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BDS group awarded damages for election poster removal

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A supporter puts up an anti-Israel poster near Westmount Square in Westmount, Que., during the 2015 federal election campaign.

A judge has ordered the City of Montreal to pay damages for taking down some anti-Israel posters during the 2015 federal election campaign.

However, Judge Sylvie Lachapelle of the Quebec Superior Court awarded Boycott, Désinvestissement, Sanctions Québec (BDS Quebec) and the Communist Party of Canada only a fraction of the amount they were seeking.

She ruled that the city should pay a total of $12,860 to the two groups, which had sued for $275,000.

During the weeks leading up to the election, the two groups put up nearly 300 posters around the city that had a photo of a dead child lying face down on a beach. The text read, in French, “Israel murders Palestinian children/Harper applauds/What do the other parties say?”

In small print were the names of four Palestinian boys who died in July 2014, allegedly as a result of an Israeli air strike on the Port of Gaza.

The posters outraged the Jewish community in particular and were condemned by the Conservative party. Both the Centre for Israel and Jewish Affairs and B’nai Brith Canada lodged complaints with Elections Canada on the grounds that the posters propagated false information, in violation of Article 91 of the Canada Elections Act. The commissioner of Canada elections, an independent officer, decided there was no breach of the law.

READ: ADVOCACY GROUPS DOWNPLAY CANADIAN FEDERATION OF STUDENTS’ BDS MOTION

Nevertheless, after receiving numerous complaints from citizens, the city’s public works director ordered municipal employees to remove the offending posters from public property. About 50 were ultimately taken down and destroyed without advising the parties that had posted them.

In December 2016, the commissioner of Canada elections, Yves Côté, ruled that the city was wrong to remove the posters because BDS Quebec was registered as a third party that could intervene during the campaign and the Community party was a registered political party.

The law states that it is an offence “to prevent or impair the transmission of an election advertising message to the public without the consent of a person with the authority to authorize the transmission.”

At the time, the city tried to avoid a penalty by entering into a compliance agreement with the commissioner, in which the city acknowledged its responsibility and committed to abiding by the Canada Elections Act in the future. That did not constitute an admission of guilt that could be used in any criminal or civil proceedings.

In January 2017, BDS Quebec filed a lawsuit against the city for material and punitive damages for allegedly violating its rights as a third-party intervenor and infringing upon its freedom of expression. The Communist party, which had paid for about 100 of the posters, joined in.

The case was heard last January, but the judgment was only handed down at the end of November.

BDS-Québéc poster
One of the posters put up by BDS-Québéc during the 2015 federal election campaign.

Judge Lachapelle agreed that Montreal did not have the right to remove the posters, but took into account the fact that the city had undertaken “to make reparations for the mistake of its public servants.”

Punitive damages to BDS Quebec amount to $12,000. The judge cited an infringement of Article 49 of the Quebec Charter of Human Rights and Freedoms.

She said Montreal continued to remove the posters after receiving a warning and even after a lawyer’s letter was sent from the BDS group.

This, Lachapelle said, “reflects a carelessness with regard to the effects of an infringement of the fundamental right of freedom of expression.”

The remainder is material damages: $540 to BDS Quebec for the loss of about 30 of its posters and $320 to the Communist party.

The judge was unpersuaded by the city’s argument that the posters were removed in error and, in fact, decided that the action was intentional.

Bruce Katz, the official agent for BDS-Québec for the election campaign, said the posters were intended to “denounce the attacks by Israel against Palestinian children and the Harper government’s unconditional support for the murderous policies of Israel.”

While not completely satisfied with the judgment, Katz stated: “The decision, despite its errors, will set an important precedent for other groups in civil society that decide to take part in future elections.”