Hate crime charge dropped against Calgary man who led, “From the river to the sea, Palestine will be free,” chant

A co-organizer of a Palestinian solidarity march who was charged with a hate crime for leading a chant of, “From the river to the sea, Palestine will be free,” has had his charges stayed.

The Calgary Police and Wesam Cooley’s lawyer confirmed on Nov. 17 that all charges against him have been stayed by prosecutors. Cooley, who was the MC for the speaking portion of the demonstration, was originally charged by Calgary police on Nov. 5 after the march and rally concluded in downtown Calgary. 

Staying charges, as opposed to dropping them, means prosecutors have up to a year to reactivate the charges. 

Cooley’s lawyer, Zachary Al-Katib, said in a statement posted on Twitter: “It’s heartening that the Alberta Crown Prosecution Service (ACPS) has acted swiftly. It shows me that after considering the evidence and public interest a decision that this case has no merit,” wrote Al-Khatib.

“Charges like these need careful consideration. This case is an example of the need for our province to expedite implementing charge approval, where independent crown prosecutors anonymously review files and vet proposed charges. Otherwise, public money is wasted, members of the public are needlessly harmed, and public confidence in the justice system suffers.”

This is the second time in five months that the Calgary Police Service (CPS) has charged a political activist with a hate crime before the charge was quickly withdrawn. Adora Nwofor, the president of Black Lives Matter Calgary, was charged with a hate crime in June after an incident outside of a Calgary high school, which was dropped two weeks later, with the ACPS releasing a statement saying the allegation was not reviewed by a prosecutor before Nwofor was charged

In June, the ACPS said it was working to roll out a pre-charge process across Alberta but that it was not yet set-up in Calgary. The Calgary Police Service later said that charging Nwofor with a hate-crime was a “clerical error.”

“In Ms. Nwofor’s investigation the Calgary Police Service frontline investigator contacted a supervisor and was told not to lay a hate-crime charge against Nwofor. The frontline investigator then laid the hate-crime charge anyway,” said Chad Haggerty, Nwofor’s lawyer. 

“Nwofor and Cooley’s case underscores the need for crown prosecutors to pre-screen charges, especially hate crime charges.” 

The CPS issued a similar statement largely excusing its own behaviour with regards to Cooley’s arrest. 

We recognize that as police, we operate considering reasonable and probable grounds whereas the Crown’s threshold is higher at reasonable likelihood of conviction. We accept this decision and respect the various roles within the justice system as we continue to work collaboratively with the crown to navigate the complexity of the current protest environment,” said the CPS. 

The statement does not include an apology, nor does it offer any further information about how a decision was reached to charge Cooley, although the statement does note its full support for officers who are responsible for maintaining public safety in “very challenging circumstances in these dynamic and evolving events.” 

The CPS statement also notes that “existing legislation related to hate speech is complex and is balanced against the Charter rights to free speech.” 

“We police behaviour, not beliefs, to ensure peoples’ Charter rights are not infringed while maintaining public safety,” the statement added.

Wesam Cooley speaking to the crowd outside city hall at a Palestinian solidarity march held on Nov. 5. Photo by Albert Woo.  

Faisal Bhabha, an associate professor of law at Osgoode Hall Law School at York University in Toronto, said Cooley “should be seriously considering a civil action for malicious prosecution and unlawful detention by the police.”

“It appears there never was a basis for the charge to be laid. Any alleged basis was clearly improper and quite likely discriminatory,” Bhabha said. “The laying of the charge would have had a chilling effect on the free exercise of Charter rights in the city and across the country. Therefore, the police should investigate to determine how such an error was made.”

Bhabha said that Mayor Jyoti Gondek, “who cheered on the charge, must now apologize and expressed unreserved support for Palestinian-Canadians’ freedom of expression.”

The day before Cooley was arrested, Gondek released a statement calling on law enforcement to do more to address what she described, without specifically mentioning pro-Palestine protests, as the “inherently violent nature of the offensive language and symbolism we are hearing and seeing in our city streets.”

“The mayor’s prejudices and preferences should have no bearing on the level of expressive freedom in the city,” Bhabha said.