It has been more than five months since an activist was arrested over incendiary comments praising Hamas' deadly attack on Israel at a pro-Palestine protest in Vancouver earlier this year.
The province's public prosecutor's office is now facing questions about why it's taking so long to decide whether to approve hate speech charges against Charlotte Kates.
Kates serves as international coordinator for the Samidoun Palestinian Prisoner Solidarity Network, a group listed as a terrorist organization in Germany and the Netherlands, a designation that some political leaders in Canada want applied here as well.
She was arrested after an April 29 speech at the Vancouver Art Gallery in which she led a crowd chanting “Long live October 7th” and called for the withdrawal of Hamas, Islamic Jihad, Hezbollah and several other groups. as terrorist organizations.
“These are the resistance fighters, these are our heroes, these are the ones who are sacrificing themselves so that we can live and talk, fight and fight,” she told the gathering. Vancouver police ended up recommending charges of incitement and promoting hate in relation to the speech.
Kates was released from custody under the undertaking and promise to appear in court on October 8, but the hearing was cancelled.
Receive the latest national news
For news impacting Canada and around the world, sign up to receive breaking news alerts delivered directly to you as it happens.
As a result, court-imposed conditions on Kates, including not attending any protests, expired because the BC Public Prosecutor's Office did not make a decision on whether to pursue charges.
The police case was referred to the Crown four months ago, and sources told Global News they strongly believed a decision on whether to approve the charge could have been delayed in order to avoid escalation before the provincial election.
Rob Dhanu, KC, a former Crown prosecutor not involved in the case, agreed the provincial election could have played a role.
“There is absolutely a problem in terms of the election cycle because once again we are dealing with an extremely controversial and divisive issue that almost everyone has an opinion on, pro-Palestinian, pro-Israeli, some in between,” he said. .
“When you're in an election cycle, the last thing you want to do is throw a hand grenade that could be used against you, so delay, I think, works in the government's favor in this situation, and it's better to deal with it after the elections and not before.”
But Dhanu said that given the divisive nature of the case and the legal complexities involved, the delay could also be “entirely reasonable”.
Prosecutors, he said, must pass a two-part test when approving charges: whether there is a substantial likelihood of conviction and whether it is in the public interest.
From a sentencing perspective, the Crown has to prove that any incitement could lead to a breach of the peace, while courts generally show the strong deference that the Charter of Rights and Freedoms gives to personal expression.
The case, he said, would test the boundaries between free speech and hate speech, an area where there is little case law and precedent.
“We have words, but nothing really happened because of this,” he said.
“There are huge moral and legal questions here that the Crown has to deal with in terms of where does freedom of expression end and where does hate speech begin?”
He added that while it may seem obvious that pursuing charges is in the public interest, that side of the equation is also fraught with pitfalls.
Among them, he said, is the prospect of giving Kates a bigger platform, something the activist could see as a victory even if she is condemned.
“They say hey, we may be legally wrong, but we are morally right,” he said.
The BC Public Prosecutor's Office declined to comment on Kates' lawsuit because the assessment of the charges is ongoing.
The Attorney General's Office also declined to comment, citing communication limitations during the election period.
Kates' attorney did not respond to a request for comment.
— with files from Rumina Daya
