Law360 Canada (August 12, 2026, 8:22 AM EDT) --

Faisal Kutty

The current debate over Israel and Palestine provides a particularly difficult test of whether we can maintain those distinctions when political passions run high.

Inflammatory pro-Palestinian speech does not become terrorism merely because it is inflammatory. Antisemitic vilification does not become protected simply because it occurs at a political demonstration. And genuine participation in terrorist activity does not become constitutionally protected advocacy because the accused characterizes it as political speech.

The same principle must apply regardless of whose politics are involved.

An earlier Ottawa case is relevant for that reason. Prosecutors withdrew charges against a woman accused of pulling down a Palestinian demonstrator’s hijab. In explaining the decision, the Crown referred in part to the complainant’s use of the slogan “From the river to the sea.” Whatever one’s view of that slogan, the decision understandably raised questions about why the political expression of a complainant should enter the public-interest assessment of an alleged physical assault.

The Henschel sentence raises a related concern from a different direction. The trial judge rejected the Crown’s contention that the assault was racially motivated and imposed an absolute discharge. The Crown has appealed. That is precisely what appellate review is for. Disagreement with a judicial result should not automatically be converted into an allegation of institutional bad faith.

The same caution applies to the terrorism and hate-propaganda prosecutions now before the courts.

Nothing presently establishes that the attorneys general involved acted improperly. There may be compelling evidence supporting the charges. Nor should controversy surrounding a prosecutorial decision be treated as evidence that politics dictated it. Krieger, Nixon and Miazga all counsel against that kind of leap (Krieger v. Law Society of Alberta, 2002 SCC 65; R. v. Nixon, 2011 SCC 34; Miazga v. Kvello Estate, 2009 SCC 51).

The issue is broader than any allegation of misconduct.

In a polarized political environment, institutions have to work harder to demonstrate that the law is being applied on its own terms. Prosecutors must be able to decline charges that the evidence cannot sustain even when public anger is intense. They must also be prepared to prosecute when the legal test is met even if the decision is unpopular. Attorneys general must distinguish legitimate consultation from political pressure. Governments should resist turning criminal charges into political messaging. Police should be careful not to present allegations as though they have already been established.

The public has obligations too. Equal justice does not mean identical outcomes. Different facts and different evidence will produce different prosecutorial decisions. An absolute discharge in one case and terrorism charges in another do not, without more, establish a double standard.

The more useful question is whether the same legal standards are being applied with the same independence.

Canada has more institutional protection against politicized prosecution than is sometimes appreciated. There is the constitutional principle articulated in Krieger, the high abuse-of-process threshold reflected in Nixon, the caution against retrospective second-guessing in Miazga, attorney general consent requirements for particularly sensitive offences and, at the federal level, an independent prosecution service with statutory transparency when the attorney general directly intervenes.

None of these protections guarantees perfect decision-making. They do, however, reflect a basic constitutional judgment: criminal prosecution is too serious a state power to become another instrument of partisan politics.

That is also one of the enduring lessons of the post-9/11 era. National-security laws are necessary. Governments have an obligation to protect the public from genuine threats. But extraordinary powers require greater discipline, not less, especially when fear and political pressure make procedural safeguards seem inconvenient.

Those safeguards are not obstacles to justice. They are part of what makes the exercise of state power legitimate.

The current prosecutions will eventually be resolved on the evidence. Some accused may be convicted. Others may not. Appeals will correct errors where appropriate. None of those outcomes, on its own, will establish whether Canada’s justice system is politically biased.

What Canadians are entitled to expect is more basic. A terrorism charge should be authorized because the evidence and the law justify a terrorism charge. Consent to a hate-propaganda prosecution should turn on the statutory test, not the volume of public demands surrounding the case. A decision not to prosecute should be made with the same independence.

Courts can resolve individual cases. They cannot, on their own, preserve confidence in the institutions that decide which cases reach them.

That depends on prosecutors prepared to exercise independent judgment, attorneys general willing to protect that independence even when doing so is politically uncomfortable, and a public willing to accept that the rule of law will not always produce the outcome its preferred political constituency wants.

In a polarized democracy, that independence is both essential and increasingly difficult to preserve.

This is the final instalment of a three-part series. Part one: Prosecutorial independence in an age of polarization: When politics surrounds the criminal process. Part two: Protecting prosecutorial independence from political pressure.

Faisal Kutty is a lawyer, law professor and writer focusing on constitutional law, international law, Islamic law, national security, and law and religion. His work appears regularly in Newsweek, the Toronto Star, Lawfare and other publications.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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