Flying the Flag: Kneecap and Bill C-9

Last week, the federal government blocked the Irish hip-hop group Kneecap from entering Canada. The group was scheduled to perform two concerts, one in Toronto and the other in Vancouver. The government determined that the members of the group were “inadmissible on the grounds of criminality” under the Immigration and Refugee Protection Act, which provides that an individual may be prevented from entering the country if they have “commit[ed] an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament.” One of the members of Kneecap, Mo Chara (stage name) is alleged to have raised a Hezbollah flag during a concert and, as a result, has been charged under the UK’s Terrorism Act, which prohibits an individual from displaying an article "in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation". Hezbollah is listed as a terrorist organization under UK law.  

But even if the Canadian government has reasonable grounds to believe that Chara violated UK law, it is not at all clear that displaying the Hezbollah flag in this way would breach Canadian law. In announcing the exclusion on X (formerly Twitter)* Parliamentary Secretary for Combatting Crime, Vince Gasparro, stated that Kneecap had “engaged in actions and made statements that are contrary to Canadian values and laws”. “The group”, he said, “have [sic] amplified political violence and publicly displayed support for terrorist organizations such as Hezbollah and Hamas”, which he described as “dangerous endorsements of violence and hate”. He further noted that while “[c]riticism of foreign governments is protected under Canada’s Charter of Rights and Freedoms, … advocating for political violence, glorifying terrorist organizations, and displaying hate symbols that directly target the Jewish community are not protected forms of expression”. “Canada”, he said, “stands firmly against hate speech, incitement to violence, and the glorification of terrorism” and “will not tolerate international conflicts being used as an excuse to intimidate and harass Canadians here at home”.  

Gasparro does not say which Canadian law Chara would have breached had he raised a Hezbollah flag at a concert in Canada, but he does refer to the musician’s “support” for a terrorist organization, “glorification of terrorism”, and “hate speech”. Canada’s anti-terrorism law, though, is narrower in scope than the UK law. The glorification of terrorism, for example in not an offence in Canada, although some have argued that it should be. (In an earlier blog post I argued against the introduction of such an offence). The Canadian Criminal Code prohibits an individual from “counselling another person to commit a terrorism offence,” whether or not such an offence occurs. This provision replaced a previous prohibition on the advocacy or promotion of terrorism. It is difficult to see how simply raising the flag of a listed terrorist group would amount to counselling the commission of a terrorist act.  

Could raising of the Hezbollah flag instead be found to breach the Criminal Code ban on hate speech? Section 319(2) prohibits the “wilful” promotion of hatred against the members of groups that are defined on grounds such as race and religion. But even if it is accepted that Hezbollah is a terrorist organization, speech that supports, or sympathizes with, such a group is not necessarily hate speech. For example, the Baader-Meinhof Gang (Red Army Faction) that operated in Germany and the Red Brigade that operated in Italy, in the 1970s and 80s were unquestionably terrorist organizations but they were anti-capitalist and anti-imperialist rather than racist in their mission. Hezbollah, in its public statements, opposes Israel’s occupation of the West Bank and its domination of Gaza. Its leadership has said that the organization is anti-Zionist and not antisemitic. I have little doubt that antisemitism is rife among the group’s members, and certainly its leaders have in the past made statements that can be understood as antisemitic, but if antisemitism is not part of the group’s formal mandate then simply raising the Hezbollah flag at a concert (particularly when the state of Israel is engaged in a brutal assault on the Palestinian population of Gaza) should not ordinarily be seen as “wilfully” promoting hatred against the Jewish population. Communication, and in this case the display of a flag, may be objectionable, offensive, and even hurtful, without being unlawful. 

Coincidentally, on the same day that Gasparro announced the exclusion of Kneecap, the federal government introduced Bill C-9, which among other things includes a provision dealing with hate symbols such as the flags of listed terrorist organizations. (Is this a recognition that the display of such a flag, the act that led to the exclusion of Kneecap from Canada, is not currently unlawful?) 

The bill adds a new section to the existing Criminal Code hate speech provisions: 

Everyone commits an offence who wilfully promotes hatred against any identifiable group by displaying, in any public place, (a) a symbol that is principally used by, or principally associated with, a listed entity, as defined in subsection 83.01(1); (b) the Nazi Hakenkreuz, also known as the Nazi swastika, or the Nazi double Sig-Rune, also known as the SS bolts; or (c) a symbol that so nearly resembles a symbol described in paragraph (a) or (b) that it is likely to be confused with that symbol.

It is unclear what this provision adds to the existing ban and indeed whether it will prohibit the public display of the Hezbollah or Hamas flags, which seems to be its purpose. Section 319(2) of the Code already provides that: 

Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.”

Under the new Bill C-9 provision it is still necessary to show that the display of the flag of a terrorist organization “wilfully promotes hatred against any identifiable group” including racial and religious groups.

The public display of a Nazi flag will ordinarily be viewed as communication that wilfuly promotes hatred, contrary to both the existing code provision and the new provision in Bill C-9. But, as discussed above, it is less clear that the display of the flags of Hezbollah, Hamas, or the Popular Front for the Liberation of Palestine can be seen, at least beyond a reasonable doubt, as “wilfully” promoting racial or religious hatred, since the formal mandate of these groups is anti-Zionist rather than antisemitic. 

Other provisions of Bill C-9 appear also to be redundant – almost as if the bill is simply performative. If, however, these provisions are not redundant and extend the scope of the existing code restrictions on speech and protest then we should be concerned about the bill’s impact on free speech interests. This will be the subject of another post. 

* One might reasonably ask why the Government of Canada is making  announcements on X?