Law360 Canada (August 10, 2026, 12:24 PM EDT) --

Faisal Kutty

A number of recent Ontario cases have brought me back to a constitutional principle that tends to receive little public attention until confidence in it begins to erode: prosecutorial independence.

In Ottawa, David Henschel, an employee of a Swiss munitions company, pleaded guilty to assault after intentionally striking a 21-year-old Palestinian-Canadian protester in the face outside the CANSEC defence conference. He received an absolute discharge. There is a finding of guilt, but no criminal conviction. The Crown has appealed the sentence as “demonstrably unfit.”

In Toronto, the stakes are quite different. Ahmad Hassan Hajahmad has been charged with participating in or contributing to the activities of a terrorist group following an investigation into statements allegedly made at pro-Palestinian demonstrations in 2024. Toronto police allege that evidence later obtained supported the contention that he acted for the benefit of and in association with Hamas. His lawyer denies any Hamas connection. The allegations remain unproven, and a publication ban limits what can presently be reported.

Toronto police also disclosed something lawyers should pay close attention to: both the Attorney General of Ontario and the federal government gave consent before the terrorism charge proceeded. Section 83.24 of the Criminal Code requires Attorney General consent before proceedings in respect of a terrorism offence may be commenced.

Then, on Aug. 8, Toronto police announced two more arrests arising from a March demonstration at Bathurst Street and Sheppard Avenue West. Police say eight people have now been charged in that investigation. The latest accused, Daniela Bonamico and Shahram Nayeb-Yazdi, each face charges of wilful promotion of hatred and public incitement of hatred. Police allege that participants retrieved antisemitic signs, displayed them in view of pro-Israel demonstrators and marched toward them while shouting derogatory slurs. Again, these are allegations, not findings of guilt.

The distinction between those hate offences is important. Public incitement of hatred under s. 319(1) does not require Attorney General consent. Wilful promotion of hatred under s. 319(2) does. Parliament has imposed a similar consent requirement for advocating genocide under s. 318.

None of these cases can simply be placed beside the others and treated as though they raise the same legal issue. Assault, hate propaganda, political expression and participation in terrorist activity are different offences with different elements, different evidentiary thresholds and different constitutional implications.

But they are all unfolding in the same highly charged political atmosphere, and that is where prosecutorial independence becomes especially important.

For nearly three years, legal decisions touching Israel and Palestine have almost immediately been pulled into competing political narratives. Charges are described as either excessive or inadequate. A decision not to prosecute becomes evidence of institutional bias. A sentence is interpreted as a statement about whose rights, safety or political views matter more. Advocacy organizations press authorities to protect their communities. Politicians respond to public demands. Social media reduces difficult legal and evidentiary questions to accusations of complicity, persecution or double standards.

The criminal justice system was never designed to settle a political conflict of this magnitude.

Having spent much of my career teaching and writing about law, including constitutional rights and national security, I am reminded of the years after Sept. 11. There were real threats and legitimate demands for public protection. There was also enormous pressure on governments to be seen to act decisively. Some extraordinary legal responses were justified. Others taught us how easily exceptional powers can become normalized when fear and political urgency overwhelm institutional restraint.

One lesson from that period has stayed with me: safeguards matter most when there is the greatest temptation to dispense with them.

Prosecutorial independence is one of those safeguards.

In Krieger v. Law Society of Alberta, 2002 SCC 65, the Supreme Court of Canada stated the principle in unusually clear terms. Attorneys general must act independently of partisan concerns when exercising their authority to initiate, continue or terminate prosecutions. So long as such decisions are made honestly and in good faith, they fall within the protected sphere of prosecutorial discretion.

This is the first instalment of a three-part series. 

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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