Charges were dropped against a woman filmed pulling a pro-Palestinian protester’s headscarf

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

As part of the reasoning given for dropping the charges on Thursday, Deputy Crown Prosecutor 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 it could reasonably be inferred to be “a call for the genocide of the Jewish people.”

Karimjee noted that 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 his way to an Israeli Independence Day celebration when he encountered Abdelkhaleq, who was waving a Palestinian flag and protesting Israel’s attack on Gaza.

The video showed Bernbaum, 74, giving the camera the middle finger before removing Abdelkhaleq’s headscarf, revealing his hair.

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

Following an investigation by the Ottawa Police Service’s motivated crimes and motivated bias unit, Bernbaum was charged with criminal harassment by threatening behaviour, assault and malice.

The accused’s actions “a serious offence”, the Crown says

In an 11-point statement read to Judge Trevor Brown, Karimjee characterized Bernbaum’s actions as “a serious offense against law and order”.

He also noted that in her victim impact statement, Abdelkhaleq said her life was turned upside down by the attack. He left both his job and the country because he didn’t feel safe.

“When I think about going back to Canada, my body shakes,” said Abdelkhaleq, who is a Canadian citizen.

The attack also affected the sense of safety and belonging of other members of the Arab, Palestinian and Muslim communities in Canada, Karimjee said.

The right to protest is not absolute

But he also said Abdelkhaleq’s constitutionally protected right to protest is not absolute. Specifically, the Crown cited her use of the song as “problematic”.

“Singers at a protest cannot call for the genocide of a people,” Karimjee said. “While some give this phrase a peaceful meaning, an equally reasonable conclusion is that it is a call for the genocide of the Jewish people.

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

He said he considered the use of the song in the Crown’s reasoning for dropping the charges because of the “duty to assess the public interest, having regard to all the circumstances”.

“The truth is that (the song) is perceived by many Jews and non-Jews as a call for the genocide of the Jews. It sounds counter-intuitive to protest the perceived genocide of the Palestinians while using an expression where an interpretation is a call. for the genocide of the Jewish people”.

The accused admitted the wrongdoing, offered an apology

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 perceived as 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.

Furthermore, Karimjee said, having her scarf pulled down “violated her personal safety, sense of Canadianness and dignity.”

But the Crown accepted that Bernbaum had made amends since the incident, admitting her wrongdoing, apologizing to Abdelkhaleq through the Crown and offering a restitution payment. 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 dropping the charges.

‘I’m not happy’

However, when contacted by the CBC on Thursday, Abdelhaleq said she felt pressured to accept that the Crown drop the charges and felt that if it did not, she could face prosecution herself.

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

She lamented Karimjee’s characterization of her chants as open to interpretation as a call for genocide.

“Oh my God, I can’t believe this,” she said, comparing it to being told there is no right to chant “Free Canada.”

Hearing Karimjee’s characterization of his chants had the same impact on her as the initial attack, she said.

“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 had been bombed.

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

The Crown’s decision made her question whether she would return to Canada, she said: “Maybe I don’t have the right as a Muslim woman to be in Canada.”

Fees withdrawn

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

Addressing Bernbaum, Brown said, “I’m going to mark those charges as withdrawn and you’re 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 attorneys to comment on the meaning of the protest chants.

“I think the Crown – who are His Majesty the King’s lawyers – have to be very careful in understanding what the slogans mean, especially in such complicated situations as Middle East peace,” he told the CBC.