It has been more than five months since an activist was arrested over incendiary comments praising Hamas’ deadly attack on Israel at a pro-Palestinian protest in Vancouver earlier this year.
The province’s prosecution service is now facing questions about why it is taking so long to decide whether to approve hate speech charges against Charlotte Kates.
Kates serves as the international coordinator of the Samidoun Palestinian Prisoner Solidarity Network, a group that’s listed as a terrorist organization in Germany and the Netherlands, a designation 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 a crowd in chants of “Long live October 7th,” and called for the delisting of Hamas, Islamic Jihad, Hezbollah and several other groups as terrorist organizations.
“These are resistance fighters, these are our heroes, these are the ones who are sacrificing so we can live and speak and struggle and fight,” she told the gathering. Vancouver police ultimately recommended charges of incitement and promotion of hatred over the speech.
Kates was released from custody on an undertaking and a promise to appear in court on Oct. 8, but the hearing was cancelled.
As a result, Kates’ court-ordered conditions, including that she not attend any protests, expired because the BC Prosecution Service had not made a decision on whether to proceed with charges.
The police file was forwarded to the Crown four months ago, and sources told Global News they strongly believed a decision on charge approval could have been delayed in order to avoid escalation before the provincial election.
Rob Dhanu, K.C., a former Crown prosecutor not involved in the case, agreed the provincial election could have played a part.
“Absolutely there’s an issue in terms of the election cycle because once again we’re dealing with an extremely controversial and divisive issue, on which almost everyone has an opinion, pro-Palestinian, pro-Israeli, some in the middle,” he said.
“When you are in an election cycle, the last thing you want to do is throw a hand grenade out there that can be used against you, so delay, I think, works in the favour of the government in this situation, and it’s better to deal with this after the election rather than before.”
But Dhanu said due to the divisive nature of the case and the legal complexities involved, the delay could also be “entirely reasonable.”
Prosecutors, he said, must meet a two-part test in approving charges: whether there is a substantial likelihood of conviction, and whether it is in the public interest.
From the conviction standpoint, the Crown has to prove that any incitement could lead to a breach of the peace, while at the same time, the courts generally show a strong deference 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 actually happened because of it,” he said.
“There’s huge moral and legal questions here that the Crown has to grapple with in terms of where does free speech end and where does hate speech begin?”
He added that while it may seem like a “no-brainer” that proceeding with charges is in the public interest, that side of the equation is also lined with pitfalls.
Among them, he said, is the prospect of giving Kates a larger platform, something the activist could see as a victory even if she is convicted.
“They say hey, we might be legally wrong, but we are morally right,” he said.
The BC Prosecution Service declined to comment on Kates’ file because charge assessment is ongoing.
The Attorney General’s office also declined to comment, citing communications limitations during the election period.
Kates’ lawyer did not return a request for comment.
— with files from Rumina Daya