About Boycott, Divestment and Sanctions (BDS)

Saturday, 28 January 2017


Did the Ontario Legislature really stand up to BDS?

 In the December 6, 2016 issue of the American magazine Tablet, Jonathan Zalman of Toronto, published an article titled “Ontario Stands Up to BDS- “One of the Main Vehicles for Spreading Anti-Semitism” with the sub-heading: “Ontario’s legislature passed a motion rejecting BDS campaign against Israel…” (Italics mine)

The motion is not binding on the legislature, the government and its various emanations or on private entities. This type of motion is believed to have a symbolic value, although the validity of this belief is rarely, if ever, tested or established.

Zalman reports that the motion was overwhelmingly passed by a vote of 49 for and 5 against; a statement that might lead one to the conclusion that the total number of seats in the Ontario legislature is 54. (Italics mine) 

           That is not the case. The Ontario legislature has 107 seats. Hence, if there are no vacant seats 53 legislators either did not bother to attend the proceedings or left before the vote was called. 

Accordingly, the vote in favour of the motion does not amount even to a simple majority of the legislators. The best that can be said is that the overwhelming majority refers simply to the majority of the legislators who voted.

In the circumstances, clearly, the word “overwhelmingly” is an exaggeration.   

Putting aside the numbers and terminology, did Ontario otherwise really stand up to BDS? For all intents and purposes, it certainly did not.    

The motion, titled “Standing Firm Against Intolerance” reads: 

“That, in the opinion of this House, the Legislative Assembly of Ontario should : [1]stand firmly against any position or movement that promotes or encourages any form of hatred, hostility, prejudice, racism and intolerance in any way;[2] recognize the longstanding, vibrant  and mutually beneficial political, economic and cultural ties between Ontario and Israel, built on a foundation of shared liberal democratic values;[3] endorse the Ottawa Protocol on Combatting Antisemitism; and [4] reject the differential treatment of Israel, including the Boycott, Divestment and Sanctions movement.”(Italics mine).

On its plain reading, the motion is not worth the paper on which it is printed. It is nothing but some sort of consolation prize to the Jewish voters of the province by the government which on the preceding May 14^th, correctly voted against a poorly drafted anti-BDS private member’s bill on the ground that the bill infringed the right to free speech.

This motion is not much better as it is also fatally flawed.

The problems with the motion start with its title: “Standing Firm Against Intolerance” and more specifically, with the inappropriate use of the term “intolerance”.

Anti-Semitic behaviour, as is the case with all sorts of anti-social behaviour that vilifies a person or a group of persons on account of their ethnicity, race or religion or a combination thereof, is commonly described as acts of intolerance and this characterisation is ordinarily followed by praise of tolerance and exhortations to be tolerant.

As I see it, the concept of tolerance comes into play only in authoritarian societies governed not by the rule of law but by the whims of absolute monarchs, dictators, despots and/or the moods of the dominant society.

In a society governed not by men but by the rule of law, I could not care less whether someone tolerates my religion, ethnic origin or race. My fundamental rights, freedoms and privileges of citizenship are guaranteed by the Constitution, and so are those of all Canadians and residents of Canada.

My rights, freedoms and privileges in turn, demand that they be addressed having regard to the core values of our secular, liberal and democratic multi-cultural country, and impose upon others to respect them in accordance with their legal duties and obligations.

By using the term “tolerance”, the motion, in effect, debases the paramountcy of the fundamental constitutionally protected personal rights and freedoms.

 In the premises, I suggest that it is high time we stop using the word “tolerance” in characterising and addressing all forms of anti-social behaviour that target and breach the rights, freedoms, and privileges of persons by reason of their ethnicity, race, or religion. I suggest the right word is “respect”.

The phrasing of the motion itself is bizarre in a number of ways. More specifically:

The first is the use of the term “should” which emasculates the motion. As drafted, the motion amounts to a scheme whereby the legislators are giving themselves four pieces of advice as to what they should be thinking and saying.

In turn, the word “should” begs the question: What if a group of these legislators contest the validity of one or more of the advice for this or for whatever other reasons choose not to think along the lines outlined in the motion, let alone propagating them?

This is not merely a rhetorical question since, as a matter of record, to date, neither the government which holds the majority of seats in the legislature nor the legislature itself have done anything of any significance about three of the four matters addressed in the motion.

Minimally, I would have thought that instead of using the aspirational word “should”, the motion could have been framed in the affirmative: the legislature stands, recognizes, endorses and rejects.

The legislators’ refusal to frame the motion in the affirmative suggests that the purpose of the motion was to go through the motions of playing brotherhood with a particular segment of the electorate. 

At all events, the first piece of advice amounts to an invitation to reinvent parts two already working wheels.   

More specifically, the Federal Parliament has already legislated the Charter of Rights and Freedoms where the enumerated rights and freedoms are supplemented, among others, by the mandatory provision which provides that, the “Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” (Section 27)

The constitutionally guaranteed exercise of these rights and freedoms are “subject only to such reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society.”(Section 1-Italics mine)

Unfortunately, the term “only” does not tell the whole story because the exercise of the rights and freedoms is also subject to the important caveat that one or more of the rights and freedoms enumerated in sections 2 and 7 to 15 of the Charter may be rendered inoperative for a period of time by an express declaration to that effect in a law enacted by the Parliament or the legislature of a province. The maximum duration of the suspension of the right is five years, although the duration may be extended by one or more periods of five years by going through the same procedure used in the first instance. Needless to say, save in national emergencies and even then, any attempt to resort to this provision is bound to be politically explosive.

Further, both the federal and the provincial governments  have enacted  fairly comprehensive human rights legislation and mandated their respective Human Rights Commission, among other things, to establish tribunals  to hear and adjudicate  upon the legal merits, or lack thereof, of complaints filed under the provisions of the legislation and  where warranted, to issue the appropriate remedial orders.

In addition,  persons who believe that their  Charter rights have been  breached have direct  access to the Superior Courts  for the determination of their claim by way of trial; while complainants who are  dissatisfied with  the decision issued by  the Human Right Tribunal may proceed  to  the appellate court for  the ultimate determination of the merits of their case.

Finally, alleged “hate crimes” are prosecuted under the provisions of the Criminal Code of Canada.

In the premises, on the first piece of advice, the motion is redundant.  

The second piece of advice, namely “the recognition the longstanding, vibrant and mutually beneficial political, economic and cultural ties between Ontario and Israel, built on a foundation of shared liberal democratic values” is pure pulp; a public relations exercise with a “virtue signalling” wink to both Israel and to the Jewish community. Needless to say, the motion is silent both on the concrete manner in which the recognition is to be expressed and on the specific ends which will be pursued through the recognition. 

BDS campaigns have been around for a good while, yet to date, the government has neglected, failed or refused to table its own anti-BDS bill and use its majority in the legislature to see to it that the bill became law. Such a law would be hardly a revolutionary initiative since, to date 20 American State legislatures and a number of lower level governments enacted anti-BDS legislation and the American Congress is ever vigilant and pro-active in defeating the BDS movement.

The third piece of advice is that the legislature should “endorse” the Ottawa Protocol on Combatting Antisemitism”. 

By way of a short introduction, the Protocol is accurately described in Wikipedia as “an action plan, which notes and re-affirms the London Declaration for Combating Antisemitism of 2009 as a template document for the fight against antisemitism that was developed during the second annual Conference and Summit of the Inter-parliamentary Coalition for Combating Antisemitism (ICCA) which took place in Ottawa on November 7-9th 2010, attended by some 46 countries, experts from over 50 countries and over 250  parliamentarians from around  the world” (text edited without altering the meaning). The Federal government was the first to sign the Protocol. 

One provision of the Protocol relevant to this segment of the motion, calls for the adoption by Parliaments and Governments of EUMC’s (European Parliament Working Group on Antisemitism) working definition of anti-Semitism and to anchor its enforcement in existing law. 

The working definition of the EUMC reads: 

“Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities. In addition, such manifestations could also target the state of Israel, conceived as a Jewish collectivity. Antisemitism frequently charges Jews with conspiring to harm humanity, and it is often used to blame Jews for “why things go wrong.” It is expressed in speech, writing, visual forms and action, and employs sinister stereotypes and negative character traits.”  

This definition is accompanied by a long series of illustrations of that which is contemplated by this definition.
In 2010, this working definition was used by the U.S. State Department to formulate the Fact Sheet of its own working definition which reads: 

  “..Anti-Semitism is a certain perception of Jews, which may be expressed as hatred towards Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish and/or non-Jewish individuals and/or their property, towards Jewish community institutions and religious facilities”.  Examples include: accusing the Jews as a people. or Israel as a state, of inventing or exaggerating the Holocaust, and accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interest of their own nations,  community institutions and religious U.S. facilities.” The document provides a number of further examples. With respect to Israel, it identifies demonizing Israel, applying a double standard to Israel and delegitimizing Israel (sometimes referred to as the 3 Ds). The Fact Sheet further notes that “criticism of Israel similar to that levelled against any other country cannot be regarded as anti-Semitic.”

There is no valid reason for the Government of Ontario not to formally adopt the Protocol and carry out the list of the specific commitments demanded from its signatories with respect to matters that fall within its provincial jurisdiction instead of wasting time with this empty-handed public relations posturing on the subject.

Further, there is no valid reason for the government, as a first step, not to formally adopt the definition of anti-Semitism set out in the Protocol and towards this end to amend its human rights legislation to incorporate this definition.

Modern anti-Semitism, BDS campaigns and the infringement of the free-speech rights of Jewish students and faculty have been thriving on university campuses to varying degrees, the latest, by  the early years of this century,

In the circumstances, having taken the first step, there is no valid reason for the government  not to take the second step of  instructing  all the school boards, Ontario post-secondary colleges and the universities, to adopt the same definition and  to take effective preventive, remedial and   disciplinary action to deal with members of  the teaching staff, faculty members, administrators, students and student organisations who seem inclined to or who breach the definition or otherwise engage in behaviour  unbecoming  their respective status and positions.

Naturally, it goes without even having to say it that the preventive, remedial and disciplinary actions must be formulated and taken in a manner that respects the Charter rights and freedoms of the individual or group of individuals involved. Further, in the case of faculty members, the action also must respect the exercise of their academic freedom in good faith, in accordance with proper academic standards and code of conduct of the university. 

Finally, the fourth piece of advice that the legislature should “reject the differential treatment of Israel, including the Boycott, Divestment and Sanctions movement” is hypocritical puffery for the reasons set out above.

At the end of the day, clearly, the fact that the legislature of Ontario is the first Canadian province to pass such a motion, which Zalman appears to consider as some sort of feather in Ontario’s cap, is nothing to write about home about.  

If anything, the motion provides irrefutable evidence of the neglect, failure or refusal of the Ontario government and legislature to date, to do that which is right and reasonably effective to deal both with the problems identified both in the motion and in this paper. 

Clearly, the motion is nothing more than a bow with an illusory string. 

The best one can hope for is that the Ontario government will use the motion as some sort of blueprint   to initiate the long overdue remedial actions identified above as the Election Day approaches.  

Personally, I would not bet a nickel of my humble pension on it, while I pray to G-d that I am dead wrong in my prediction.