Crown prosecutors have dropped assault and harassment charges against a woman who removed a protester’s hijab during a pro-Palestinian demonstration in Ottawa in May, saying a balance must be struck between public interest in prosecution and the reasonable prospect of conviction.

As part of Thursday’s reasoning for dropping the charges, assistant Crown attorney Moiz Karimjee said the Crown considered a number of factors, including the fact 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 the genocide of the Jewish people.”

Karimjee noted that Hayfa Abdelkhaleq was chanting this phrase in front of Ottawa City Hall on May 14 when Lorna Bernbaum approached her and removed her hijab.

Bernbaum was on her way to an Israeli Independence Day celebration when she encountered Abdelkhaleq, who was waving a Palestinian flag and protesting the Israeli attack on Gaza.

The video shows Bernbaum, 74, giving the middle finger to the camera before pulling down Abdelkhaleq’s scarf, revealing his hair.

Abdelkhaleq responded by shouting, “Shame, shame on you,” as Bernbaum walked away.

Following an investigation by the Ottawa Police Service’s Hate Crimes and Bias Unit, Bernbaum was charged with criminal harassment by threatening conduct, assault and mischief.

Accused’s actions constitute ‘serious offence’, Crown says

In an 11-point statement read to Judge Trevor Brown, Karimjee called Bernbaum’s actions a “serious breach of law and order.”

He also pointed out that in his victim impact statement, Abdelkhaleq said his life had been turned upside down by the attack. She left her job and the country because she didn’t feel safe.

“When I think about coming back to Canada, my body trembles,” said Abdelkhaleq, a Canadian citizen.

The assault also affected the sense of security and belonging of other members of Canada’s Arab, Palestinian and Muslim communities, Karimjee said.

A woman wears hijab during a pro-Palestinian demonstration at Ottawa City Hall

Hayfa Abdelkhaleq had her hijab removed while attending a pro-Palestinian demonstration protesting Israel’s Independence Day flag-raising ceremony. Ottawa police said they are investigating the hate-motivated incident.

The right to demonstrate is not absolute

But he also said Abdelkhaleq’s constitutionally protected right to protest was not absolute. Specifically, the Crown called his use of singing “problematic.”

“Chanting during a protest cannot call for the genocide of a people,” Karimjee said. “Although some give this expression a peaceful meaning, an equally reasonable conclusion is that it is a call for the genocide of the Jewish people.

“Anyone chanting this at their own risk, because if additional evidence in a particular case establishes genocidal intent, the person could be criminally charged.”

He said the use of the song was factored into the Crown’s reasoning for withdrawing the charges due to “the obligation to assess the public interest taking into account all the circumstances”.

“The fact is that (this chant) is perceived by many Jewish and non-Jewish people as a call for the genocide of the Jews. It seems counterintuitive to protest a perceived genocide of the Palestinians while using a phrase one of which interpretations is a call for genocide of the Jewish people.

The accused admitted his wrongdoing and apologized

Karimjee also noted that Abdelkhaleq, who says many of her friends and relatives have been killed in Gaza, has the right to protest “what she perceives 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.

Additionally, Karimjee said, removing her headscarf “undermined her personal security, her sense of belonging to Canada and her dignity.”

But the Crown acknowledged Bernbaum had made amends since the incident by admitting wrongdoing, issuing an apology to Abdelkhaleq through the Crown and offering compensation. She also spoke with a representative of the Muslim community to understand the importance of the hijab for Muslim women and the importance of the right to protest.

He also noted that she had no criminal record and that this was the first time she had been arrested and charged.

Karimjee said Abdelhaleq supported the Crown withdrawing the charges.

‘I’m not happy’

However, when contacted by CBC on Thursday, Abdelhaleq said she felt pressured to agree that the Crown would withdraw the charges and felt that if she did not do so, she herself might face prosecution.

“I’m not happy. I’m just really shocked,” she said.

She deplored Karimjee’s characterization of her singing as potentially being interpreted as a call for genocide.

“Oh my God, I can’t believe this,” she said, comparing it to being told you’re not allowed to chant “Free Canada.”

Hearing the way Karimjee characterized her singing had the same impact on her as the initial assault, she said.

“Just like I don’t have the right to say ‘freedom,’ I don’t have the right to say ‘peace,'” she said. “I’m just saying it.”

Abdelhaleq said there was no comparison between her words and Israel’s actions in Gaza, where she said her family was being bombed.

“Basically, I’m calling for freedom,” she said. “I didn’t touch anyone, I didn’t hate anyone.”

The Crown’s decision made him doubt his return to Canada. She said: “Maybe I don’t have the right, as a Muslim woman, to be in Canada. »

Charges withdrawn

But in court Thursday, Judge Trevor Brown thanked Karimjee for his efforts “to balance the complex realities of this case.”

Speaking to Bernbaum, Brown said: “I will mark these charges as withdrawn and you are free to go.”

Bernbaum declined to comment to CBC.

Criminal lawyer Michael Spratt, who was not involved in the case, said it was “dangerous” for Crown prosecutors to comment on the meaning of the protest chants.

“I think the Crown – who are the lawyers of His Majesty the King – must be very careful about the meaning of slogans, especially in situations as complicated as peace in the Middle East,” he told CBC.