Opinion: Students’ explanations taken at face value, without accounting for motivation

Among other things, this petition claimed that “Israel was not even a country” but just “the brand of a settler colony” that had been “ethnically cleansing Palestine since 1948.” It declared that anyone denying that Israel was committing genocide was complicit in violence, that Israel’s counterattack was its own fault and not that of Hamas, that Israel was responsible for all loss of life in Gaza and that to suggest otherwise was to endorse colonialism. It noted that the signatories “supported all forms of Palestinian resistance and efforts toward liberation,” thereby implicitly endorsing the atrocities of Hamas.

On top of that it deemed Canada itself as a “settler colony” and “the architect of apartheid.” Finally, it condemned the law school’s neutrality in not condemning Israel and accused it of thereby upholding racism and Islamophobia.This petition was so outrageous that many senior Jewish and non-Jewish lawyers alike questioned whether its signatories had any role as future lawyers. Many firms, including mine, made clear that none would be hired.

Instead of making its own judgment, which it could easily have done, the law school outsourced its investigation to a retired Nova Scotia judge, J. Michael MacDonald, whose report, which was released May 31, is as naive as any I can recall.

MacDonald accepted at apparent face value the students’ claims when he inquired of them that “all forms of resistance” was not meant to include the atrocities of Hamas and that the students were well-intentioned, despite the petition’s language.

Did he not consider that these students were motivated to claim that they did not intend their words to mean what they did? After all, they were facing expulsion and risked never being called to the bar depending on his recommendations. Yet the former judge, who was supposed to consider and state potential motives for witness’s testimony, made no mention of such motivations. He also failed to note that the students, many of whom had counsel and were classmates, may well have colluded in providing their answers. He believed them even though none of them would tell him who had drafted the petition.

In believing the students, MacDonald proceeded to find that their words did not constitute harassment because of his belief that their intentions were innocent. But in human rights law, if conduct is discriminatory, lack of intention is irrelevant.

The judge also erred in finding that the only relevant section of the TMU Code that applied was harassment. He failed to mention that expressing support for Hamas, a designated terrorist group, would obviously also be a breach of the TMU code, nor did he discuss whether the petition was hateful and might have violated the code on that basis.

He essentially found that the students did not mean what they said because of their anger, both at what they alleged to be Israel’s “ongoing war crimes” in Gaza and what they viewed to be a disproportionate response by Israel to the Oct. 7 attack.

But wait! As of the date they signed, Israel had just started its retaliation against Hamas and had not even commenced its ground operations inside Gaza. How could MacDonald miss such an obvious fact? Perhaps he was not told, as the judge did not interview the lawyers who criticized the petition.

This fundamental error permeated his report. “The death toll in Gaza has been staggering, disproportionate in comparison to (sic) other recent armed conflicts,” he said.

Not true. At the date the petition was written, the Gaza death toll was relatively low, dramatically less than those in Syria, Darfur, Yemen, Ukraine and many other recent war zones. It still remains below many recent wars.

MacDonald also refers to Hamas as “militants,” using CBC’s preferred nomenclature (and presumably that of the students) rather than as “terrorists,” despite the Canadian and Ontario governments declaring it a terrorist organization long before Oct. 7. This again suggested a certain tilt to his report.

He also relied on Hamas’ own civilian casualty rates, which have been questioned since the early days of the conflict and which the UN recently moved away from, with new totals nearly halving the number of women and children killed.

MacDonald expressed sympathy for the students’ perspective because he said “some described living in active war zones, experiencing colonialism and oppression.”

But, if MacDonald had thought about it for a moment, he would have realized that there has not been a colonial power in the Middle East for many years. Even if you consider Israel to be a colonial power, it had not been in Gaza since 2005.

In believing the students, how did he miss that fact too?

He also excused the petition on the following basis: “Many of the students are immigrants or first-generation Canadians who have lived or spent extended time in the Middle East and South Asia. Many are Muslim. A large number are racialized women, who have experienced oppression and marginalization. More than one student recounted experiencing or witnessing incidents of sexualized violence in the past.”

Even if he believed these accounts without question, as he appeared to, how does that justify their implicit support for the pogrom inside Israel which had just occurred?

The letter was indeed antisemitic in rejecting a Jewish state and characterizing it as a settler colony, thereby demonizing all Jews who are Zionists (almost all). Its support for “any forms of resistance and liberation,” suggested inherent support for the Oct. 7 attacks and future repetitions by Hamas. Yet while providing succour to the students who wrote it, MacDonald took aim at the students’ critics.

“The lawyers who fuelled the backlash against the students displayed the same kind of response for which they have criticized the students: using insensitive and harsh words, rushing to judgment, and not acknowledging opposing viewpoints,” he wrote, singling out yours truly, among others.
But MacDonald chose not to speak to those lawyers who criticized the students who signed the petition — he certainly made no outreach to me.