In the cases of R. v. Lee and Tomey and R. v. Scott and Schussler, four accused pled guilty to the offence of mischief, contrary to section 430(3) of the Criminal Code of Canada.
The accused were not charged with “hate crimes” (motivated by bias, prejudice or hate) nor did the Crown argue that this was a “hate incident”, which would be an aggravating factor in sentencing.
The charges arose from an incident that occurred on November 10, 2023 at the Indigo Book store located at Bloor and Bay Streets in the City of Toronto. Crown counsel described the incident as a “sophisticated, coordinated, planned and deliberate mischief that included multiple participants.” This particular location was chosen because it is owned by a Jewish philanthropist who contributes to and supports Israel. The store was vandalized with red paint (representing blood) splattered on the door and in other locations.
Justice Rondinelli, of the Ontario Court of Justice, imposed the most lenient sentence available in criminal law: an absolute discharge.
The judge was satisfied that, given the “impressive background” of both accused, there was no need for rehabilitation and that the very “engagement with the criminal justice system should act as a pretty good specific deterrent…..in the future”. However, it must be emphasized that, while possibly relevant to the need for additional specific deterrence of the individual, being charged with criminal offence should not, in any way, be considered as a mitigating circumstance when it comes to determining an appropriate sentence.
Anti-Semitic and hate incidents have become common place in Canada. Many of these incidents involve property damage in the form of vandalism by way of graffiti, the use of hateful language and the display of anti-semitic symbols. These incidents have had, and continue to have, a significant negative impact on Canadians and in particular Jewish Canadians, who feel exposed and vulnerable.
In the week of June 23, 2025, Canada’s National Holocaust Memorial was defaced with anti-semitic graffiti. An attack on a national symbol of remembrance, education and the resilience of the Jewish people in the days leading up to Canada Day, is an attack on all Canadians, not only Jewish Canadians.
Such incidents constitute criminal behavior. While much of this conduct does not get reported to the police, increasingly charges do get laid, and perpetrators do get prosecuted and found guilty.
Our criminal justice system must respond to the perpetrators of these offences in a manner that will protect Canadians from hatred and anti-semitism. In sentencing those found guilty, judges need to recognize that the Canadian Jewish community is under attack. Denunciation and general deterrence should constitute a primary principle applied by judges in the exercise of their discretion in sentencing.
Regrettably, this has not always been the case. Post October 7, 2023, judges have been met with arguments that sentences imposed for anti-Israel/anti-semitic vandalism should be tempered by the fact that the individuals involved are often first-time offenders. They are otherwise “good people”, “productive citizens”, who, out of a purported sense of justice, were politically motivated to express alleged humanitarian concerns about the treatment of people in Gaza.
In some cases, to varying degrees, these arguments are being accepted by judges, who have imposed lenient sentences that focus more on the interests of, and impact on, the offender rather than protection of the public. While rehabilitation is an important principle of sentencing, in taking that approach, judges have failed to consider the social reality within which this serious misconduct has occurred and have failed to protect the public in general, and the Jewish community in particular, from future harm through denunciation of this criminal conduct and promoting deterrence by reducing the likelihood of its reoccurrence.
Of course, an individual’s background and position or status in the community is relevant to sentencing. But the fact that an accused previously has otherwise been a good, productive member of society, has to be balanced with the harm caused and the impact of their conduct. These are not “victimless” crimes. The conduct of many so-called “white collar” criminals, for example, is often met with relatively severe sanctions. Many of these individuals have been otherwise good people; prominent in business, respected leaders in their communities, contributing members of society. These are all matters to be considered. But in sentencing such individuals, courts have focused on the impact of, and harm caused by, their criminal conduct and the importance of deterring others from engaging in similar conduct.
The proliferation of conduct reflecting hatred and anti-semitism is a crime wave. The criminal justice system needs to respond accordingly.
Four relatively recent decisions of the Ontario Court of Justice, while reasoned in the sense of understanding the principles of sentencing, regrettably fail in applying those principles.
In R. v. Lee and Tomey, referenced above, Justice Rondinelli did recognize that “even when good people are found guilty of offences, it remains important that the courts denounce the activity sufficiently enough that it will deter others from committing similar crimes….”. The question was, how to appropriately balance these relevant considerations and here, with respect, the Judge failed in his attempt to do so.
These individuals had no criminal record. They pled guilty to the offence which the Judge took to be recognition by the accused of “accountability” for their actions and an “expression of remorse”. Both of the accused made charitable donations in lieu of an amount for restitution, apparently at the Crown’s suggestion.
Ms. Toomey claimed she “acted out of love for humanity and a commitment to justice”. Her counsel urged the court to consider “political expression” as the motivation behind the conduct of a “productive member of society” who does not require rehabilitation. It was submitted that her purpose was not hateful or anti-semitic, but that she was motivated “by love and by witnessing immeasurable amount of human suffering.” There was evidence of the potential impact of a criminal conviction on the individual’s career. A large number of letters were filed describing her as an exceptional, accomplished, generous, productive, committed, honest individual with integrity and the best of intentions. In other words, she was a “good” person that did something “bad” but had the “best of intentions”.
Counsel for Ms. Lee similarly emphasized that her client was a dedicated family person and letters filed on her behalf were said to demonstrate she is a kind, empathic, genuine, compassionate, intelligent and committed person. A criminal conviction could have a significant long-term impact on her employment. She is an active community volunteer. Again, a “good” person who did something “bad”.
In the Judge’s view, with these “impressive” existing backgrounds, the general public interest (as opposed to a particular community) would be best served by an absolute discharge:
“In my view, an absolute discharge for each of you would not be contrary to the public interest, having regard to deter others from engaging in behaviour similar to that you engaged in. A formal conviction is not the only manner in which to achieve deterrence and denunciation. In my view, any reasonable member of the public fully apprised of the circumstances of this offence and your personal circumstances, would come to appreciate that you did not get away easy. You have had criminal charges hanging over your head for over a year, which led to great disruption to your professional and personal lives, not to mention the unfavourable media attention you had to endure, and the execution of search warrants. You have contributed to communities far and wide in the past, and continue to do so today.”
Unfortunately, these decisions do not reflect the reality facing the Canadian Jewish community. The attackers are often educated people who are in a position to influence others. These individuals have a right to express their concerns and disagreement with the conduct and policies of the Israel Defence Force. They do not have a right to do so through criminal conduct, regardless of what their self-perceived motivation and justification might have been.
In imposing an absolute discharge the judge failed to recognize the seriousness of the offence. An absolute discharge in these circumstances is insufficient to denounce conduct of this seriousness in the context of today’s Canadian society where anti-semitism and hateful expressions towards Jews have become common place under the guise of anti-Israel or anti-Zionist political or humanitarian expression.
This decision is a troubling precedent that is clearly insufficient to deter what should be viewed as serious criminal conduct. Destruction or defacement of property owned by a Jewish person or group, whether a business, a home, a school, a synagogue or a community centre, whether because of Jewish support for Israel or anti-semitism or both, cannot be viewed as less serious conduct because the accused believe their criminal conduct is legitimate political discussion.
The accused are educated individuals who have acted as community leaders. Good people can do bad things, but in this case, there are no mitigating circumstances. There does not appear to have been any real or meaningful acknowledgement of the harm caused and the inappropriateness of the actions. There does not appear to have been any apology and expressions of regret to those directly impacted.
There also does not appear to be any evidence that they have ever sought to engage in respectful civil dialogue with members of the Jewish community regarding the serious issues about which they are concerned. Disagreeing with some actions of the Israeli Defence Force justifies neither vandalism nor expressions of anti-semitism and hatred. Good, respected members of society can disagree and express their views without behaving unlawfully.
In the related case of R. v. Schussler and Scott, Justice Rondinelli sentenced two other accused who pled guilty to mischief in relation to the same Indigo event. He noted that these reasons should be read in conjunction with his reasons in Lee and Toomey. While section 718.2 of the Criminal Code requires that a sentence imposed “should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”, this does not “mean that equal or identical sentences are required for similar offenders or similar offences” (R. v. Beauchamp, 2015 ONCA 260).
Once again, Justice Rondinelli declined to impose a suspended sentence as requested by the Crown. Rather, he imposed a conditional discharge concluding that it was…
“not only in the best interests of you both, but also not contrary to the public interest. You both have no criminal records. You both have longstanding support in the community. You both have outstanding commitments to community engagement”.
As before, in the Judge’s view these were good people who did a bad thing. This time a conditional discharge with 12 months probation was imposed on the following terms:
- Keep peace and be of good behaviour;
- Appear before the court when required to do so by the court;
- notify your probation officer in advance of any change of name, address, employment, or occupation.
- Report to probation within 24 hours and thereafter as required;
- Not to have any contact directly or indirectly by any physical or electronic means with “X”;
- Not to be within 100 metres of anywhere “X” lives, works, or is known to be;
- Perform 100 hours of community service work as approved by your probation officer.
You must complete all of your community service hours within the next 10 months. And provide proof of completion of said community service to your probation officer. There will also be a victim-fine surcharge of $100 that you each will have to pay, and I’ll give you six months to pay that.
The justification for a conditional discharge, as opposed to an absolute discharge, was based on the timing of the guilty pleas in the case. Unlike the prior case, the guilty pleas here came after the accused had knowledge of the outcome of the sentencing in the prior proceedings and after the accused had been arraigned and during pre-trial motions.
While there may be circumstances where a conditional discharge could be justified as a sentence for mischief of this nature, the Court again failed to give sufficient consideration to the need to recognize and denounce the seriousness of this vandalizing conduct in the context of rampant anti-semitism and hateful expressions towards Jews in Canadian society. The sentence was insufficient to appropriately denounce the conduct and to deter this type of serious criminal conduct.
There are two additional cases that support concern about how these antisemitic issues are handled. On May 12, 2025 Justice Maylor of the Ontario Court of Justice in R. v. Johnson sentenced an accused[1] after a finding of guilt for willfully interfering with the lawful business operation of a Starbucks coffee shop. She had defaced the windows of the shop by writing “Free Palistine”, “Stop Killing Babies”, “Blood on your Hands” and pasting posters stating, among other things, “Starbucks Kills”, and “Stop Funding Genocide”. The Crown attempted to prove that her criminal conduct was motivated by anti-semitic bias, prejudice or hate, pursuant to subsection 718 (a)(1) of the Criminal Code. In light of conflicting evidence that was led, including letters from the group “Jews Say No to Genocide”, the Judge was not satisfied that the motivation for her conduct, in terms of being anti-semitic, bias, prejudice or hate, had been proven beyond a reasonable doubt, such that she had committed an anti-semitic hate crime. She was sentenced to a conditional discharge and 12 months’ probation, including 70 hours of community service.
[1] R. v. Johnson summarized by Rochelle Direnfeld – “Legal Update – Week of May 12: Courts Deliver Contrasting Decisions in Cases Involving Antisemitic Conduct” www.alcca.w/post/legal-update (May 20, 2025)The case of R. v. Gobin (2025 ONCJ 266) reflected a far more perceptive understanding of the social climate. The accused was charged with assault for an incident that involved spitting on a Jewish couple and making statements about Hitler (such as “Hitler should have killed you all….should have taken you out”). He was convicted of two counts of assault and one unrelated count of breach of probation. He had a criminal record.
In sentencing the offender to 12 months in jail and 2 years’ probation on appropriate terms, Justice Townsend of the Ontario Court of Justice accepted the victims’ impact statements and the community impact statements from three Jewish Organizations. Justice Townsend began his analysis with a quote from the prior Ontario Court of Justice decision of R. v. Doyle (July 26, 2024):
“it is a fact that the Jewish community in Toronto has been dealing with a tremendous increase in hate crimes, antisemitism and under the pressure of feeling that everyone is against them, to put it crudely.”
His Honour’s further analysis and conclusion merits quoting in full:
“To spit on someone, all the while shouting hateful language is even more demeaning. Spitting on a Jewish person, telling them that you wished Hitler had killed them and their entire community, saluting and praising the person responsible for the Holocaust, is a despicable act of assault.
Frequently we hear news stories about members of the Jewish community, and the community as a whole, suffering victimization at the hands of hate-filled offenders. Threats are made to bomb schools, tombstones and places of worship are vandalized, posters and material are strewn about in the street. This has to stop. The hateful targeting of Jewish people, and the targeting of any of the multicultural communities that make up Canada has to stop.
One way to get this to stop is for the court to impose sentences which accurately reflect the principles of general deterrence and denunciation. Members of the public need to know that if you commit a hate motivated offence – whether toward the Jewish community, the Black community, women, or the LGBTQ+ community to name a few – you will be sentenced accordingly. Sentences imposed must reflect the reality that hate motivated offences are on the rise. Communities must not be forced to be revictimized over and over again by the actions of hate-filled offenders. (emphasis added)
In the case before me, a significant jail sentence is the only way for principles of general deterrence and denunciation to be met. A significant jail sentence is proportionate to the seriousness of the offence, the degree of responsibility of the offender, and the significant impact that this offence has had on the individual complaints and the larger Jewish community.
Canadians deserve to feel safe. Safe from violence, safe from harm, and safe from hate. Words can be weapons, and sometimes words like the ones used by Mr. Gobin can inflict serious lasting injuries.”
This clear understanding of the need to denounce this type of conduct and deter similar future conduct, absent in the cases previously discussed, is essential to quell such conduct by a broad cross section of Canadians which has continued unabated.
Offensive conduct can take different forms. Antisemitic expressions and actions in Toronto and Canada have not only continued but have become common place. The Jewish community and its institutions are confronted by sustained displays of hate, protests in the streets (often with the faces covered of protestors), violent threats, actual violence and assaults on individuals and damage to property. Canadian Jews no longer feel safe. There is a significant need for sentences to reflect condemnation and to promote general deterrence.
The ongoing proliferation of such criminal conduct makes it imperative that deterrence and denunciation be reflected in sentencing. Whether an appropriate sentence is a criminal conviction with incarceration and probation, a conviction and a suspended sentence with probation, or a sentence of a conditional discharge with probationary terms will depend on a number of factors that judges should consider in exercising their discretion to impose a fit sentence. However, in the current societal milieu, it is difficult to conceive how a sentence like an absolute discharge that has no significant consequences would be appropriate.
CONCLUSION
Efforts to promote respectful dialogue among Canadian citizens who may disagree about Israeli policies will hopefully help ameliorate the current rise in anti-semitism and hatred. Good, respected members of Canadian society can disagree and express their views without resorting to criminal expressions of anti-semitism and hate. However, when anyone, good person or not, does bad things that cause significant harm, they must be meaningfully penalized in a manner that reflects the reality of the current situation in Canada and denounces that conduct and deters others from engaging in similar conduct.
There is also a need to educate and train law enforcement, Crown attorneys and in particular judges on the nature of modern day anti-semitism. Those who function within our criminal justice system need to understand the current hallmarks and “red flags” of anti-semitism and be able to distinguish hatred from legitimate political debate or expression. The recognition of hatred should attract penalties more commensurate with the criminal conduct in a context where expressions of hatred and anti-semitism have become all too common-place. This is particularly so where there is specific targeting of Jewish individuals, businesses, and institutions.
The unfortunate reality is that many of those promoting hatred and anti-semitism in the current context and circumstances post-October 7, 2023 are purportedly otherwise “good” people – that is part of the problem. An otherwise exemplary background should not be used in an automatic way to excuse or mitigate bad conduct. To do so is to give free reign to those who either seek to promote anti-semitism or whose conduct has that effect. If good people do bad things they should be appropriately punished, their conduct must be denounced, and their sentence should deter others from engaging in similar conduct. The result of a lack of consequences for these anti-semitic expressions and hate related crimes is a normalization of antisemitism and by implication fostering a climate of hate directed at our Jewish communities, businesses and institutions. This is unacceptable.
Jeffrey Leon, Vice Chair, Canadian Jewish Law Association
Publication forthcoming in the Criminal Law Quarterly. Reproduced by permission of Thomson Reuters Canada Limited.