On Thursday March 30th, 2017, BC Supreme Court Justice Frits Verhoeven delivered his ruling regarding the BDS court case against the AMS, dismissing the petition brought forward by UBC Commerce student Logan Presch. The litigation attempted to prevent the AMS from proceeding with a referendum, which was put forward by the student group Solidarity for Palestinian Human Rights (SPHR), involving the Boycott, Divestment and Sanctions (BDS) movement. The referendum was originally scheduled for a March 6th to 10th poll during the general elections when the voter turnout was 11,219. This would have made it easier for the BDS referendum to meet the quorum set out in AMS bylaw 4.4 (b), which requires it to be supported by 8% of the active student body before it is adopted. However, it was delayed due to the litigation and is now an online vote from April 3rd to 6th.
On Monday March 27th, the court case resumed after being adjourned by Justice Margot L. Fleming on March 8th. Justice Frits E. Verhoeven took over the hearing for Justice Fleming. Retired CUPE lawyer, Paul Tetrault, was granted right of audience by Justice Verhoeven and joined the case as an agent for SPHR president Jordan Buffie. Lawyer Howard A. Mickelson, representing Presch, spent most of the day on Monday laying out his argument against the AMS decision to proceed with a referendum regarding the Proposed Question:
Do you support your student union (AMS) in boycotting products and divesting from companies that support Israeli war crimes, illegal occupation and the oppression of Palestinians?
Mickelson revealed on Tuesday during the rebuttal that he is doing the work pro bono and told the Talon that the issue “is a matter of public interest.” He recalled visiting Israel recently, talking to people about the legality of the settlements in the West Bank and the bulldozing of houses, and he concluded that the situation is “a very complicated and nuanced problem.” Mickelson stated that his goal is to move the conversation “to a less polarized place” and claimed that “the BDS referendum and the nature of the question (with reference to war crimes) is a polarizing form of debate.” The Talon also reached out to Tetrault following the verdict and he commented that the “the settlements in the West Bank are totally illegal” as ruled by the International Court of Justice in 2005. Furthermore, he proclaimed that the BDS movement is a tool for advocates of Palestinian human rights to take action and insisted that “you cannot have dialogue between two unequal forces. Mr. Mickelson is… claiming that we are just talking about two equal forces here, not an occupied people and an occupier.” He gave an analogy:
Imagine if the reverse were true that somehow Palestinians were occupying this land that belonged to Jews and they were setting up Palestinian-only settlements and putting the Jewish people into small villages and not allowing them to move. How would the world react to that and how would Mr. Mickelson react to that?
Mickelson decided to abandon his first submission that the BDS referendum violated Section 2(e) of the AMS Constitution which is to “promote unity and goodwill amongst its members” by creating a “toxic and divisive” environment on campus, calling the submission “extremely controversial”. The Talon reached him by phone in Hawaii after the verdict and questioned him about that decision. He stated that this argument was a “hot potato” and that it was not “fair to put it in the court’s hands with such a limited period of time.” Tetrault responded to this reasoning by stating that “he dropped [the first submission] because the courts basically indicated to him that it was an impossible argument to make.” He stated that Mickelson’s original argument attempted to assert that any decision or debate on campus that led to divisiveness was contrary to the AMS constitution. Tetrault proclaimed that if that was the case “you could never have any issue debated that would cause controversy, division or vigorous debate. That is clearly ludicrous and clearly contrary to the whole notion of the university itself. There was never any merit to the argument.”
Two of the affidavits that the petitioner had originally relied upon to argue this claim were filed by Hillel employees, including Executive Director Rabbi Philip L. Bregman and Program Director Sam Heller. The Chief Executive Officer of the Jewish Federation of Greater Vancouver, Ezra S. Shanken, has previously congratulated Heller for his “leadership” on an anti-BDS campaign. Hillels at campuses all over the world often disseminate Israeli hasbara (propaganda) and talking points, and have taken a central role in opposing BDS on campuses. The Talon reached out to Rabbi Bregman for a comment but did not receive a reply.
Nevertheless, in Justice Verhoeven’s ruling, he dismissed the relevance of the affidavits that claim the BDS referendum has created a “toxic environment” on campus, stating “they are not directly relevant to the issues before the court.” Mickelson instead decided to rely on his second and third assertions, namely that the referendum contravened AMS Bylaws and Code. He attempted to include some of the evidence from his first argument to persuade the judge to invalidate the AMS’s decision to proceed with the referendum based on some irregularity.
He argued that the AMS Bylaw 4.2 has an implicit requirement that the ‘yes’ or ‘no’ must be meaningful and contested that the Proposed Question was ambiguous thus not capable of being answered “yes” or “no” violating the bylaw that states:
The text of the referendum shall be drafted to ensure that the question is capable of being answered “yes” or “no” and if in the opinion of Council a petition for a referendum does not meet this requirement, Council shall forthwith refer the referendum to the Court to prepare a clear and unambiguous question.
On Thursday March 30th, Justice Verhoeven rejected this proposition in his ruling. He quoted AMS President Ava Nasiri’s affidavit where she states that the Student Council “is of the opinion that the Proposed Question is capable of being answered ‘yes’ or ‘no’”. Additionally, the opinion of the legal counsel in 2015 was that the same referendum question was not ambiguous.
Justice Verhoeven proclaimed that “the AMS Bylaws and Code allow for the society to be used as a vehicle for political expression.” He referenced past referendums that have dealt with other world affairs, including one in 1967 involving the Vietnam War, another in 1952 dealing with abortion, and one in 1987 which addressed a movement to boycott companies associated with the apartheid regime in South Africa. Furthermore, Justice Verhoeven stated that “an AMS referendum may form part of the robust and vigorous political debate that is often seen on university campuses.”
The case law relied upon by the petitioner to argue the violation of AMS Bylaw 4.2 dealt with zoning and money bylaws that the judge ruled are substantially different in nature from the case at hand. The judge also rejected that the word “meaningful” should be read into Bylaw 4.2 as Mickelson had argued. The judge noted that the bylaw does not prohibit a vague and ambiguous question from passing and acknowledged that this may lead to some issues as to how the AMS should implement a successful referendum. But after citing some case law referring to bylaw structure, Justice Verhoeven ruled that it is not the court’s job to “fill gaps or improve upon” a Society’s bylaws.
Furthermore, the judge agreed with the petitioner that the Proposed Question is a “loaded one”, which is intended to lead to a particular answer. The question states that Israel commits war crimes, conducts illegal occupation, and oppresses Palestinians, and that some companies support these policies. The judge noted that the question compels a person of conscience to vote ‘yes’ and makes one who votes ‘no’ feel as if they are supporting “war crimes, illegal occupation and oppression.”
Justice Verhoeven then recognized the controversial nature of the Proposed Question may lead to strife on campus and that it is the duty of the AMS to ensure the “safety and security” of students, as well as the promotion of “respectful debate.”
He ruled that the AMS did not violate its bylaws by allowing this referendum question to move forward.
The second argument that the petitioner relied upon was that the AMS violated Code of Procedure IV Article 4.2 (c) which requires a referendum question to state that it will cause the student society to break a contract with a service provider. Justice Verhoeven rejected this argument as well. He cited Buffie’s assertion that the AMS will not be required to break a contract if the referendum is successful. He stated that the question was broadly drafted to allow the student society a range of possible actions and to catalyze discussions about future AMS purchasing decisions. Furthermore, AMS President Nasiri’s affidavit stated the position of Council that the Proposed Question “does not require the AMS to break any current contracts.”
Therefore, Justice Verhoeven ruled that the AMS did not contravene its Code of Procedure.
The Petitioner’s order to halt the referendum relied on sections 104 and 105 of the BC Societies Act. An injunctive relief was sought concerning 104 (1) (a), but the judge ruled that that section does not apply in these circumstances. He stated that it was not necessary for him to decide whether or not the AMS or its president was considered a person under this section of the Societies act, as Mickelson had contended.
Justice Verhoeven quoted a previous case, Sarjit Singh Gill v. Khalsa Diwan Society which states “The court is always reluctant to interfere in the internal affairs of any corporate body. The respondent society should be left to govern itself in a democratic fashion and make its own decisions, including what may be seen by some of its members to be mistakes.” He emphasized the relevance of that comment and stated that “an order of the court could be seen as interfering with the free and democratic process of the Alma Mater Society and could be seen as intruding into political issues or taking sides. A great deal of caution is required on the part of the court.” However, he mentioned that, if illegalities were present, the court would have had the jurisdiction to intervene. Justice Verhoeven then dismissed the petition.
Tetrault reacted positively to the court verdict and stated that “the courts basically rejected the attempt by the pro-Israeli forces on the UBC campus to shut down [the] debate… [The verdict] was a very good decision for free speech, student union independence and I think it will discourage people from going to court to decide political issues.”
Rabbi Bregman responded to the ruling by telling The Canadian Jewish News that he was “disappointed” and claimed that “we really won the battles, because the judge didn’t disagree with any of our arguments… So we go forward fighting this nefarious referendum aimed at marginalizing and demonizing not only Israel but by extension, those who support Israel.” UBC law student Eric Webster contested this assertion by telling the Talon “the judge thoroughly rejected all of their arguments. I acted as agent for Eviatar Bach in the case and I heard the judgement,” he proclaimed. “The idea that the judge didn’t disagree with their arguments is not only patently false, it is contrary to common sense. If you lose a lawsuit, the judge disagreed with you.”
SPHR issued this statement following the court verdict:
SPHR is delighted with the Supreme Court’s decision regarding the petition against the AMS. We are pleased to see the Court taking the position that the AMS did not violate their bylaws regarding our proposed referendum question. The question, as determined in 2015, is clear, unambiguous, and factual. The judge affirmed the importance of the democratic functioning of the AMS, and that the courts must hesitate to intervene. This is an important precedent for BDS campus campaigns. The Court did not allow ideological opposition to stifle free debate. We were initially disappointed that the AMS did not take a position regarding the claim that the question creates a “toxic and divisive environment”. This argument was however dismissed by the petitioner, who decided to continue arguing solely on procedural grounds. The judge’s permission of SPHR and a student as additional parties allowed to clarify that, far from being mutually exclusive with dialogue, the referendum helps to promote serious and engaged discussion of an important political issue. Unfortunately, these legal proceedings have delayed the referendum past the general elections, which means it is imperative UBC students vote, and vote well. VOTE YES on April 3rd-7th.
Remember to vote online at https://amsvoting.as.it.ubc.ca/, from April 3 to April 7, and to vote well: Vote YES to BDS, for Freedom, Justice and Equality!