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I'm still deeply disturbed by the chants of "Allahu Akbar" that rang out in nearby Mississauga on Saturday night, as well as the countless individuals on social media who have demonstrated such a lack of basic moral architecture that they are celebrating one of the most blatant acts of human cruelty in history.Nonetheless, I refused to give in to the multiple appeals throughout the weekend to crush these demonstrations. For example, Toronto City Councillors Brad Bradford and James Pasternak wrote to Toronto Mayor Olivia Chow, urging her to "do what is necessary to prevent an unlawful pro-Hamas rally" at Nathan Phillips Square, including refusing granting a permit for public space. Bradford and Pasternak cited a city-produced event guidebook that states that permits would not be provided for activities that support beliefs that are "likely to promote discrimination, contempt, or hatred.While it is understandable that these councillors want to shut down this terrible protest, they do not appear to comprehend that freedom of peaceful assembly is a constitutional right that everyone has, including the vilest among us. As the Toronto Police have properly stated, the Constitution, including Section 2(c) of the Charter of Rights and Freedoms, is the highest law of Canada and transcends any municipal ordinance requiring a permit to gather.Several legal intellectuals have speculated that such demonstrations could approach the unusual threshold of "counselling terrorist acts," a crime under section 83(01) of the Criminal Code, and thus should be prohibited. I am suspicious of this allegation. It is true that "counselling terrorist acts" refers to crimes committed in Canada or overseas. 

However, there is limited case law. 


on what "counselling" entails. While images of crowds celebrating Hamas in London, Sydney, Toronto, and New York are undoubtedly valuable to the terror group's aims, just attending a protest and screaming "Free, free Palestine" is far removed from genuine terrorism.While supporting a movement thatcommits atrocities is ethically wrong or naive, it's unlikely that all demonstrators were terrorists. According to TV coverage, there appeared to be a mix of those praising Palestinian struggle and statehood, others opposing Zionist tyranny, and even more disgusting elements chanting "Death to Jews". It is impossible to distinguish between the just morally broken and deceived and the deadly terrorists in any public protest, and criminal law, which imposes the state's most draconian restriction on liberty—incarceration—requires clarity and accuracyThis is not to say that there should be no arrests. Although peaceful protest is a protected activity under the Charter's freedoms of expression and assembly, criminal activities may be done while exercising these rights. Police have the authority to arrest persons for breaching the peace (s. 31(1) of the Criminal Code), mischief (s. 430), and participating in a riot (section 65). A man who confronted a small pro-Hamas protest in Calgary this weekend, for example, was charged under the broad police power to prevent breach of the peace.

Finally, hate speech—speech that encourages. 


intense detestation, vilification, and calumny" against a specific group—is criminalized in Canada (unlike the United States) under section 319 of the Criminal Code. Given the infamous subjectivity involved in determining when the threshold of hate speech has been exceeded, most municipal police forces in Canadian cities have dedicated hate crime teams on hand at protests to make or acquire evidence that could lead to charges later on. It would not surprise me if arrests were made in connection with pro-Hamas gatherings in the coming days after Arabic-speaking officers saw some of the tape.But, to be clear, allowing the right of Hamas supporters to gather and protest does not imply we should relax our vigilance in denouncing and following them. Quite the contrary. As a Jewish person who has been taught since infancy that anti-Semitism is the most ancient kind of hatred that has and will continue to exist among humanity, I see value in allowing these rallies to take place. First, it tells me who and how many of my fellow Canadians chose to spend their holiday weekend rejoicing over atrocities committed against vulnerable and innocent Jewish civilians. I want to see their faces in broad daylight and condemn their immorality with a full throat, not use the criminal law to silence them and push them underground.

Second, if some of these people go. 


from peaceful protesters to aiding and abetting hate crimes or even terrorist acts abroad, allowing them to march in public could provide valuable circumstantial evidence that could be used to prevent them from gaining citizenship or to prosecute them if they commit, conspire, or attempt to commit terrorism abroad. I hope CSIS also went to Nathan Phillips Square on Monday.Third, I agree with Sean Speer, who wrote earlier this week that "there are perspectives that should rightly be denounced, marginalized, and precluded from receiving public dollars." I endorse publicly naming and humiliating every academic who returns to class this week after spending the weekend fighting for the right to murder the Israeli relatives of their Jewish pupils, as well as every local business owner and union leader who has backed Hamas' atrocities. A free society has alternative effective and long-lasting remedies to moral depravity besides suppression and incarceration, and it is time to use them. 

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