Strategic co-ordinated litigation, clear public messaging can help combat antisemitism, lawyers say

By Cristin Schmitz

Law360 Canada (October 18, 2023, 4:04 PM EDT) -- Galvanized by growing bigotry, hate and violence directed at Jews here and abroad, the Centre for Israel and Jewish Affairs (CIJA) is ramping up its legal fight against antisemitism, including honing its public messaging and inviting lawyers to volunteer with a CIJA legal task force that works to conceptualize, co-ordinate and carry out strategic litigation in defence of Jewish people.

CIJA is currently building its roster of legal volunteers to help with matters of importance to Canada’s Jewish community, whose 400,000 members make up just one per cent of the population, but who last year experienced 14 per cent of reported hate crime incidents — making Jews the most targeted religious community in the country (67 per cent of hate crimes reported in 2022).

“If you want to put your hand in the air and say, ‘I want to volunteer my efforts, and my energy and my smarts and my expertise, please contact the legal task force,” Steven Frankel of Davies Ward Phillips & Vineberg LLP told Jewish and non-Jewish lawyers attending an Oct. 16 CIJA presentation about using the legal system to fight antisemitism.  

Steven Frankel, Davies Ward Phillips & Vineberg LLP

Steven Frankel, Davies Ward Phillips & Vineberg LLP

“Likewise, if you think there’s a legal step that we should be considering, or a legal proceeding that we should be commencing, all ideas are welcome,” Frankel, a task force member, added.

He also stressed, however, that it is “absolutely critical” that any litigation against antisemitism should be strategic, cohesive and co-ordinated, including avoiding duplicative or overlapping proceedings, and cases that work at cross-purposes.

“I’m imploring everybody to please not take legal steps on your own, without consulting and co-ordinating with the task force,” Frankel said. “Let’s channel that energy, and channel the fact that we’re galvanized, into something productive, and please spread this message ... ‘we need to be as unified as possible and focus our efforts.’ ”

The Toronto commercial and class action litigator, who is lead counsel in an Ontario human rights proceeding against a restaurant which posted online “Open now – 8 pm for non-racist shoppers ... #freepalestine #zionistsnotwelcome,” said maintaining a sharp focus means being “very selective” about which cases to pursue, and having those cases handled by counsel best suited to take them on.

“It helps no one to take on cases that have no realistic prospect of success or that have no legal merit or that don’t have the right facts,” Frankel said. “We don’t want anybody to burn their credibility in front of a judge ... burn our community’s credibility with other people in the profession who right now are minded to help us,” Frankel remarked. “And perhaps most importantly, what we don’t want is to get stung with a bad decision that serves as an unhelpful precedent that we might never be able to get out from under.”

Frankel’s presentation took place during the Oct. 16-17 conference in Ottawa “Antisemitism: Face It Fight It”, presented by CIJA and Canada’s Jewish Federations, which was attended by more than 700 people, including the prime minister and other leaders of the federal political parties. Although it was organized months ago, the conference took place as the world reeled from Hamas’s violent attacks in Israel Oct. 7, in which more than 1,400 people were slain, and scores of civilians, including babies, children and old people, were kidnapped and are held hostage in the Gaza Strip by Hamas, a designated terrorist organization by Canada, the U.S., the EU and other countries.

When contemplating litigation against antisemitism, Frankel said the first question he asks himself are what are the best avenues for recourse. “What courts? What decision-makers? What administrative bodies are the right ones that I can bring a complaint before? And how do I bring the complaint?”

Having access to legal expertise in the areas of anti-discrimination and freedom of expression law is key, he said. “It’s important to understand what the relevant legislation does and doesn’t actually do, so that we can be realistic and strategic about the fights we pick, and the fights we don’t pick, and how do we allocate our resources and, most importantly, the scarcest resource of them all, which is our time.”

Frankel pointed out, for example, that the Ontario Human Rights Code bars discrimination in the provision of services where such discrimination is based on prohibited grounds such as race, ancestry, place of origin, ethnic origin, citizenship or creed.

“As a general matter our constitutional right to freedom of expression includes the right to be a bigot,” Frankel remarked. “Being a racist is not, in and of itself, unlawful. So please bear that critical principle in mind.”

Notably whether something is or is not antisemitic is not so much a matter of argument in Canada, where little law exists to explain just what the contours of antisemitism are, he said.

Accordingly, it is essential to provide a decision-maker with “properly admissible” evidence, including from experts, of antisemitism and how it has manifested in particular behaviour or conduct. “Please understand that even though you and I may agree that something is antisemitic — even though the entire Jewish community of Canada or North America or wherever may agree that something is antisemitic — doesn’t necessarily make it so in the eyes of a judge, or an administrative decision-maker, or an arbitrator, or any other form of decision-maker,” he advised.

“If you’re going to do this work, it means lining up the right witnesses, including experts, who can and will make themselves available to participate in legal proceedings, and that includes by devoting a huge amount of time to preparation, because it’s always the preparation that wins cases ... and hard work.”

Frankel noted that CIJA can help connect lawyers with experts located in Canada, the U.S., Europe and Israel.

Alyza Lewin, Louis D. Brandeis Centre for Human Rights Under Law

Alyza Lewin, Louis D. Brandeis Centre for Human Rights Under Law

Frankel’s co-presenter Alyza Lewin, a prominent U.S. attorney who is president of the Louis D. Brandeis Centre for Human Rights Under Law, said co-ordinated and clear public messaging from the Jewish community about antisemitism is important, including devising an effective vocabulary to articulate that legal actions to fight antisemitism are not a matter of one’s political view point, but a matter of legal protection for Jews “who are being targeted, harassed, discriminated against and killed on the basis of identity, as Jews.”

That approach will help support legal strategies that separate the political from illegal attacks on Jews as an identity group, she said.

“I think one of the most important principles that we as lawyers need to understand when we think strategically about how to use the law to combat antisemitism is that it becomes essential that in the language we use, and in the approach we take, that we manage to distinguish and separate what is happening, so that people don’t misunderstand,” Lewin advised.

In seeking legal recourse against antisemitism, “we’re not talking about a political debate,” she explained. “This is not about what your perspective is on the Arab-Israeli conflict. In order to apply the law, we have to be talking about, and getting people to understand, that what is happening is the harassment and discrimination of Jews and worse, quite frankly, as we’ve seen in the recent horrors,” she observed. “We have to be making sure that our language, and how we approach it, is removing this from the political and focusing on the targeting of Jews on the basis of their identity as Jews.”

Lewin said many people do not understand that Jews are targeted “because we’re a people” nor understand what makes Jews a people. “Today Jews are being targeted on the basis of our shared ancestry and our ancestral connection to Israel,” she said. “There are now those who are insisting that Jews do not have a shared ancestry and ethnicity and that certainly we do not have a shared ancestral connection to the land of Israel.”

“We need to push back against this effort to erase and deny our identity as a people and to erase and deny our ancestral connection to Israel,” Lewin urged.

A co-ordinated legal strategy against antisemitism is “extremely important,” not only among lawyers, but among organizations, she advised. She noted the Brandeis Centre drafted and co-ordinated a letter signed by leading American Jewish organizations that was sent to top universities in the United States last week, seeking that steps be taken to ensure on campus the safety and security of Jewish and Israeli students, faculty and staff.

(This was against the background, in part, of more than 30 Harvard student groups reportedly signing a letter asserting that Israel was “entirely responsible” for “all unfolding violence” in the continuing Hamas-Israel conflict. Some U.S. business leaders and others responded by cutting ties with the university, and some law firms rescinded job offers to certain students who signed.)

Lewin emphasized that when students say that Zionism is an integral part of their identity as Jews “they’re saying that Jews are a people [and] ‘my history, my heritage, my ancestry is rooted in [Israel]. I may not agree with everything that the current government says, but I believe that this is the ancestral homeland of the Jewish people, and we have a right to self-determination there,’ ” she explained. “ ‘And if you’re going to deny my right to self-determination, if you’re going to shun me or exclude me from a group or from a club on campus, on the basis of that part of my identity, that is unlawful harassment and discrimination.’ ”

“That’s the language that we all have to be using,” Lewin stressed. “Every one of our organizations has to be using that language. ... That’s the kind of co-ordination that we need on the messaging because when you co-ordinate on the messaging, it will help us with the legal arguments that we’re setting up.”

Lewin led the U.S. litigation team that successfully represented Avi Zinger, the Israeli licensee of Ben & Jerry’s ice cream, in a lawsuit he filed to prevent Ben & Jerry’s boycott of Israel. Lewin and her father, Nathan Lewin, also represented the Boim family in civil tort litigation which established the right of American victims of terror to obtain damages under American law against organizations that knowingly provide financial support to international terrorist groups.

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