The Harvard Settlement and its Relevance to Canada
This week, Harvard University settled a lawsuit initiated against it by the Louis D. Brandeis Center for Human Rights Under Law, Students Against Antisemitism and Jewish Americans for Fairness in Education for failing to protect the civil rights of Jewish students from antisemitic discrimination.
The lawsuit alleged that Harvard violated a number of its own policies as well as Title VI of the Civil Rights Act of 1964. Title VI prohibits discrimination on the basis of race, color and national origin, including discrimination against Jews.
The settlement’s key provisions include:
Adoption of the IHRA definition of antisemitism for purposes of discipline
Explicit recognition of Zionism as a protected category under the university’s non-discrimination policy
A dedicated position for antisemitism complaints and reporting
Annual public reporting on antisemitism-related cases and their outcomes for at least five years
Mandatory outside training for staff reviewing antisemitism complaints
Expanded academic programming on antisemitism
Partnerships with an Israeli university and with the Brandeis Center
The Harvard settlement has prompted many Canadian community members to ask why we don’t pursue similar legal remedies here to address antisemitism on our campuses.
The simple answer is that we should.
The more complicated answer is that we must recognize, in doing so, that our legal and political framework is different than our American counterparts. This often works against us; sometimes, in our favour.
In an upcoming article, I will discuss those differences, the approach currently being taken in Canada, including a lawsuit initiated by a courageous TMU student, and the need for the greater use of lawsuits, supported by adequate funding, to combat systemic antisemitism on Canadian campuses. I will discuss this as part of developing a national community advocacy strategy to proactively address issues facing the Jewish community and its allies.
Criminal Law Enforcement
The Jewish community has expressed deep frustration with inadequate law enforcement responses to protests and demonstrations that cross over from protected speech to criminal hate speech. In several editorials, and in testimony before the House of Commons and Senate Standing Committees investigating antisemitism, I have advocated for the robust use of criminal law measures to combat extremism and hate activities.
There have been a few positive developments this past month, although much more is needed.
This month, a Brantford man was convicted by a jury of four offences, including advocating genocide and wilful promotion of hatred against Jews, as well as threatening death (two counts) against Jews and political figures. Much of his hatred was distributed through YouTube videos and other electronic media. A date for sentencing has not yet been set.
In Ottawa, charges were laid against four anti-Israel protestors, including participating in an unlawful assembly, mischief, and obstructing police. The organizer was charged with public mischief, obstruct police, counselling the commission of an indictable offence and participating in an unlawful assembly. Police indicate that the protestors were warned in advance that they could not take over streets in Ottawa’s downtown core, but proceeded to do so nonetheless.
A number of municipal bylaw charges were also laid (relating to noise infractions). The court imposed extensive conditions of bail, including a prohibition on wearing masks, unless medically necessary. The police also advised that some charges were not laid immediately because it would not have been safe to do so and risk an escalation. (See my article, "Enough is Enough" which discusses deferred charges and de-escalation and the use of the tools now being employed by the Ottawa Police Service.)
In Toronto, two individuals were charged with interference with the lawful use of property (mischief) for discharging smoke canisters inside Union Station during an anti-Israel protest. One of those individuals has been a leader of various hate-filled protests and demonstrations in Toronto.
A number of other hate-related activities are the subject of criminal complaints in Toronto, Vancouver and in several jurisdictions across Canada and are currently under investigation or have been placed before provincial Attorneys General for consent, where required. We continue to address the inadequate response in a number of jurisdictions to antisemitic hate crimes, particularly relating to protests and demonstrations that support terrorism, demonize all Zionists (and therefore the vast majority of Jews), and advocate for the use of all means necessary to eliminate the State of Israel.
The Use and Abuse of Disguises and Masks
Community members ask, "why we do not have criminal laws in Canada against the use of masks or disguises during hate-filled protests and demonstrations?" In fact, Canada’s Criminal Code contains three separate offences against the use of disguises or masks – during an unlawful assembly, during a riot, and with the intent of committing an indictable offence.
Meanwhile, in other jurisdictions, such as New York State, legislatures are debating whether to create new anti-masking offences or enhance existing offences. In an upcoming piece, I will discuss some of the approaches being taken internationally to this issue, and whether legislative reform is needed in Canada.
What the Community Can Do to Combat Hate Pending Elections
We now have upcoming elections federally and in Ontario. In an upcoming article, I will discuss what questions the Jewish community and its allies should ask candidates for public office and some key items that we should pursue at all levels of government.
About the Author
Mark Sandler, LL.B., LL.D. (honoris causa), ALCCA’s Chair, is widely recognized as one of Canada’s leading criminal lawyers and pro bono advocates. He has been involved in combatting antisemitism for over 40 years. He has lectured extensively on legal remedies to combat hate and has promoted respectful Muslim-Jewish, Sikh-Jewish and Black-Jewish dialogues. He has appeared before Parliamentary committees and in the Supreme Court of Canada on multiple occasions on issues relating to antisemitism and hate activities. He is a former member of the Ontario Human Rights Tribunal, a three-time elected Bencher of the Law Society of Ontario, and recipient of the criminal profession’s highest honour, the G. Arthur Martin Medal, for his contributions to the administration of criminal justice.