This past week, the Ottawa prosecutors’ office withdrew charges against a woman who pulled off the hijab of a protestor at an anti-Israel demonstration in the nation’s capital last May. The prosecutor, Moiz Karimjee, is now the object of an organized letter writing campaign, as well as obscenities and at least one death threat, all for exercising his prosecutorial discretion. A number of organizations under the National Council of Canadian Muslims’ banner have adopted an open letter to the Attorney General, claiming that the Crown engaged in blaming the victim for merely expressing peacefully the desire for freedom.
These criticisms should be rejected in the strongest terms.
The prosecution’s choice not to proceed was, as a precedent, unremarkable. The 74-year-old woman defendant admitted wrongdoing, apologized to the victim, offered restitution, and met with a Muslim community representative to better appreciate the impact of her conduct. She had no prior record. Indeed, she had never faced any charges before.
The victim supported the withdrawal of charges. This important factor was stated clearly on the court record. Any suggestion after-the-fact that the victim was pressured to agree can easily be rejected, particularly given Mr Karimjee’s integrity.
The judge presiding over the matter explicitly endorsed the result. At no time did Mr. Karimjee minimize the impact of the behaviour on the victim or its effect on other members of Canada’s Arab, Palestinian, and Muslim communities. On the contrary, he reinforced that adverse effect in his submissions.
What appears to have motivated the criticism and vitriol directed against Mr. Karimjee was his characterization of the chant “From the River to the Sea, Palestine Shall Be Free” as a factor contributing to the decision to withdraw the charges. I read what Mr. Karimjee said. He did not attribute a genocidal intent to the victim. Nor did he say that the chant invariably demonstrates a genocidal intent. Nor did he deny the victim’s right to protest what she perceived (rightly or wrongly) to be the Israeli occupation and the alleged genocide of the Palestinian people. Nor did he express any political position whatsoever on the difficult issues in the Middle East.
Instead, he reflected that the chant is perceived by many Jews and non-Jews as a call for the genocide of Jews and that it sounds counter-intuitive to protest a perceived genocide of Palestinians while using a phrase that can itself be interpreted as a call for genocide. He said that “Chants at a protest cannot call for genocide of a people …. While some give this phrase a peaceful meaning, an equally reasonable inference is that it is a call for genocide,” adding that “anyone chants this at his or her own peril because, if additional evidence in a particular case establishes a genocidal intent, the person could be charged criminally.”
Every statement he made was strictly accurate and relevant. First, no one can reasonably dispute that this chant is perceived by many Jewish and non-Jewish people as being a call for genocide of Jews. And with good cause. This same chant is used by Hamas and others whose genocidal intent is clear. Second, he accurately stated that no protestor is lawfully entitled to advocate genocide. The Criminal Code says precisely that. Third, he acknowledged that some give the phrase a peaceful meaning. Sadly, although a peaceful interpretation may strain credulity, he is right. Some do. Fourth, he cautioned nonetheless that anyone who chants this phrase does so at his or her peril because additional evidence may establish a genocidal intent. This was an appropriate and timely caution. For example, if “From the River to the Sea, Palestine Shall Be Free” had been accompanied by “From Water to Water, Palestine Shall be Arab” or “From Water to Water, Palestine Shall Be Jew-Free”, examples drawn from other events, the evidence would likely have established a genocidal intent.
Equally important, a chant reasonably interpreted by the defendant as a call for her destruction and the destruction of her community is an appropriate mitigating consideration in the exercise of prosecutorial discretion.
In a recent article, I made a related point:
If you are a protestor who merely wishes to express the desire for equal rights for Palestinians in the region or even the desire for a secular state to replace Israel, why express those views by chanting a slogan that you know is regarded as genocidal by the vast majority of Jewish community members? And which you know has been used as recently as October 7 as a rallying call for the extermination of Jewish men, women, and children. If you are genuine in seeking a reconciliation between Arabs, Muslims, Jews, Palestinians, and Israelis, why would you deliberately choose this incendiary phrase?
A senior Muslim lawyer told me that he instructed his colleagues not to use the phrase, “From the River to the Sea – Palestine Shall be Free” for the very reason I am suggesting here. If you legitimately want peace, not slaughter in the Middle East, if you care about the safety of Canadian Jewry, why wouldn’t you find other ways to make the point? If you did, you might learn that you can promote respectful dialogue, not hatred.
As someone who believes in respectful dialogue between the Muslim and Jewish communities, I found Mr. Karimjee’s careful and accurate use of language to be remarkable and fitting in the circumstances. His comments were also in the public interest.
I am troubled that some individuals have also chosen to attack Mr. Karimjee personally, in hate-filled diatribes. Mr. Karimjee has shown a sensitivity to the pain experienced by all affected communities, including the Palestinian community. Incidentally, Mr. Karimjee is also a proud Muslim. This shouldn’t matter in the slightest except extremists have made it relevant – portraying him as disloyal to his faith. That is not only a malicious lie, but revealing of those who would hijack the Muslim faith to support their extremist positions.
As a member of the Jewish community, I haven’t agreed with every one of Mr Karimjee’s prosecutorial assessments. But I know they were made in good faith and after due consideration. This decision should be applauded not only because it was made in good faith. But because it was right. And just maybe, organizations such as the National Council of Canadian Muslims should acknowledge that “From the River to the Sea – Palestine Shall be Free” does not advance freedom or peace, but makes both far more elusive.
About the Author
Mark Sandler, LL.B., LL.D. (honoris causa), ALCCA’s Chair, is widely recognized as one of Canada’s leading criminal lawyers and pro bono advocates. He has been involved in combatting antisemitism for over 40 years. He has lectured extensively on legal remedies to combat hate and has promoted respectful Muslim-Jewish, Sikh-Jewish and Black-Jewish dialogues. He has appeared before Parliamentary committees and in the Supreme Court of Canada on multiple occasions on issues relating to antisemitism and hate activities. He is a former member of the Ontario Human Rights Tribunal, a three-time elected Bencher of the Law Society of Ontario, and recipient of the criminal profession’s highest honour, the G. Arthur Martin Medal, for his contributions to the administration of criminal justice.