Edit: read the full verdict here
On Monday March 6, 2017, Toronto-based lawyer Alexi Wood appeared in the BC Supreme Court to defend the Alma Mater Society (AMS) against a lawsuit brought forth by a UBC Commerce student, Logan Presch. The litigation involved the proposed Boycott, Divestment, and Sanctions (BDS) referendum question that was put to the AMS by the student group Solidarity for Palestinian Human Rights (SPHR) after receiving over 1000 signatures of endorsement from the university student body meeting the requirement of bylaw #4(1). The same referendum question was used in the 2015 referendum:
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?
Vancouver-based lawyer Howard A. Mickelson, representing Presch, argued that the BDS referendum question breached AMS bylaws by being ambiguous, making it incapable of being answered with a “yes” or “no”, and that it could cause a contract to be broken with an AMS service provider. He also asserted that the question created a “toxic and divisive” environment on campus, contending that it violated Section 2(e) of the AMS constitution which seeks to “promote unity and goodwill amongst its members.”
The AMS defense contested two of the claims by highlighting that the Council had previously ruled that the BDS referendum question could be answered with a “yes” or “no” and that no contracts would be broken if the referendum passed. However, the AMS decided not to take a position regarding the complainant’s argument that the question violated the AMS constitution. Because the AMS did not plan to challenge this claim – instead leaving the decision to judicial discretion – a third party intervened.
Hours before the court case on Monday March 6th, 2017, a UBC law student, representing Jewish UBC student Eviatar Bach, submitted an application for third party status. They had affidavits signed by Diana Ralph of Independent Jewish Voices and Bach himself, who was born in Israel, disputing the previously uncontested claim that the BDS referendum violated the constitution by creating a hostile environment on campus. In his affidavit, Bach supports the proposed BDS referendum question and states that neither he nor his Jewish friends or acquaintances have “experienced any anti-Semitism or discrimination based on religion, ethnicity, or national origin from the members of SPHR, nor from supporters of the Proposed Question.” Furthermore, he describes his relationship with members of SPHR, some of whom are his friends, as respectful.
On Monday morning Bach, the law student and former SPHR member Ali Ben waited in the lobby of the BC Supreme Court for the case to proceed. Asked about the implications and importance of this court case, Bach stated that “we’re hoping that the defendants win which would mean that the referendum can go through. This is an important freedom of speech issue. It’s right for students to have this as a referendum in a democratic institution such as the Alma Mater Society. If the defendants lose, this would set a very worrying precedent. . . for other student associations and other universities regarding BDS.” Ben voiced dismay about the Palestinian struggle by proclaiming “It is strange that we need to fight for basic human rights in 2017; the right to water, the right to movement.” AMS lawyer, Alexi Wood, declined to answer any questions.
If the third party had not intervened, the claim that the referendum question violated the constitution would have been left uncontested. In court, Madam Justice Margot L. Fleming found it irritating that the AMS defense was not taking a position regarding whether the question violated the constitution or not. She underscored the importance of the information that the third party presented contesting this claim.
In court, Mickelson cited the recent rash of bomb threats to Jewish community centres across Canada and the United States in conjunction with his argument that anti-Semitic acts are increased in an environment where criticism of Israel is present, such as BDS referendums on campuses. When asked later about the relevance of including the bomb threats with his argument, Mickelson told the Talon that, as a result of BDS referendums, “some people on campus use that opportunity or get stirred up by that question and they misdirect the anti-Israeli views that are being promoted and they conflate that to being anti-Semitic views.” Furthermore, he claimed that there are some people who use criticism of Israel “as a cover for a different agenda.” He referred to a number of Jewish students on campus who are concerned that the BDS referendum will create a hostile environment. Regarding the inclusion of the bomb threats within the argument, SPHR agent Paul Tetrault told the Talon that it was “irrelevant and inflammatory” for Mickelson “to bring up something that has nothing to do with UBC.”
Ben questioned Presch’s financial ability to bring forward the petition by asking “How can a student afford to sue the AMS and afford the legal fees for an expedited hearing? And if a lawyer is doing this on a pro bono basis, what is his interest? Why is a professional lawyer meddling in student affairs? Who is benefiting from all of this?” When asked, Mickelson refused to disclose whether he was working on a pro bono basis.
The court case proceeded through Tuesday March 7th and Wednesday March 8th. On Wednesday, Judge Fleming decided to adjourn the hearing until March 27th and 28th to give time for SPHR to join the proceedings since they were not initially legally notified by the AMS or Mickelson about the litigation. Asked about this, Mickelson agreed with Judge Fleming’s decision stating that “one of the proponents who was putting this referendum forward should have been given notice.”
SPHR has agreed to join the case and former CUPE lawyer, Paul Tetrault, will be aiding their defense on a pro bono basis. Judge Fleming will not be presiding over the next phase of the case so it is unclear at this point who will be hearing the petition.
Mickelson said he and his client would like to see SPHR and Hillel, the Jewish community centre on campus, organize a joint symposium to debate the Israeli and Palestinian issue. Tetrault thought that this proposal was disingenuous since “you do not promote debate by going to court and trying to essentially outlaw one position in that debate.” Furthermore, he stated that “the pro-Israel forces on campus are concerned about the strength of the BDS movement and instead of waging their own campaign they have decided to go to court to exclude one side of the discussion.”
The trial has delayed the BDS referendum vote, which was originally slated to be on the AMS general election ballot March 6th through 10th. The question is now scheduled for an online referendum vote on April 3 to 7 pending the verdict. Similar referendums have been taking place on other campuses across the country and in February of 2016, students at McGill voted to support the BDS movement. SPHR encourages students who want to show their support to attend the next court hearing at the BC Supreme Court on Monday, March 27 at 10am in Vancouver.
