Authored by Dhanu Dhaliwal Law Group
It’s been over a year since Charlotte Kates delivered a speech at the Vancouver Art Gallery that outraged many across Canada. At an April 29, 2024 rally, Kates praised the October 7 Hamas attack on Israel as “heroic and brave,” led the crowd in a chant of “Long live Oct. 7,” and called for the delisting of several groups recognized by Canada as terrorist organizations, including Hamas, Hezbollah, and Islamic Jihad.
Despite her comments and a subsequent arrest by Vancouver police, the BC Prosecution Service has yet to approve any charges.
Charlotte Kates is a member of the Samidoun Palestinian Prisoner Solidarity Network, which the Government of Canada has since designated a terrorist entity.
The delay has prompted concern among Jewish communities and civil society advocates, with B’nai Brith Canada calling the inaction “concerning.”
To provide legal insight into the issue, Rob Dhanu KC, a former federal Crown prosecutor and co-founder of Dhanu Dhaliwal Law Group, offered his expert opinion in an interview with Global News.
“The evidence is straightforward”
“Here, the smoking gun, so to speak, is the video. And the video essentially shows what Ms. Kates said at that time. So the evidence is straightforward,” Rob said.
Despite the clarity of the video, no decision has been made 13 months later. As Rob pointed out, the BC Prosecution Service has not provided any explanation for the extended delay.
“The prosecution service has not really provided any real reason as to why this case is taking so long to determine whether it should be charge-approved or not.”
Understanding Section 319 of the Criminal Code
At the centre of the case is Section 319 of the Canadian Criminal Code, which governs hate speech. The threshold for prosecution under this section is high.
“Section 319 of the Code is very specific in that the Crown has to have evidence to show there is a likelihood because of that hate speech that the peace will be breached,” Rob explained.
In other words, it is not enough to show that someone made offensive or controversial statements. The Crown must be able to prove that those statements are likely to incite others to breach the peace or commit violence.
“Really, it is Ms. Kates expressing her opinion. It is not a black-and-white case in terms of the facts,” Rob said. “For instance, if Ms. Kates said, well look, Israel doesn’t have the right to exist, and to facilitate that, we should be attacking synagogues, we have a very direct cause and effect where we can see why people would follow what she’s saying and follow what she is asking for. Here it’s far more grey.”
A Difficult Balance: Free Expression vs. Incitement
This case highlights the tension between protecting freedom of expression and enforcing hate speech laws. While many Canadians may find Kates’ comments deeply offensive, the legal question is whether those comments meet the threshold for criminal incitement.
Rob Dhanu’s analysis underscores that hate speech law in Canada is complex and highly context-dependent. The case against Kates may seem morally clear to some, but legally, it remains in a grey zone.
Final Thoughts
At Dhanu Dhaliwal Law Group, we understand that public safety and civil liberties must be carefully balanced. As lawyers deeply committed to justice, we believe in applying the law fairly, rigorously, and transparently.
We will continue to monitor developments in the Charlotte Kates case and provide legal insights to help the public understand what’s really at stake.
If you have questions about hate speech law, freedom of expression, or criminal defence, contact us today.
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