This month, the Canadian families of three victims murdered on October 7, 2023 filed a lawsuit in the Ontario Superior Court, claiming damages against numerous defendants, including Hamas, Palestinian Islamic Jihad, the Popular Front for the Liberation of Palestine (“PFLP”), the Samidoun Palestinian Prisoner Solidarity Network (“Samidoun”), and its leaders, Charlotte Kates, Khaled Barakat, and Dave Diewert.
The claim relies, in part, on Canada’s Justice for Victims of Terrorism Act. The formidable cast of plaintiffs’ legal representatives include Sarah Teich on behalf of the Human Rights Action Group, a member of the Alliance of Canadians Combatting Antisemitism (ALCCA). (Read the Oct. 7 Statement of Claim)
Two weeks after the lawsuit was filed, the Government of Canada designated Samidoun as a “listed entity” under our Criminal Code. The designation was made in concert with the United States Department of Treasury, which listed Samidoun as a “Specially Designated Global Terrorist.” These were both evidence-based designations based on defined criteria that had been met. Samidoun had already been listed as a terrorist entity by Germany.
The United States Treasury Department also listed Khaled Barakat as a Specially Designated Global Terrorist. It concluded that Barakat is a member of the PFLP’s leadership and together with Samidoun, play critical roles in external fundraising for the PFLP. Of course, the PFLP is also a listed terrorist entity in Canada. The joint Canada-United States announcement reflected that “organizations like Samidoun masquerade as charitable actors that claim to provide humanitarian support to those in need, yet in reality divert funds for much-needed assistance to support terrorist groups.”
Of course, the role of Samidoun and its leadership has been far more pronounced than their serving as the conduit of funds to terrorists. Charlotte Kates and Khaled Barakat have, with seeming impunity, promoted hatred worldwide, glorified the October 7 massacres and known terrorists, and incited followers to violence.
So, what does the designation of Samidoun as a listed entity mean for Canada?
As a now listed entity, Samidoun meets the definition of a “terrorist group” under our Criminal Code (s. 83.01(2)). As a result:
The Federal government should immediately revoke Samidoun’s not-for-profit corporate status. Currently, it is a not-for-profit corporation incorporated under the Canada Nor-for-Profit Corporations Act, S.C. 2009, c. 23, with its head office in Vancouver, British Columbia.
It is now a crime to collect property or invite others to provide property or financial services for Samidoun (s. 83.03(2)). Law enforcement agencies are mandated to investigate whether individuals or entities possess or are currently collecting property or providing property or financial services of any kind to Samidoun.
It is now a crime to enter into any property transactions or provide any property related services to or for Samidoun. There is an obligation on every Canadian to disclose without delay to the RCMP or CSIS the existence of any such property or information about any transaction or proposed transaction involving Samidoun (s. 83.1). Certain entities such as banks, trust companies, and securities firms must determine on a continuing basis whether they are in possession of or control property relating to Samidoun (s. 83.11(1)). Law enforcement agencies should immediately ensure that property relating to Samidoun is frozen and accounted for.
The Attorney General of Canada is mandated to take timely steps to apply for forfeiture of any property relating to Samidoun, and to make forfeited funds available to compensate victims of terrorist activities and/or to promote anti-terrorism law enforcement activities (s. 83.14).
Law enforcement agencies should prioritize investigations into those who have participated in or contributed to, directly or indirectly, any activities of Samidoun for the purpose of enhancing its ability to facilitate or carry out its terrorist activities (s.83.18). They should similarly investigate those who knowingly instructed, directly or indirectly, any person to carry out activities for the benefit of, at the direction of or in association with Samidoun. (s. 83.21(1)).
Law enforcement agencies are mandated to determine whether there are reasonable grounds to believe that terrorist propaganda exists that justifies the issuance of a court-ordered warrant authorizing seizure of such propaganda. This may involve an order authorizing access to computer systems to obtain such materials, and to identify and locate the individuals who posted terrorist propaganda (s. 83.222(1) and s. 83.223(1)).
Law enforcement agencies are mandated to prioritize investigations into the source of Samidoun’s funds, and equally important, the use of Samidoun’s funds for prohibited purposes.
The Criminal Code also contemplates that terrorist groups may (and likely will) use sham corporate entities or names to continue to finance terrorist activities and money launder. Law enforcement agencies are advised to investigate any related entities or “alter egos” that enable Samidoun to continue to engage in terrorism-related activities, including the financing of extremist activities, and take appropriate measures to ensure that Samidoun’s activities are truly shut down.
We also observe that the Minister of Public Safety may also, by regulation, add to the list of prohibited entities any other name by which a listed entity may also be or have been known, if the Minister has reasonable grounds to believe that the listed entity is using a name that is not on the list. (s. 83.05(1.2)
In relation to Charlotte Kates:
It has been five months since the British Columbia authorities apprehended Charlotte Kates for hate-related criminal activities. The designation of Samidoun as a terrorist group should prompt the authorities to prioritize and complete its assessment of the potential charges against her.
Equally important, there is a wealth of material available to law enforcement across the country about her activities, many of which have clearly transcended protected speech and involve criminal hate speech.
There is also reason to believe that she has been instrumental, as a Samidoun leader, in funnelling money to terrorist organizations abroad. It is incumbent on all provincial jurisdictions where she has been active to investigate, in a coordinated way, the criminal activities she has been involved in.
In relation to Khaled Barakat:
Social media suggests that Barakat is now in Lebanon. The designation of Samidoun as a terrorist group and Barakat’s identification by the United States as a terrorist should prompt Canadian authorities to prioritize investigation into his criminal activities in Canada.
There is also a wealth of material available to law enforcement across the country about his activities, many of which have clearly transcended protected speech and involve hate speech. And there is reason to believe that he has been instrumental in funnelling donations to terrorist organizations, including the PFLP.
Canadian law enforcement agencies, in partnership with their international counterparts, should also investigate Barakat’s activities outside Canada. Our Criminal Code specifically provides for prosecution in Canada for those who leave Canada (even Canadian citizens) to participate in activities of a terrorist group or to commit offences for a terrorist group.
Canadian law enforcement agencies should also consider whether denaturalization proceedings are available in relation to Samidoun-related terrorists who may have entered Canada or gained Canadian citizenship under false pretences.
In relation to other directors of Samidoun:
Law enforcement agencies should investigate, as a priority, the involvement of others in the terrorist activities of Samidoun in Canada or abroad.
In our view, it is important that government and law enforcement agencies across the country coordinate their response to Samidoun’s designation as a terrorist group, and advise the community, to the extent possible, of the measures being taken, on a priority basis, to address the situation.
We fully support the designation of Samidoun as a terrorist entity. Indeed, The Centre for Israel and Jewish Affairs (CIJA) has been fully engaged in seeking this designation for a long time. We now expect the authorities to utilize the full range of tools available to them to respond to this terrorist group in our midst and those who have participated (or continue to participate surreptitiously) in its illegal activities.
About the Authors
Mark Freiman practises law in Toronto. A former law clerk to Chief Justice Brian Dickson, he holds a PhD from Stanford University and a law degree from University of Toronto. He has taught at the university level in the Humanities and in Law in Canada and the United States. From 2000 to 2004 he served as Deputy Attorney General for Ontario. In 2020 he was named to the Order of Ontario. He is currently Co-Chair of the CIJA Legal Task Force responding to antisemitism.
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.