Weaponizing the Courts: A Failed Attempt to Target a Zionist Organization Through Canada’s Justice System
- Rochelle Direnfeld
- Apr 19
- 7 min read
Updated: Apr 20
How the Mivasair case serves as a cautionary tale about politicizing private prosecutions
A recent case before the Ontario Court of Appeal – R. v. David Mivasair and Rehab Nazzal, 2025 ONCA 179 – delivered a clear message: Canada’s justice system is not a tool for pursuing ideological grievances. The court’s decision to dismiss the appeal by two well-known anti-Zionist activists reaffirms the integrity of the Crown’s gatekeeper role in criminal prosecutions and the limits of private prosecutions when misused.
A closer look at what happened – and what the courts ultimately decided – helps explain why this case matters for those concerned about rising antisemitism and efforts to misuse the criminal justice system to target Zionist entities.
The case began when David Mivasair, a Canadian Jew and vocal anti-Zionist affiliated with Independent Jewish Voices (IJV), and Rehab Nazzal, a Palestinian Canadian artistⁱ, launched a private prosecution against Sar-El Canadaⁱⁱ. The charge alleged that Sar-El had violated section 11(1) of the Foreign Enlistment Act by “recruiting Canadians” to serve in the Israel Defense Forces (IDF).
The accusation was serious – but also baseless.
Sar-El Canada coordinates volunteers to assist in civilian support roles in Israel. As the Crown later confirmed, there was no recruitment, no military enlistment, and no violation of Canadian law. Volunteers must expressly acknowledge that they are not joining the IDFⁱⁱⁱ.
Still, at the initial hearing (known as a “pre-enquête hearing”) in September 2022, a justice of the peace issued process, meaning the case could technically proceed. At this stage, the Crown flagged that it would further review the charge.
It is important to understand that Mivasair and IJV do not represent the sentiments of the overwhelming majority of Canadian Jews. According to research, 91% of Jewish Canadians believe that Israel has the right to exist as a Jewish state, while only 3% at most, support anti-Zionist positions like those of IJVⁱᵛ. Unfortunately, organizations like IJV and Neturei Kartaᵛ continue to receive disproportionate attention as if they are mainstream representatives of the Jewish community. This misrepresentation not only distorts public discourse – it emboldens those who seek to delegitimize Zionism entirely.
The Crown Intervenes – and Drops the Case
By December 2022, the Crown had reviewed the evidence and concluded there was no reasonable prospect of conviction. The Crown intervened and formally withdrew the charge, explaining:
“There is no evidence that Sar-El Canada recruits or otherwise induces any person… to enlist or accept any commission in the Armed Forces of Israel.”ᵛⁱⁱ
Unwilling to accept this outcome, Mivasair and Nazzal launched an application for certiorari and mandamus—two legal remedies used to challenge judicial and prosecutorial decisions. They alleged the withdrawal was an abuse of process, influenced by partisan political interests and Canada’s foreign policy support for Israel.
What Is “Abuse of Process” – and Why Didn’t It Work Here?
The Supreme Court of Canada in R. v. Anderson, 2014 SCC 41ᵛⁱⁱⁱ, made it clear that prosecutorial discretion is not immune from review – but only in rare and extreme cases. Courts will intervene only where the Crown’s conduct is so egregious that it compromises the fairness of a trial or the integrity of the justice system.
The application judge found no evidence of bad faith or misconduct by the Crown. Nor did the judge accept the claim that the Crown’s change in position – from allowing process to issue, to later withdrawing the charge – was suspicious. The explanation was simple: different legal standards apply at different stages.
A justice of the peace may issue process if there is some evidence for each element of the offence.
But once process is issued, Crown prosecutors must apply a higher standard: whether there is a reasonable prospect of conviction and whether proceeding is in the public interest.ⁱˣ
Even if the Crown’s analysis changed after a full review of the file, that does not imply impropriety – let alone an abuse of process.
Appeal to the Ontario Court of Appeal: Dismissed
Mivasair and Nazzal appealed, but the Ontario Court of Appeal upheld the lower court’s decision. While the Court clarified that the appellants did have standing to bring their application (a nod to the foundational decision in Dowson v. The Queen, [1983] 2 S.C.R. 144ˣ, affirming the citizen’s right to lay private charges), it emphasized that they failed to meet the Anderson threshold of proving abuse of prosecutorial discretion.
The Court also distinguished this case from truly exceptional circumstances – like R. v. Nixon, 2011 SCC 34 (where the Crown repudiation of a plea bargain raised fairness concerns)ˣⁱ or Delchev v. Canada (Attorney General)ˣⁱⁱ, 2015 ONCA 381 (involving alleged misuse of prosecutorial discretion during extradition). In contrast, the Court found nothing in Mivasair that would meet those high bars.
Speculation Reminiscent of Conspiracy Tropes
Mivasair and Nazzal’s core arguments rested on speculative and unsustainable inferences:
That the Crown’s initial acknowledgment of “some evidence” at the pre-enquête (initial hearing) stage contradicted its later decision to withdraw; and
That Canada’s foreign policy on Israel and Gaza somehow dictated the Crown’s decision.
The Court rejected both. The former misunderstood the purpose of the pre-enquête standard; while the latter, the Court noted, lacked any evidentiary foundation. In our view, the latter argument is all too reminiscent of arguments that demonize all those who recognize Israel’s right to exist or slip into claims of undue Zionist influence in government. We have experienced, all too often, conspiratorial claims about Zionist influence of or control over government institutions, echoing classic antisemitic tropes.
The Crown’s Gatekeeper Role in Private Prosecutions
While this case affirms the legal principles articulated in McHale v. The Queen, [1990] 1 S.C.R. 761, that private prosecutions are a “fundamental and historical” right of citizens, it also affirms the fundamental Crown function to review and, if necessary, terminate prosecutions that do not meet legal or public interest thresholds.
In Ontario, this oversight protects the justice system by:
Preventing the use of criminal proceedings for malicious or unfair purposes;
Preventing proceedings that are not in the interest of the administration of justice;
Preventing potential abuses of the court system; and
Preserving the efficient use of limited court resourcesˣⁱⁱⁱ.
Private prosecutions can be valuable – ALCCA has supported such efforts when public authorities failed to protect communities facing targeted hate. But when used to pursue ideological agendas or smear legitimate organizations, they risk undermining public confidence in the legal system.
Conclusion: Safeguarding the Justice System Against Ideological Abuse
Private prosecutions can be a powerful tool for victims who are unable to seek redress through the police. Indeed, ALCCA has utilized a private prosecution to support a synagogue whose members reasonably feared for their personal safety as a result of targeted activity in close proximity. However, private prosecutions should not be used as a political tool or for a nefarious purpose. The criminal justice system, with its limited court resources, should not be squandered on prosecutions that would bring the administration of justice into disrepute.
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Endnotes
i) As described in a recent CBC article, Behind the lens: An artist under military occupation | CBC Arts “she works with photos, video and sound to explore what she calls ‘the effects of settler-colonial violence on the bodies and minds of colonized peoples, on the land and on other non-human life.'"
iv) Jews and Israel 2024 Survey: Ten Further Insights | Canadian Jewish Studies / Études juives canadiennes by Robert Brym; follow up questions and answers to Dr. Brym’s article, “Jews and Israel 2024: A Survey of Canadian Attitudes and Jewish Perceptions,” published in the spring 2024 volume of Canadian Jewish Studies.
vi) Like every criminal charge, as part of the charge-screening process, the Crown determines whether there is a reasonable prospect of conviction and whether the continuation of the prosecution is in the public interest. Both preconditions must be met for the Crown to proceed with a prosecution.
vii) R. v. David Mivasair and Rehab Nazzal, 2023 ONSC 2506 at para. 10.
viii) R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167 at paras. 49-50
ix) D. 3: Charge Screening | Crown Prosecution Manual | ontario.ca While this prosecution was governed by PPSC Policy, the same considerations apply.
x) R. v. Dowson, [1983] 2 S.C.R. 144.
xi) R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566.
xii) R. v, Delchev, 2015 ONCA 381, 325 C.C.C. (3d) 447.
xiii) Ontario Crown Prosecution Manual Directive on Private Prosecutions.
About the Author
Rochelle Direnfeld 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 a 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, Rochelle 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 focused a large part of her career on youth criminal justice, developing policy as well as training and lecturing crowns, the defence bar, the judiciary, and the police. Since 2019, Rochelle has been committed to battling hate motivated offences and has sat on the Attorney General’s Hate Crime Working Group, providing legal advice to crown counsel and police on hate crimes. In the aftermath of October 7, Rochelle returned to work with the Hate Crime Working Group at Crown Law Office - Criminal until November 2024. Rochelle also serves as vice-chair of the Board of Directors of BOOST Child and Youth Advocacy Centre, a wrap-around agency serving children and youth who have been victims of abuse, as well as their families.
