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Joanna Baron: Pro-Hamas demonstrations may be despicable, but they are still legal—And that’s a good thing

Commentary

Like so many others, I spent my Thanksgiving weekend in limbic shock as the magnitude of what happened in Israel set in. 

The shock was instinctual: I still have not gotten the image of that hapless four-year-old boy, the same age as my littlest niece, being poked by a stick and taunted with the Hebrew word for “mommy” out of my head.

It was ancestral: watching the images of babies in cages and body bags felt as though there were iPhones in full technicolour around in 1944 when my paternal grandmother’s entire family was forced from their village in Hungary and murdered at Auschwitz.

It was familial: I heard from relatives across Israel who were terrified in bomb shelters and I prayed for my cousin, a Tel Aviv cardiologist and newlywed, who has been called up for reserve duty as an army medic.

And it was intellectual. As I watched as colleagues on Twitter, including Canadian law professors, attempt to spin the worst massacre of innocent Jews since the Holocaust as “legitimate resistance” I thought about how to use my legal training to fight back.

But I couldn’t do much this weekend. By Monday around 5 p.m., I was exhausted, upset and overstimulated so I decided to shut down my laptop, lie down on my couch, and close my eyes. A few moments later, I heard chants outside my window on Bloor Street in Toronto; first inchoate, then clear: “Occupation is a crime! Free, free Palestine!”

I clambered up to see, in horror, that a few hundred of my fellow Torontonians had shown up on my doorstep to march in approval of this unspeakable massacre. For those who claim this was just a march in favour of Palestinian civilians, please give your head a shake. An Instagram post advertising the rally held earlier in the day at Nathan Phillips Square called the terrorists “heroic” and celebrated the “over 30 Zionist hostages captured.”

I remain utterly disturbed by the chants of “Allahu Akbar” that rang out in nearby Mississauga on Saturday night, and the countless individuals on social media who have shown themselves to so lack basic moral architecture that they are celebrating one of the most unambiguous acts of human cruelty in history.

And yet, I would not yield to the various calls over the weekend to suppress these demonstrations. For example, Toronto City Councillors Brad Bradford and James Pasternak wrote to Toronto Mayor Olivia Chow to urge her to “do what is necessary prevent an unlawful pro-Hamas rally” held at Nathan Phillips Square including by not allowing a permit for public space. Bradford and Pasternak pointed to a city-produced event manual that suggests permits will not be issued for events that endorse views that are “likely to promote discrimination, contempt or hatred.”

While the desire to shut down this hateful rally is understandable, what these councillors don’t appear to understand is that freedom of peaceful assembly is a constitutional right that belongs to everyone—even the vilest among us. As the Toronto Police have correctly noted, the Constitution including section 2(c) of the Charter of Rights and Freedoms is the supreme law of Canada and supersedes any municipal policy requiring a permit to gather.

Several legal intellectuals have mused that such demonstrations might reach the rare threshold of “counselling terrorist acts,” a crime under s. 83(01) of the Criminal Code, and thus should be forbidden. I’m skeptical of this claim. It’s true that “counselling terrorist acts” applies to such acts whether in Canada or abroad. However, there is scant case law on what “counselling” consists of. While no doubt images of crowds in London, Sydney, Toronto, and New York praising Hamas are broadly useful to the terror group’s purposes, simply attending a rally and chanting “Free, free Palestine” seems quite remote from actual terrorism. 

 Although anyone who lends their voice and body to support a movement that committed such atrocities is morally broken or at best extremely naïve, the protesters likely were not all terrorists. Judging from news coverage, they seemed to be an admixture of those praising Palestinian resistance and statehood, those condemning what they see as Zionist oppression, and even more repugnant elements who chant things like “Death to Jews”. It’s impossible to separate out the merely morally broken and duped from the murderous terrorists in any street protest, and the criminal law, which imposes the state’s most draconian restriction on liberty— imprisonment— requires clarity and precision.

This does not mean there shouldn’t be arrests. Although peaceful protest is a protected activity under the Charter rights to free expression and free assembly, unlawful acts may be committed in the course of exercising these rights. Police have the right to arrest people for breaches of the peace (s. 31(1) of the Criminal Code), mischief (s. 430), and taking part in a riot (s. 65). A man loudly confronting a small pro-Hamas rally in Calgary this weekend, for example, was charged under the broad police power to prevent breaches of the peace. 

Finally, hate speech—speech which rises to the standard of encouraging “intense detestation, vilification, and calumny” against a specified group, is, for good or for ill, also criminalized in Canada (unlike the United States) under section 319 of the Criminal Code. Given the notorious subjectivity entailed in recognizing when the threshold of hate speech has been crossed, most municipal police forces in Canadian cities have specialized hate crime units that have been deployed at the protests to make or to gather evidence that could lead to arrests later on. It would not surprise me to see arrests related to the pro-Hamas rallies in the coming days after Arabic-speaking officers review some of the footage.

But let’s be clear: acknowledging the rights of Hamas sympathizers to gather and protest does not mean we should lessen our vigilance in denouncing and tracking them. Quite the contrary. As a Jewish person who was imbued from birth with the knowledge that anti-Semitism is the most ancient form of hatred that has always lurked amongst humanity and always will, I see value in allowing these rallies to go ahead. First, it allows me to know who and how many of my fellow Canadians chose to spend their holiday weekend jubilantly celebrating atrocities committed against vulnerable and innocent Jewish civilians. I want to see their faces in full daylight and condemn their depravity with a full throat, not use the criminal law to suppress them and drive them to fester underground. 

Second, if some of these individuals progress from peaceful protesters to aiding and abetting hate crimes or even terrorist acts abroad, allowing them to march in public could create valuable circumstantial evidence that could be used to prevent them from gaining citizenship, or to prosecute them if they commit, conspire or attempt to commit terrorism abroad. I hope CSIS also attended Nathan Phillips Square on Monday.

Third, I agree with Sean Speer who trenchantly wrote earlier this week: “There are perspectives that should rightly be denounced, marginalized, and precluded from receiving public dollars.” I am in favour of publicly naming and shaming every academic who is going into class this week after spending the weekend arguing for the rightfulness of murdering the Israeli relatives of their Jewish students, and every local business owner and union leader who has supported Hamas’s brutality. A free society has other powerful and enduring responses to moral depravity at its disposal besides suppression and criminalization and now is the time to wield them.

Ginny Roth: Small-donor political fundraising is good for democracy

Commentary

American conservative pundit Jonah Goldberg set off a small online skirmish this past August when he said in a CNN interview: “…small donors are one of the biggest problems for democracy, for the GOP. Because…large donors actually have a strategic view about moderation, who can win, who can’t. Small donors really are just venting their spleen with their credit card.” It’s not just Goldberg bemoaning the influence of small-donor fundraising strategy on our body politic. Canadian writer Justin Ling published a paper this year with the Public Policy Forum attributing our troubling political polarization, in part, to the same phenomenon. 

Indeed, small-donor fundraising is an increasingly powerful force in Canadian politics, not only because it’s proven to be an effective strategy for those who excel at it, but because changing rules and norms at the federal level have made it a political necessity. But Goldberg, Ling, and other critics are wrong. Not only is the small-donor approach far preferable to the clearly less democratic alternative of our recent past (and sometimes present) where wealthy donors exchange money for influence, but its relationship to principled politics makes it a better bulwark against corruption than any ethical rule or guideline. 

In Canada, we can analyze different fundraising cultures in real time because we’ve got both. First, let’s consider the federal dynamic. An elite-driven fundraising strategy, which targets corporate donations, major donations from wealthy individuals, or both, was the driving force in federal Canadian politics until very recently. It wasn’t so long ago that Canada’s corporate power brokers had ready access to whatever major political party was in power—the Liberals at the peak of this period—and in exchange, those same major donors would fund the party’s next election campaign. It’s not that regular people didn’t donate to political parties, it’s just that their donations made very little difference. Parties courted wealthy donors, and it was understood that if you won power, you would make it a priority to return those donor’s phone calls. Canadians mostly put up with this. After all, institutional trust was high, and a returned phone didn’t necessarily result in a favour paid. But after years of grift, the sponsorship scandal was the straw that broke the camel’s back, and as conservative populists channeled anti-Laurentian sentiment into a new political movement, the Liberals struggled to adapt. 

Stephen Harper understood that Conservatives would need to draw a line in the sand to match a new demand for ethical behaviour between politicians and those who sought to influence them. His government brought in various democratic reforms, including a Federal Accountability Act, which, from a policy perspective, continues to make it harder for elected officials to dole out access in exchange for favours.

But that wasn’t all. The Conservatives understood that changing laws and regulations wouldn’t be enough. Canadian politics needed a culture shift. The Chrétien Liberals (responding to political pressure) had recently changed fundraising rules to prohibit corporate and union donations at the federal level, but political parties were still thinking about fundraising in terms of “stakeholder relations” (i.e., what private interest is likely to donate the maximum amount allowable in order to get close to my party and a potential future government?). Harper’s fundraising strategy set out to change that by trying to raise smaller amounts of money from way more people. In charting a two-step path to a majority government, Conservatives learned to play a volume game. It’s not that some wealthy Canadians wouldn’t donate the maximum amount, but fundraising success ultimately came from thousands and thousands of small donations from regular Canadians, in Goldberg’s words “venting their spleens”.

Harper’s success became Trudeau’s, who understood he couldn’t leap from third party to government without mimicking the Conservative party’s modernization efforts. In fact, by the time they beat Harper’s Conservatives, the Liberals were beating the Tories at their own game, taking small donations digital. A decade late, Pierre Poilievre has outmatched them all, bringing together principled policy commitments, compelling communication, and digital engagement in a potent fundraising offence, blowing other parties out of the water.

The federal shift in fundraising culture was not inevitable. Indeed, Canada’s biggest province took a darker path. While Harper was bringing in democratic reform, Ontario Liberals were learning that big labour had as much money to throw around as big business did. The Working Families Coalition, a group of Ontario’s public sector unions, contributed millions not just to Ontario Liberal party war room budgets but on third-party advertising campaigns too, helping first to defeat Ernie Eves and then to keep the Liberals in power for a decade. During that time, public sector unions negotiated the best compensation and benefit deals they had had in years.

By the end of McGuinty’s tenure, even he was growing concerned about the province’s finances, so while some union donations continued to flow, the Liberal cabinet was instructed to meet tough fundraising targets, not by appealing to regular people, but by hosting events with big donors. Eventually, embroiled in a cash-for-access scandal during Kathleen Wynne’s tenure as premier, the government was forced to change Ontario law, banning corporate and union donations. This could have been an important turning point. 

Unfortunately, the Ontario PC leader at the time, Patrick Brown, opted to take advantage of a “loophole” in the new legislation, keeping up the old fundraising strategy instead of taking the opportunity to break the PC party of its addiction to big donations. A couple of years later, after forming government, the Ontario PCs leaned further into the past, increasing donation limits, and allowing MPPs to attend their own fundraisers once again.

Now, the provincial government is facing down its own version of a cash-for-access scandal, and as the Ontario Liberals try to rebuild, leadership frontrunner Bonnie Crombie is bragging to members about her fundraising chops—not because she has a compelling, ideological vision for Ontario which motivates individuals to scrape together some of their hard-earned cash and donate, but because developers and other corporate interests think she has the best chance of winning and want to make sure that their business interests are protected under a future Liberal government.

It’s hard to imagine how anyone could prefer the latter political culture to the former, especially if one’s interest is in enhancing democracy. Jonah Goldberg is an otherwise very thoughtful pundit, so I can only attribute his misguided comments to a pattern I’ve observed among similarly wise commentors of a certain age. These critics legitimately lament lost institutional trust and the decaying ethics and intellect of the elite, but instead of questioning what elites did to lose trust, they lash out at the people who won’t grant it.

Justin Ling, and some others who have since commented on his report, tend to recommend a per-vote-subsidy in lieu of a return to big donor strategies. This approach is certainly preferable, but taxing Canadians more to fund political causes they don’t believe in seems like a rash measure given the federal status quo works so well. Critics of small-donor fundraising don’t trust little old ladies and their credit cards to determine whose political success ought to be funded. But if our next prime minister is going to feel he owes something to someone, wouldn’t you prefer it be Agnes from Thunder Bay? Even if she is venting her spleen?