The Toronto Police Service Board is developing a new public order policy on how the police deal with protests, demonstrations and occupations. The Board does not currently have a policy in place, although it is now mandatory under existing legislation. The public has been invited to file submissions on the anticipated policy by August 30, 2024.
The Board, which provides civilian oversight of the Toronto Police Service, cannot direct the police respecting specific investigations or day-to-day operational matters. However, it plays a vital role in identifying the policy priorities of the Service, and direction on the areas to be addressed in the Service’s written operational procedures. The public has been asked to identify the overriding principles and key elements that should form part of the Board’s policy.
ALCCA will be providing detailed written submissions to the Board. We are well situated to do so based on expertise within the Alliance on police oversight and governance, prior work with police service boards and on frameworks for the policing of protests and occupations.
Our submissions will be available, when completed, on this website. In the meantime, I strongly encourage community members to provide brief submissions in response to the Board’s invitation. In today’s piece, I make recommendations on areas you might address. Last week, I participated in the Community Safety Update run by the Centre for Israel and Jewish Affairs (CIJA). Some tips were provided, at that time, to community members on how they might respond to the Toronto Police Service Board’s invitation. Some of those tips have been incorporated into my comments today. The Alliance and CIJA will continue to work together to ensure that the community has the information it needs to respond effectively.
I will briefly outline the major points I expect will be made in the Alliance’s submissions. I suggest that you:
Identify just a few points to emphasize.
Be respectful. Be brief. Do not disparage the police or its leadership.
If relevant, describe the impact that the protests, demonstrations and occupations have had on you and those close to you.
If you agree with the major points being made by the Alliance, say so to the Board
Key Points
Hate activities are taking place in this city. They disproportionately target the Jewish community. These activities require a significantly enhanced law enforcement response.
The City of Toronto, the Police Service Board and the Service have emphasized that freedom of speech and assembly must be respected, although hate and intimidation will not be tolerated. This is sometimes described as zero tolerance for hate. Zero tolerance for hate should represent one of the overriding principles that form a part of the Board’s policy on public order. However, hate and intimidation are currently being tolerated. All too frequently, the correct balance has not been struck between freedom of speech and community safety. Community safety has instead been imperilled and all too frequently, peace has not been preserved. This is not a criticism of officers or police leadership but is explained by a number of factors identified in ALCCA’s submissions.
There remains a poor understanding of the difference between protected speech and hate speech, particularly as the terms are applied to anti-Israel and anti-Zionist activities. Disinformation has contributed greatly to this poor understanding. The Board must understand this difference so as to inform its policy on public order.
ALCCA’s submissions explain the difference between protected speech and hate speech in the context of Israel and Zionism. Criticism of Israel’s policies, conduct, government, settler extremism, etc, similar to the kinds of criticism levelled against other countries, is protected speech and not antisemitic. However, the demonization of Zionism and all Zionists, without distinction, and the denial of Israel’s very existence as a Jewish democratic state constitutes hatred directed against Jews (over 90% of whom are Zionists). For more on this, see the Global Guidelines for Countering Antisemitism.
This distinction between protected speech and hate speech does not merely represent the Alliance’s opinion but is captured in the IHRA definition of antisemitism. The IHRA definition has been adopted by the Governments of Canada and Ontario (and many other governments and institutions). As such, the Board’s policy on public order should reflect that the IHRA definition of antisemitism should be understood by, and provide guidance to, the police in its law enforcement decisions respecting protests, demonstrations and occupations.
The Service and its officers make discretionary decisions about how to police each protest. The Board’s policy on public order must develop a framework for those discretionary decisions. This framework should be consistent with the overriding principle of zero tolerance for hate. When protests, demonstrations and occupations take place in public spaces, the discretionary decisions must also be compliant with the rights guaranteed by the Canadian Charter of Rights and Freedoms.
Many protesters believe that freedom of expression trumps all other considerations, and that no restrictions can be placed on where and when protests, demonstrations and occupations take place, and what can be said at such events. The law says the exact opposite, both in relation to privately owned and public spaces. The police and the city of Toronto have available to them a wide range of measures to regulate and respond to protests, demonstrations and occupations. The Board’s policy should identify the full range of criminal enforcement measures available to the police to address such public order events. In our view, some of these measures have been under-utilized.
Equally important, police discretionary decision-making requires an appreciation of the full range of provincial offences such as those under the Highway Traffic Act, as well as City of Toronto bylaws available to police. This full toolkit of measures must be considered by police in addressing lawlessness, including the obstruction of highways and roads, interference with the lawful use and enjoyment of private and public property, and/or with critical infrastructure. Freedom of expression is critically important, but it does not mean that the city is powerless to take measures to regulate the time or place of such speech. A number of these measures need not impair freedom of expression or minimally do so in the public interest.
Considerations: How Police Respond
The Board’s policy on public order should identify the following elements that are of importance in determining how police respond to specific protests, demonstrations or occupations:
Whether any or all of the protestors are engaged in hate motivated crimes. In this regard, greater attention should be given to the full range of criminal offences that may be applicable, such as:
Hate propaganda offences (four) including public incitement of hatred against any identifiable group (as statutorily defined) where such incitement is likely to lead to a breach of the peace, and wilful promotion of hatred against any identifiable group;
Mischief to property which includes not only wilful destruction or damaging of property, but wilful obstruction, interruption or interference with the lawful use, enjoyment or operation of property;
Mischief relating to religious and other property connected to an identifiable group. This offence extended to specific categories of property frequently associated with hate crimes, such as places of worship, if the mischief is motivated by bias, prejudice or hate based on enumerated categories including race, religion, national or ethnic origin. This aggravated form of mischief refers to four categories of property including places of worship, places primarily used by identifiable groups as educational institutions, or for administrative, social, cultural or sports activities or as seniors’ residences. NOTE: “motivated by bias, prejudice or hate is broader than the more restrictive elements of the hate propaganda offences;
Disturbing religious worship or certain meetings;
Intimidation relating to violence or threats of violence, injury to property or blocking or obstructing a highway;
Criminal harassment;
Unlawful assembly and rioting with available enhanced penalties if the offence is committed while wearing a mask or other disguise to conceal identity without lawful excuse;
Common nuisance;
Causing a disturbance;
Breach of the peace – and the authority to intervene to prevent its continuance or renewal and to detain any person who commits or is about to join or to renew a breach of the peace;
Disguise with intent to commit an indictable offence;
Any offence motivated by bias, prejudice or hate; and
Counselling another person to commit a terrorism offence, even without having identified a specific terrorism offence.
The existence of hate activities (already defined in police procedures), short of criminality, should also inform which law enforcement responses are appropriate when protests are unlawful for other reasons. Simply put, the existence of hate activities may mean that the police take stronger law enforcement measures to address an otherwise unlawful protest than they might have if the protest had been unaccompanied by hate;
Whether protestors are in violation of provincial offences, such as the Highway Traffic Act, or municipal bylaws, such as the discharge of fireworks. Toronto police have the powers of municipal bylaw enforcement officers and greater attention should be given to the exercise of these powers as part of a zero tolerance of hate policy;
Whether a protest has obtained a permit, when required, or otherwise complied with municipal requirements for use of public spaces;
Rallies by Zionist organizations must comply with applicable municipal licensing requirements that are in the public interest, and address, among other things, a range of planning/management/cost issues. Yet, reportedly, anti-Israel protests do not even seek to comply with existing municipal requirements. The Board’s policy should reflect that compliance with all applicable laws is a relevant consideration in deciding how the police should respond to a protest, demonstration or occupation;
Whether a protest, demonstration or occupation interferes with the lawful use and enjoyment of property, both public and private, by others, or improperly excludes others from their entitlement to use and enjoy such property, roads and highways.
Whether a protest, demonstration or occupation is likely to result in damage to or interference with critical infrastructure or may bring about significant public safety, social, economic or environmental consequences to the city;
Whether a protest, demonstration or occupation impacts on the availability of emergency services;
Whether the location chosen by protestors to march or otherwise demonstrate is likely to intimidate or place others at risk, including those targeted or affected by the protests;
Whether the protest appears to be designed to “take over’ or “shut down” the city or significant portions of the city;
Whether the protest effectively prevents or excludes others from exercising their freedom of expression;
Whether it is appropriate to create "bubble zones" (subject to legislation) which restrict protests from proximity to vulnerable or at-risk places, without meaningfully diminishing protected freedom of speech;
Whether protesters, particularly those who may be engaged in hate motivated crimes, are disguised; (see note 2)
In relation to protests or occupations on private lands, whether they are accompanied by criminal offences;
Contrary to certain misconceptions, the police do not need the lawful owner’s approval to arrest criminal offenders on private property;
Whether occupiers are trespassing:
As reflected in the U of T injunction case, lawful owners have strong unequivocal rights they can rely upon in support of the enforcement of trespassing laws. In considering whether occupiers are trespassing, it must be remembered that, as a matter of law, trespass laws can be enforced by the police without the intervention of the courts. In other words, an injunction is not a precondition to enforcement.
Whether the protest, demonstration or occupation is likely short in duration or expected to extend indefinitely;
Whether non-enforcement or minimal enforcement respecting illegality is likely to embolden participants or like-minded others to engage in similar unlawful conduct;
Whether protest leaders have cooperated with police liaison officers employing de-escalation techniques;
Whether delayed enforcement is likely to contribute to officer safety or the safety of others;
Whether the protest is likely to result in violence, destruction of property or place the protestors or others at risk or in fear of physical safety; and
The extent to which the protests are antithetical to the desired use of traditional lands by the applicable Indigenous government or authority.
A New Province-Wide Strategy
In addition to developing a Board public order policy, the Board should support a province-wide new strategy for getting tough on hate crimes, Regardless of the group targeted, this strategy should include:
Additional human and financial resources provided to hate crime police units in Toronto and across the province;
Mandatory training for dedicated hate crime police officers that addresses prevalent forms of hate, the full range of criminal offences available to address hate, and case scenario exercises to ensure that officers understand the distinction between protected and hate speech or activities;
A dedicated unit of prosecutors, properly resourced and trained, to advise on, and where appropriate, prosecute alleged hate crimes. Their training may take place in conjunction with the police training identified above;
As a feature of greater public accountability and transparency, the Service should regularly release, as aggregated data, the number and nature of hate crimes that are the subject of charges. Greater attention to such charges should also serve as a deterrent to lawlessness;
Bubble legislation should be introduced at the provincial level as soon as possible. This legislation will protect vulnerable or at risk institutions, community centres and places of worship through Charter-compliant limits on protests, demonstrations and occupations;
In accordance with the adoption by Canada and by Ontario of the IHRA definition of antisemitism, the police are to be guided by that definition in determining whether hate related charges should be laid.
Additional police resources should be directed to extremist money laundering and financing and Ontario should also advocate for the immediate creation of a national task force on extremist financing and money laundering that includes relevant Ministries, law enforcement, national security and counter-terrorism agencies, including CSIS, Global Affairs Canada, FINTRAC, and CRA to conduct a coordinated investigation. Consideration should also be given to the role to be played by the Foreign Investment Review Board and other bodies mandated to examine foreign investment in Canada.
The Board's support for this initiative would its commitment to zero tolerance for hate and contribute to community safety and the preservation of peace.
Example Excerpt
For illustration only, here is an excerpt from ALCA’s submission:
The Board’s invitation for submissions states that the “policing of protests, demonstrations and occupations poses a complex and delicate challenge as the Service is required to respect the constitutional rights to freedom of expression and peaceful assembly of all people, while also ensuring community safety and preserving the peace.” We have the deepest respect for Toronto police who have shown, in the overwhelming majority of instances, professionalism in the face of extraordinary provocations and challenges. The comments that follow should not be taken as a criticism of specific officers or the Service as a whole. On the contrary, the police have acted admirably in the absence of a Board policy, when resource challenges, training deficits, an imperfect understanding of the range of law enforcement measures available to them, and the limits of freedom of expression and assembly. The Jewish community does not feel safe. Nor is it actually safe. The community and its many allies feel that lawlessness and hate prevail, that extremists largely operate with impunity, and the authorities do not understand when the boundaries of protected speech have been overrun. It is no coincidence that Jews represent the largest target of hate crimes. It is no coincidence that they report, in significant numbers, being marginalized and demonized on campus. The community believes that the rule of law has little or no application when they are victimized, and there are few safe spaces for them anywhere in the city. The Board’s new policy on public order must have application to a wide range of protests, including those unrelated to the Middle East conflict and those communities affected by that conflict here. However, the policy must be informed by the most pressing of the public order issues that confront the police service daily. Of course, the most significant public order events that Toronto police have been called upon to respond to since October 7, 2023 have been protests relating to the Israel-Hamas conflict. The overwhelming majority of those protests are variously described, depending on one’s political perspective as anti-Israeli, pro-Palestinian, or pro-Hamas or are characterized by stated objectives of the protesters, whether to “free Palestine”, “globalize the intifada”, end Israeli “genocide”, or bring about an “immediate ceasefire” (see note on ceasefire) Some of the calls for global intifada, freedom for Palestine, or resistance have been accompanied by the phrases “by any means necessary”, “Zionism is racism,” “all Zionists are racist.” The Jewish community is under attack when anti-Israel protestors label all Zionists as racist or genocidal and demand that Zionism and Zionists be barred from universities. We dealt with the “Zionism is racism” movement in the 70’s (captured in UN Resolution 3379) and ultimately the United Nations revoked the resolution in 1991. The Soviet Union led the movement to describe Zionism as racism, relying in part on the notorious Protocols of the Elders of Zion, a fabricated text that detailed a Jewish plot for global domination. It continues to be widely circulated today. Our community and our allies are constantly assailed for conflating antisemitism and anti-Zionism. “We are anti-Zionist, not antisemitic” is a rallying call for the uninformed and the malevolent. It sounds legitimate to those ignorant of its history. But it distorts the meaning of Zionism which simply put, is the right of Jews to self determination in our ancestral lands. We believe in a democratic Jewish state with equality rights for all minorities. Criticizing Israel’s policies, its government, its military, the settler movement is not antisemitic when the criticisms do not apply a double standard. But being “anti-Zionist” demonizes 90% of Jews and the State of Israel’s very legitimacy. We are not asking the Board to take sides on the controversial issues arising out of the conflict in the Middle East. We are insisting that the Board adopt a policy that recognizes when protected speech becomes hate speech. Government pollical leaders, including the City of Toronto’s Mayor have asserted the importance of freedom of speech and assembly, unless it devolves into hate. But little or no action is taken when speech does devolve into hate. The design of a new public order policy, mandated under the governing legislation, can set priorities for the Service in policing protests, demonstrations and occupations. This submission discusses several of those priorities and important elements that should be contained in the policy. These submissions are not intended to be exhaustive, but instead to identify the priorities and elements that need to be articulated, and appropriately addressed.
Notes
Freedom of speech, association and assembly are collectively referred to as freedom of speech, for the purposes of these submissions.
The Criminal Code creates two offences that involve disguises (during an unlawful assembly or riot, and, separately, disguise with intent to commit an indictable offence. The use of disguises, particularly to avoid detection or police identification, is relevant in a variety of ways: for example, whether the disguises contribute to a finding of intimidation, or may facilitate the commission of a crime or represent an effort to immunize the disguise-wearer from criminal liability. The use of disguises may affect whether the police immediately arrest or defer an arrest or arrests. Deferral may prevent the identification of criminals. However, it may also promote officer safety.
Of course, a request for an immediate ceasefire, whether agreed with or not, is differently situated as protected speech than many other chants or stated objectives.
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.