Judge Finds Crime Motivated by Bias, Prejudice or Hatred Against Jews
- Rochelle Direnfeld and Mark Sandler
- Apr 24
- 4 min read
Mona Ayesh was found guilty by Justice Freeman of the Ontario Court of Justice after a trial on a charge of theft under $5,000. (Thefts are categorized based on whether the value of the item taken is under or over $5,000) Ayesh took an Israeli flag from a vigil at Bathurst and Sheppard in Toronto for the then captive hostages, dragged it through water on her way back to the anti-Israel demonstration, and kicked snow on it, while yelling “Free Palestine.”
The defence requested that the judge grant Ayesh a discharge, a disposition that does not involve a criminal conviction despite a finding of guilt. The judge declined to grant a discharge, finding that the crime was motivated by bias, prejudice or hatred of the Jewish people, an aggravating factor when imposing sentence. She concluded that this was an “aggressive attack on the Jewish community as a community,” and “an attack on Jewish identity, motivated by either bias, prejudice or hatred.” She rejected the argument that this was merely conduct directed against the actions of government.
In rejecting a discharge, the judge stated the following:
“I also consider the impact of your actions on the community at large. Your actions posed a high degree of risk of harm to members of both communities, as well as the public at large. These are rallies. You have people on both sides. There are obviously heightened emotions being turned into actions that risked violence at this rally.
Your lawyer pushes for a discharge. In my view, denunciation and deterrence have to be paramount. In your sentencing, a sentence must be one which expresses a public abhorrence for such conduct. It must bring home to other like-minded people, as well as the public at large, that such acts have no place in a free society. In my view, a discharge cannot achieve this. While it may be in your best interest, it is contrary to the public interest because of those factors.”
The judge suspended the passage of sentence, placing Ayesh on probation for a period of 12 months, imposing the following terms, in addition to existing statutory terms:
Report immediately to a probation officer and thereafter as required
Take counselling as directed by a probation officer and sign releases to enable the officer to monitor Ayesh’s progress
Complete 40 hours of community service
Not to possess any weapons as defined by the Criminal Code.
In relation to the last term, the judge also rejected defence counsel’s argument that Ayesh’s actions were not violent. She regarded the conduct as an act of violence that led to a risk of broader violence involving the people at the scene.
If Ayesh reoffends during the period of probation or violates any of the terms, she can be resentenced on this charge or more typically, face charges of breaching her probation.
This week, ALCCA reported on the inappropriate exercise of prosecutorial discretion in withdrawing or diverting charges in other cases that targeted the Jewish community. Here, the prosecution appropriately sought a conviction. Recently, we have also described several cases where the prosecution sought and obtained jail sentences for hate crimes. In fairness, those cases were significantly more serious than this one, which also involved personal factors that Justice Freeman considered in mitigation. However, her sentencing reasons represent another precedent for emphasizing deterrence and denunciation for these types of crimes, and for recognizing their impact on the Jewish community.
The police have recently laid a public incitement of hatred charge against another protestor at Bathurst and Sheppard for the display of vile antisemitic messaging on a sign. The offence of public incitement of hatred is far more serious than theft under $5,000 and has attracted jail sentences in other cases.
NOTE: It would have been advisable to include, as terms of probation, (a) geographical boundaries preventing Ayesh from attending the Bathurst and Sheppard area; (b) greater specificity about the proposed counselling to ensure it is responsive to the issues raised by this offence.
-30-
About the Authors
Mark Sandler, LL.B., LL.D. (honoris causa), ALCCA’s Chair, is widely recognized as one of Canada’s leading criminal lawyers and pro bono advocates. He has been involved in combatting antisemitism for over 40 years. He has lectured extensively on legal remedies to combat hate and has promoted respectful Muslim-Jewish, Sikh-Jewish and Black-Jewish dialogues. He has appeared before Parliamentary committees and in the Supreme Court of Canada on multiple occasions on issues relating to antisemitism and hate activities. He is a former member of the Ontario Human Rights Tribunal, a three-time elected Bencher of the Law Society of Ontario, and recipient of the criminal profession’s highest honour, the G. Arthur Martin Medal, for his contributions to the administration of criminal justice.
Rochelle Direnfeld is ALCCA’s Senior Criminal Counsel. She was called to the Ontario bar in 1990 and has served in the Ontario Public Service for over 32 years as an assistant crown attorney, deputy crown attorney, crown counsel, and finally as Deputy Director for Toronto Crown Attorneys in the Criminal Law Division of the Ministry of the Attorney General. Rochelle retired from public service at the end of 2023. During her career, she prosecuted a wide variety of Criminal Code cases in the Ontario Court of Justice, Superior Court of Justice, and the Ontario Court of Appeal.
Rochelle is also the Chair of the Canadian Criminal Law Working Group, a national initiative bringing together leading criminal lawyers to strengthen the legal response to antisemitic hate crimes and support victims across Canada.
She has also been selected to join the Toronto Police Service Board’s Jewish Community Advisory Table, an initiative aimed at strengthening dialogue and collaboration between the Jewish community and the Toronto Police Service on issues of community safety and policing.