficult. Lawsuits should therefore be thought of as one of many tactics to achieve a movement’s goals, when undertaken at the direction of and in close coordination with that movement. But they should not be relied on or considered an end in themselves.
- Always consider the downsides of litigation. Lawsuits can be expensive and often take years with no guarantee of a just resolution. Even a victory can be subject to a lengthy appeal process that could take years. Meanwhile, the movement may have moved on and your lawsuit may become irrelevant. Being a party to a lawsuit may cause anxiety and can distract you from your life and movement work. Also consider what may be exposed if the other party is allowed to see your documents and other private or group strategy communications as part of the discovery process in a lawsuit.
- Litigation is usually best viewed as a last resort when your rights have been violated. While it’s difficult to achieve social change through a lawsuit alone, many whose rights have been violated have been vindicated in court. If you believe your rights were violated in order to repress your Palestine solidarity activism, contact s lawyer. Also, you can contact Palestine Justice Hub at email@example.com
For further information on any of these topics, for legal advice on your campaign or about a specific issue you are facing, or to report incidents of repression of your activism, please firstname.lastname@example.org
We are also glad to provide workshops or schedule meetings to discuss your particular needs, whenever possible.