Faisal Bhabha says Israel lobby in Canada has “undemocratic tendencies”

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Faisal Bhabha Photo: YouTube IJV Canada

On November 2, 2020 Independent Jewish Voices Canada, that dubs itself a “Palestine solidarity group,” posted on Facebook:

As an urgent response to the threats to silence the voices of justice and advocacy for Palestine, the Palestinian Youth Movement, Independent Jewish Voices, Faculty for Palestine, and the Toronto BDS Network are pleased to welcome you to our joint educational panel discussion.

In this event we will be discussing the IHRA’s working definition of antisemitism and its effects on the Palestinian struggle, academic freedom, and civil rights. There have been many voices speaking out against this bill as it violates our basic freedoms of expression, specifically our abilities to criticize governments and states that violate human rights and international law.

The discussion will be moderated by the Palestinian Youth Movement and the distinguished speakers will be sharing their diverse knowledge and insight on the bill that has been rammed through an Order in Council.

The speakers are:

Dr. Sheryl Nestel

Faisal Bhabha

Khaled Mouammar

Dr. Greg Shupak

Dr. Nahla Abdo

Faisal Bhabha is an Associate Professor, Osgoode Hall Law School, York University and Former Vice-chair, Human Rights Tribunal of Ontario. Faisal Bhabha is also the legal adviser of the National Council and Canadian Muslims (NCCM) and the chair of the NCCM National Security Policy Committee.

Here is the transcript of Faisal Bhabha’s opening statement in IJV Canada’s panel discussion:

Initially I was preparing to talk about Bill 168 and what it means and what will happen should it be adopted, which seemed certain at the time that we were discussing that. And so I’ve adapted what I was going to say, because I think some of those questions still remain. But I think the title of this panel raises a relevant question which is the question of – Is Zionism racism? But that’s not the question today. The question today is whether it is lawful in Ontario to say that Zionism is racism? And just to start, I mean, I think that the fact that this question needs even to be posed and answered speaks to the crisis in constitutional freedoms that we’re seeing today. Yet, surprisingly perhaps, unsurprisingly for some, no one on the political right, the self-described defenders of free speech, are even talking about it. Why? Well, because the kind of speech that is under attack is pro-Palestinian speech, and the people whose freedom is being chilled are Palestinians, Arabs, Muslims and their allies on the political left. Right-wing free speech defenders apparently only care about right-wing speech. While any attack on political speech undermines democratic values broadly speaking the primary casualty of selective free speech restrictions on Palestinians is Palestinians themselves, and in particular their right to equality. Individual and collective expressions of social cultural and political messaging have been demonized. Palestinian culture, religion and political aspirations have been thoroughly smeared with Islamophobic and racist stereotypes, such that non-violent opposition to human rights violations gets falsely labeled as hate speech or sympathy for terrorism. The popular call for BDS [Boycott, Divestment, Sanctions] has been disparaged as bigoted. The effect of these kinds of smears and false characterizations has been to increase the levels of hate and discrimination that Palestinians and their supporters face. Last November, for example, a group of pro-Palestinian students protested an event featuring former Israeli soldiers at York University where I teach. The demonstrators were faced, have been found by an independent investigation, to have been faced with violence committed by members of the Jewish Defense League, the JDL, a right-wing hate group which has now been banned from York University. Yet, the university condemned not the racist attackers for their attack, but rather the protesting students for so-called antisemitism. So did the [Toronto] Mayor [John Tory]. the [Ontario] Premier [Doug Ford] and the Prime Minister [Justin Trudeau]. The suppression of speech in favor of Palestinian human rights is not just a free speech issue, it’s also a racism issue. There’s no other way to explain the persistent and targeted silencing of Palestinian voices and perspectives. Okay, so back to the question is it lawful in Ontario to say that Zionism is racism? Well, under Bill 168 the proposed Combating Antisemitism Act of this would have adopted the IHRA working definition of antisemitism into Ontario law in a way which would have required the government of Ontario to be guided by the working definition and the illustrative examples as well whenever it was interpreting acts, regulations and policies designed to protect Ontarians from discrimination and hate amounting to antisemitism. It also would have amended the legislation act to define anti-Semitism to mean the IHRA working definition including the illustrative examples any time that that term is used in legislation or regulation. So to be clear, none of this created any sort of criminal offense or actionable civil wrong. It didn’t change the law to permit the police to charge somebody with antisemitism or for people to sue each other for antisemitism, but it is quite likely that the effect of Bill 168 would have been to create a highly persuasive if not binding definition of anti-Jewish discrimination and harassment within the meaning of the Ontario Human Rights Code for example, and this would be significant, because discrimination is not defined in the Code. Courts and tribunals have the authority to interpret discrimination based on a set of considerations. Bill 168 would have potentially removed some of that discretion and required decision makers to factor in the IHRA definition including the illustrative examples whenever called upon to determine whether something constituted discrimination. That no doubt would have led to a chill on Palestinian thought and expression. So for example, imagine a business owner expressing the view in the workplace that Zionism is racism, this person may be a child of a refugee who is driven out of their ancestral homeland, prohibited from returning simply because they’re not Jewish. For this person the racism of Zionism would be more than just an intellectual idea. It’s a lived experience. It’s an intergenerational trauma. Preventing Palestinians from openly discussing their own lived experience is just one of the many ways in which Palestinians are uniquely dehumanized. No other community that I can think of in this country has their national expressions maligned in this manner and to such a degree. Imagine then that Palestinian business owner has an employee or a customer who hears the comment and alleges that this constituted discrimination on the basis of their creed, ethnic or national origin. The customer or the employee claims that their commitment to Zionism is a central aspect of their Jewish identity, which they say is insulted and denigrated by the equation of Zionism with racism. The idea that building and maintaining the state of Israel as the state of the Jewish people as a racist endeavor is believed by that person to be antisemitic because Jews in Israel are believed to be inextricably entangled. And because the comment was communicated in a workplace providing services to the public the effect would have been demeaning, caused the employee or the customer to feel less safe and unwelcome. The employer’s stated political viewpoint would be interpreted as saying if essentially Jews are not welcome in this workplace, and under Bill 168 there would have been very little doubt that if the employee had commenced litigation for discrimination, an adjudicator would likely viewed itself to be bound by the illustrative examples, and thereby bound to conclude that such an incident would be a violation of the Human Rights Code. Thankfully, the legislative process for Bill 168 has halted and will almost certainly die on the committee floor. But what we now have is what happened a week ago. The [Ontario] Lieutenant Governor in Council [Elizabeth Dowdeswell] signed an Order in Council, which adopts and recognizes the IHRA working definition, but it makes no specific reference to the illustrative examples. This is in stark contrast to Bill 168 and has led most experts to conclude that the exclusion is consequential. It reflects an intention to remove any explicit reference to the illustrative examples. It means that a political choice was made to keep them out. Legally speaking, the OIC [Order in Council] has limited legal impact. It’s not legislation. It’s [an] executive decree with limited purpose. It can’t be used to bind any member of the public on its own. It only binds government. But the OIC [Order in Council] can operate as a signal to the public about how the government intends to govern itself in terms of its interpretation of antisemitism. Just because the OIC [Order in Council] doesn’t make specific reference to the illustrative examples doesn’t mean that the illustrative examples can’t be considered by individuals or agencies that are acting pursuant to the OIC [Order in Council]. The government has not explicitly committed itself to not using the illustrative examples in its interpretation of antisemitism. In any event even without the OIC [Order in Council], the government or any individual or group could choose to use the IHRA working definition with or without its illustrative examples. In fact, this is what was happening before the OIC [Order in Council]. and it’s what is continuing to happen after the OIC [Order in Council]. Yet, just yesterday B’nai Brith [Canada] reported that the Toronto restaurant Foodbenders is now facing a municipal investigation of its business license in response to a complaint pursuant to a by-law that provides that a business must not be used to discriminate against any member of the public. Foodbenders is alleged to have called Zionists Nazis amongst other things, and there’s already a complaint before the Human Rights Tribunal about that. No doubt, the decision by the City of Toronto to investigate Foodbenders was taken as a result of aggressive lobbying by B’nai Brith [Canada], which would have started well before the OIC [Order in Council] was signed last week. That push would have occurred and would have continued to occur with or without the the law, with or without the OIC [Order in Council], with or without Bill 168 . No doubt, these legal changes would have affected and impacted the advocacy strategy, but the point I’m making is that groups like B’nai Brith [Canada] are going to continue to push for their maximum interpretation of maximum influence of the IHRA definition and the illustrative examples. Whether they get their way in law or no, they’re going to say what they want to say and they’re going to and they’re going to push it through advocacy channels. So what I’ve been trying to illustrate to sum up is that the question of legality while interesting and relevant is not and should not be the determinative factor in deciding what is needed by way of action. Whatever the law is or says the intellectual and policy debates that occur in the public, in academia, and in politics are far more important. So much public discourse now occurs on social media which is a deeply flawed medium for nuanced thought, but this is where the signals of approval and disapprobation of ideas are made and won. Bureaucrats, administrators and institutional leaders are easily swayed by public opinion. The decisions that matter will be taken at the micro level often far away from the public eye, whether to extend a job offer or an invitation to speak, or to grant funding to a project or a government contract. The Palestinians have many silent supporters and that’s proven by formal and informal surveys which show that most Canadians are far less anti-Palestinian than Canadian policy appears to be and certainly than the Israeli lobby is. But also for most the Palestinian cause is not a major issue of public policy. And so this is why it’s important to continue to insist on exposing and confronting the broader undemocratic tendencies of the Israel lobby as a way to activate the broader public into seeing this not just as a Palestinian or Middle Eastern issue, but as a Canadian issue that risks diminishing fundamental rights and freedoms.

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