A BC MLA Wants to Privately Prosecute an Activist for ‘Terrorism.’ Can She?

B.C. MLA Dallas Brodie says she hopes to prevent a terrorist attack by trying to launch a private prosecution, for alleged terrorism offences, against the Vancouver-based head of a pro-Palestine organization.

But a legal expert says while Brodie’s effort to prosecute Charlotte Kates is unlikely to progress through the courts, the case is important for what it shows about political polarization over the Israel-Gaza war, Palestinian nationhood and attempts to criminalize speech.

“It'll just be remembered as — not necessarily a stunt — but somebody who was a little ambitious or misguided as to their understanding of the law,” Robert Diab, a law professor at Thompson Rivers University, told The Tyee.

In B.C., citizens can attempt to privately prosecute individuals or companies. It’s a tactic that’s been frequently used by environmental organizations to charge fish farms or mining companies with breaking environmental laws.

Diab said there are a lot of checks and balances to prevent private prosecutions from being misused. The Crown can intervene to stay the prosecution and will assess whether the prosecution is in the public interest and is likely to succeed.

A Watershed Watch Salmon Society guide, prepared by law students and supervising lawyer Patrick Canning, found federal or provincial attorney generals almost always intervene to stay private prosecutions.

But they found private prosecution attempts have brought public attention to environmental issues or pressured governments to act.

Diab said he’s not aware of any other case in Canada involving a private prosecution attempt for terrorism offences.

In a statement, the BC Prosecution Service told The Tyee that both provincial and federal prosecutors are often involved in terrorism-related offences, and the private prosecution filed by Brodie “raises jurisdictional issues for the BC Prosecution Service and the Public Prosecution Service of Canada to consider.”

B.C.’s Ministry of Attorney General sent The Tyee a statement saying it will be following the process closely. The ministry also said the province has invested in the police and legal system’s response to hate crimes.

In B.C., the attorney general is not involved in the charge assessment process.

Who is Brodie charging with terrorism offences?

Brodie was first elected as a Conservative Party of BC MLA in 2024, but was removed from the party a few months later after she made comments mocking residential school survivors. Brodie has since become the leader of OneBC, a party that has promised to boost birth rates, “end mass immigration” and privatize health care. On Friday, OneBC called for a suspension of all immigration programs, blaming immigrants for high housing costs, unemployment and health-care problems.

Charlotte Kates is the international director of Samidoun, an organization that describes itself as “an international network of organizers and activists working to build solidarity with Palestinian prisoners.” Samidoun helped to support pro-Palestine campus protests in the United States, and Kates has frequently spoken at pro-Palestine rallies in Vancouver.

Kates has been under scrutiny by news media, law enforcement and politicians since April 2024, when she praised Hamas and its deadly Oct. 7, 2023, attack in Israel during a rally in Vancouver. During that appearance, she led a call-and-response speech where other people in attendance called out “Long live Oct. 7.”

After getting a report from the Jewish organization B’nai Brith, police arrested and detained Kates, then released her with conditions that prohibited her from attending protests. (Those conditions are no longer in place.) Police recommended hate speech charges at the time, but no charges were filed by the BC Prosecution Service.

In August 2024, Kates travelled to Iran and spoke about her arrest on Iranian state television.

In October 2024, Public Safety Canada added Samidoun to its list of terrorist entities because of its association with another organization, the Popular Front for the Liberation of Palestine, that was already on Canada’s terrorist entities list.

Vancouver police then conducted an aggressive search of Kates’s home in East Vancouver in connection with a hate crimes investigation.

But other than Brodie’s private prosecution filing — which now appears in the B.C. court database as a restricted access file — Kates has not been charged with any criminal offences in British Columbia. (The Tyee confirmed with the BC Prosecution Service that the charge on file relates solely to Brodie’s private prosecution.)

The Tyee contacted Kates’s lawyer to provide a response to the allegations made by Brodie. The lawyer declined to comment for this article.

How strong is Brodie’s case?

During an Aug. 20 press conference, Brodie told reporters she was tired of waiting for B.C. Attorney General Niki Sharma to charge Kates.

“If David Eby and Niki Sharma will not prosecute terrorism, I will,” Brodie said, as pro-Palestinian activists tried to shout over her.

“I am here today to launch a private prosecution, something any citizen can do. You don't have to be an MLA. You don't have to be a lawyer. This is a citizen's right.”

But Diab said the charging document filed by Brodie is unlikely to provide enough evidence to support the charges.

For instance, Brodie claims that when Kates publicly called for several Palestinian and Lebanese organizations — including Hamas and Hezbollah — to be taken off Canada’s terrorism entities list, she was “glorifying” terrorist entities. “By glorifying and defending these terrorist entities, the accused knowingly facilitated terrorist activities,” contrary to the Criminal Code, Brodie claimed.

But verbally supporting organizations that are on Canada’s terrorist entities list — and even being a member of one — is not illegal in Canada, Diab said.

The Conservative government added a new terrorism offence to the Criminal Code in 2015 that criminalized “the advocacy or promotion of the commission of terrorism offences in general.”

But after hearing concerns the new offence went too far in criminalizing speech, the language was amended several years later to make it an offence to “counsel another person to commit a terrorism offence, without identifying a specific terrorism offence.”

Brodie says several comments made by Kates on social media qualify for prosecution under that section.

One of the comments Brodie identified concerned Kates’s reaction to the murder of two Israeli Embassy staffers in the United States in May. Kates wrote comments on social media calling Israeli Embassy staff “genocidaires and war criminals” and saying that instead of condemning the alleged perpetrator, “all those who want to end genocide... would be well served to think about instead how they can escalate meaningful consequences on the war criminals through organized mass action.”

But the concept of “counselling” has a specific definition in criminal law, and Diab said that Kates’s comments likely wouldn’t meet the bar for a successful prosecution.

Quoting from a case that set a precedent in Canadian law for the definition of what it means to counsel another person to commit a crime, Diab said prosecutors would have to prove that Kates had deliberately encouraged someone to carry out a criminal offence, and also that the “accused either intended the offence be committed, or knowingly counselled the commission of the offence, while aware of an unjustified risk that it was likely to be committed.”

Diab said the statements made by Kates on social media and identified in the charging document are not specific enough to support the charges Brodie is attempting, because they do not advocate a specific criminal offence.*

Kates is just encouraging mass action in a vague or general sense, “and that’s not a criminal offence.”*

Brodie identified another incident when Samidoun allegedly organized a rally in Vancouver where a Canadian flag was burned, participants chanted “Death to Canada” and attendees allegedly handed out brochures that encouraged people to “do damage to the Zionist project” and called on them to “strike at its veins (supply chains, logistics, cash flows, infrastructure).” Brodie alleges one of the pamphlets handed out by unnamed participants at the rally also described how to disable water infrastructure.

Brodie alleges that Kates is responsible for this alleged activity because of her leadership position in Samidoun.

Diab said if Brodie can back up the claims with evidence and show Kates was directly behind the distribution of the pamphlets, this charge would likely be the strongest when it comes to supporting a prosecution for counselling terrorist activities.

The courts and polarization

Diab said Brodie’s private prosecution attempt is worth watching because of its political consequences.

The Israel-Gaza war has become a polarizing issue in Canadian politics. Israel’s offensives have now killed over 62,000 Gazans, while its policy of deliberately withholding food aid from the region has led to starvation conditions. Numerous human rights groups and genocide experts have determined Israel is committing genocide.

Jewish organizations in Canada have raised concerns that protests against the war and in support of Palestinian rights have prompted antisemitic attacks, and have said that some of the slogans and actions of protesters — such as occupying the offices of an Israeli shipping company — are inherently antisemitic.

* Story updated on Sept. 8 at 10:07 a.m. to include details on the challenges facing Brodie’s private prosecution.

* Story updated on Sept. 8 at 6:56 p.m. to clarify comments on the legal issues raised by the private prosecution effort.