Former Chief Justice exonerates law students falsely accused of anti-Semitism

A retired Chief Justice of Nova Scotia has exonerated law students at Toronto Metropolitan University (TMU) after the university accused them of signing an allegedly ‘anti-Semitic’ letter in support of Palestinians.

On Friday, former Nova Scotia Chief Justice J. Michael MacDonald issued a 169-page report on his conclusions.

In November of last year, TMU appointed Mr. MacDonald as an External Reviewer to determine whether the students who participated in an October 20, 2023 letter to the Deans of Lincoln Alexander School of Law (LASL) contravened the university’s Code of Conduct.

The letter appointing Mr. MacDonald was framed as a complaint by TMU against the participating students. It designated Mr. MacDonald as the decision-maker.

After months of investigation, dozens of interviews with the letter’s signatories, and consultations with other stakeholders (including pro-Israel groups), Mr. MacDonald concluded that the letter was not anti-Semitic. He also found that the signatories did not violate the university’s Code of Conduct.

Accordingly, he recommended no sanctions against them.

On a pro bono basis, I acted as legal counsel to one of the signatories, Alina Lee.

Intense pressure to sanction the LASL students

In late October, twenty-three prominent, well-heeled lawyers signed an open letter berating TMU for its “inadequate” response to the October 20 letter. Their two-page tirade included a thinly-veiled threat to boycott graduates of LASL in the law firm hiring process.

Arguably, the most extreme of those lawyers is Howard Levitt. This past January, at the invitation of Radio 640 AM Toronto, I debated Levitt in regard to Israel’s war on Palestinians. During our debate, Levitt made the unhinged claim that Israel’s sadistic rampage in Gaza constitutes “the most moral war in the history of the world“.

Since October 7, Levitt has used his National Post column to vilify the signatories of the October 20 TMU letter, as well as those who have supported the signatories.

In a November 10 National Post op-ed titled “My ‘never-hire’ list is growing as new petition also glosses over Hamas’ atrocities“,  Levitt fulminated against 700 lawyers, academics and activists (of whom I was one) who had come to the TMU students’ defence.

Levitt and those other prominent lawyers were not the only ones to pursue a McCarthyite witch-hunt against the TMU students. B’nai Brith Canada inevitably weighed in, demanding that the university expel the signatories from LASL. Others piled on as well.

Clearly, Mr. MacDonald was under considerable pressure to sanction the signatories of the October 20 letter. That he did not succumb to that pressure is highly commendable.

Predictably, immediately after the release of Mr. MacDonald’s report, both B’nai Brith and the Centre for Israel and Jewish Affairs condemned his decision.

Events leading up to the Students’ October 20 letter

On October 7, Palestinian militants killed (according to Israel) 1,139 Israelis, 36 of whom were children, and approximately one-third of whom were Israeli security forces.

In response, Israeli leaders wasted no time in declaring their genocidal intent.

On October 9, Israeli Defence Minister Yoav Gallant announced that he had ordered a “complete siege” of Gaza City and that there would be “no electricity, no food, no fuel”. On the following day, speaking to Israeli troops on the Gaza border, Gallant declared: 

I have released all restraints . . . You saw what we are fighting against. We are fighting human animals. This is the ISIS of Gaza. This is what we are fighting against . . . Gaza won’t return to what it was before. There will be no Hamas. We will eliminate everything.

When the International Court of Justice later ruled it to be plausible that Israel was committing genocide, the Court specifically cited Gallant’s statements as evidence of genocidal intent (see page 17 of the ICJ’s order).

On October 11, 2023, LASL Dean Donna Young and Assistant Dean Anita Balakrishna emailed the LASL students to express concern about the “escalating violence, human suffering, and loss of life in Israel and Palestine.” They added “it is important that we reconcile deep empathy for Palestinian and Israeli statehood while condemning atrocious attacks against innocent civilians”.

The Deans’ October 11 email contained no acknowledgment, explicit or otherwise, that the relation between Israel and Palestinians is one of oppressor and oppressed. Moreover, their email said nothing about the openly genocidal utterances of Israel’s leaders.

Between October 7 and October 20, Sari Graben, LASL’s Associate Dean Research & Graduate Studies, repeatedly posted pro-Israel commentary on X, including this repost of a post from the Israeli ‘Defence’ Forces:

By October 19, Israel had massacred more than 4,000 Palestinians, including 1,413 children. That constituted nearly forty times as many children as Palestinian militants are alleged to have killed on October 7.

The October 20 letter

On October 20, 2023, a student at LASL emailed a letter to Dean Young, copying Associate Dean Hudson and Assistant Dean Balakrishna. The email advised that a student organization, the Abolitionist Organizing Collective (AOC), was releasing an “open letter” titled “Lincoln Alexander School of Law’s unequivocal solidarity with Palestine and list of demands for the administration.”

The AOC circulated its open letter within the LASL community. The letter obtained 74 signatures: 72 signatures from LASL students, 36 of whom signed anonymously or by initial; one signature from the AOC; and one signature from someone identified as “student, alumni.”

The most controversial aspects of the letter were the following passages:

“‘Israel’ is not a country, it is the brand of a settler colony.” So-called Israel has been illegally occupying and ethnically cleansing Palestine since 1948, when the British unlawfully conceded Palestine’s territory.

We, the undersigned, recognize that the apartheid state referred to as “Israel” is a product of settler colonialism. We stand in solidarity with Palestine and support all forms of Palestinian resistance and efforts toward liberation.

[…]

We condemn any organization that only condemned Hamas’ recent war crimes killing 1300 Israelis, but has been and/or remains silent on the historic and ongoing war crimes committed by Israel…

[…]

We assert that Hamas’ attack was a direct result of Israel’s 75-year-long systemic campaign to eradicate Palestinians, and that Israel is therefore responsible for all loss of life in Palestine. To say otherwise is to accept and endorse colonialism in all its forms: there would be no death if not for Israel’s apartheid regime.

[Footnotes omitted; italics and bold in original.]

By October 22, the letter had become public. As Mr. MacDonald writes, the publication of the letter sparked “widespread attention on social media and in traditional media”, and led to “an intense and widespread backlash against the students who participated.”

On October 23, 2023, the administration of LASL posted a damning statement in response to the October 20 letter. It stated: “The Lincoln Alexander School of Law did not issue, endorse or condone this letter. We unequivocally condemn the sentiments of Antisemitism and intolerance expressed in this message.”

Mr. MacDonald’s Decision

Mr. MacDonald devoted considerable attention to the question of anti-Semitism. He reviewed competing definitions of anti-Semitism, including that of the Western-dominated International Holocaust Remembrance Alliance (IHRA). The IHRA notoriously casts critics of Israel’s apartheid regime as anti-Semites.

Ultimately, the former Chief Justice found that the October 20 letter was not anti-Semitic, writing:

For purposes of this External Review, we have adopted the understanding of antisemitism from the TMU OVPECI which, again, provides that: 

Antisemitism is the manifestation and expression of discrimination against Jewish people. Antisemitism can take many forms, ranging from individual acts of discrimination, spreading rumours, stereotypes and misconceptions, physical violence, vandalism and hatred, to more organized and systematic efforts to destroy entire communities and genocide.

[…]

After researching the issue and receiving varied submissions on this point, I am of the view that the letter should not have been characterized as antisemitic. There is no universally accepted definition of antisemitism, but (as discussed), this External Review has understood antisemitism as “the manifestation and expression of discrimination against Jewish people”, in accordance with the TMU OVPECI’s approach.

It is accepted that the participants intended the letter to criticize the historical treatment of Palestine and Palestinians, and Israel’s past and present military efforts – not to criticize Judaism or Jewish people more generally. The letter does not refer to Jewish people or Judaism, nor does it explicitly or implicitly equate Israel’s actions with those of Jewish people, whose views do not necessarily or universally align with those of the state of Israel. Furthermore, the letter does not expressly refer to Zionism.

[Emphasis added.]

In deciding that the October 20 letter did not violate the TMU Code of Conduct, Mr. MacDonald emphasized the importance of free expression, especially in the educational context. On pages 12-13 of this report, he wrote:

[A]fter careful consideration, the External Reviewer concluded that, while the letter was understandably troubling and offensive to many, the students’ participation in the letter, when placed in its appropriate context, was nonetheless a valid exercise of student expression and therefore protected under the University’s Statement on Freedom of Speech. The principles of freedom of expression, including those set out in the Statement on Freedom of Speech, give wide latitude for students to apply their experience and learning, and to experiment with written advocacy. The standard is not perfection. Students are entitled to make mistakes, and even cause harm, without necessarily facing sanctions.

The conclusion that the students did not breach the Code, such that sanctions are not warranted, is far from an endorsement of the letter. A later section of the report constructively critiques the letter as a piece of written advocacy in an effort to explain why, as drafted, the letter was unlikely to have the intended effect of convincing LASL administration to take certain actions in solidarity with Palestinians. The objective of highlighting the plight of Palestinians in Gaza was laudable, but the tone and demands did not advance the objective. With the benefit of hindsight, many of the students regretted the harsh words of the letter, even as they remained committed to the Palestinian cause.

The students were not alone in perpetuating harm. In an October 23 statement, the LASL administration publicly condemned the letter without first giving the participating students a meaningful opportunity to explain themselves. Despite the administration’s best intentions in a time of crisis, this too caused harm to the student community. Many students told us that the administration “threw them under the bus” at a moment when they needed tangible support and protection.

The reactions of many external actors, including prominent lawyers and interest groups — some of them publicly calling for the students to be expelled — caused further, and significant, harm to the students.

[Footnotes omitted; emphasis added.]

Finally, the former Chief Justice expressed his gratitude to the lawyers who represented the signatories of the October 20 letter, stating:

The lawyers who represented students in this External Review exemplify the best of the legal profession: Nicole Biros-Bolton, Breshna Durrani, Deborah Guterman, Thoby King, Michael Klug, Safia Lakhani, Dimitri Lascaris, and Jia Wang. They all made respectful, helpful, and zealous submissions for their clients, and words are not enough to express our gratitude. 

The standard of perfection

No advocate should be held to a standard of perfection. Effective advocacy is more art than science. It requires years of experience, instruction, refinement and experimentation. Even the most experienced advocates make mistakes.

Accomplished advocates know this. They have attained the heights of advocacy through decades of labour. They’ve learned the hard way what works and what doesn’t. That’s why they’re paid the big bucks.

The signatories of the October 20 letter have not practised law for a single day. Yet twenty-three of Ontario’s most experienced advocates demanded their heads on a platter for failing to express their intentions with perfect clarity.

As Mr. MacDonald wrote in his report:

The lawyers who fuelled the backlash against the respondent 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. They have talked about the importance of civility and respectful dialogue, without extending those empathetic sentiments to the students involved….

Even worse, those same ‘esteemed’ lawyers exhibited an appalling lack of interpretive skill. For example, they alleged that, because the October 23 letter expressed “unequivocal support for ‘all forms’ of resistance”, the signatories were “thereby endorsing rape, torture, murder and kidnapping of Israelis, including children and the elderly…”

What lawyerly drug were they smoking?

As I explained above, the students’ October 20 letter stated:

We condemn any organization that only condemned Hamas’ recent war crimes killing 1300 Israelis, but has been and/or remains silent on the historic and ongoing war crimes committed by Israel…

The obvious implication of the word “only” – which the October 20 letter highlighted in bold and italics – is that the signatories agreed that Hamas committed war crimes on October 7, and that Hamas deserved to be condemned for those crimes.

Plainly, what the signatories of the October 20 letter objected to was not condemnations of Hamas, but the failure of the TMU administration to condemn the far worse crimes of Israel, a state that is armed to the teeth and has savagely oppressed Palestinians for decades.

Who would have thought that, after a life-time of legal practice, Levitt and his richly compensated co-signatories were collectively incapable of interpreting the word “only”?

What is more, the evidence of Israel’s war crimes is now of Himalayan proportions. Quite apart from the ICJ’s  meticulous judgment that Israel is plausibly committing genocide, the ICC prosecutor – a British barrister who was heavily promoted for the post by Boris Johnson’s pro-Israel government – has applied for warrants to arrest Israel’s Prime Minister and Defence Minister. Among other alleged crimes, ICC prosecutor Karim Khan accuses Israel’s leaders of “extermination”.

In light of the horrifying and monumental evidence against Israel, I have no hesitation in questioning the moral fitness of any lawyer who refuses to condemn its atrocities. Moreover, I can assure you that every one of those twenty-three McCarthyite lawyers is now on my “never-hire list”.