Charges dropped against woman filmed pulling Pro-Palestinian protester's hijab
Crown said victim's chant could 'reasonably be inferred' as a call for genocide of the Jewish people
Crown prosecutors have dropped assault and harassment charges against a woman who pulled the hijab of a protester at a pro-Palestinian demonstration in Ottawa in May, saying it needed to balance the public interest in prosecution and the reasonable prospect of conviction.
As part of the reasoning given for withdrawing charges on Thursday, assistant Crown attorney Moiz Karimjee said the Crown considered a number of factors, including that the victim was chanting "From the River to the Sea Palestine will be Free," which he said could be reasonably inferred to be "a call for genocide of the Jewish people."
Karimjee noted Hayfa Abdelkhaleq was chanting the phrase outside Ottawa City Hall on May 14 when Lorna Bernbaum approached her and pulled her hijab.
Bernbaum was on her way to a celebration of Israel's Independence Day when she encountered Abdelkhaleq, who was waving a Palestinian flag and protesting Israel's assault on Gaza.
Video showed Bernbaum, 74, giving the middle finger to the camera before she pulled down Abdelkhaleq's headscarf, revealing her hair.
Abdelkhaleq responded by shouting, "Shame, shame on you," as Bernbaum walked away.
Following an investigation by the Ottawa Police Service's hate crime and bias unit, Bernbaum was charged with criminal harassment by threatening conduct, assault and mischief.
Accused's actions 'a serious offence,' Crown says
In an 11-point statement read to Justice Trevor Brown, Karimjee characterized Bernbaum's actions as "a serious offence against law and order."
He also noted that in her victim impact statement, Abdelkhaleq said her life had been turned upside down by the assault. She left both her job and the country as she didn't feel safe.
"When I think about coming back to Canada, my body shakes," said Abdelkhaleq, who is a Canadian citizen.
The assault also affected the sense of safety and belonging of other members of Canada's Arab, Palestinian and Muslim communities, Karimjee said.
Right to protest not absolute
But he also said Abdelkhaleq's constitutionally protected right to protest was not absolute. Specifically, the Crown cited her use of the chant as "problematic."
"Chants at a protest cannot call for genocide of a people," Karimjee said. "While some give this phrase a peaceful meaning, an equally reasonable inference is that it is a call for genocide of the Jewish people.
"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."
He said it took the use of the chant into account in the Crown's reasoning for withdrawing charges because of the "duty to assess the public interest having regard to all the circumstances."
"The fact is that [the chant] is perceived by many Jewish and non-Jewish persons as being a call for genocide of Jews. It sounds counter-intuitive to protest a perceived genocide of Palestinians while using a phrase where one interpretation is a call for genocide of the Jewish people."
Accused admitted wrongdoing, offered apology
Karimjee also noted that Abdelkhaleq, who says many of her friends and relatives have been killed in Gaza, has a right to protest "what she perceived to be the Israeli occupation and genocide of the Palestinian people."
Several UN Security Council Resolutions and the Canadian government recognize the Israeli occupation of the West Bank and East Jerusalem as illegal.
Moreover, Karimjee said, having her head scarf pulled down "violated her personal safety, sense of belonging to Canada and dignity."
But the Crown accepted that Bernbaum had made amends since the incident by admitting her wrongdoing, conveying an apology to Abdelkhaleq via the Crown and offering a restitution payment. She also spoke with a Muslim community representative to understand the significance of the hijab to Muslim women, and the importance of the right to protest.
He also noted she had no prior criminal record and this was the first time she was arrested and charged.
Karimjee said Abdelhaleq was supportive of the Crown withdrawing charges.
'I'm not happy'
When contacted by CBC on Thursday however, Abdelhaleq said she had felt pressured to agree to the Crown withdrawing charges and felt that if she did not, she could face action herself.
"I'm not happy. I'm just really shocked," she said.
She deplored Karimjee's characterization of her chanting as being open to interpretation as a call to genocide.
"Oh my God, I can't believe that," she said, comparing it to being told there is no right to chant "Free Canada."
Hearing the way Karimjee characterized her chanting had the same impact on her as the initial assault, she said.
"Like I have no right to say 'freedom,' I have no right to say 'peace,'" she said. "I'm just saying it."
Abdelhaleq said there's no comparison between her words and the actions of Israel in Gaza, where she said her family was being bombed.
"I'm calling for freedom, basically," she said. "I didn't touch anyone, I didn't hate anyone."
The Crown's decision made her doubt whether she would return to Canada, she said: "Maybe I have no right as a Muslim woman to be in Canada."
Charges withdrawn
But in court on Thursday, Justice Trevor Brown thanked Karimjee for his efforts "balancing the complex realities of this case."
Addressing Bernbaum, Brown said: "I will mark those charges as withdrawn and you are free to go."
Bernbaum declined comment to CBC.
Criminal lawyer Michael Spratt, who was not involved in the case, said it was "dangerous" for Crown attorneys to comment on the meaning of protest chants.
"I think the Crown — who are lawyers for His Majesty the King — need to be very careful about wading into what slogans mean, especially in situations as complicated as Middle East peace," he told CBC.
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with files from Safiyah Marhnouj and Ian Wood