Ron Csillag The CJN

Charges are withdrawn

A criminal charge against the Canadian arm of an Israel-based organization that provides volunteers for the Israel Defence Forces (IDF) has been withdrawn because there was no reasonable chance for a conviction.

On Dec. 12, the Public Prosecution Service of Canada (PPSC), which assumed carriage of the case, withdrew a charge that Sar-El Canada violated the Foreign Enlistment Act, which prohibits Canadians from enlisting in or accepting any “commission or engagement” in the armed forces of a foreign country. The charge was withdrawn because there was “no reasonable prospect of conviction,” Sar-El Canada’s lawyer, John Rosen, told the CJN. “The case is now completed.”

The charge was approved in September by a justice of the peace in a private prosecution initiated by David Mivasair, a Hamilton, Ont.-based rabbi with a long history of activism targeting Israel, and Rehab Nazzal, a Palestinian-born, Toronto-based artist who was shot in the leg in Bethlehem in 2015 while photographing an IDF crowd control weapon. They alleged that Toronto-based Sar-El Canada broke the law because it recruited or induced individuals to volunteer for Israel’s armed forces. They further alleged that, once in Israel, volunteers reside on military bases, wear military uniforms and complete tasks that would otherwise be assigned to soldiers; those allegedly included packing food rations and medical kits, cleaning tanks, painting helmets, radio repairs and gas mask refurbishment.

In a statement, they said the “recruitment” in Canada of volunteers “to assist the Israeli military ought to be a concern of all Canadians.” They began a private prosecution after they said police and the federal government failed to act on a complaint.

Sar-El Canada sends 100 to150 volunteers a year from this country to Israel, the group’s national president, Jeff Sarfin, told the CJN when the matter began.

In a statement to the CJN, Sarfin said Sar-El Canada is “very pleased” that the charge was withdrawn. He said the “attempt by anti-Israel activists to intimidate us and the Jewish community has failed. We are also grateful to the support we have received from the Jewish community as we deepen and strengthen the connection between our community and Israel.”

Rosen echoed the sentiment. The complaint “was merely another failed attack on Israel and those who support it, this time by attempting to hijack Canada’s legal system,” he said. He said the charge should never have been authorized and agreed with the prosecution that there was never a reasonable prospect of conviction.

“More importantly,” Rosen added, “the prosecution of this baseless complaint would also have been against the public interest, given Canada’s implicit approval of similar activities that directly support Ukraine’s defence against Russia.”

Ukraine has openly called for soldiers from around the world to join the fight against Russia. Ukraine’s consul general in Toronto was recently quoted as saying that “hundreds” of Canadians got in touch to offer assistance.

Sar-El Canada’s parent organization in Israel was established 40 years ago. It operates in more than 30 countries and has to date sent some 160,000 volunteers to Israel to provide “broad logistical support to the IDF,” its website says. Volunteering takes place on IDF bases throughout the country.

Programs offer volunteers “an opportunity to live and work beside Israeli soldiers and gain an insider view of Israel.” Working alongside soldiers and base employees, the “non-combat civilian support duties” encompass packing medical supplies, repairing machinery and equipment, and cleaning, painting and maintaining the base. The Sar-El program “is a morale booster and motivator for the soldiers,” the group’s website states.

In a hearing in September before the justice of the peace who approved the charge against Sar-El Canada, Mivasair testified that, to the best of his understanding, the Foreign Enlistment Act prohibits recruiting people for “non-combatant engagements” with foreign armies.

Asked for a comment and whether an appeal is being considered, Shane Martinez, a lawyer for Mivasair and Nazzal, told the CJN: “We disagree with the decision of the Federal Crown and are exploring all available options.”

Two years ago, a campaign launched by progressive groups and 170 prominent Canadians alleged that illegal recruiting for the IDF of non-Israeli citizens was taking place in this country. Justice Minister David Lametti was asked to investigate. He referred the matter to the RCMP.

– For more national Jewish news, visit thecjn.ca.

Sar-El faces a legal challenge

The Canadian arm of an Israeli organization that provides volunteers for the Israel Defence Forces (IDF) is facing a legal challenge to show that it does not violate Canadian law.

Sar-El Canada is slated to go to court in Toronto on Nov. 23 to argue that it does not violate the Foreign Enlistment Act.

The act states that “any person who, within Canada, recruits or otherwise induces any person or body of persons to enlist or to accept any commission or engagement in the armed forces of any foreign state or other armed forces operating in that state, is guilty of an offence.”

Sar-El Canada sends 100 to 150 volunteers a year from this country to Israel, the group’s national president, Jeff Sarfin, told the CJN. He said the organization had received nothing in writing about the legal challenge, and would issue a statement when it does.

Sarfin said those behind the legal challenge “are well-known anti-Israel activists known to cause trouble” and that “we consider this a non-issue.”

The case is the latest salvo from David Mivasair, a Hamilton, Ont.-based rabbi with a long history of activism targeting Israel, who called Vancouver home for many years.

Mivasair is joined on the private prosecution by Rehab Nazzal, a Palestinian-born, Toronto-based artist who was shot in the leg in Bethlehem in 2015 while photographing an IDF “skunk” truck, a non-lethal weapon used for crowd control.

A statement issued Sept. 28, by lawyer John Philpot, claimed that Sar-El Canada “acted as an intermediary to recruit or induce individuals to volunteer in a non-combatant role with the Israeli military. It is further alleged that, once in Israel, volunteers would reside on military bases, wear military uniforms and complete tasks that would otherwise be assigned to soldiers. These tasks allegedly included (but were not limited to) packing food rations or medical kits, cleaning tanks, painting helmets, radio repairs, and gas mask refurbishment.”

On Sept. 22, a justice of the peace approved a private prosecution against Sar-El, compelling the organization to appear in court in November.

“This will be only a first appearance, and there are a number of preliminary stages that the case will need to pass through before a trial date can be scheduled,” Shane Martinez, one of the lawyers representing Mivasair and Nazzal, told the CJN.

Recruiting in Canada for volunteers to assist the Israeli military “ought to be a concern of all Canadians,” Mivasair stated in a press release. He said the matter was brought to the attention of the federal government and the Toronto Police Service and “they both failed to act. We felt obliged to bring this prosecution as a civic duty to ensure respect for the rule of law.”

None of the allegations have been tested in court.

According to the Ontario courts’ website, a private prosecution is a legal process in which a person who has reasonable grounds to believe that someone has committed a criminal offence seeks to have the person charged and brought to court. The Foreign Enlistment Act is not part of the Criminal Code but criminal proceedings arising from it are “subject to and governed by the Criminal Code.” The act sanctions fines and imprisonment for those found guilty.

Sar-El Canada’s parent organization in Israel was established 40 years ago. Sar-El (a Hebrew acronym for “Service for Israel”) was originally set up to provide volunteer labour to farmers who were called up for military service, so their crops wouldn’t fail.

Sar-El operates in more than 30 countries and has to date sent some 160,000 volunteers to Israel to provide “broad logistical support to the IDF,” its website says. Volunteering takes place on IDF bases throughout Israel.

According to Sar-El, programs offer volunteers an opportunity to live and work beside Israeli soldiers and gain an insider view of Israel. Working alongside soldiers and base employees, the “non-combat civilian support duties” encompass packing medical supplies, repairing machinery and equipment; and cleaning, painting and maintaining the base.

The Sar-El program “is a morale booster and motivator for the soldiers,” the group’s website states.

David Matas, senior legal counsel for B’nai Brith Canada, said there “is no particular reason” the complainants in the Sar-El case should bring the matter forward. Typically, victims begin a private prosecution because they feel they have been ignored or turned away by police or the Crown.

The complainants in this case “do not identify as victims of any particular act of Sar-El volunteers. None of them personally claims to have suffered a loss as a result of what a Sar-El volunteer has done.”

The Foreign Enlistment Act, meantime, does not intend to include those who are not members of the armed forces. Sar-El volunteers “do not become members of the Israel Defence Forces [and] do not enlist in the Israel Defence Forces,” Matas told the CJN. “They are non-member support for the forces.”

Matas said the Crown can intervene in a private prosecution to stay a case, and that it would be “appropriate” for that to happen in this matter.

He pointed out that Ukraine has openly called for soldiers from around the world to join the fight against Russia. Oleskandr Shevchenko, Ukraine’s consul general in Toronto, told the National Post that “hundreds” of Canadians got in touch to offer assistance.

Allowing the Sar-El prosecution to proceed “would create an arbitrary situation where help for Israel is prosecuted and help for other states under armed threat is not,” Matas said.

In a related recent development, Canada’s justice ministry dismissed a petition that had called on the Liberal government to prosecute those who recruit and encourage recruiting for the IDF.

The petition singled out the Israeli consulate in Toronto, which had advertised “on several occasions an IDF representative available for personal appointments for those wishing to join the IDF, not just those who are required to do mandatory service.”

The petition was initiated by Mivasair and presented to the House of Commons in August 2021 by Hamilton NDP MP Matthew Green, but it died on the order paper when Parliament was dissolved for the federal election that followed.

Green reintroduced the petition this past June. On Sept. 22, the justice ministry replied that responsibility for the investigation and prosecution of offences under the Foreign Enlistment Act “rests with independent law enforcement and prosecution services.”

The campaign against the IDF’s recruitment of non-Israeli citizens in Canada began two years ago when several groups and some 170 prominent Canadians asked justice minister David Lametti to investigate the issue.

Israel’s Toronto consulate decried the action as part of a campaign “that attempts to smear the state of Israel and undermine [its] steadfast alliance with Canada.”

Israel’s consulate in Montreal at the time noted that consular services it provides are reserved for Israeli citizens and do not apply to non-Israelis who volunteer for the IDF.

At a news conference in October 2020, Lametti said Israeli diplomats serving in Canada “must follow Canadian law.” He referred the matter to the RCMP, which did not return calls and emails from the CJN seeking an update on the file.

Last year, Mivasair and Palestinian activist Khaled Mouammar asked the Canada Revenue Agency to investigate the Toronto-based Canadian Zionist Cultural Association for allegedly supporting the IDF.

Last May, following Israel’s brief war with Gaza, Mivasair was charged with one count of mischief after red paint, meant to symbolize Palestinian blood shed, was dumped onto the steps of the building housing Israel’s Toronto consulate. The charge was withdrawn in January.

– For more national Jewish news, visit thecjn.ca

Court verdict on Grabowski

Jan Grabowski (photo from facebook.com/TheCJN)

A Polish court’s ruling that a Canadian Holocaust scholar must apologize for tarnishing the memory of a wartime mayor in Poland continues to reverberate around the world.

The case is being condemned by Jewish organizations and historians as an attack on free academic inquiry. Scholars warn the ruling could further chill an already touchy area of research: the role played by Poles in the murder of Jews in Nazi-occupied Poland.

In a long-awaited ruling on Feb. 9, a civil court in Warsaw ordered two prominent Holocaust scholars to apologize to an elderly woman who claimed they had defamed her late uncle over his wartime actions.

Prof. Jan Grabowski, an historian at the University of Ottawa, and Prof. Barbara Engelking, a sociologist and founder of the Polish Centre for Holocaust Research, were accused of defaming Edward Malinowski, the wartime mayor of Malinowo, a village in northeast Poland, by suggesting in a book that he delivered several dozen Jews to Nazi occupiers.

The professors were ordered to apologize for a passage in Night Without End: The Fate of Jews in Selected Counties of Occupied Poland, a two-volume work they co-edited, which the court said “violated Malinowski’s honour” by “providing inaccurate information.”

The court declined a demand for monetary damages of 100,000 Polish zlotys (about $34,000 Cdn) but ordered the scholars to apologize to Malinowski’s niece, 81-year-old Filomena Leszczynska, who brought the case; publish a statement on the website of the Centre for Holocaust Research; and correct the passage in any future edition.

Leszczynska had argued that her uncle had actually aided Jews and was acquitted of collaboration in 1950.

Grabowski, whose father survived the Holocaust, called the outcome “a sad day for the history of the Holocaust in Poland and beyond Poland. I have no idea what will be the consequences as well as the implications of this trial. But I can say for certain this thing will be studied for a long time by historians,” he told the Globe and Mail.

Prior to the verdict, he warned that, if the lawsuit were successful, “then basically it will mean the end to the independent writing of the history of the Holocaust in Poland.”

The professors were sued under a Polish law allowing for civil action against anyone claiming that the Polish nation or state was responsible for Nazi atrocities. The law was amended in 2018 to drop plans to criminalize the offence.

In her ruling, the judge said the decision “must not have a cooling effect on academic research,” but that is how it is being perceived.

As a senior tenured professor, the verdict, Grabowski conceded in a Postmedia interview from Poland, is “unpleasant. But, imagine you are a 25-year-old graduate student of history. Do you think you’re going to embark upon discovery of difficult history? I don’t think so.”

Grabowski and Engelking said they will appeal the ruling.

Mina Cohn, director of the Centre for Holocaust Education and Scholarship at Carleton University in Ottawa, called the campaign against Grabowski and Engelking “ugly.”

“The Polish government’s attempt to discredit them, and to silence and distort the historical facts of the Holocaust in Poland is appalling,” Cohn told The CJN. “It endangers the basic right of the future freedom of historical research of the Holocaust in that country.”

She said that, as daughter and granddaughter of Holocaust survivors with roots in Poland, “I find this blatant attempt by the Polish government to reject the reality of inherent antisemitism within Polish society before and during the Holocaust, and to discredit survivors’ testimonies, very offensive.”

For Prof. Piotr Wrobel, a specialist in Polish history at the University of Toronto’s Munk School of Global Affairs, the case is an example of the current Polish government’s attempt to control the historical record.

“They try to shape the ‘official’ version and persecute people who do not share [it],” he told The CJN. “This is very sad.”

It was “very clearly” the intention of those behind the lawsuit “to freeze scholarly research into the Holocaust. This was supposed to be a warning. Young people should remember this. If your opinions [and] historical interpretations are different than the official ones, then do not touch the Holocaust,” Wrobel said. “There is a choice between comfort and truth.”

In a statement on Feb. 10, the University of Ottawa offered its “unwavering support” to Grabowski and his “widely respected” Holocaust research. The university called the verdict “unjust.”

“Prof. Grabowski’s critical examination of the fate of Polish Jews during World War II shows how knowledge of the past remains vitally relevant today,” said university president Jacques Frémont. “The impact his work has had in Poland, and the censorious reaction it has generated, demonstrates this truth.”

The university “emphatically supports” Grabowski’s “right to pursue historical inquiry unencumbered by state pressure, free from legal sanction and without fear of extrajudicial attack.”

In Israel, the Yad Vashem Holocaust memorial and museum decried the ruling as “an attack on the effort to achieve a full and balanced picture of the history of the Holocaust.”

Even before the verdict, David Silberklang, a senior Holocaust historian in Israel, said the libel case intended for the two scholars to be “sued into submission.”

The decision “damages an open and honest coming to terms with the past,” said Gideon Taylor, president of the Conference on Jewish Material Claims Against Germany, which sponsors historical research on the Holocaust.

Taylor said Poland “must encourage open inquiry into its history, both the positive and the negative aspects.”

Canadian historian Frank Bialystok, who has written extensively about the Holocaust, sees the verdict against Grabowski and Engelking as a flipping of political extremes in Poland.

The murder of Jews in Poland, even after the war, was documented at the time. “This research was acceptable during the communist era as a weapon against nationalism,” said Bialystok. Now, the two professors are being “vilified” by the nationalist camp.

Friends of Simon Wiesenthal Centre said the ruling could have “a devastating impact on Holocaust research and education.” The organization said it is reaching out to senior government leaders, urging them to speak out against “Holocaust distortion in Poland.”

The American Historical Association went so far as to write Polish President Andrzej Duda, saying “a legal procedure is not the place to mediate historical debates” and urged Polish leaders to “uphold the rights of historians to investigate the past without legal harassment and with no fear of reprisals for making public their historical- and evidence-based findings.”

In 2018, Grabowski announced he was suing the government-funded group that backed Leszczynska’s libel case for allegedly libeling him. He claimed that the ultranationalist Polish League Against Defamation had itself defamed him by questioning his findings about the complicity of Poles in the wartime murder of Jews.

This article originally was published on facebook.com/TheCJN. For more on Prof. Jan Grabowski, see jewishindependent.ca/revealing-truth-elicits-threats.