The Canadian arm of an Israeli organization that provides volunteers for the Israel Defense 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.

 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 sanction 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.

Programs offer volunteers “an opportunity to live and work besides 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 mean to include those who are not members of the armed forces. Sar-El volunteers “do not become members of the Israel Defense Forces [and] do not enlist in the Israel Defense 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 encouraging 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 progressive 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.

Also 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 bloodshed, was dumped onto the steps of the building housing Israel’s Toronto consulate. The charge was withdrawn in January.