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Canadian Arab Federation
The CAF made public statements criticizing the State of Israel, the Canadian government and certain public figures, and advocating for Palestinian human rights. Shortly thereafter, the then Minister of Citizenship and Immigration, instructed Citizenship and Immigration Canada (CIC) to cancel its program funding contract with CAF. CIC accused CAF of supporting terrorist organizations, of promoting hatred and of being anti-Semitic. The cancellation occurred without prior notice and without giving CAF the opportunity to refute the allegations against it.
CAF challenged CIC’s decision in the courts, first asking the court for an interim injunction that would reinstate its funding pending the outcome of a full hearing on the judicial review. In 2009 the Federal Court of Canada held that CAF had not met all of the tests for an interim injunction. However, the Court held that CAF was owed a duty of fairness and that it would not be justified for the Canadian government to cancel the funding contract simply on the basis that CAF representatives had publicly criticized government officials.
After the case went to a full hearing in 2013, Justice Zinn of the Federal Court of Canada upheld the Minister’s decision to cancel the funding contract. Mr. Justice Zinn also held that the government does not owe an obligation of fairness to organizations like CAF that are carrying out public programming such as settlement services. Even if it did owe such an obligation, Mr. Justice Zinn held that the appearance of anti-Semitism was sufficient to ground a refusal, whether or not CAF was in fact anti-Semitic.
The state of the law is now uncertain, with two contradictory decisions on the question of whether the government owes organizations a duty of procedural fairness. Justice Zinn’s decision also leaves Palestinian human rights activists vulnerable to allegations of anti-Semitism because it fails to clarify the distinction between legitimate critiques of Israel and anti-Semitism.
CAF provided English as Second Language instruction to new immigrants for eleven years with CIC funding under the Language Instruction for Newcomers to Canada (LINC) Program. In 2008, CIC notified LINC service providers that contribution agreements would be extended until the end of March 2010. Details for the contract were finalized with CIC officials in January 2009, and in February 2009. Both a settlement officer and review officer from CIC recommended the approval of CAF’s 2009-2010 proposal. Although the Minister or his delegate were required to grant final approval to the proposal, CAF believed that the funding for 2009-2010 would continue and that finalization was a formality.
In January 2009, at a protest rally in Toronto against the ongoing Israeli attacks on Gaza, the then-President of CAF made statements in reference to Canadian politicians who supported Israel’s actions. He quoted an American historian and professor who had described those who support Israel’s actions in Gaza as “whores of war”. He also applied this term to the then Minister of Citizenship and Immigration, Jason Kenney.
On February 2, 2009 Mr. Kenney sent an email requesting:
information on the contribution agreement embarrassingly approved by our government for the radical and anti-semitic [sic] Canadian Arab Federation…. [and I want] to pursue all legal means to terminate this shameful funding arrangement, and to ensure that it is not renewed.
On March 2, 2009, the Minister stated in an interview that CAF has a “…long record of offensive extremist remarks that apologize for terrorist organizations”. CAF requested a meeting with the Minister on the same day, but the Minister did not reply because of his “long standing policy of not meeting with groups that promote hatred or justify terrorism.”
On March 18, 2009, CAF received notice that its LINC program funding would be cancelled. The CIC letter stated that the cancellation was due to public statements made by CAF members that promoted hatred, anti-Semitism and support for Hamas and Hezbollah, two banned terrorist organizations. In court, the Minister’s evidence supporting these allegations included: a flyer that criticized Bob Rae and his wife, allegations that CAF members attended a certain conference in Cairo; and the fact that CAF had sponsored an essay competition on “Ethnic Cleansing in the Occupied Territories”.
In court, CAF alleged that the Minister had long been a critic of CAF and that the Minister’s specific concern was with statements or actions that criticize the state of Israel and support the self-determination rights of Palestinians. CAF also emphasized that the Minister’s evidence included statements or actions of the former President that were not formally undertaken on behalf of CAF.
Before terminating CAF’s funding, CIC did not directly discuss the possibility of termination with CAF, CIC did not give CAF any formal notice of its intention to cancel the funding, and CIC did not give CAF an opportunity to address the Minister’s concerns. CIC also failed to inform CAF in advance that its political or advocacy activities would impact its LINC program funding. CAF maintains that it was not aware of any policy guidelines regarding advocacy activities as grounds for the discontinuation of program funding.
CAF asserts that it is an anti-racist organization and has worked to bridge the divide between Jewish and Arab communities. CAF has worked to address the impact of poverty on racialized minorities, issues facing First Nations and hate crimes. CAF maintains that its support for the Palestinian right to self-determination and its criticism of Israel’s policies are not anti-Semitic. Rather, CAF asserts that its position is legitimate criticism of state policy and is protected speech under the Canadian Charter of Rights and Freedoms.
Application for an injunction
CAF brought an application for an interim injunction to the Federal Court in March 2009. It sought to prevent the cancellation of its funding contract until a full judicial review of that decision could be undertaken.
CAF’s application was dismissed. On March 30 2009, the Court found that CAF did not demonstrate that it would suffer “irreparable harm” if the LINC program funding was discontinued. The Court believed it did not need to exercise its discretion to prevent the program’s cancellation in the short term because, if CAF were to ultimately succeed in its legal action, it would receive monetary damages for the wages lost due to the loss of the program funding. The Court found that this form of compensation would adequately compensate CAF’s losses and that therefore, an interim injunction was not necessary. The Court further discarded the argument that the cancellation of the program in the interim would create irreparable harm to CAF in the form of a chill on free speech.
However, the Court also held that in the course of cancelling the LINC funding contract, the Minister “probably” breached his legal duty to act fairly towards CAF. The Court would have expected the respondent to respect this elementary and fundamentally important principle and rule of law. The Court stated that the Minister was legally obligated: (1) to advise CAF of his reasons for intending to cancel the contract; (2) to provide CAF with a full opportunity to respond; and (3) to fairly take into account this response before making his final decision.
The Court also stated that the Minister is not permitted to cancel program funding for an organization just because he was “called a name” in the heat of a political protest against Israeli attacks in Gaza.
CAF continued to challenge the Minister’s decision to terminate its LINC funding. Before Justice Zinn of the Federal Court in May 2013, CAF argued that the Minister owed CAF a procedural duty of fairness and that the Minister cut the organization’s funding because he disagrees with its political beliefs and views. CAF argued that these views constitute a form of expression and that the imposition of a sanction in the form of a funding cut is an unconstitutional violation of free speech.
CAF also argued that its political beliefs are irrelevant to the LINC program, making the decision of the Minister arbitrary. It further argued that the Minister had abused his authority because his own personal views had interfered with the government’s public obligation to treat all Canadians fairly and without discrimination. CAF maintained that this type of abuse causes a ‘chilling effect’ on similar forms of expression.
On December 23, 2013, the Federal Court upheld the Minister’s decision not to renew CAF’s funding. Justice Zinn concluded that
- The Minister did not owe a duty of procedural fairness to CAF;
- The Minister’s decision was not tainted by a reasonable apprehension of bias;
- The Minister’s decision was reasonable within the limits of his discretion; and
- CAF’s Charter right to freedom of expression was not infringed.
Justice Zinn acknowledged that the funding of settlement programs for newcomers involves broader public policy considerations, meaning there is “more at stake than just the relationship between the service provider and CIC”. However, he ultimately defined CAF’s relationship to CIC as strictly commercial and contractual, despite the fact that CAF made no profit from delivering the LINC program. He stated that CAF had no vested interest at stake that would cause a duty of fairness to arise and that CAF had no basis for reasonably expecting to be consulted in the process.
In Justice Zinn’s view, this meant that the Minister had no duty to act fairly and was not obligated to “engage with CAF about his concerns prior to making his decision not to extend the existing contract’s term.”
Apprehension of Bias & Reasonableness
Justice Zinn did agree that the evidence suggested that the Minister’s mind was closed, and that: “Any reasonable person…could conclude that the Minister had made up his mind about the issue of future funding for CAF; [the Minister’s] only interest was in pursuing the means to terminate the relationship CIC had with CAF.” However, the Court went on to find that CIC’s decision was reasonable because the “appearance” of anti-Semitism was sufficient to ground a reasonable decision in law. In this regard, he reasoned that it was not necessary for the court to resolve the question of what constitutes anti-Semitism. According to Justice Zinn, the Minister does not have to prove that CAF was anti-Semitic, merely that CAF appeared to be anti-Semitic.
Justice Zinn found that CAF’s advocacy activities are forms of expression protected by the Charter. He nonetheless found that there was “no link between the discontinuation of funding for LINC training and CAF continuing its advocacy surrounding the Israel-Palestine conflict.”
- January 2009: At a protest rally in Toronto against Israeli attacks on Gaza, the former President of CAF makes statements that are critical of Israel and of several public Canadian figures, including then CIC Minister Jason Kenney.
- February 2, 2009: In an email, the Minister requests “information on the contribution agreement embarrassingly approved by our government for the radical and anti-semitic [sic] Canadian Arab Federation.” The Minister goes on to state, “I want to pursue all legal means to terminate this shameful funding arrangement, and to ensure that it is not renewed.”
- February 17, 2009: In a speech at Lancaster House in London, UK, the Minister suggests that organizations like CAF should not expect to receive government funding because of their “…‘hateful sentiments’” towards Israel and Jews”.
- March 2, 2009: After the Minister makes disparaging statements about CAF in an interview, CAF requests a meeting with the Minister but he does not reply.
- March 18, 2009: CAF receives a letter from CIC, advising that its LINC program funding will be cancelled.
- March 2009: CAF brings an application for an interim injunction to the Federal Court.
- March 31, 2009: The Federal Court dismisses CAF’s application, but finds that the Minister “probably” failed to act fairly towards CAF in cutting its funding.
- May 2013: CAF challenges the Minister’s decision to cut funding through judicial review.
- December 23, 2013: The Federal Court upholds the Minister’s decision not to renew CIC’s funding agreement with CAF.
Role or Position
The Canadian Arab Federation (CAF) is a not-for-profit organization based in Toronto and incorporated in 1982. CAF strengthens and supports the coordination of Arab communities and organizations in Canada and promotes ties between Arab communities in Canada and the Arab homelands. It also focuses on relief efforts in Canada and the Arab homelands by providing assistance and integration support to new immigrants to Canada, and by disseminating information about and encouraging support for Arab causes, including issues related to the Palestinian people.
CAF operates with two distinct branches. The Settlement Services and Immigrant support branch helps to integrate newcomers (both Arab and non-Arab) into the community. The community engagement branch focuses on capacity building, advocacy and community services.
Implications and Consequences
- Duty of Fairness: Justice Zinn defined the funding relationship between CAF, a not-for-profit group, and CIC as a mere commercial relationship, even though CAF was providing language services to newcomers to Canada. As such, he found that CIC did not owe CAF a duty of procedural fairness. This decision excludes these not-for-profit groups from the basic legal principle that the state must exercise its power fairly when making decisions that grant or deprive groups and/or individuals of a benefit when their rights or interests are engaged. This leaves all publically funded not-for-profit groups potentially vulnerable to arbitrary, politicized or unfair exercises of state power.
- Free speech: CIC and CAF disagree in their assessment of Israel’s policies with regard to Palestinians and in the definition of anti-Semitism on the context of CAF’s critique of these policies. CIC acknowledged that it cut CAF’s program funding because of these disagreements. In effect CIC used its power as a public funder to sanction CAF’s political expression. In spite of this, Justice Zinn’s found that because CAF’s expression did not directly relate to the program funding in question, CAF’s right to free expression was not at issue. This raises the serious concern that the free speech rights of government-funded institutions are no longer protected in all contexts. Justice Zinn’s decision risks generating a chill effect on freedom of expression in the publically funded not-for-profit sector more broadly.
- Free Speech: Justice Zinn interpreted the fact that CAF continued to engage in advocacy for Palestinian rights, even after the termination of its funding, as evidence that CAF’s expression was not compromised. This reasoning could effectively preclude any civil society organization that continues to express its opinions in the face of sanctions from claiming any violation of its freedom of expression. Essentially, it may strip these organizations of the very right to free expression.
- Free Speech: The Minister’s response to CAF appears to be consistent with the conflation of activism that is critical of Israeli policies with anti-Semitism. Justice Zinn decided not to clarify the nature of anti-Semitism but rather deferred to the Minister’s controversial definition. As a result, organizations and individuals risk being labeled as extremist, supporters of terrorism and anti-Semitic for the sole reason that they advocate for a Palestinian right to self-determination. The broad effect of this tendency is, according to one writer, to make “…well-rounded democratic input on this issue almost impossible.” The impact of false allegations of anti-Semitism are particularly onerous for Muslim and/or Arab groups, or those perceived to be Muslim and/or Arab, given the intensification of anti-Muslim racism after 9/11. By refusing to review the Minister’s definition of anti-Semitism, Justice Zinn has failed to examine the crucial terms upon which CAF’s expressions were evaluated and sanctioned.
- Free Speech: Justice Zinn placed CAF on the same footing as any other group who unsuccessfully applied for similar CIC funding. This formal approach fails to consider the larger context of the case. The Minister’s treatment of CAF appears to be consistent with a broader tendency within the federal government to defund or otherwise challenge organizations and individuals that support the human rights of Palestinians, including: KAIROS Canadian Ecumenical Justice Initiatives, Palestine House, the United Nations Relief and Works Agency for Palestinians in the Near East (UNRWA), the International Relief Fund for the Afflicted and Needy (IRFAN), Mada al-Carmel, British MP George Galloway and independent Palestinian MP Dr Mustafa Barghouti. The cumulative effect of the government’s actions in all of these cases is to intimidate individuals and organizations that support Palestinian human rights and generate a chill on their expressions.
- Equality of Access: Equal participation in Canadian society, equal access to government services and freedom of opinion are all fundamental rights recognized by Canadian and international law. As such, the government should not make a group’s access to public funds conditional on that group holding a particular political opinion. If the government selectively funds only those groups with similar political opinions to those of the governing party, the role of diverse voices in providing input to Canadian democratic governance is severely diminished.
Published on: 11 March 2011
Date updated: 16 June 2014