Josh Dehaas: Shutting down controversial acts violates our rights
Whether you agree with him or not (I don’t), the decisions to cancel Sean Feucht's music shows are unconstitutional.
By: Josh Dehaas
As you (unfortunately) probably already know, governments across Canada have cancelled at least six shows planned in public spaces by the American Christian singer Sean Feucht.
In Montreal, the city reportedly fined a church where Feucht held a free, impromptu performance on Saturday night $2,500, ostensibly for not having a permit, which seems like a pretext considering people gather in churches to sing without a special permit all the time.
Other public officials pulled permits for Feucht’s shows, stating this was necessary for “health and safety as well as community standards and well-being,” (Vaughan, Ont.), non-compliance with a Code of Conduct (Moncton, N.B.), or “the presence of a controversial artist” (Quebec City).
Regardless of what governments said, the real reason for the cancellations is clear. Some Canadians don’t like Feucht’s viewpoints, so the government complied with their demands to censor him. Feucht is a Christian nationalist MAGA supporter who has called abortion supporters “demons,” labelled drag queens “demonic, sick, (and) twisted,” and encouraged young people to oppose “the progressive agenda.”
Whether you agree with him or not (I don’t), the decisions to cancel him are unconstitutional. Unless there are real risks of serious, imminent harm like a bomb threat, governments can’t cancel a concert, worship service or protest because of a speaker’s viewpoints without violating freedom of expression, freedom of assembly, and in some cases, freedom of religion. Whether you’re liberal, conservative or somewhere in between, you shouldn’t be cheering this on. Today it’s a right-wing Christian cancelled; tomorrow it could be your people.
Freedom of expression, assembly and religion are constitutionally protected so that we can seek out the truth, participate in democracy and live fulfilling lives. We can’t do that when governments can decide which ideas we may or may not express. Governments are no more justified in denying a permit for a right-wing Christian nationalist than they would be if they denied a permit to a drag queen.
They should know this by now. One of the most famous constitutional cases in Canadian history was Quebec Premier Maurice Duplessis’s 1946 cancellation of restaurateur Frank Roncarelli’s liquor license as revenge for Roncarelli bailing out Jehovah’s Witnesses. Roncarelli sued, and the Supreme Court famously smacked down Duplessis for his arbitrary use of state power to punish individual beliefs.
In Feucht’s case, the officials’ best argument for shutting down his assemblies is that he poses a risk of anti-LBGT hate speech, but what he’s said so far doesn’t rise to that level.
The Supreme Court made clear in the 2021 case Ward v Quebec that speech can only be censored to protect equality, where “there are serious reasons to fear harm that is sufficiently specific and cannot be prevented by the discernment and critical judgment of the audience.” The majority in Ward reminded us that there is no right “to not be offended” and the risk of “emotional harm” is not enough to limit expression. Speech can be limited where it is genuine hate speech, which are “those extreme manifestations of the emotion described by the words ‘detestation’ and ‘vilification’ that risks causing discrimination or other harmful effects,” or where it is not hate speech but nonetheless “forces certain persons to argue for their basic humanity or social standing, as a precondition to participating in the deliberative aspects of our democracy.”
While the line between hate speech and offensive speech is notoriously difficult to see, there is nothing I’ve heard Feucht say that appears to rise to the level required for the state to censor his speech. Certainly not for Criminal Code charges for advocating genocide, public incitement of hatred or wilful promotion of hatred.
A tougher case than Feucht is the Irish group Kneecap, which is playing four sold-out shows in private venues across Canada this fall. Kneecap are not exactly friends of the Jews. One member was charged with a terrorism offence after he unfurled a Hezbollah flag at a London concert last November while chanting “Up Hamas. Up Hezbollah.” Since their events are planned in private venues, the Charter would only kick in if the government tried to ban them, perhaps by denying the band entry to the country, as some Jewish groups are calling for. Waving a terrorist flag, unlike in the United Kingdom, is not a crime in Canada — although the Liberals may change that. What Kneecap did in London, while vile, is also unlikely to meet the definition of counselling terrorism under the Criminal Code.
In any event, governments have no business trying to cancel them because of what they might say in the future. While it’s possible that Feucht might break criminal hate speech laws, or that Kneecap might break criminal terrorism laws, police can monitor the shows and seek charges if required.
As unsatisfying as it may sometimes feel, the proper response to speech we find offensive or upsetting is not to demand that governments censor it. The proper response is to try to defeat the bad ideas using our own. If anyone wants to protest outside of the Kneecap show when they come to Toronto, I’d be happy to join you.
Josh Dehaas is Counsel with the Canadian Constitution Foundation and co-host of the Not Reserving Judgment podcast.
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I absolutely agree. LGB&Ts and other minority groups fought hard for free speech and other civil rights because we were effectively cut of from the public square. Trying to censor the right cuts the legs out from under us, an especially dangerous move today given the climate down south and the tendency for America's culture wars to spill over our border.
Moreover, it is dumb strategy. The overt bigotry of the Westboro Baptist Church which picketed our funerals with signs saying "God Hates F*gs" was more effective in raising public sympathy for us than most protests. It's far better to let normie Canadians hear and be repulsed by guys like Feucht than to turn them into free speech martyrs.
It has to be said that those two singers are not a good comparison.
While it is tempting to look for comparable examples from the left and right to established a common principle, there’s a major difference that needs to be acknowledged first.
Kneecap promotes Hamas, an active group of rapists, kidnappers, and murderers. Not hypothetical statements. This is promotion of a group that actively rapes, kills and kidnaps.
Feucht promotes ideas that many find offensive or hurtful. He does not promote people who actually rape murder, or kidnap gay people.
That is a fundamental difference.
Whatever you think of Feucht, (and it’s normal to be put off by people promoting terrible ideas), everyone should be able to recognize the fundamental difference and assess the situation with that fundamental difference in mind.