A Pro-Palestinian protestor yells at a Pro-Israel protestor (not seen) during a demonstration protesters are calling a National March for Palestine, in Ottawa, on April 12.Spencer Colby/The Canadian Press
The right to free speech has a companion: the right not to listen. When people don‘t have the freedom to walk away, when they are embarrassed, frightened and humiliated as the price of going about their day, they are truly captive to hostile messages.
This has been the situation too often for Canada’s Jewish communities in synagogues and other community organizations since the brutal Hamas attack that killed 1,200 people in Israel on Oct. 7, 2023.
Since then, there have been rolling street protests in Canada against Israel’s overwhelming military response to the Hamas assault, a 19-month-old air and ground offensive in Gaza that has killed tens of thousands of Hamas fighters and non-combatants. Those protests have had fresh urgency since March, when Israel renewed offensive operations and imposed a blockade on humanitarian supplies.
Israel and its leaders can be criticized for the horrors unfolding in Gaza, including the surging risk of famine. But Jewish Canadians are not a surrogate for Israeli Prime Minister Benjamin Netanyahu.
Some protests have targeted Jewish-Canadian facilities, giving those who want to enter or exit those buildings no choice but to be an unwilling audience. The protesters’ freedom to speak has extinguished the right not to listen.
The City of Toronto is now drafting and debating a bylaw to create bubble zones outside of faith-based institutions, the latest of several Canadian municipalities to do so. The City of Ottawa voted last week on a similar bylaw.
Putting buffer zones of, say, 20 to 50 metres around faith-based and cultural institutions, makes sense. While free speech includes expression through protest, it has long been settled law in Canada that, as then-Supreme Court chief justice Antonio Lamer put it in a 1995 case, one’s rights are circumscribed by the rights of others.
Bubble zones have been accepted for decades in Canada when applied to abortion clinics and more recently to hospitals during the pandemic to ensure health-care workers and patients did not have to face an intimidating ordeal.
It’s not hard to see why. Protesters of course have a right to demonstrate against, say, the provision of abortions; but don‘t women entering clinics have a right to enter without hostile messages shoved in their face? This question was at the heart of an Ontario court ruling in 1994 after the province’s attorney-general asked it to keep protesters 500 feet away from 23 abortion clinics, doctors’ homes and the like.
It was here that Ontario Superior Court Justice George Adams made the point about captive audiences deprived of their rights to walk away. “These women have little or no freedom not to receive the messages of protestors and yet the existence of such choice is a hallmark of freedom of expression,” he wrote.
Even in the United States, where free expression is protected by the First Amendment, speech that is “so intrusive that the unwilling audience cannot avoid it” will not always be protected, as the late Supreme Court justice John Paul Stevens wrote in a 2000 ruling on a bubble-zone law. He said the “verbal and visual assault” may justify limits, more than the content of the speech itself.
Some city councillors support abortion bubble zones but oppose similar ones for religious or cultural institutions, saying that it would be wrong to put such limits on political protests. For instance, some demonstrations outside synagogues have been held during Israeli real-estate events held inside.
But “politics” can cover just about any protest. Toronto City councillor Dianne Saxe says two of her grandsons, ages three and nine, have had to be “smuggled out a back door” of their Jewish school, escorted by police, to avoid the hostility of protesters. Such is the atmosphere of menace that a team of security guards is now deemed necessary to hold a school concert. Again, intolerable.
No one has a right to a captive audience. Free speech is not an absolute, a point made in Section 1 of the Canadian Charter of Rights and Freedoms, which allows for reasonable limits as long as government can justify them. That notion of reasonable limits is in the very first section for a reason – because finding ways to balance collective interests and individual rights is a Canadian value.
The right to try to persuade others, even to offend, is important. But so is the right not to be a captive audience. Creating bubble zones is a fair and reasonable balance.