Police say a man waved a terror group's flag. Here's why it may be difficult to prosecute as a hate crime

The charge of public incitement of hatred against a Toronto man alleged to have held up what police called a "terrorist" flag during a demonstration last weekend could be difficult to prosecute and highlights the challenges of defining hate crimes, some experts say. 

Prosecution of the man police allege waved a flag associated with the Popular Front for the Liberation of Palestine (PFLP) while marching through the city's downtown last Sunday will "be a real uphill battle," said Barbara Perry, director for the Centre on Hate, Bias and Extremism at Ontario Tech University.

"The standard has been set so high for the prosecution of what we call propaganda offences," she said. "It's hard to say if a symbol is, in and of itself, enough to demonstrate incitement to hatred."

"There have been a couple of other cases looking at things like cross burnings and waving Confederate flags, that sort of thing, that haven't been very successful."

No laws banning glorification of terrorism

As well, Perry noted that prosecution of the Toronto man would be challenging because Canada doesn't have legislation banning the glorification of terrorism like some European countries.

Toronto Police Chief Myron Demkiw told CBC Radio's Metro Morning that the 41-year-old man was charged for allegedly waving a flag of PFLP, which Public Safety Canada lists as a terrorist entity. They say the group seeks "the destruction of the State of Israel and the establishment of a communist government in Palestine."

"The concern we have and what we're alleging is that this individual displayed that flag and that [it] constitutes evidence of an offence of public incitement of hatred under the Criminal Code," Demkiw said.

Canada's Criminal Code does contain some legislation that prosecutes hateful acts. That includes Section 319 (1), that says an individual is guilty of public incitement of hatred if "by communicating statements in any public place [that person] incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace."

Such groups would include those defined by race, gender, ethnicity and sexual orientation.

Under subsection (2), of Section 319, a person can also be found guilty of the "wilful promotion of hatred" by "communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group." 

In September 2023, for example, a Montreal neo-Nazi who authored hundreds of articles and some podcasts in the far-right publication The Daily Stormer was found guilty of wilfully promoting hatred against Jewish people.

And in October 2022, the former leader of the now-defunct Canadian Nationalist Party was found guilty of hate speech against Jewish people for describing them as a "parasitic tribe" and "black sheep," and claiming they control the media and Canada's central bank.

Very few hate law charges laid

But James Turk, director of the Centre for Free Expression at Toronto Metropolitan University, said there have been very few charges laid under the hate law provisions because the bar is so high.

"Our courts have been very clear about the importance of freedom of expression through public discourse, which is the heart of democracy."

Turk said that he would be "very surprised" if waving that particular flag would qualify as hate speech under either of the Criminal Code sections.

According to Perry, there are a whole series of court decisions that have defined hateful expressions, what constitutes hate speech and what constitutes hate.

One of the most important rulings was the decision by the Canadian Human Rights Tribunal in Warman vs. Cuba, in which the tribunal distilled the definitions of hate into the "11 hallmarks of hate."

They include dehumanizing a targeted group, portraying them as a powerful menace that should be blamed for the problems of the world and calling for violent action against them.

Convictions difficult to secure

While Perry says there are definitions of hate in case law, they aren't as clear in legislation, making it more difficult to secure convictions.

Getting a conviction for public incitement of hatred would mean that the Crown would have to prove that those actions would likely lead to a breach of the peace, said Richard Moon, University of Windsor law professor.

"It's not always clear how one establishes that," he said. "Usually, when you think of something like incitement intended to lead to breach of a peace of some kind, there's a kind of immediacy, maybe even authority that an individual has that is likely to encourage others to take some kind of violent action."

In the case of the Toronto man, Moon says he's not sure how the police would go about establishing that exposure to the flag resulted in a breach of peace.

"You have to show that there is some serious risk of immediate violence as a result of of this display of the flag."