6 min

‘Hate speech’ rhetoric threatens Pride Toronto debate

Ford's claim that parade harbours criminal language raises the stakes

Credit: Xtra file photo
UPDATE – April 13: The City of Toronto’s managers report, released April 13, states that Pride Toronto (PT) is not inviolation of the city’s anti-discrimination policy.

City staff have determined that the phrase ‘Israeli Apartheid’ in and of itself does not violate the city’sa nti-discrimination policy as it does not impede the provision of services and employment provided directly by Pride or the city to any group on any grounds provided for in the policy,” the report states.

This report will be debated by the executive committee on April 20. The vote at city council is on May 17.

The report is significant. PT co-chair Francisco Alvarez says the city has never before declared that the organization is not in violation of the policy. PT submitted a funding application as a major cultural organization under the Community Partnership and Investment Program (CPIP) for the Pride Festival in April 1. The application is currently being reviewed by city staff.

“It means we do not violate the policy and we do qualify for funding,” Alvarez says. “It certainly removes one possible barrier to the funding.”

“We should get the funding on sheer precedent. We’ve applied many times and always gotten a grant through that process. The only thing that could impede our funding will be a political decision.”

So Alvarez remains cautious. “Everything could line up until the very last minute when it goes to council. If councilors choose to open up the debate, a vote could result in us not getting funding.”

The report also states, “To date, the phrase “Israeli Apartheid” has not been found to violate either the Criminal Code or the Human Rights Code (Ontario).  However, a decision on the latter would have to be made by the Human Rights Tribunal of Ontario.

April 12: The rhetoric at city hall threatens any possibility of a compromise, says one city councillor after the mayor and Toronto Sun columnist Sue-Ann Levy accused the parade of harbouring hate speech.

It’s a claim that’s been thrown around liberally on comment boards, blogs and Twitter for about two years. But in March, Mayor Rob Ford told The Canadian Jewish News he would withhold funding to Pride Toronto (PT) because of the participation of Queers Against Israeli Apartheid (QuAIA) in this year’s parade.
“Taxpayers’ dollars should not go toward funding hate speech,” he said.
On April 6, a leaked email from Levy surfaced that echoes the same language. In the email, Levy urges Jewish community leaders to “get the emails going,” to lobby city councillors to vote against funding for PT.

“If we sit on our hands with a mayor in power who supports us, we will pay the price of missing an opportunity to put an end to hate speech,” Levy writes.

Ford’s and Levy’s comments hinge on the definition of hate speech. Sections 318, 319, 320 of the Criminal Code forbid “hate propaganda,” meaning any writing, sign or visible representation that advocates or promotes genocide.
“The language is pretty narrow here,” says gay lawyer Doug Elliott. “The Supreme Court has said that hate propaganda denotes any expression that’s intended or likely to circulate extreme feelings of opprobrium and enmity against a racial or religious group. You have to prove that beyond a reasonable doubt. That’s tough to prove.”
Councillor Adam Vaughan says that while he disagrees with some colleagues, “they are entitled to advocate their position,” including those who want to defund PT.
“But having that position doesn’t make them homophobic,” he says. “Just as being critical of the state of Israel doesn’t necessarily and shouldn’t make you anti-Semitic.”

“Instead of finding a common ground, [the hate speech claim] is making it a battleground. If there is a question of hate speech at Pride, it’s the Human Rights Commission and the courts system that deal with it, not politics.”

Since the beginning, QuAIA’s message has been incorrectly called hate speech, says group member Elle Flanders.
“How many times do we have to say that criticizing a government does not constitute hate speech?” she asks.

“Hate speech is a legal term,” she says. “If there was ever any evidence of it actually being hate speech, we would have been hauled into court a long time ago. This needs to be said. It is not hate speech to criticize a government.”

Lorraine Weinrib, a professor in University of Toronto’s Faculty of Law and a Community Advisory Panel (CAP) member, says it’s nearly impossible to argue that QuAIA’s presence constitutes hate speech.

“There is no precedent for this under the Criminal Code,” she says.

At the crux of the dispute are the words “Israeli apartheid.” Orbiting around that are issues of free speech, homophobia, sexual identity, anti-Semitism and racism.

In a letter sent to the city from the Canadian Civil Liberties Association on April 20, 2010, project director Abby Deshman draws a distinct difference between “hate speech” and “speech that makes people uncomfortable.” If the city declares this offensive, what’s next?

“Similar complications would arise in the context of arts grantees,” he says. “Exhibitions and theatre performers may present a point of view on a controversial subject that makes individuals from a certain community uncomfortable. These considerations alone should not preclude them from receiving public funding. Freedom of expression is central.”

Flanders asks, “Is the City of Toronto standard different from the Criminal Code of Canada?”

The “hate speech” claim is complicated by the fact that, outside the Criminal Code, the term is used rather loosely.
Both the federal and provincial human rights bodies, for instance, forbid discriminatory speech.
But the Canadian Human Rights Act doesn’t apply to Pride Toronto, Doug Elliott points out, because it’s not a federal body.
“That only applies to things under federal jurisdiction, such as banks and airlines, railways. Most things are covered by provincial human rights code.”
In Ontario, however, the code “forbids discrimination upon various grounds, which depend upon the circumstances,” he says.
When asked about this issue by Xtra on March 30, Ontario Human Rights Commissioner Barbara Hall says the organization has no official position.

“The commission does not have a mandate in terms of dealing with speech or determining what is and isn’t hate speech. It’s an issue that I know Pride has been addressing with the Community Advisory Panel.”

Still, Hall says, in discussing this issue, it’s important to keep in mind that freedom of expression is valued strongly in the gay, lesbian and trans communities. “That’s because for years their voices, their speech, their expression, was suppressed and silenced.”

Organizations that accept money from the City of Toronto are required to sign on to the city’s anti-discrimination policy. Last year, a motion introduced by Councillor Giorgio Mammoliti passed nearly unanimously. It required the city manager’s office to determine whether or not PT broke the terms of the city’s policy by not turfing QuAIA.
The city’s policy “prohibits discrimination and harassment and protects the right to be free of hate activity.”
An answer to this question is expected in the city manager’s report, due out at the April 20 executive committee.
That report could spark a vote to defund Pride as early as May. On the chopping block is around $123,807, the amount PT got in 2010 from the city, plus roughly $300,000 in-kind services like policing and cleanup.
Elliott says the city manager’s report will likely say that PT is in compliance with the city’s policy. “If you look at the policy carefully, it does not require perfect compliance; it requires efforts to take reasonable steps to comply.”
“No one is suggesting that Pride Toronto itself was violating the policy by allowing QuAIA to march.”
The city’s policy has never been the subject of a court or tribunal, “so if it were challenged, I’m not sure anyone knows how far it goes. The language in the policy is pretty clear. It says you can’t have speech that promotes hatred, violence, degradation or negative stereotypes.”
Council has the power to make a condition of any grant that the phrase “Israeli apartheid” cannot be used, Elliott says. “But that could be subject to a legal challenge.”
In the CAP report released in February, yet another mechanism was proposed for dealing with the issue: a dispute-resolution committee (DRC) consisting of a panel of legal experts who will weigh evidence and decide whether or not to oust QuAIA.

The process would be triggered if a complaint is filed; when PT adopts this system, QuAIA will almost certainly be the subject of such a complaint.

Elliott, who was a CAP panel member and is now chair of the DRC, says QuAIA will have to live with the decision, as will filmmaker Martin Gladstone. “Somebody is gonna win and somebody’s gonna lose. Somebody is not going to be happy, but that’s what we’re going to have to do.”

Elliott says the alternative is an endless political debate. “So much of this is unresolved. The situation right now is very messy… With the QuAIA issue, both sides are so entrenched in their positions.”

Weinrib, also a member of CAP, agrees. She says the dispute-resolution committee needs time. “This is a sophisticated way to respond to this problem. The question is, will council adopt the new rules?”

But Brent Hawkes, CAP’s chair, worries the city will vote before the CAP process is complete.

“To withdraw the funding before any decision has been made yet is awful,” Hawkes says. “I hope our city and city councillors will give us the time we need to rebuild Pride.”

Weinrib says, “All speech, which includes banners and signs, at the parade should be gay-positive,” echoing another CAP recommendation and perhaps hinting at the criteria that the dispute resolution will use.
In the meantime, Hawkes is quick to remind that, ultimately, “Whether you believe QuAIA should be in or out of the parade, Pride the organization still deserves funding from the city. It is a valuable cultural institution.”