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Re: http://www.xtra.ca/public/Toronto/Council_delays_report_on_Israeli_apartheid-13302.aspx
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March 6, 2013
DELIVERED BY EMAIL TO [email protected]
Queers Against Israeli Apartheid
Toronto, Ontario
Dear
Re: QuAIA, City of Toronto and Pride
Our File M1015
pressure is being brought to bear by Martin Gladstone and his allies to get City Staff and City Executive to change City Policies to de-fund Pride if QuAIA marches. But what actual steps or
hugely complicated and contentious if the matter ends up before the full Council or in a public
If there are any steps taken against Pride and QuAIA at this stage there will inevitably be legal issues that take you to court although it is difficult to be precise at this stage because the maneuvering in City Hall is far from over. But my preliminary advice is that any steps against
The Charter issues regarding free speech ought to inform the political debate and steer the councilors away from infringement - but there is no guarantee, given the nature of this issue, that that will be the case.
I have agreed to be retained in that eventuality.
HISTORY
I would expect the recent history would prove extremely disadvantageous to your opponents if
Looking at the history it is hard to avoid the conclusion that any action at City Hall will be for the purpose of silencing your rights of freedom of expression. This evident purpose not only
infringes your Charter rights but it would be an act of bad faith for Council to take such steps aimed at your group.
In the Human Rights Policy. This failed. (I believe this was because the staff opinion was that changes would violate the Charter mpromise was that the City made its standard donation to Pride and the Pride organization gave assurance that the City policies on Human Rights would not be violated by in the parade. The City and Pride agreed to a plan whereby Pride would set up and independent Panel of Arbitration to hear complaints and
parade. It is no secret that all of this was directed against QuAIA.
In June 2012 such complaints were made, an independent Arbitration Panel was struck, we attended a Hearing, the complainants stated their case, we presented evidence and that Panel determined that no rights were being violated and QuAIA could participate.
I attach the Reasons of Arbitration Panel reference.
I note there has recently been a second complaint. These complainants seek to exclude QuAIA from making submissions. The issue before the panel currently is whether this complaint should be dismissed because the issue has been decided. (I believe this would be the correct decision because the issue is precisely the same.)
What is going on now is an effort to get the City to change the rules somehow to dodge the effect of the Arbitration decision already made. It will be very difficult in any future court case to dodge the issue that the matter has already been decided on the evidence. My opinion is that a future court case will likely boil down to an argument that the existing Arbitration decision is wrong in law. The starting point will be the facts as determined.
CITY EXECUTIVE
The Resolution adopted by City Executive:
1. Referred the item back to the City Manager, with the request that he:
a. revise the Declaration of Compliance to include anti-discriminatory City policies which go beyond provincial and federal statutes and legislation.
b. report on amendments to the City's anti-discrimination policies, which would state that the City condemns harassment, denigration, discriminatory actions, promotion of hatred or anything which shows a lack of respect for all persons.
c. report on amendments to the City's Grants Policy and ensure that events which are funded by the City of Toronto, and/or take place on City of Toronto
property, are in accordance with the objectives of the City of Toronto of promoting respect, tolerance and diversity and that the grants guidelines and use of space guidelines are consistent with the amended Grants policy.
d. consider the following motion in the requested report:
"That in respect of the application of the anti-discrimination policy to the grants programs, in light of the purposes of the grants policy and the community complaints, Council also give specific direction for the imposition of a condition of the funding for the 2013 Pride event, that the term "Israeli Apartheid" not be permitted to be used as part of the event,"
2. Requested the City Manager to submit the report to the Executive Committee by the end of the first quarter of 2013.
I note that (b) is in effect a motion to denounce but would not appear to change the status quo regarding funding. The other proposals all raise Charter issues regarding freedom of expression. They propose to discriminate on some additional grounds that it seems, admittedly - offend the Charter guarantees of free speech.
LEGAL ISSUES - FREEDOM OF EXPRESSION
The best bet for your opponents will be to say that the city can spend its money however it wants even if it offends freedom of expression. Respectfully, this position is untenable. The Charter protections apply to all government actions spending or otherwise where the effective purpose is to infringe freedom of expression. Given the history it is hard to see how the conclusion could be otherwise.
In Harper v Canada (A-G) [2004] 1 SCR 827 the Supreme Court said:
Permitting an effective voice for unpopular and minority views views some political parties might not embrace is essential to a deliberative democracy. The goal should be to bring the views of all citizens into the political arena for consideration, be they accepted or rejected at the end of the day. Free speech in the public square may not be curtailed merely because one might find the message unappetizing or the messenger distasteful.
In February of this year, the Supreme Court of Canada released its decision in Saskatchewan Human Rights Commission v. Whatcott. The decision addressed whether the prohibition of hate
a prohibited ground of discrimination, in the Saskatchewan Human Rights Code violates the right to freedom of expression.
In its decision, the S.C.C. confirms that limits can be placed on hate speech and clarifies the difference between hate speech and political expression. The S.C.C. states
Political expression contributes to our democracy by encouraging the exchange of opposing views. Hate speech is antithetical to this objective in that it shuts down dialogue by making it difficult or impossible for members of the vulnerable group to respond, thereby stifling discourse. (para 116117)
It is difficult to imagine even if the court were prepared to entertain the regulation of political speech that what you did and will do infringes any standard.
The Arbitration Panel found that QuAIA and inot violate the City Anti-Discrimination Policy.
policies which create something akin to apartheid, or apartheid itself, affecting an
(p. 14)
political speech in Whatcott.
The Panel further went on to say that the participation of QuAIA did not violate the mandate of
not be the forum for political speech.) The evidence demonstrated the long-stan
The most recent case in this area from the S.C.C. has been Greater Vancouver Transportation Authority et al v Canadian Federation of Students. [2009] 2 S.C.R. 295. The student group wanted to put an advertisement on the side of buses encouraging students to vote. The Transit Authority refused on the basis that they wanted the buses to be safe and welcoming and that implied no political advertising. Eventually the students won. The S.C.C. ruled that the ban
limit to the right to freedom of expression under section 1 of the Charter. The Majority reasons said, in part:
I have some difficulty seeing how an advertisement on the side of a bus that constitutes political speech might create a safety risk or an unwelcoming environment for transit users. It is not the political nature of an advertisement that creates a dangerous or hostile environment. Rather, it is only if the advertisement is offensive in that, for example its content is discriminatory or it advocates violence or terrorism regardless of whether it is commercial or political in nature that the objectives of providing a safe and welcoming transit system will be undermined. (para. 76)
In another recent case a federal cabinet minister cut off funding to a group that represents Arab the members of the board (same
background issue the Arab / Israeli conflict). The case is in court over the issue whether the group had been unfairly denied a right to hearing before the de-funding decision. The facts would seem to be quite different fro language instruction classes is almost entirely unrelated to the freedom of expression of the directors. On your facts the de-funding proposed is entirely and completely for purpose of preventing speech that has been upheld as protected. (See: Canadian Arab Federation v Minister of Citizenship and Immigration.)
CITY HALL
In summary, while we cannot be sure at this stage whether new rules regarding funding will emerge out of the current City Hall lobbying effort, or exactly what they may be, but it seems certain that if the lobbyists are successful in fashioning something to block QuAIA it will of
Charter right to freedom of expression. If the City broadens its discrimination criteria will also have to face the problem of how these criteria apply to other groups with controversial activities.
I strongly suspect that City staff will not be able to recommend any course of action that does not infringes and the politicians will be faced with the problem of acting against the advice of their own lawyers when the municipality loses in court.
I would like to think City Council will reject this lobbying effort but discretion is better part of
considerable confidence that you will be successful if and when the matter comes up in Court.
Yours truly,
ILER CAMPBELL LLP
Charles Campbell
E-mail: [email protected] O:\Client Files\q-r-s\QUAIA\QUAIA Opinion re Pride Parade Mar 6 13.docx