Nazi symbols and Confederate flags at the so‑called ‘Freedom Convoy’ in Ottawa commanded media attention in recent weeks. In London, Ontario, a resident is flying the Confederate flag on their property. In response, a local petition tried to persuade City Council to ban the display of Confederate flags and associated symbols within the city limits.

The Mayor’s office responded that although it considers “the display, and all the flag represents, abhorrent,” there was little the City could do because “the flying of this flag does not contravene the Criminal Code.”

Municipal efforts to ban discriminatory flags

Other municipalities have taken steps to ban such flags from being raised. Take for example, Barrie’s Sign By‑law that prohibits any signs (including flags) that “portray an unlawful activity, or which contain[s] any profanity or obscenity or other message that may be offensive or discriminatory as defined in the Ontario Human Rights Code.”

As of yet, it is unclear whether such a by‑law is enforceable if challenged. For starters, neither ‘offensive’ nor ‘discriminatory’ are defined in the Ontario Human Rights Code, so a by-law prohibition about signs that “may be offensive or discriminatory as defined in the Ontario Human Rights Code” is meaningless.

Municipalities operate under the powers granted to them by the provincial government. A municipal by-law that defines discrimination in an effort to ban hateful symbols, would effectively be human rights legislation; cities do not have that authority (in Ontario, at least). I suspect this is why the Barrie Sign By‑law ties its prohibition to what the Ontario Human Rights Code defines as ‘offensive or discriminatory.’ This way, the City will not appear to be legislating what might (or might not be) be discriminatory. But in practice, the ultimate success of such by-laws hinges on provincial legislation actually defining these terms.

Balancing freedom of expression and human rights

The Canadian Charter of Rights and Freedoms protects freedom of expression. In short, no matter how offensive it is for a person to display a Confederate flag on their property, they may have the right to that freedom of expression.

Still, as I noted in a previous column, there are limits to Charter rights.

One such limit is set out in section 1 of the Charter. Rights guaranteed by the Charter are subject to reasonable and demonstrable limits, justified in a free democratic society. The British Columbia Human Rights Tribunal heard a case about this possible limitation on freedom of expression.

The Canadian Jewish Congress filed a complaint against the publisher and writer of a column entitled “Swindler’s List: Hollywood Propaganda.” Among other hateful claims, the piece said Schindler’s List is propaganda against Germans and the deaths of Jewish people in the Holocaust are grossly inflated. The complaint argued that this published opinion was likely to expose Jewish persons to hatred or contempt on the basis of their race, religion, or ancestry, in contravention of section 7 of the B.C. Human Rights Code.

The legal question was whether section 7 of the B.C. Human Rights Code, is a ‘reasonable limit’ on freedom of expression, based on what’s outlined in section 1 of the Charter. After a lengthy analysis, the Tribunal agreed that the protections outlined in section 7 of the B.C. Human Rights Code outweigh the effects on the Charter protected freedom of expression.

But at the end, the Tribunal concluded the column as a whole did not meet the threshold of “hatred and contempt” outlined in section 7 and the complaint was dismissed.

Based on the outcome of the case, it seems that provinces and the federal government must be the ones that pass legislation to prohibit the display of hateful and discriminatory symbols like the Confederate flag through human rights legislation and in the case of the federal government, also through criminal law.

What’s next?

Prior to the last federal election, the government introduced Bill C‑36, which proposed to make changes to the Criminal Code provisions about public incitement of hatred, including providing a definition of hatred that would arguably make it easier to prosecute a charge under this provision. That bill did not proceed as it had not been proclaimed as a law before the announcement of the election but the government has recently indicated an intention to introduce a similar bill.

One thing that Bill C‑36 did not appear to do was to clarify whether merely displaying a hateful symbol would be sufficient to meet the test in the current provisions of the Criminal Code, which prohibit people from “communicating statements” that incite or promote hatred.

Will flying a flag be enough to communicate a statement? Should the Criminal Code go so far as to ban that sort of display? Hopefully, when the new legislation is introduced it will lead to consideration on those questions and will take the appropriate steps to address them.