Dr. Jillian T. Weiss

Canadian Politics, Not Queer Politics, At Issue In Toronto Pride Parade

Filed By Dr. Jillian T. Weiss | June 09, 2010 11:30 AM | comments

Filed in: Politics, The Movement
Tags: Canada, Israeli Apartheid, Queers Against Israeli Apartheid, Toronto Pride

Yesterday, R. Conrad wrote about the Toronto Pride Parade's decision not to allow a banner reading "Israeli Apartheid" in the upcoming parade. In response, over twenty Pride Toronto honorees from the last decade have returned their awards. Noting that the parade allows floats from "Home Depot and Budweiser who have little to do with queerness let alone a sense of pride," he asked whether

we continue to try and resuscitate pride events by injecting them with a good dose of sex and politics, or do we let the corporate machines of late capitalism devour the hollow bodies of most pride events while the rest of us work to start new events and new traditions to celebrate our sex and politics?

Commenters picked up on these threads, discussing whether concerns about "Israeli Apartheid" are relevant to a Pride parade and whether corporate influence is good or bad.

I think these issues are interesting and useful, but an important underlying issue is how Canadians understand law and freedom of speech, and how that affects Canadian politics. I teach Comparative Legal Systems, and one thing I consistently note is how difficult it is for my students to understand that legal structures in other countries are like different planets. Not even the gravity is the same.

The U.S. Constitution says that Congress cannot make any law abridging the freedom of speech. This appears to be absolute, though it is not, in practice, because that would be impossible. Nonetheless, the U.S. Supreme Court has taken a very hard line on creating any new exceptions to freedom of speech. By contrast, the Canadian Charter of Rights and Freedoms, which guarantees freedom of speech, says that it is subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

At issue here is government action to ban "hate speech." In the U.S., it cannot be done.

While using hate speech in a public place might be considered under the US catch-all crime of "disorderly conduct," a statute that prohibited calling people bad names would very likely fall. Even statutes outlawing cross burnings are unconstitutional as an infringement on the right to free speech, unless the statute requires proof of "intent to intimidate." "Hate crimes" statutes, which permit enhanced penalties for crimes based on bias against certain groups, are permissible if they punish violent acts committed by the defendant, such as assault or murder, but not if they directly punish ideas, even hateful ones.

In Canada, by contrast, there are laws against certain types of hateful speech. The Canadian Criminal Code forbids "hate propaganda." It prohibits inciting hatred against any identifiable group distinguished by color, race, religion, ethnic origin or sexual orientation. It also permits confiscation of publications containing hate propaganda. There are exemptions for true statements, religious discussions, subjects of public interest, or pointing out hate propaganda to remove it.

Thus, in the U.S., no government can ban statements about "Israeli Apartheid." They can't even remove funding based on that, as it would constitute an action infringing on free speech.

In Canada, however, not only can the government ban "Israeli Apartheid," it seems they have a duty to do so. They would have an equal duty to ban a statement about "Palestinian Terrorism." I'm not sure I'm legally allowed to write these words and have them show up on a Canadian computer screen, or whether Canadians may view them.

I don't fit into the exception for pointing out hate propaganda to remove it. I have no problem with the banner. I have disagreed with Israel's policies regarding Palestinians for a long time now, feeling them to be inhumane for the Palestinians, and only certain to lead to disaster for Israel.

With that as background, here's some reporting on the reasons for the banning of the phrase. It's important to note that the group "Queers Against Israeli Apartheid" is not banned from the parade, but banners saying their name are banned.

From CBC, a respected mainstream media outlet:

The use of the words has put the Pride organizers on a collision course with the City of Toronto, which says the name of the group 'Queers Against Israeli Apartheid' violates its anti-discrimination policy.

In 2009, the city gave the Pride festival $121,000 to help defray costs.

* * *

Traci Sandilands, executive director of Pride Toronto, says the controversy is a serious threat to the festival.

"If we had not made this decision Pride would not have been able to take place. We would have had to cancel the 2010 festival, close our doors and file for bankruptcy," she said.

From the Canadian Free Press, a conservative news outlet.

And last month, the federal government announced that they were withdrawing almost $400,000 in funding for the parade. While the official version was that this was done for fairness, to spread the money around the country, it is hard to believe that the publicity surrounding QuAIA's role in the event did not play any part in the decision of the feds to scrap the funding. And in May, Toronto City Councillor and mayoral candidate Giorgio Mammoliti put a motion on the table for the city to deny funding to the parade if QuAIA is allowed to participate. According to Mammoliti and others, the Toronto Gay Pride Parade would be in breach of the city's anti-discrimination policy.

The directors voted to implement banning the phrase reluctantly. They bowed under pressure while insisting that free speech was paramount. They equivocated until they decided they couldn't risk the city of Toronto withholding funding on the basis of a violation of the anti-discrimination policy.

I have my doubts about whether corporate sponsorship is a good thing. I'm pretty certain that Israel is going down the wrong path.

A commenter on the previous post said that there is no Israeli Apartheid because there are a million Arab Israelis who enjoy equal rights. "Apartheid" may be the wrong word, and Israel certainly has to take into account the issue of arms flowing into a hotbed of violent extremism. But that doesn't lessen the injustice of what is happening in Gaza.

I also feel strongly that the queer community's quest for justice must extend beyond our own little issues, and that political involvement is the essence of a Pride Parade. I'm well aware that some people mix anti-semitism in with their criticism of Israel, and I'm sensitive to that as a Jew, but that is nowhere in evidence here.

The legal environment of Canada, however, under which the Toronto Pride Parade is operating, prohibits hate propaganda directed against ethnic origin. Israeli is an ethnic origin.

I disagree with Canadian law, and think its restrictions on peaceful protest speech are calculated to repress, which may cause more violence than it prevents in the long run.

But I do not disagree with the proposition that people have an obligation to follow the law. I'm also sensitive to the fact that different places call for different laws. I'm not sorry that Germany bans display of the Nazi swastika.

I hope that, whether or not "Israeli Apartheid" appears in the parade, this controversy will stir some much needed discussion.

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You wrote: "I'm not sure I'm legally allowed to write these words and have them show up on a Canadian computer screen, or whether Canadians may view them."

Um, it's not that draconian, by any stretch. Although there's the ability to censor, we exercise and view speech similarly to how it's handled in the US, and when something like this occurs it's an anomaly -- which is why the Toronto Pride issue drew so much attention (it's unheard of that queer issues get local attention, let alone national). Laws governing Internet are also relatively undefined, leaving further levity there.

This is more censure than censorship, and money is the vehicle -- no law has been applied.

You might remember that the Canadian government pulled a sponsorship grant that Toronto Pride validly qualified for last year. There was further pressure from Charles McVety and Christian nationalists to eliminate all sponsorship whatsoever. That was done this year, with QuAIA used as an excuse.

With the Federal money gone, the City sponsorship was crucial. But QuAIA had touched enough hot buttons that the City felt it had to be an issue. Personally, I tend to side with the ones who don't have combat boots on, so my support would normally lean to QuAIA's cause. But even so, they did their level best to outrage.

I missed Toronto Pride because of things here, but heard that among some of the controversies surrounding QuAIA that happened last year, at least one QuAIA marcher brandished a swastika to visibly equate Israel with Nazi Germany -- as you can guess, that pushes some serious emotional buttons.

Thanks, Mercedes, for pointing out that the practical effects of the Canadian law are not as harsh as they might seem on paper. Another important point in understanding other legal systems is that law on the ground is not the same as law on the books. But I do think that if there were no law against hate propaganda, the city might have had to work harder to find a good reason to pull funding.

Great analysis, Jillian. Thanks for the legal look at the issue.

I'm not sure I'm legally allowed to write these words and have them show up on a Canadian computer screen, or whether Canadians may view them.

I'm very disappointed in you, Dr. Weiss.

With this statement and your partial understanding of the Criminal Code of Canada, and apparently no understanding of the Canadian Human Rights Act, Section 13, which also defines hate speech, you undo efforts I, for one, have been trying to make to educate Americans about some of the positive aspects of Canadian Law, Society, and Health Care.

Speaking of the Criminal Code: in 2002, when sexual orientation was added by C-250, the private member's bill of Svend Robinson, a series of other amendments were made to the legislation to address the concerns of those who then, and now, argue that to include sexual orientation then, and gender identity and gender expression now, will limit the free speech.

There were provisions put in place regarding good faith statements and regarding religions. Moreover, no prosecution under the sections for Incitement to Hatred and Incitement to Genocide can be made without the permission of the Attorney-General of Canada, the Justice Minister of Canada.

These would be political actions seldom pursued by any Canadian Government.

Of course some also argue against the addition of gender identity and gender expression, as they argued against the addition of sexual orientation, to the section concerned with aggravating circumstances in the commission of crimes; in other words, hate crimes, as opposed to hate speech.

Some, like Ezra Levant, in Shakedown, cannot see the difference between hate speech, hate crime and human rights--and wish to eliminate them all.

Section 13 of the Canadian Human Rights Act is quite another situation. However, the Ontario Human Rights Commission in a submission to a review on this very section pointed out free speech is not value free, but comes with responsibility.

This is a notion some distance from the American conception of free speech, particularly in the wake of the Citizen's United decision. Though it is unclear to me how a country, even my own, could view the spending of money as an exercise in free speech.

What is the value of one person, one vote, when those who have unlimited amounts of money have unlimited votes?

Maybe the Founders had it wrong when they believed there was no responsibility restraining participants in a system that can less and less be characterized as for people and more and more for corporate persons.

As C-389 proceeds in the Parliament of Canada (introduced by Robinson's successor Bill Siksay), passing 2nd Reading last night and being sent to committee--on the same day GENDA failed in the New York Legislature's Judiciary committee--we are already seeing the same, stale, boring arguments being made by the same, stale, boring people about, among other things, the limitations, as small as they are, on their ability to spew hate.

Maybe, one of the reasons American is such a dangerous place for all LGBT/T people--and all those who are different--to live is this belief in the foundational status of unrestricted free speech.

In the freedom of many to yell fire in a crowded theatre someone else can just yell water.