This article is part of a series analyzing the Justice Committee reports on antisemitism and Islamophobia. Read Part 1 here.
Released alongside its report on antisemitism, the Justice Committee’s report on Islamophobia documents, among other things, hatred and discrimination experienced by members of the Muslim and Arab communities in Canada, exacerbated by the current conflict in the Middle East. I separately address the report’s discussion of anti-Palestinian discrimination.
ALCCA and its members have made it clear that we oppose all forms of hatred, including of course hatred directed against members of the Muslim and Arab communities. A number of the recommendations in the Committee’s report on Islamophobia contain helpful suggestions for change. Indeed, the recommendations insofar as they relate exclusively to Islamophobia, are adopted by the Conservatives in dissent. However, in my view, the report is flawed in at least two significant ways.
Anti-Palestinian Discrimination and Racism
The first flaw arises out of the report’s extensive discussion of anti-Palestinian discrimination and anti-Palestinian racism. I refer to both “discrimination” and “racism” here because both are discussed and raise their own discrete issues.
The Conservatives' dissent is instructive on the report’s discussion about Anti-Palestinian racism:
Focus of the Study: Conservative Members of the Justice Committee supported studying the rise of Islamophobia in Canada but are disappointed that the committee’s scope expanded to include anti-Palestinian racism (APR) and anti-Arab racism. Nine of the thirteen recommendations in the report focus on these issues, shifting the focus away from Islamophobia toward political issues of national identity. This shift is unhelpful and undermines the importance of witness testimony on the committee's original mandate: addressing the valid concerns of Canada’s Muslim community regarding Islamophobia.
Dr. Avner M. Emon, a professor at the University of Toronto, highlighted this confusion in his testimony, noting that the committee’s mandate suffers from a “fundamental category error.” He argued that the hatred directed at Palestinians should not be conflated with Islamophobia, as Palestinians are not synonymous with Muslims. Conservatives agree with Dr. Emon’s analysis and believe that the issue of anti-Palestinian racism should be studied independently, not within the context of Islamophobia[1].
Numerous community groups also support the perspective of Conservatives. To demonstrate, the Centre for Israel and Jewish Affairs (CIJA) expressed concerns in their June 21, 2024 brief, stating: “What makes us want to be on the record today is that a new concept, that of Anti-Palestinian Racism (APR), is being promoted, whose express objective is to negate the Jewish experience, identity and values, while also dismissing and diminishing the real need to define and combat Islamophobia.” [2]
CIJA further stated that the definition of APR introduced by the Arab Canadian Lawyers Association (ACLA) introduces categories based on national origin and political opinion, which diverge from the established anti-racism definition. They warned that this “fosters a divisive environment within Canadian society by pitting groups against each other in what resembles a zero-sum game of competing claims of discrimination.”[3]
Similarly, Janice LaForme from the Alliance Combating Campus Antisemitism in Canada (ALCCA) stated in her June 21, 2024 brief that the concept of APR is “seriously flawed and will undermine the rights and freedoms of Canadians, particularly Canadian Jews and non-Jewish Zionists.”[4]
Mark Sandler, also from ALCCA, warned in his June 21, 2024 brief that some seek to weaponize the definition of APR to demonize Zionism and Jews, stating, “They often seek to define APR so as to effectively include as racist any challenge to Palestinian narratives on the creation of the State of Israel or on the conflicts that followed.” He concluded: “It took a decade of scholarship and expertise and international consultation to develop the IHRA– International Holocaust Remembrance Alliance– definition of Antisemitism. Some are now asking this Committee, which is mandated to examine antisemitism and Islamophobia, to opine on APR. It is outside the Committee’s mandate”. [5]
Therefore, this shift away from the original mandate of the study dilutes the focus on the legitimate concerns of Canada's Muslim community, undermining the valuable testimony provided by witnesses who spoke specifically about Islamophobia. The inclusion of APR, as highlighted by various community organizations, introduces new and complex categories that risk complicating the conversation and fostering division rather than unity.
Experts like Dr. Avner Emon, as well as organizations such as CIJA and ALCCA, have emphasized that the issue of anti-Palestinian racism warrants separate and independent study.
The report’s second recommendation states, in part, that the Government of Canada should formally recognize discrimination towards Palestinians as a distinct group and invest in research to better understand this form of discrimination, including how it intersects with Islamophobia and anti-Arab discrimination.
To be clear, no one should have any tolerance for hatred against Palestinians for being Palestinian; against Arabs for being Arabs; against Israelis for being Israeli, or against Jews for being Jews. No members of these groups (or members of intersecting groups) should be subjected to hatred, discrimination, or stereotypical tropes. I will leave aside, for now, the question of whether anti-Palestinian conduct is properly characterized as “racism” as opposed to a form of discrimination already fully addressed by human rights legislation that prohibits discrimination based on national or ethnic origin or ancestry. For example, hatred towards Israelis (arguably analogous to anti-Palestinian hatred) can be addressed through existing human rights codes and Canada’s Charter of Rights and Freedoms that prohibit discrimination based on national origin.
The real problem here is that APR has been widely promoted through a definition that appears to make every Zionist or those who challenge Palestinian narratives on Israel’s creation anti-Palestinian racists. APR, so defined, advances a political agenda to marginalize and ultimately eliminate Israel, rather than legitimately protecting Palestinians against true discrimination. The Committee could appropriately recommend, as it did in recommendation 2, further study on the interplay between Islamophobia, anti-Arab and anti-Palestinian discrimination. That is a worthy endeavour. However, the Committee, when it studied antisemitism, unequivocally rejected any demonization of Zionism or Zionists – indeed, it recognized the Charter protection available to address antisemitism rooted in anti-Zionism. The same Committee, while reporting on Islamophobia, could have made an important contribution to reducing division and hatred more broadly by explicitly rejecting any effort to demonize Zionism through an ill-motivated definition of APR.
It is equally unfortunate that the Special Representative on Combatting Islamophobia, Amira Elghawaby, despite invitations to do so, has failed to acknowledge that there is no place for demonizing all Zionists as racist when seeking to define anti-Palestinian discrimination or when seeking to develop policies to combat such discrimination.
The Distinction Between Protected Speech and Hate Speech
A second flaw in the Islamophobia report relates to the protest activity addressed in both reports.
In the Committee’s report on antisemitism, it heard from a number of witnesses that the IHRA working definition of antisemitism does not immunize Israel from robust criticism but instead, distinguishes such criticism from the demonization of all Zionism and Zionists and the denial of Israel’s very right to exist as a Jewish homeland. We described to the Committee the point at which protected speech becomes antisemitic hate speech. These passages are illustrative:
2.2.2. Anti-Zionism as the New Antisemitism
To understand the link between anti-Zionism and antisemitism, it is critical to begin with a clear understanding of what Zionism actually means. In her testimony, Nicole Nashen, a law student at McGill, offered the following helpful definition: “Zionism should not be controversial. It is simply the belief in Jewish self-determination in our indigenous homeland, and it does not preclude the existence of a Palestinian state too.”[32] Nor, as several witnesses pointed out, does Zionism preclude criticism of Israel’s policies and conduct.[33] In Ms. Nashen’s words: “The right to peaceful protest is a fundamental tenet of democracy, and criticizing the policies and actions of the Israeli government is not inherently antisemitic.”[34] Rather, it is when Israel’s very existence is challenged that the line between legitimate criticism and antisemitism is crossed.
As Mr. Sandler explained: "[I]f someone wants to criticize Israel's policies, its practices, the conduct of its government and so on and so forth, that's contemplated by the IHRA definition as not being antisemitic. A democracy should welcome that.
I can tell you as a member of the Jewish community that I've been sharply critical of the Israeli government where it's appropriate. The difference is when one says that all Zionists are racist, all Zionists are evil, and Israel should be wiped off the map. That transcends protected speech, and now we're in the realm of hate speech."[35]
Dr. Cary Kogan, a professor at the University of Ottawa and member of the Network of Engaged Canadian Academics, articulated the boundary this way:
"Many on campuses say they're not antisemitic but merely anti-Zionist. You will even hear that a small minority of Jewish students and faculty share this view. Do not be fooled. Political criticism of Israel is absolutely acceptable and appropriate. Spend time in Israel and you will hear similar criticisms. A willingness to engage in criticism is core to Jewish values. However, this is not what we're seeing. Rather, calls for the violent erasure of the only Jewish state in the world and of the long history of Jewish people in this place and claims that Israel is uniquely evil or categorically unfit to determine its own destiny are racist."[36]...
While recognizing that the views of the Jewish community are not monolithic, the committee heard persuasive evidence and analysis suggesting that anti-Zionism is but a more recent form of antisemitism.[51] It agrees, furthermore, that the IHRA definition is “the best definition on antisemitism available as it captures the shifting nature of this unique and pervasive form of hatred.”[52]...
2.3.2. Expressions of Hate
Many of those who testified or submitted briefs felt that in the current context, free speech is too often crossing the line into hate speech. As Hillel Concordia put it in their brief: “When protest or protected free speech leads to violence and physical intimidation of students, then things have gone way too far for an institution in a democratic country to accept.”[72] Mr. Sandler went further, pointing to “the confusion, and often deliberate obfuscation, of the distinction between protected speech and hate speech, so as to immunize those who engage in hate speech or hate activities from accountability.”[73] Having heard countless examples of antisemitic symbols, signs, statements and chants being displayed or voiced with impunity, especially on campus, the committee shares these concerns.
In some cases, these expressions of hate have overtly targeted Jews. For example, the committee heard of swastikas being displayed on campuses,[74] calls of “death to the Jews” being heard in front of a Jewish school in Montreal,[75]and students praising the Holocaust.[76]
At other times, as discussed in the previous section, expressions of antisemitic hate have come coded in the more politically palatable form of anti-Zionism, such as signs saying “No Zionists Allowed” and chants of “All Zionists are racists. All Zionists are terrorists.”[77] Indeed, every student who appeared before the committee affirmed having heard the claim that the state of Israel is a racist endeavour[78]—an antisemitic statement according to the IHRA definition.
In the report on Islamophobia, much is said about efforts to suppress pro-Palestinian advocacy and legitimate protests. If I have not already made it crystal clear, the mainstream Jewish community should have no interest in suppressing merely “pro-Palestinian” advocacy or peaceful, non-hate filled protests. I readily accept that we have an obligation to not merely acknowledge, on a theoretical plane, freedom of speech and assembly, but to respect those rights, however difficult that might be at times.
But there seemed to be little or no introspection in the report on Islamophobia about the levels of antisemitic hate speech and related activities we are witnessing, far removed from protected speech. And that these activities are often mischaracterized as merely pro-Palestinian advocacy or as legitimate protests.
Simply put, there cannot be a meaningful discussion about the extent to which pro-Palestinian advocacy or legitimate protest is being suppressed unless it is accompanied by an equally meaningful discussion about the distinction between hate speech and protected speech.
To illustrate the point, there should be no tolerance in Canadian society for:
The glorification of terrorists and terrorist organizations, especially those designated as such by the Canadian government
Efforts to intimidate Jews at schools, places of worship and in our neighborhoods
Chants that label all Zionists as racist, evil and genocidal
Chants of “From the River to the Sea, Palestine Shall Be Free”, when coupled with “From Water to Water, Palestine Shall Be Arab” or “Palestine Shall be Jew-Free” or “by any means necessary”
Calls to support the activities of Hamas, Hezbollah, or the Houthis or the Iranian regime’s reign of terror
Would some or all of these examples be regarded as “pro-Palestinian” advocacy or legitimate protest activities by some of those who have challenged the suppression of such advocacy or protests? Undoubtedly so.
Take for example, the report’s reference to the “recent controversy at Toronto Metropolitan University’s Lincoln Alexander School of Law, wherein students who signed a letter supporting all forms of Palestinian resistance were subject to a fierce backlash from the legal community.” The report noted that “Retired Chief Justice J. Michael MacDonald, who was hired to investigate the incident, ultimately found that the letter, while “greatly flawed” was not antisemitic or in violation of the school’s code of conduct.”
This students’ letter should hardly stand as an example where mere pro-Palestinian advocacy has been unfairly suppressed. The students’ letter stated that “’Israel’ is not a country, it is the brand of a settler colony.” It complained that “So-called Israel has been illegally occupying and ethnically cleansing Palestine since 1948” and declared solidarity with “all forms of Palestinian resistance and efforts towards liberation” – language that came less than two weeks after the October 7 massacres.
MacDonald, in effect, did conclude that the letter was not antisemitic. Largely, this was because many of the signatories ostensibly did not intend to create the impact it had, and acknowledged that Jewish colleagues “did feel threatened, offended or unsafe as a result of the content in the letter.”
Despite concluding that the letter wasn’t antisemitic, MacDonald said its language could be seen as justifying the October 7 attacks.” He found that one particular section, which blamed October 7 on “Israel’s 75-year-long systemic campaign to eradicate Palestinians,” could “reasonably be read” as minimizing Hamas’s role in the terror attacks, making it particularly concerning.
“At the very least, and most generously, it is misguided,” he added.
Although he concluded that the harm caused by the letter was unintended, he accepted that “challenges to Israel can sometimes be interpreted as a call for eradication of Israel as a homeland for Jewish people. The letter left itself open to that kind of misinterpretation.”
MacDonald erred in law in several important ways. The law has long recognized that statements may be (and often are) antisemitic or racist or homophobic in their effect, despite being unintended. Even MacDonald found that many of the school’s Jewish students experienced an “intimidating, hostile, and offensive” study environment “for a variety of reasons of which the letter was a significant one.” His own finding belied the conclusion that the letter was not antisemitic or constituted protected speech, particularly in the context of existing codes of conduct that address speech that may not be criminal but undermines the educational environment.
As an aside, more than half of the involved students refused to speak to MacDonald or even identify themselves confidentially. He was in a poor position to evaluate their intentions. Indeed, he never even ascertained the actual authors of the letter.
MacDonald came very close to concluding that the letter violated the school’s code of conduct and only did not do so because he misinterpreted the law. Nonetheless, his report was interpreted by anti-Israel advocates as a vindication of the letter’s contents both substantively and as legitimate expressions of free speech on campus. They were neither.
My point here is that the Committee had an obligation to address the extent to which mere pro-Palestinian advocacy and legitimate protest are being suppressed, and the extent to which hate speech is dressed up as protected speech. It failed to do so despite its significance to the whole discussion about how to address anti-Muslim, anti-Arab and anti-Palestinian enmity.
This failure to differentiate between truly protected pro-Palestinian advocacy and unprotected antisemitic advocacy made the Committee’s report on Islamophobia less meaningful and distracted from an appropriate focus on those Muslim community members who are truly the victims of hate and discrimination.
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.