Political boycotts are protected expression in Canada

Posted February 3, 2020
By Abbas Kassam

Dr. David Kattenburg is a wine lover and activist. Recently, he merged these two passions together by litigating the issue of whether political boycotts are a form of Charter-protected expression. Specifically, in a judicial review before the Federal Court, Dr. Kattenburg challenged the Canadian Food Inspection Agency’s decision to maintain the labeling of wines produced by Israeli settlers in the West Bank as “Products of Israel”. In the evidence before the Court, Dr. Kattenburg indicated that “many [consumers] would elect not to purchase these wines” if they were aware that they “profit individuals who are complicit in a war crime”. 

One issue that the Federal Court considered upon review was whether political boycotts are protected under subsection 2(b) of the Canadian Charter of Rights and Freedoms, which protects fundamental freedoms including “freedom of thought, belief, opinion and expression”. 

The Federal Court noted, “consumers have long expressed their political views through their purchasing choices.” Examples include “the boycott of California grapes in the 1960s and 1970s as an expression of solidarity with farm workers, and the pre-1994 boycott of South African wines as an expression of support for the Anti-Apartheid Movement.”

In ruling in favour of Dr. Kattenburg, the Court relied on Supreme Court jurisprudence that emphasizes “the societal importance of freedom of expression and the special place it occupies in Canadian constitutional law”. Furthermore, the jurisprudence holds that freedom of expression protects not only accepted opinions, but also those that are challenging and sometimes disturbing. 

While the Court did not perform a full Charter analysis and the case is under appeal, it is clear that political boycotts do engage the protection of freedom of expression. That is, the form of the expression, a boycott in the form of conscious consumerism, and the content, protesting a state’s violation of legal and moral norms, are protected. 

Some may argue that political boycotts are only protected if they are not contrary to Canadian public or foreign policy. First, individual expression that is contrary to government policy is protected. Canada is a democracy where individuals can express opinions contrary to the governing policy. 

Second, policies change. Consider for example a political boycott of the Hajj pilgrimage based on Saudi Arabia’s human rights record. To hold that such a political and consumer-based boycott is impermissible when Saudi Arabia is a Canadian ally (for example when Canada is sufficiently cozy with the Saudi regime to sell them weapons), but is protected expression when there has been a falling out between Canada and Saudia Arabia is nonsensical. The underlying content of the expression, namely the protest of Saudi Arabia’s human rights record, remains the same in either situation, and is the salient consideration. 

There is also an argument to address with respect to the discriminatory nature of boycotts mapping on to a particular social group. That is, if the effect of a boycott is that it only affects a particular protected social group, is the boycott contrary to human rights protections and Canadian values? Again, the salient consideration is the underlying content of the expression. If the underlying content is protected, such as the protesting of violation of legal and moral norms, it is of no moment that the effect of the protest affects only a particular social group. 

In the event that the content of the expression by some individuals within a protest movement is clearly only targeting a social group such that it is contrary to human rights, then those individuals can be dealt with on a case-by-case basis. To hold that said individuals’ expression speaks for the movement as a whole obfuscates the underlying protected expression. Furthermore, painting an entire movement based on the actions of some individuals employs the same irrational methods as those individuals who seek to paint an entire social group with the same brush. 

While there are interesting issues to consider with respect to political boycotts, such as in the case of Dr. Kattenburg, it is clear that such expression is protected in Canada.