On Dec. 1, Ontario became the first province to approve a motion rejecting the boycott, divestment and sanctions (BDS) campaign against Israel. The vote was 49 to five, with more than half the legislature, including the premier and the NDP leader, absent. But it was hailed as a historic step to halt the momentum of the BDS drive, especially on university campuses.
Liberal and Conservative MPPs spoke passionately for Motion 36, which rejected “the differential treatment of Israel, including the boycott, divestment and sanctions movement.” The five legislators opposed were New Democrats, who were sympathetic to concerns of anti-Semitism, but argued the resolution could stifle legitimate dissent.
Behind the cheers and back-slapping at Queen’s Park that day were echoes of a bitter defeat. Some six months earlier, on May 19, Ontario’s legislature voted down a private member’s bill that called on the province to bar doing business with companies and other entities that support BDS. That measure – a proposed law rather than a motion – was defeated on second reading by a vote of 39 to 18.
A motion expresses the will of the legislature. While it can be forceful and send a clear message, it’s not legally binding. But a bill that becomes law has obvious ramifications.
Bill 202, the “Standing up Against Anti-Semitism in Ontario Act,” as it was known, had teeth. Drafted by Friends of Simon Wiesenthal Centre for Holocaust Studies (FSWC) president and CEO Avi Benlolo, Liberal MPP Mike Colle and then-Conservative MPP Tim Hudak, the bill provided “that no public body may contract with any person or entity that supports or participates in the BDS movement. If a contractor does support or participate in the BDS movement, the contract will be terminated… Public pension funds and foundations of colleges and universities are prohibited from investing in any entity that supports or participates in the BDS movement.”
Violators were given one year to terminate unlawful investments and contracts.
The term “public body” was defined as “any ministry, agency, board, commission, official or other body of the government of Ontario; any municipality in Ontario or a local board, as defined in the Municipal Affairs Act; and any authority, board, commission, corporation, office or organization of persons some or all of whose members, directors or officers are appointed or chosen by or under the authority of the council of a municipality in Ontario.”
With a specific focus on college and university campuses, the bill said the BDS movement “violates the principle of academic freedom and promotes a climate of anti-Jewish and anti-Israel speech leading to intimidation and violence on campuses.”
Progressive Conservatives voted for the bill, while NDP MPPs voted against it, and Colle, MPP for Eglinton-Lawrence, was its lone Liberal supporter.
At the time, Premier Kathleen Wynne was in Israel on a trade mission to Israel (which netted $180 million in bilateral agreements). She seemed to hedge her bets, saying that while she “entirely opposes the BDS movement,” freedom of speech is “something that all Canadians value and we must vigorously defend.”
The bill’s defeat stung many in the Jewish community. Others saw the measure as over-reaching and inviting court challenges based on freedom of expression.
Bill 202 “was perhaps well-intentioned, but there were too many complexities in it that took away from the core issue, which was the denouncing of BDS,” Colle told The CJN in retrospect. “It got into other areas that allowed critics to pick their spots.” It had vulnerabilities. “That happens in bills.”
After spending 21 years as an MPP and seeing countless legislative measures come and go, Colle “definitely” saw the later BDS motion as “a historic victory.”
“Whether it was a law or a motion, the main thing is, you had a very definitive statement for the first time in the legislature denouncing this insidious thing called BDS,” he told The CJN. “And I think that is the important thing.”
At just 82 words, Motion 36 was more on point.
“Given that this was the first time the legislature [did] something like this, you’ve got to keep it to the core, focus message, and that is that BDS is a veneer, a front for anti-Semitism internationally,” he said. “We finally got a consensus of members to publicly denounce BDS, and that isn’t easy.”
In other words, he’ll take the win.
Benlolo, on the other hand, is still smarting from the defeat of Bill 202 and believes the community has been short-changed with the passage of Motion 36. As he sees it, the proposed law was “not ambitious at all. It was very, very simple.”
Using an automotive analogy comparing the motion and the bill, “it’s like buying a Lada instead of a Tesla,” he said, and the Jewish community got the Russian clunker, not the electric luxury car.
Benlolo flatly called the BDS motion “a very watered down version” of the bill he co-authored, one that simply “satiated” the community’s appetite for some kind of statement.
Bill 202 “was completely in line” with similar measures enacted in several American states, including New York and California, “where they passed real legislation that is very simple, which was exactly what we were going for.”
He said laws barring relations with entities that engage in BDS are being passed “almost on a monthly basis in the United States. No one is talking motions anymore. Motions are passé.”
Those behind the Ontario bill had done their homework, he added. They brought in a New York State Assemblyman for consultations, conducted a workshop and wrote position papers for MPPs.
As for rumblings of court challenges, Benlolo said a constitutional lawyer was consulted, and the bill was whittled from six pages to three. “We struck out anything that could [trigger] a constitutional challenge,” he said. The bill had “nothing to do with free speech.”
But he predicts another version of Bill 202. Benlolo said he’s had conversations with Conservative Leader Patrick Brown, and “this will be something [the Tories] will consider.”
While FSWC was “very happy” that Motion 36 was passed, Benlolo said he’s still “traumatized” by Bill 202’s defeat, which was “beyond the pale. It was very disturbing to watch.” The BDS motion, he stressed, was a sop to the community, and “we should have gone for the Tesla.”
Gila Martow, the Conservative Thornhill MPP who brought forward Motion 36, attributed the defeat of Bill 202, which she had supported, “partly due to the fact that it [called for] punitive damages. I think that was a hard sell. And because it was a hard sell, you have to go out and sell it beforehand.”
Asked why she had voted for it, Martow went on: “It wasn’t a hard sell to me. But it was a hard sell for people who don’t really feel the emotion of what Jewish students are experiencing because they don’t have the opportunity to feel it. They don’t know the students personally the way I do.”
Her motion, which she conceded may not have passed without help from the Centre for Israel and Jewish Affairs (CIJA), has more than symbolic value.
“A big part of this issue is just about attitudes, and we got our message through. It was a big accomplishment, because there are too many people calling [BDS] a peaceful boycott. When we hear from students on campuses, it’s anything but peaceful. It’s a bit of psychological terror for a lot of the students.”
Martow hopes university administrators will hear Ontario’s “loud and clear” message that “we cannot allow” Jewish students to be attacked on campus. And “even if we pass a bill against the BDS movement, [boycott supporters] will come up with another word [for it]. So I think we have to address the fact that we have a lot of misinformation on campuses that is being twisted into hostility against Jewish students and Israeli professors, and we can’t allow that to continue as a community.”
As for gripes that the motion is a diluted version of the defeated bill, Martow responded that “you’re never going to please everybody, and I think it’s disappointing in the Jewish community that we can’t say that this is a positive step forward. Obviously I’m disappointed to hear that people don’t feel that this was an emotional and spiritual victory for the Jewish community and Jewish students.
“But I can also understand how they feel. They would have preferred a bill which they can then [use to] go to the university and hire a lawyer and sue the university anytime they feel the law has been broken.”
Also employing an automotive allusion, she likened complaints about the motion versus the bill to receiving a car as a gift, “and all you can talk about is how they didn’t pay for the gas and insurance.”
The success of Martow’s motion was “a result of months of diligent engagement by CIJA with all parties at Queen’s Park, as well as a groundswell of activism from thousands of community members who urged MPPs from all parties to support this important initiative,” Sara Lefton, CIJA’s vice-president for the Greater Toronto Area, told The CJN in an email.
“Our efforts were grounded in the belief that the motion would be most meaningful if it reflected broad-based support across party lines.”
What may prove a watershed, as CIJA’s CEO Shimon Fogel wrote in The Times of Israel, is that Ontario’s legislature rejected BDS as a form of discrimination, “and not just a fringe political cause.”
An earlier version of this story stated that none of the party leaders were present in the legislature when Motion 36 was passed Dec. 1. In fact, Progressive Conservative leader Patrick Brown was in the legislature for the motion’s approval.