Zionist Groups Seek to Suppress Pro-Palestinian Transit Ads in Vancouver

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Zionist Groups Seek to Suppress Pro-Palestinian Transit Ads in Vancouver
 [Notice how any criticism of Israel is seen as an incitement to hate. By that reasoning, any Indian demands for land claims settlements implies criticism of Whites and might lead to hatred, In like a dirty shirt, threatening a lawsuit and lobbying hard to suppress criticism of Israel, as usual are organized Jewish groups, among the most persistent censorship and thought control groups in Canada: “Jewish groups in Vancouver say they are considering suing TransLink for accepting controversial political advertisements showing the “disappearance of Palestine due to Israeli occupation over the past 66 years. … Jewish leaders including Mitchell Gropper, chair of the Jewish Federation of Greater Vancouver, called the ads a provocative attack on Jewish people that will incite hatred. “This is a grave concern to our community at large, because the ads make use of the buses unwelcome and unsafe,” Gropper said, noting that terrorist attacks in Israel often target buses.
‘I don’t think I’ve ever seen ads on our TransLink system that attack a section of our society. If the transit system will be used to attack Israel and the Jewish people, who is next?’
Gropper, a Vancouver lawyer, said his group went to the “highest levels” of TransLink and argued the Palestine ads should be rejected, but they were told TransLink must accept the ads for legal reasons. … In 2006 TransLink lost a decision to the B.C. Court of Appeal, after trying to refuse political advertisements from the B.C. Teachers Federation of Students. TransLink’s policy of rejecting partisan ads and campaigns likely to cause offence or controversy was overturned.

In the decision, Madam Justice Prowse wrote that B.C. Transit and TransLink ‘sought to prohibit political advertising precisely because it was political. Their aim was to prevent the appellants from exercising their right to freedom of political expression, although they were content to entertain commercial expression.’
The ad campaign cost $15,000 and will remain in place for four months. The wall mural, which debuted at Vancouver City Centre station on Tuesday, drew curious looks from transit users, with many pulling out smartphones to snap a photo.” (Vancouver Province, August 28, 2013 )
Ironically, the man organizing the ad is Jewish. In the utterly ethnocentric view of the Jewish lobby groups, any criticism of Israel is an attack on Jews. Canadians must find their voice and insist we have the right to criticize ANY nation — Israel, Red China, North Korea, Iran, the USA, ANYONE.
Paul Fromm
Director
CANADIAN ASSOCIATION FOR FREE EXPRESSION]
[Editor’s Note: This is one front page story that caught me off guard. I never expected the Zionist media to give it such coverage but for some as yet unknown reason they’ve decided to do just that. It’s one helluva bonus for the Palestinians and for all their supporters worldwide who’ve been doing their utmost to draw the world’s attention to their plight over the past 66 years. Please pass this story to all you can.]
‘Grave concern’ over transit ads
JEWISH GROUPS: Palestine poster campaign described as an attack on Israel, Jews
by 
SAM COOPER – THE PROVINCE
Jewish groups in Vancouver say they are considering suing TransLink for accepting controversial political advertisements showing the “disappearance of Palestine due to Israeli occupation over the past 66 years.”
On Tuesday, a group called the Palestine Awareness Coalition announced the launch of 15 bus posters and a large mural in a central Vancouver SkyTrain station, that depict the territory of Palestine steadily shrinking into the state of Israel in a succession of dated maps.
Marty Roth – a 79-year-old member of the coalition group behind the ad – said they have already won a victory over groups that tried to “suppress” the ads.
“This will be controversial with a number of traditional Jewish organizations that have tried to suppress the ads,” Roth claimed. “But TransLink has refused to agree with them, because these are educational ads that are well within national advertising guidelines and the Canadian Charter (of Rights and Freedoms).”
Roth said, as a Canadian Jewish man, he believes Israel is unjustly oppressing the people of Palestine and his group wants to educate the Canadian public about the conflict.
But Jewish leaders including Mitchell Gropper, chair of the Jewish Federation of Greater Vancouver, called the ads a provocative attack on Jewish people that will incite hatred. “This is a grave concern to our community at large, because the ads make use of the buses unwelcome and unsafe,” Gropper said, noting that terrorist attacks in Israel often target buses.
“I don’t think I’ve ever seen ads on our TransLink system that attack a section of our society. If the transit system will be used to attack Israel and the Jewish people, who is next?”
Gropper, a Vancouver lawyer, said his group went to the “highest levels” of TransLink and argued the Palestine ads should be rejected, but they were told TransLink must accept the ads for legal reasons.
The Province sought interviews with TransLink officials but were referred to a prepared statement, which says TransLink sought a “third-party legal opinion” with said the Supreme Court of Canada decided TransLink must run ads such as “Disappearing Palestine” under the Canadian Charter.
Gropper said his group has retained a lawyer with a different opinion, and that suing TransLink is one strategy that is being considered in a response to the ads.
“TransLink has said the law requires them to publish these ads but that is certainly not the case,” Gropper said.
The Friends of Simon Wiesenthal Center in Toronto issued a statement saying the group is “disturbed to learn about TransLink’s agreement to run historically distorted anti-Israel advertisements.”
“While Israel and the Palestinian Authority are currently engaged in peace negotiations to resolve their differences and reach a two-state solution, TransLink will be running ads that are provocative and incite hatred and contempt,” said group president Avi Benlolo.
In 2006 TransLink lost a decision to the B.C. Court of Appeal, after trying to refuse political advertisements from the B.C. Teachers Federation of Students. TransLink’s policy of rejecting partisan ads and campaigns likely to cause offence or controversy was overturned.
In the decision, Madam Justice Prowse wrote that B.C. Transit and TransLink “sought to prohibit political advertising precisely because it was political. Their aim was to prevent the appellants from exercising their right to freedom of political expression, although they were content to entertain commercial expression.”
The ad campaign cost $15,000 and will remain in place for four months. The wall mural, which debuted at Vancouver City Centre station on Tuesday, drew curious looks from transit users, with many pulling out smartphones to snap a photo.
One woman, who declined to give her name, stopped to examine the ad. She said, while she wasn’t well-versed in the issue, she believes the ad should fall under the category of free speech.
Mohammed Hamid, 45, was one of the many transit users who stopped to snap a photo on his phone. Hamid is from the Middle East and is familiar with the various aspects of the issue being brought up by the ad.
He doesn’t believe the ad was malicious in anyway, but instead, was glad to see it drawing attention

PROTEST — WN Fired After SPLC Smear

 PROTEST — WN Fired After  SPLC Smear 

 
After the following story came out my friend Craig  Cobb was fired from his job. His employer even admitted that it was not for his behavior at work but his off work racial activism. Neo-Nazi Seeks To Turn Depressed North Dakota Town Into His Very Own Commune Of Racism And Hate Leith residents want white supremacist out; he says he is staying Please contact his former employer at the phone number and address below and ask him to give Craig his job back because Craig has every right to do racial activism outside of work. Thanks, April Gaede

 

Photo: PROTEST -- WN Fired After SPLC Smear 

After the following story came out my friend Craig Cobb was fired from his job. His employer even admitted that it was not for his behavior at work but his off work racial activism.

Neo-Nazi Seeks To Turn Depressed North Dakota Town Into His Very Own Commune Of Racism And Hate

Leith residents want white supremacist out; he says he is staying

Please contact his former employer at the phone number and address below and ask him to give Craig his job back because Craig has every right to do racial activism outside of work.

Thanks,
April Gaede

Message from Craig Cobb

Here is a test for nationwide White Nationalists. This is the owner of Border States Paving, Dan Thompson, who fired me. I'd appreciate it if you'd call and email him that I should be re-hired, because I am a Creator and was merely practicing the precepts of my religion as laid out by Ben Klassen, and doing it while off the job. There are dozens of positive and comparative mentions about NS, the Third Reich and Hitler in our holiest books. I am a Creator, not a "Neo-Nazi". The lying SPLC knows this fact.

His number is PHONE (701) 237-4860 OR (800) 245-5965 Free . I am sure his voice mail box will fill up rapidly, so here are the emails.
 Fax (701) 237-0233
Border States Paving, Inc. :: Official Site
 4101 32nd St N Fargo, ND 58102

 If he thinks WN's are nobodies, I will make direct appeals to all oil workers and truck drivers in the Bakken oil counties of Western ND and to the county purchasing agents who hand Mr. Thompson tens of millions of dollar contracts every year--that he is anti-worker rights. If enough oil workers and truck drivers call and email county purchasing agents and authorities and tell them that Border States Paving should not be receiving any road building contracts for 2014, this will have very real impact. 

 I ask all WN to call or email or petition and to get their friends. i ask Jeff Schoep and NSM88, Terrible Tommy Metzger and all his thousands of lone Wolves, April Gaede and her friends and fans, Vanguard News Network Forum and all Alex Linders friends and supporters, David Duke's supporters, Stormfront. Stormfront - White Nationalist Community , Golden Dawn, Jamie Kelso and his massive White News Now White News Now - The Front Page out of Fargo, the very same city where multimillionaire Dan Thompson's "Border States Paving" is based. I ask the help of the general public too, if you are or are not WN. Thank You.

Coming together is a beginning; keeping together is progress; working together is success. 
 Henry Ford

Paul Fromm interviewing Craig Cobb (l), Kalispell, MT, January, 2011

 

 

Message from Craig Cobb Here is a test for nationwide White Nationalists. This is the owner of  Border States Paving, Dan Thompson, who fired me. I’d appreciate it if  you’d call and email him that I should be re-hired, because I am a  Creator and was merely practicing the precepts of my religion .  I am a Creator, not a “Neo-Nazi”. The lying SPLC knows  this fact.
His number is PHONE (701) 237-4860 OR (800) 245-5965 Free . I am sure  his voice mail box will fill up rapidly, so here are the emails. Fax (701) 237-0233 Border States Paving, Inc. :: Official Site 4101 32nd St N Fargo, ND 58102
If he thinks WN’s are nobodies, I will make direct appeals to all oil  workers and truck drivers in the Bakken oil counties of Western ND and  to the county purchasing agents who hand Mr. Thompson tens of millions  of dollar contracts every year–that he is anti-worker rights. If enough oil workers and truck drivers call and email county purchasing agents  and authorities and tell them that Border States Paving should not be  receiving any road building contracts for 2014, this will have very real impact.


I ask all WN to call or email or petition and to get their friends.
. I ask the help of the general public  too, if you are or are not WN. Thank You.
Coming together is a beginning; keeping together is progress; working together is success. Henry Ford

Ex-Klansman Threatens to Drive WN Pastor Out of Town

Ex-Klansman Threatens to Drive WN Pastor Out of Town
BATAVIA, AR. August 25, 2013. It was a surrealistic evening and conclusion to a four-night revival featuring a self-promoting ex-Ku Klux Klansman, who said he’d come to preach love and brotherhood but ended up urging his Pentecostal crowd of emotional elderly ladies to run the affable Pastor Tom Robb out of the nearby town of Harrison. The advertisements said “love”, but Johnny Lee Clary’s preaching was heavy with hate.
Johnny Lee Clary, with a soup bowl haircut and what looked like a 1970s leisure suit, entitled his talk to about 60 people, including six undercover policemen there to keep an eye on eight friends of the target of the night Harrison resident Pastor Tom Robb, announced his topic: One Man’s Love; One Man’s Hate.

Photo: Ex-Klansman Threatens to Drive WN Pastor Out of Town

BATAVIA, AR. August 25, 2013. It was a surrealistic evening and conclusion to a four-night revival featuring a self-promoting ex-Ku Klux Klansman, who said he'd come to preach love and brotherhood but ended up urging his Pentecostal crowd of emotional elderly ladies to run the affable Pastor Tom Robb out of the nearby town of Harrison. The advertisements said "love", but Johnny Lee Clary's preaching was heavy with hate.

Johnny Lee Clary, with a soup bowl haircut and what looked like a 1970s leisure suit, entitled his talk to about 60 people, including six undercover policemen there to keep an eye on eight friends of the target of the night Harrison resident Pastor Tom Robb, announced his topic: One Man's Love; One Man's Hate.

Clary, who is an associate of televangelist Jimmy Swaggart, told his audience at the Batavia Assembly of God that he had grown up as a racist and "hater" in California. His evidence was underwhelming. His father had called Negroes "niggers" and had warned him to lock up his bicycle when Negroes began moving in two blocks away. Later in his talk, he complained that about that time people in his area began to have to lock their doors.

Later, after his father's suicide, he was sent to other relatives inCalifornia. Lonely, he was befriended by his new family the Ku Klux Klan. He made such an impression that he was sent to Oklahoma.ll the while he was pursuing a career as a professional wrestler.  He claimed he'd been the Kleagle or public relations officer, although the rank of Kleagle means legal advisor. Then, he alleged, he was elevated to Grand Dragon. His Klan life seemed to consist of yelling "nigger" at Negroes, leafleting, and doing numerous press interviews.

He'd made a special target of Rev. Wade Watts, a friendly Negro civil rights leader and preacher, who had bested him in a two hour media debate. He made threatening calls to Watts, lit a cross across the street from his house, broke a front window and left garbage on his lawn,initiated a failed attempt to burn his church down and, then, turned up with a carload of Klansmen to intimidate Watts and his family. According to him, when Watts pointed a shotgun at them, the Klansmen left streaks of rubber as they tore off down the street.

His life was "one man's hate."| He left the Klan in 1989, apparently, disillusioned by the growing strength of skinheads, disputes about stolen mailing lists, the discovery that his girlfriend was an FBI informant, accusations that he too was a police informant, and a "tip" that the FBI was going to plant drugs in his car and send him to jail for a long time.

His life fell apart.  He embraced Jesus. He began to do well as a car salesman and then felt the calling to take his anti-racist show on the road.

He called up Rev.Wade Watts, the old victim of his bullying. Watts had always been friendly and forgiving and a man who refused to "hate". He gave Clary is first preaching gig at his all Negro Church. It was a media sensation. Watts and Clary then spent seven years travelling round America as a tag-team anti-hate preaching act. When Watts lay dying, Wade visited his "best friend" and kissed him.

Many women in the Batavia church congregation were weeping and swaying entirely beguiled by Clary's message of love.

However, for all the talk of love and forgiveness, Clary made repeated denunciations of long-time Harrison resident Pastor Tom Robb. Clary claimed that, in McAllister, OK, there were 30 Klansmen in a town of 30,000, but they were united did what they wanted. "I talk to the FBI," Clary confided, "for all the publicity Robb gets, he doesn't have more than 100 people at his meetings" , which, if true, would be twice the turnout at Clary's much advertised appearance. "The whole town, if they wanted, could make him go." It seems that Clary wants to do the Pastor Robb what he once tried to do to Wade Watts. Old habits seem to died hard.

Clary who has never met Pastor Robb, who heads up the Knights Party, assured the congregation that Pastor Robb's non-year old son or grandson -- if wasn't quite clear -- had been dressed up in a Nazi uniform.  This is a complete lie, says Pastor Robb. So, said Clary, "these children should be taken from their parents for 'child abuse.' If you teach your children hate, it will kill them." This was a somewhat illogical prediction as Clary claimed to have been taught "hate" but still seemed very much alive working the congregation. He also asserted that a couple who had named their children Adolf Hitler and Eva and who had had their children taken away were followers of Pastor Robb. This was another invention.

After the meeting, Billy Roper, an associate of Pastor Rob's who had come to observe the meeting, was accosted by a corporal with the Boone County Criminal Investigation Branch and accused "of standing in an intimidating manner" looking at Clary's display of cds and "having an unpleasant look on his face." Having done his intimidation act, the corporal admitted that Roper was not under arrest.

Clary, who is an associate of televangelist Jimmy Swaggart, told his audience at the Batavia Assembly of God that he had grown up as a racist and “hater” in California. His evidence was underwhelming. His father had called Negroes “niggers” and had warned him to lock up his bicycle when Negroes began moving in two blocks away. Later in his talk, he complained that about that time people in his area began to have to lock their doors.
Later, after his father’s suicide, he was sent to other relatives inCalifornia. Lonely, he was befriended by his new family the Ku Klux Klan. He made such an impression that he was sent to Oklahoma.ll the while he was pursuing a career as a professional wrestler.  He claimed he’d been the Kleagle or public relations officer, although the rank of Kleagle means legal advisor. Then, he alleged, he was elevated to Grand Dragon. His Klan life seemed to consist of yelling “nigger” at Negroes, leafleting, and doing numerous press interviews.
He’d made a special target of Rev. Wade Watts, a friendly Negro civil rights leader and preacher, who had bested him in a two hour media debate. He made threatening calls to Watts, lit a cross across the street from his house, broke a front window and left garbage on his lawn,initiated a failed attempt to burn his church down and, then, turned up with a carload of Klansmen to intimidate Watts and his family. According to him, when Watts pointed a shotgun at them, the Klansmen left streaks of rubber as they tore off down the street.
His life was “one man’s hate.”| He left the Klan in 1989, apparently, disillusioned by the growing strength of skinheads, disputes about stolen mailing lists, the discovery that his girlfriend was an FBI informant, accusations that he too was a police informant, and a “tip” that the FBI was going to plant drugs in his car and send him to jail for a long time.
His life fell apart.  He embraced Jesus. He began to do well as a car salesman and then felt the calling to take his anti-racist show on the road.
He called up Rev.Wade Watts, the old victim of his bullying. Watts had always been friendly and forgiving and a man who refused to “hate”. He gave Clary is first preaching gig at his all Negro Church. It was a media sensation. Watts and Clary then spent seven years travelling round America as a tag-team anti-hate preaching act. When Watts lay dying, Wade visited his “best friend” and kissed him.
Many women in the Batavia church congregation were weeping and swaying entirely beguiled by Clary’s message of love.
However, for all the talk of love and forgiveness, Clary made repeated denunciations of long-time Harrison resident Pastor Tom Robb. Clary claimed that, in McAllister, OK, there were 30 Klansmen in a town of 30,000, but they were united did what they wanted. “I talk to the FBI,” Clary confided, “for all the publicity Robb gets, he doesn’t have more than 100 people at his meetings” , which, if true, would be twice the turnout at Clary’s much advertised appearance. “The whole town, if they wanted, could make him go.” It seems that Clary wants to do the Pastor Robb what he once tried to do to Wade Watts. Old habits seem to died hard.
Clary who has never met Pastor Robb, who heads up the Knights Party, assured the congregation that Pastor Robb’s non-year old son or grandson — if wasn’t quite clear — had been dressed up in a Nazi uniform.  This is a complete lie, says Pastor Robb. So, said Clary, “these children should be taken from their parents for ‘child abuse.’ If you teach your children hate, it will kill them.” This was a somewhat illogical prediction as Clary claimed to have been taught “hate” but still seemed very much alive working the congregation. He also asserted that a couple who had named their children Adolf Hitler and Eva and who had had their children taken away were followers of Pastor Robb. This was another invention.
After the meeting, Billy Roper, an associate of Pastor Robb’s who had come to observe the meeting, was accosted by a corporal with the Boone County Criminal Investigation Branch and accused “of standing in an intimidating manner” looking at Clary’s display of cds and “having an unpleasant look on his face.” Having done his intimidation act, the corporal admitted that Roper was not under arrest.

STANDING UP FOR FREE SPEECH IN THE CRAIG COBB CASE

STANDING UP FOR FREE SPEECH IN THE CRAIG COBB CASE
CANADIAN ASSOCIATION FOR FREE EXPRESSION

P.O. Box 332,

Rexdale, ON.,

M9W 5L3
CANADA
Paul Fromm, B.A., B.Ed., M.A. Director
August 27, 2013
Dan Thompson,
Border States Paving,
4101 32nd St N.,
 Fargo, ND 58102
Re: The Firing of Craig Cobb
Dear Mr. Thompson:
I am the director of the Canadian Association for Free Expression, Canada’s foremost free speech advocacy group. Your former employee Craig Cobb, a dual U.S. – Canadian citizen, was charged under Canada’s thought control laws, the so-called “hate law.” He was targeted for You Tube postings of his rightwing political and religious views.

Although Canada has an undeserved reputation for “human rights”, it throws dissidents in rison for the non-violent expression of their political views. You might wish to Google the names of such political prisoners as Brad Love, Terry Tremaine and Arthur Topham In some cases of political dissent the Supreme Court of Canada has ruled neither truth nor intent are defences.

 

In late 2010, Mr. Cobb wisely returned to the U.S. He is a hard worker.

 I am writing to protest your decision to fire Craig Cobb from your company. Apparently, he was told it was not because of job performance. He was recently the subject of some overblown press reports. Your firing of Mr. Cobb violates his First Amendment rights to hold and express his political or religious views on his own time.
Your action is unfair and would seem to impose political correctness on your employees. I urge you, in the name of fairness, to re-instate him.
Sincerely yours,
Paul Fromm

 

                                 PROTEST — WN Fired After  SPLC Smear
After the following story came out my friend Craig  Cobb was fired from his job. His employer even admitted that it was not for his behavior at work but his off work racial activism. Neo-Nazi Seeks To Turn Depressed North Dakota Town Into His Very Own Commune Of Racism And Hate Leith residents want white supremacist out; he says he is staying Please contact his former employer at the phone number and address below and ask him to give Craig his job back because Craig has every right to do racial activism outside of work. Thanks, April Gaede
 

Photo: PROTEST -- WN Fired After SPLC Smear 

After the following story came out my friend Craig Cobb was fired from his job. His employer even admitted that it was not for his behavior at work but his off work racial activism.

Neo-Nazi Seeks To Turn Depressed North Dakota Town Into His Very Own Commune Of Racism And Hate

Leith residents want white supremacist out; he says he is staying

Please contact his former employer at the phone number and address below and ask him to give Craig his job back because Craig has every right to do racial activism outside of work.

Thanks,
April Gaede

Message from Craig Cobb

Here is a test for nationwide White Nationalists. This is the owner of Border States Paving, Dan Thompson, who fired me. I'd appreciate it if you'd call and email him that I should be re-hired, because I am a Creator and was merely practicing the precepts of my religion as laid out by Ben Klassen, and doing it while off the job. There are dozens of positive and comparative mentions about NS, the Third Reich and Hitler in our holiest books. I am a Creator, not a "Neo-Nazi". The lying SPLC knows this fact.

His number is PHONE (701) 237-4860 OR (800) 245-5965 Free . I am sure his voice mail box will fill up rapidly, so here are the emails.
 Fax (701) 237-0233
Border States Paving, Inc. :: Official Site
 4101 32nd St N Fargo, ND 58102

 If he thinks WN's are nobodies, I will make direct appeals to all oil workers and truck drivers in the Bakken oil counties of Western ND and to the county purchasing agents who hand Mr. Thompson tens of millions of dollar contracts every year--that he is anti-worker rights. If enough oil workers and truck drivers call and email county purchasing agents and authorities and tell them that Border States Paving should not be receiving any road building contracts for 2014, this will have very real impact. 

 I ask all WN to call or email or petition and to get their friends. i ask Jeff Schoep and NSM88, Terrible Tommy Metzger and all his thousands of lone Wolves, April Gaede and her friends and fans, Vanguard News Network Forum and all Alex Linders friends and supporters, David Duke's supporters, Stormfront. Stormfront - White Nationalist Community , Golden Dawn, Jamie Kelso and his massive White News Now White News Now - The Front Page out of Fargo, the very same city where multimillionaire Dan Thompson's "Border States Paving" is based. I ask the help of the general public too, if you are or are not WN. Thank You.

Coming together is a beginning; keeping together is progress; working together is success. 
 Henry Ford

Paul Fromm interviewing Craig Cobb (l), Kalispell, MT, January, 2011

 

 

Message from Craig Cobb Here is a test for nationwide White Nationalists. This is the owner of  Border States Paving, Dan Thompson, who fired me. I’d appreciate it if  you’d call and email him that I should be re-hired, because I am a  Creator and was merely practicing the precepts of my religion as laid  out by Ben Klassen, and doing it while off the job. There are dozens of  positive and comparative mentions about NS, the Third Reich and Hitler  in our holiest books.  I am a Creator, not a “Neo-Nazi”. The lying SPLC knows  this fact.
His number is PHONE (701) 237-4860 OR (800) 245-5965 Free . I am sure  his voice mail box will fill up rapidly, so here are the emails. Fax (701) 237-0233 Border States Paving, Inc. :: Official Site 4101 32nd St N Fargo, ND 58102
If he thinks WN’s are nobodies, I will make direct appeals to all oil  workers and truck drivers in the Bakken oil counties of Western ND and  to the county purchasing agents who hand Mr. Thompson tens of millions  of dollar contracts every year–that he is anti-worker rights. If enough oil workers and truck drivers call and email county purchasing agents  and authorities and tell them that Border States Paving should not be  receiving any road building contracts for 2014, this will have very real impact.
I ask all WN to call or email or petition and to get their friends. 
I ask the help of the general public  too, if you are or are not WN. Thank You.
Coming together is a beginning; keeping together is progress; working together is success. Henry Ford

More “Human Rights” Tyranny: Quebec Man Fined $8,000 for Writing Nasty Private Letter About Panhandler

More “Human Rights” Tyranny: Quebec Man Fined $8,000 for Writing Nasty Private Letter About Panhandler

Here’s another outrage and yet another argument why meddling human rights commissions should be abolished, not just reformed, but abolished (as Tim Hudak suggested when he was running for Tory leadership in 2009,and, then, promptly reneged.) Invented in the civil rights silliness of the 1960s, human “rights” commissions were always about minority privileges, were poison to property rights and free speech, and have essentially become ideological weapons to be used against White Christians. As well, once wild-eyed young radicals have grown paunchy and gray in their sinecures. Human rights commissions are self-perpetuating bureaucracies seeking ever more esoteric grounds for their meddling.
Here’s the Quebec Human Rights (well certainly not the rights of free speech or opinion) Commission fining an outspoken customer $8,000 for writing a private letter to the Quebec Liquor Board, the Societe des alcools du Quebec denouncing a fat beggar who was accosting customers. The National Post (August 13, 2013) reports:  “The Quebec Human Rights Commission has ordered a Montreal man to pay $8,000 in moral and punitive damages to a woman who was begging outside a Montreal liquor store, after he wrote an email to the liquor board suggesting four ways to kill the woman.  In his defence, Robert Delisle argued that it was the liquor board that eventually printed the email and showed it to the woman, and he had never intended for her to read it.

The case dates back to 2010, when Mr. Delisle, a regular customer at a Société des alcools du Québec store in northwest Montreal, spotted Francine Beaumont panhandling outside the store. He wrote, in the human rights commission’s words, a “diatribe” about her, which he sent to the SAQ.

‘The last SAQ in the city where I could shop without being bothered by a drunken beggar has just capitulated,\ Mr. Delisle wrote. ;The SAQ on Henri-Bourassa Boulevard just inherited a drunkard who begs when customers enter or leave. She looks like Mme. Loulou in ‘And God Created Laflaque’ [a satirical show on Quebec television]: a 200-pound welfare bum enriched with trans fat. No apparent intellectual quotient.’

Ms. Beaumont, 63, suffers from a degenerative bone disease and lives on welfare, the ruling notes. She says she has to beg to survive, adding that she was able to earn about $15 to $30 a day begging from 3 p.m. to 7 p.m. ‘She said she was always very polite and never bothered anybody,’ the tribunal judge wrote.

‘She could not believe that a human being could say things like this. She cried, and is still crying’

… In his letter, reproduced in the tribunal’s decision, he invents four macabre “solutions” to rid his city of these beggars.

‘Solution No. 1: We could burn all this with napalm or flame-throwers (Americans used that technique for much better people than this.)’

‘Solution No. 2: Pick up these walking microbes in a garbage dumpster and burn them in the Carrières incinerator.’

‘Solution No. 3 (Chinese solution): a bullet in the back of the head, and send the bill to the welfare-collecting family of the dead.’

‘Solution No. 4: Drop all these people and their dogs over James Bay. Their chance of re-offending is quite slim.’

When an employee in the liquor store’s complaints department received Mr. Delisle’s complaint about Ms. Beaumont, he was ‘disgusted, worried, and afraid’ for the wellbeing of the panhandler, according to the human rights commission’s decision. He took the letter to police. But police told the liquor board that they could not receive a complaint from a third party. The SAQ then decided to give a printout of the email to Ms. Beaumont.

Ms. Beaumont was profoundly hurt by the letter,’ according to the tribunal’s judgement. “She could not believe that a human being could say things like this. She cried, and is still crying. She has suffered depression and chest pain. She had to take anti-depressants. For six months she stopped begging outside liquor stores. She stayed home with her curtains closed.’

Mr. Delisle told the tribunal that he never intended that the tribunal send the letter to Ms. Beaumont, saying the SAQ violated his privacy rights by giving her a copy of the letter. He added that, ‘ever since I found out that I could be ordered to pay $100,000 in fines, my life is over,’ the decision notes. ‘He spends his time worrying about this case because he is a young retired person who earns only $32,000 in a year in a non-indexed pension.’

… This threat of harm trumped any privacy rights of the shopper, the tribunal ruled.

‘Speaking about somebody in the words Mr. Delisle used is very degrading,’ the judgment reads. ‘The tribunal nonetheless takes into account that Mr. Delisle’s email was not directly addressed to the victim.’”

The whole story is kaftaesque. It’s not clear what “discriminatory” ground the QHRC was even ruling on. Mr. Delisle written blast did not take exception to the panhandler’s sex or race or religion or sexual orientation and he would have had no way knowing of her alleged medical ailments.

The story is riddled with maudlin nonsense. According to the Tribunal finding, the hefty beggar Ms Beaumont had “to beg to survive.” Yet,  when the meddling Quebec Liquor Board sent Mr. Delisle’s private letter about her to her, “she had to take anti-depressants. For six months she stopped begging outside liquor stores. She stayed home with her curtains closed.” Okay, but, in other words,she survived and, thus, did not have to beg to keep meat on her bones.

As a further tear jerker, “Ms. Beaumont was profoundly hurt by the letter. She could not believe that a human being could say things like this. She cried, and is still crying. She has suffered depression and chest pain.” Literally, she is STILL crying?

Yes, Delisle’s letter was extreme and, frankly, sounds lie drunk talk. When the Liquor Board busybodies handed the letter over to the police, they clearly saw it as extreme talk, not a threat. Mr. Delisle had never taken any overt actions against the panhandler.

It’s interesting that on being informed of Mr. Delisle’s letter, Mr. Beaumont did not seek police protection but, instead, flew to the Quebec Human Rights Commission and cadged a nifty $8,000 handout for her “hurt feelings”, weeping, and heart palpitations. Of course. It sure beats panhandling, especially in a frigid Montreal winter.

 

Finally, public bodies hide all sorts of embarrassing information under the alleged right to privacy. Interestingly, the Societe des alcools du Quebec was only too happy to share Mr. Delisle’s private letter to them, not only with the police but with the panhandler. There is no evidence Mr. Delisle knew who the beggar was, but, apparently, the Liquor Board did.

 

Paul Fromm

Director

CANADIAN ASSOCIATION FOR FREE EXPRESSION

Montreal man to pay $8,000 for writing ‘diatribe’ against panhandler outside liquor store

A Société des alcools du Québec store

A Société des alcools du Québec store

Three Parties Supporting Nullification of Bequest to National Alliance Get “Intervener” Status

Three Parties Supporting Nullification of Bequest to National Alliance Get “Intervener” Status

ST. JOHN, NEW BRUNSWICK. AUGUST 19. Powerful groups seeking to hijack a will leaving a bequest to a U.S. White nationalist group were in court here today seeking “intervener” status.
The controversy surrounds the late  Harry Robert McCorkill who died in St. John in 2004. After a long delay. the will was recently probated. Mr. McCorkill, a university professor, left a valuable collection of old coins and artifacts, valued at between $250,000 and $1-million, to  the National Alliance, a  U.S. White Nationalist group headquartered in West Virginia of which he was a member.
 Robert McCorkill lived in Saskatoon and Ottawa before moving to Saint John, where he died in 2004.
The Southern Poverty Law Centre, an extreme but well funded anti-racist group in the U.S., is seeking to prevent the NA from receiving its legacy. They retained the assistance of Richard Warman, an Ottawa lawyer with whom we have clashed on numerous occasions. He styles himself a “human rights” advocate and has filed numerous complaints under the now repealed Sec. 13 of the Canadian Human Rights Act (Internet censorship).
Anyway, soon after Isabelle Rose McCorkill of Ottawa came forth — nine years after her estranged brother’s death. She owns a house in Ottawa but states that she lives on $1,000 a month and is thus unable to post any security. Nevertheless, she is represented by one of Moncton’s best and, one would assume, priciest law firms McInnes-Cooper (Marc-Antoine Chiasson).
.
 In late July, she obtained an ex parte injunction that froze the assets and ordered that they not leave the Province of New Brunswick. The coins and artifacts are in storage in Moncton.
A hearing on the application is set for September 10 in St. John’s. The application seeks, inter alia, the Court declaration that the bequest “is illegal and/or contrary to public policy: …as a result of the failed bequest an intestacy has resulted’ .. the Estate be shared amongst the surviving brothers and sisters; … that costs be awarded to the Applicant.|’ The application is to be heard before the Court of Queen’s Bench of New Brunswick, Trial Division. The case Number is S/M/49/13. Thus, she seeks her “costs” for nullifying the bequest which is the major portion of the estate and, if the application succeeds, walking off with her brother’s assets.
The judge tasked with this matter is Judge Glennie.
However, today’s proceedings were before Judge Grant. The three would be interveners, the Attorney General of New Brunswick, the League for Human Rights of B’nai Brith, and the Centre for Israel and Jewish Affairs were admitted. There was no mention of security for costs.
Indeed, the only previous mention of costs was in Isabelle McCorkell in her affidavit. She said she had limited mans and stated that should there be a requirement of security for costs she could not participate further. There was no mention of security for costs in regards to the three parties granted intervener status today.
John Hughes, lawyer for Executor Fred Streed, sent a letter to Judge Glennie on Friday advising there could be one or two interveners coming forth on behalf of the estate.
A live issue to be argued on September 10 is whether the Isabelle McCorkill motion should be converted into an action. If it is, there would have to be a trial, which would be more costly but which would also, inter alia, permit the cross-examination of Isabelle McCorkell.
The Judge allowed the Estate to pay Revenue Canada from the previously frozen funds. However, a request to unfreeze funds to pay Executor fees, lawyer’s fees, a storage costs in Moncton was turned down.
An interesting sidelight, the lawyer for Isabelle McCorkell was not in court today. When he was finally reached by phone by the judge part way through the hearing, he said he was in another hearing and had not been advised by the court of the date. Whether this was the court staff’s error or a problem at his end remained unclear.
Paul Fromm

Doug Christie exposes CSIS Agent Grant Bristow and the whitewash “Heritage Front Affair” Report (1995) [Douglas Christie Memorial Video Archive

From the Freedomsite
Doug Christie exposes CSIS Agent Grant Bristow and  the whitewash “Heritage Front Affair” Report (1995) [Douglas Christie Memorial  Video Archive]
The  Doug Christie Video Archive
In  memory of Douglas Christie
 
#13:  Doug  Christie exposes CSIS Agent Grant Bristow and the 
whitewash  “Heritage Front Affair” Report  (1995)
[Feb 4 1995] Doug Christie  exposes CSIS Agent Grant Bristow, who infiltrated the Heritage Front and Reform  Party of Canada. The Bristow case showed how the Political powers in Ottawa  (Liberal Party of Canada) used spies to attempt to embarrass political parties  (Reform Party). The Liberal government then whitewashed the entire affair  through Bob Rae and the Security Intelligence Review Committee (SIRC) which  issued a report called “The Heritage Front Affair”.
Interesting, Grant  Bristow tried to get information on the Imre Finta case from Christie. Bristow  even tried to give advice on certain jurors and which ones he should object to.  Doug Christie gives the inside story about the David Irving ban in Canada and  what happened.
Douglas       Christie Video Archive – Weekly   Shows
Tune in       weekly to the FreedomSite YouTube       channel for videos from my archive celebrating the life of        Douglas Christie.  For the       next 20+ weeks I am going to post a new video each week which will include       interviews, speeches, documentaries and other freedom inspiring       material.
Bookmark our       channel:

All videos will be       cross-posted to:

Doug       Christie Memorial Video Archive Shows

#1: Doug       Christie Debates Human Rights Hack on the Cherington TV show June       1984
Douglas Christie, The battling       barrister and freedom of speech advocate demolishes the head of the       Ontario “Human Rights” Commission, Dr Bhausaheb Ubale on the issue of       Freedom of Speech and out of control “human rights” which are being used       to silence critics and enforce their “guilty until proven innocent” mantra       which forces Canadians to fight against the overwhelming power of the       state to apply your rights to freedom.

#8:        Doug Christie on Freedom of       Religion in Canada and the Malcolm Ross Case (1995)
[Oct 29, 1995] (Ottawa,       Ontario). Douglas Christie speaks about the dangers to freedom of religion       in Canada. This speech is about the case of Teacher Malcolm Ross and the       Human Rights Inquisition which followed because Mr. Ross wrote a few books       on religious topics.  Mr. Ross never brought any of his views into       the classroom, but that mattered little to the Human Rights Fanatics that       were destined to destroy him.  This speech was given on the eve of       the Supreme Court hearing on the Malcolm Ross       case.

#2:        Doug Christie on Webster TV       show  (Debate on Freedom of Speech & Zundel       hearings) A spirited debate between       Douglas Christie, a lawyer dedicated to freedom of speech and TV       personality Jack Webster. This is part of the Doug Christie Memorial Video       Archive

#9:        Doug Christie Speaks on the       loss of Freedom of Thought in Canada (1986)
[Toronto, Feb 22, 1986] One of       the most powerful speeches by lawyer Douglas Christie on freedom and the       war against freedom of thought and speech. After listening to this speech,       you will believe and understand in the value of freedom and as Doug said       “you will never never surrender!”. Doug touches upon the James Keegstra       and Ernst Zundel cases and the fight against the totalitarian regime in       Canada, which thanks to the Duschenes Commission (so-called War Crimes       commission in Canada) evidence from the Communist Soviet Union would be       accepted after demands by Canadian Jewish Groups (B’nai Brith, ADL and       others). Paul Fromm introduces Doug       Christie.

#3:        Doug Christie Speaks about       Freedom & Zundel Appeal – Jan 25, 1986 Doug Christie Speaks about       Zundel Appeal and freedom of speech in the Canadian Court system. This       speech was given on Jan 25 1986.

#10:        Doug Christie on 5th Column       exposing the Fraud of so-called “War Crimes Trials”       (1990)
[July 1990] Douglas Christie,       defense lawyer for Imre Finta in Canada’s only war crimes trial, appears       on the BBC “5th Column” to discuss the dangers of so-called “War Crimes”       Trials.  Christie demolishes the fraud of so-called “War Crimes”       Trials – especially the Imre Finta Trial – and exposes how viscous       political pressure was applied which lead to a poisoned legal environment       where a blood lust for a guilty verdict over-shadowed the facts in the       case.  Imre Finta was found not guilty in 1990 by a Jury in Canada       after less than 12 hours of deliberation.  (The Canadian Government –        drunk on tax-payers money – appealed the case all the way to the Supreme       Court of Canada .. and lost)

#4:        Doug Christie Speaks at Open       Space in Victoria, BC Nov 14       1985
Doug Christie Speaks about       freedom and Canadian censorship at “Open Space”, Victoria BC on Nov 14       1985. With an introduction by David       McCalden.

#11:        Doug Christie Speaks in New       Brunswick on the importance of freedom (1988)
[Nov 25 1988] Doug Christie       Speaks in New Brunswick on the importance of freedom. The power of the       state has grown out of control to censor people.  The government now       controls and manipulates the media which leads to a limit on freedom of       speech. Receives award from NB Free       Speech League

#5:        Doug Christie Appears before       the Supreme Court of Canada in the Malcolm Ross Case – Nov 1       1995
[Nov 1 1995] Doug Christie       Appears before the Supreme Court of Canada in the Malcolm Ross Case       (representing freedom of speech and religion). Malcolm Ross was a teacher       in New Brunswick, but was dismissed from his position after the fanatical       Human Rights Commission claimed he created a “poisoned environment” in the       school due to his Christian beliefs, which he never taught in the       classroom. Doug Christie makes an impassioned plea for freedom of speech       and freedom of religion, only to be constantly interrupted by activist       Judges, who can hardly conceal their contempt for freedom and       religion.

#12:        Doug Christie speaks in Great       Britain on the importance of freedom around the world       (1995)
[1995] Doug Christie speaks in       Great Britain on the importance of freedom around the world. Doug Christie       was in Britain defending Lady Jane Birdwood who was prosecuted in       1994/1995 for violating the “Public Order Act 1986” for allegedly       publishing a pamphlet entitled “The Longest Hatred – An Examination of       Anti-Gentilism”. (The Longest Hatred, ed. Jane Birdwood 1991. On ‘anti-Gentilism’)

#6:        Doug Christie on Freedom of       Speech in Canada (1991)
[Jan 29 1991] (Ottawa,       Ontario). Doug Christie speaks about the dangers to freedom of speech in       Canada. Doug highlights threats from the Canadian Human Rights Commissions       and various Canadian political police       forces.

#13:        Doug Christie exposes CSIS       Agent Grant Bristow and the whitewash “Heritage Front Affair” Report       (1995)
[Feb 4 1995] Doug Christie       exposes CSIS Agent Grant Bristow, who infiltrated the Heritage Front and       Reform Party of Canada. The Bristow case showed how the Political powers       in Ottawa (Liberal Party of Canada) used spies to attempt to embarrass       political parties (Reform Party). The Liberal government then whitewashed       the entire affair through Bob Rae and the Security Intelligence Review       Committee (SIRC) which issued a report called “The Heritage Front Affair”.       Interesting, Grant Bristow tried to get information on the Imre Finta case       from Christie. Bristow even tried to give advice on certain jurors and       which ones he should object to. Doug Christie gives the inside story about       the David Irving ban in Canada and what       happened.

#7:        Doug Christie on building a       secure and free community for freedom minded citizens       (1992)
May, 1992: Doug Christie       speaks about freedom and how to secure and free and prosperous future in       Canada by moving to our own community and leveraging the municipal       infrastructure to protect and promote freedom. This would be creating a       new community of freedom minded people, organizing under the “Newgate       Project”. Doug is introduced by legendary freedom activist Eileen       Pressler.

More on  Douglas Christie at: Douglas Christie

System Keeps Spinning Its Wheels in “Hate” Persecution of Political Prisoner Arthur Topham

System Keeps Spinning Its Wheels in “Hate” Persecution of Political Prisoner Arthur Topham

And don’t forget all Arthur Topham ever did was express opinions critical of Zionism and Israel. His life is cast into poverty and turmoil by repeated complaints by Richard Warfman and Harry Abrams and an anti-free speech law that enables such thought suppression. And our hypocritical Prime Minister Stephen Harper, a virtual mouthpiece of both the Israel First lobby and increasingly of the homosexual lobby, dares criticize Russia: “ ‘We don’t imprison people for their expressing political positions. I think our position in this regard represents the position of Canadians and they expect that we speak in favour of these rights,’ he added during a speech in Miramichi, New Brunswick.”  Tell that to Arthur Topham. Of course, Canada seeks to imprison those expressing political positions strongly critical of privileged minorities.

CAFE is proud to support this scrappy freethinker in his battle against thought control and state suppression of free speech,

 

Paul Fromm

Director

CANADIAN ASSOCIATION FOR FREEDOM OF EXPRESSION

Regina v The Radical Press: LEGAL UPDATE #15

August 16, 2013 

CanadaScalesofJusticeFinalcopy

Regina v The Radical Press: LEGAL UPDATE #15 August 16, 2013

“There’s no such thing as ‘Hate Speech.’ You either have FREE speech or you don’t – it’s that simple.” ~Anonymous

Dear Free Speech Advocates and Radical Press Supporters,

Tuesday, August 13th, 2013 saw my return to Quesnel’s provincial courthouse for yet another appearance related to the matter of the Sec. 319(2) CCC charge and my arrest and incarceration May 16th, 2012 for the spurious crime of “willfully promoting hatred against ‘people of the Jewish religion or ethnic group.’

The previous time was back on  July 9th, 2013 when the issue of CC Johnston’s attempt to go for a direct indictment failed. It was also then that further efforts were made to set dates for my Rowbotham application hearing, the Rowbotham being my only option at this stage of the proceedings that will literally afford me a lawyer in order to act in my defence. As well, a the date of August 13th was supposed to be when I would appear before Judge Morgan and speak to my application for particularization of the evidence which the Crown was planning to base its case on.

At this point in the process where every appearance tends to hold unanticipated surprises it has become my practise not to get too bent out of shape trying to fathom what may or may not occur. That way of thinking appears to be best and so again I wasn’t disappointed to find that things didn’t go as planned.

I was scheduled to also meet with the Trial Coordinator, Sherry Jasper, after dealing with the particularization issue in court but while waiting in the courtroom for Judge Morgan to appear CC Johnston approached me and said that she was sure that she had heard the Judge say during our previous appearance that I could postpone the Particularization application until such time as I knew whether or not my Rowbotham application was going to be approved and I could have counsel representation for the Particularization hearing.

I didn’t recollect the judge telling me that but at the same time I also realized that given the option it would be best to wait until I knew if the Rowbotham application was going to be approved and a lawyer appointed for my defence. Knowing I was ill equipped to do so beyond just reading out the information to the court that my former lawyer Doug Christie had prepared in my defence I decided to heed what CC had just revealed to me and so I told her that I would opt for not proceeding with the application at this time. Johnston then suggested I let the Trial Coordinator know what had transpired and that was that for the courtroom side of things.

I went to Jasper’s office and explained what had just taken place in the courtroom and she told me that she would strike the Application from today’s list and that once I knew the outcome of the Rowbotham application I could then bring it back before the Court to fix a hearing date.

That taken care of we moved on to the Rowbotham application issue and she called Keith Evans the lawyer for the Attorney General’s office in order to fix a hearing date for that application.

It should be mentioned here that prior to my appearance on August 13th I had spoken with Keith Evans via the telephone regarding all the additional documents which the AG’s office still required in order to process the application. Mr. Evans told me at that time that he would not likely be able to hold a hearing on the matter until after September of this year as he was already booked up for that month and that I still would have time to submit further materials to back up my application. I had already begun the process of putting together some of the documents requested and filling out forms allowing the AG’s office to access my bank accounts and contact Canada Revenue Services, etc. and had shipped these off to his office prior to my appearance on Tuesday so when Jasper contacted Evans he told her that the process was unfolding according to plan and that he expected the remaining documents from me would be forthcoming well in advance of the hearing date then to be set. Jasper then suggested November 18th, 2013 for the hearing date along with a time allotment of two hours. Evans responded by saying that he would rather see five hours set for the hearing as that was usually how long they took. Jasper expressed surprise at that but then agreed to set a longer period of time. The 18th was also a date when Judge Morgan would be able to preside over the hearing which is a good thing given that he has been overseeing the case to this point.

I should add here with respect to this Rowbotham application that the expectations of the Attorney General’s office are the equivalent of having to perform a forensic audit of my financial situation since last November 5th of 2012 when the indictment was finally handed down. It’s intense and very time consuming having to justify every penny since that time period.

That concluded the day’s events and my wife and I left the building.

One other related issue that came up during the interval between August 13th and my previous appearance on July 9th was a Notice of Libel that I received from Richard Warman, one of the complainants in this case. Warman had taken issue with some prefatory remarks made by me in an article I had posted on the Radical Press website back on January 1st, 2013. He then hired the Ottawa law firm of Caza Saikaley to represent him and demanded that I remove the said article and commentary from the site and post an apology and retraction. After some reflection and knowing that I was ill equipped to take on another legal battle I had no option but to adhere to Warman’s wishes and do as requested. In addition to publishing the retraction and apology I also had to send Warman a money order for $500.00 to cover his legal expenses. That meant yet another frantic appeal for funds to those supporting my legal struggles. Thank God kind souls came to the rescue and I was able to pay the costs for which I am deeply grateful.

So for now I must complete the task of sending all the required information to the AG’s office over the next month or so and await my next court date of November 18th, 2013.

For Justice and Freedom of Speech for Everyone, Everywhere,

Arthur Topham Publisher & Editor The Radical Press Canada’s Radical News Network “Digging to the root of the issues since 1998″

——-

P.S. I would once again please ask readers to consider helping me out financially with a donation if they can. Go to the top of the Home Page at www.radicalpress.com and click on the “PLEASE DONATE TO THE RADICAL PRESS FREE SPEECH DEFENSE FUND” link where you will find all the information necessary to send financial help. Thank you.

APPEAL FACTUM OF POLITICAL PRISONER TERRY TREMAINE — SENTENCED TO 6 MONTHS FOR CONTEMPT OF COURT

APPEAL FACTUM OF POLITICAL PRISONER TERRY TREMAINE — SENTENCED TO 6 MONTHS FOR CONTEMPT OF COURT
Last fall Terry Tremaine was hammered with a six month prison term for “contempt of court”, the third such complaint by his tormenter Richard Warman, who had, in addition, filed a Sec. 13 (Internet censorship) Canadian Human Rights complaint, a complaint to his employer which cost Mr. Tremaine his teaching position at the University of Saskatchewan, and a Sec. 319 (“hate law”) complaint under the Criminal Code, which was thrown out by a Regina judge last fall for undue delay but the bail conditions it imposed had kept Mr. Tremaine silenced politically for nearly four years.

Photo: APPEAL FACTUM OF POLITICAL PRISONER TERRY TREMAINE -- SENTENCED TO 6 MONTHS FOR CONTEMPT OF COURT

Last fall Terry Tremaine was hammered with a six month prison term for "contempt of court", the third such complaint by his tormenter Richard Warman, who had, in addition, filed a Sec. 13 (Internet censorship) Canadian Human Rights complaint, a complaint to his employer which cost Mr. Tremaine his teaching position at the University of Saskatchewan, and a Sec. 319 ("hate law") complaint under the Criminal Code, which was thrown out by a Regina judge last fall for undue delay but the bail conditions it imposed had kept Mr. Tremaine silenced politically for nearly four years.

Originally, Federal Court Judge Found Mr. Tremaine not guilty as the February, 2008  Canadian Human Rightds Tribunal "cease and desist order" had not been served on Mr. Tremaine until August, 2009. Apparently, his postings from February, 2008 until later that year were not sufficiently toned down in terms of privileged minorities for Mr.Warman's sensibilities.. Also, he had not removed a long list of offending passages -- although the poorly written order didn't instruct him to do so. In 2011, the Federal Court of Appeal on a 2-1 vote instated a finding of guilt and overturned the acquittal. It was back to Judge Harrington for sentencing in Vancouver in October, 2012. Earlier last year, the Supreme Court denied leave to appeal.

Remember, Sec. 13 had already been repealed by the House of Commons in June, 2012. So, Mr. Warman was being punished for contempt of a vague order imposed under a law that was so foul it had been repealed. The Senate repealed the law in June, 2013 and repeal was granted immediate Royal Assent. This makes the prospect of Mr. Tremaine heading for prison for "contempt of court" for failing to obey a vague order under a law that has been repealed even more ludicrous

Don't let them tell you Canada is a free country. Next time some earnest do gooder reminds you of the fate of dissidents in Red China or Burma or Cuba, be sympathetic but remind him or her that Canada has no reason to be self righteous.

 Our courts are quite happy to jail dissidents and gag opinion on the Internet, especially where the dissident has criticized powerful privileged groups.

 In China, if you criticize the powerful Communist Party, they send your impertinent butt to jail. In Canada, if you criticize privileged minorities, as has scholar and dissident Terry Tremaine, they fling your dissident self in prison.

 To all the naive folks listening to those tv ads about the 30th Anniversary of the Charter: Do you still think your rights are
 protected? Not if you cross politically powerful and privileged minorities.

Paul Fromm,

Director

CANADIAN ASSOCIATION FOR FREE EXPRESSION

OVERVIEW 1

i. Standard of Review 2

PART I – STATEMENT OF FACTS 4

PART II – ISSUES 9

PART III - ARGUMENT 10

A. Did the learned sentencing Judge err in law and principle by failing to consider and apply the principle of restraint? 10

B. Did the learned sentencing Judge err by overemphasizing the principle of deterrence while paying insufficient attention to the individual circumstances of the Appellant? 13

C. Did the learned sentencing Judge err in law by, in effect, sentencing the Appellant for criminal contempt, notwithstanding that this Court has convicted him of civil contempt, and the Commission proceeded on that basis at the Sentencing Hearing? 14

i. Parity Principle 16

D. Did the learned sentencing Judge err in law by declining to consider the mitigating factor that the Appellant had been in prison for 22 days as a result of criminal charges involving the same complainant and substantially the same evidence? 18

PART IV – CONCLUSION AND NATURE OF RELIEF REQUESTED 26

PART V – LIST OF AUTHORITIES 28

Court File No.:  A-493-12

FEDERAL COURT OF APPEAL

BETWEEN:

tERRy TREMAINE

APPELLANT

and 

Canadian human rights commission

and

richard warman

RESPONDENTS

MEMORANDUM OF FACT AND LAW OF THE APPELLANT

OVERVIEW

1.The evidence disclosed throughout this litigation establishes that the Appellant’s political message is, doubtless, deeply offensive to the overwhelming majority of Canadian citizens.  This Honourable Court has convicted the Appellant of civil contempt of the Canadian Human Rights Tribunal, which had previously ordered the Appellant to “cease and desist” from communications of the type that resulted in the finding that he exposed protected groups of his fellow citizens to hatred or contempt.  This is an undeniable fact.

2.It is readily acknowledged that a conviction for civil contempt is a serious matter.  Nevertheless, the fundamental principles of sentencing mandated by Parliament - and consistently applied by Canadian courts sentencing citizens for contempt - must be properly applied to every citizen found guilty of an offence.  The specific facts of a rare case such as this also call for the consideration of broader legal principles. It is the role of the Appellate Courts to endeavor to ensure this is accomplished.

3.At the heart of this appeal is the Appellant’s assertion that these principles were not applied appropriately.  It is readily admitted that this case involves communications that are hateful, and that was clearly a concern to the learned sentencing Judge.  Mr. Justice Harrington was entitled to consider this as an aggravating factor.  However, the learned sentencing Judge was still required to balance this with other factors and correctly apply the appropriate principles.  This case called for the Court to sentence a citizen for a civil contempt as a first offender.  The learned sentencing Judge had a legal duty to give adequate consideration to the fundamental principle of restraint and the important mitigating factors that arose from the Appellant’s personal circumstances, as well as the surrounding social and legal context within which the offence occurred.  The Appellant will respectfully submit that adequate consideration of these principles and factors was not given in the case at bar, therefore causing the learned sentencing Judge to commit a reversible error.  These errors in law and principle led to a further error: that the sentence is manifestly excessive, and more appropriate for a criminal contempt.

4.Though the Appellant will advance two further arguments, it is primarily because of these three errors that the learned sentencing Judge imposed a sentence which is, in all the circumstances of this case, demonstrably unfit.

i.Standard of Review

5.Before discussing the law concerning the governing standard of review to be applied in this case, it should first be acknowledged that the grounds of appeal argued in this Memorandum will differ from the grounds asserted by previous counsel in the Notice of Appeal.  Nevertheless, all of the Appellant’s submissions concern issues that were before the learned sentencing Judge and are properly before this Court.  The Appellant respectfully submits that this Court has jurisdiction to hear this appeal as is framed in this Memorandum.

6.In Canada (Attorney General) v. de l’Isle1 this Court held that, with respect to a sentence for contempt, an appellate court may intervene only if the sentence imposed is “excessive or inappropriate having regard to the circumstance, or if that judge erred in law in passing sentence.”2  Though this appeal concerns a sentence for civil contempt, the Appellant’s liberty interests are directly engaged and, as a result, contempt is to be treated as quasi-criminal in nature.  For this reason, it is submitted that the deferential approach adopted in de l’Isle can be expanded upon by applying the principles outlined by appellate level sentencing cases in Canadian criminal law.

7.The standard of review to be employed by Appellate Courts when adjudicating sentence appeals is outlined by the Supreme Court of Canada in R. v. Shropshire3.  The standard was considered further in R. v. M. (C.A.)4.  At paragraph 90, the court stated:

Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. 

8.While recognizing the important role appellate courts play in minimizing disparity of sentencing for similar offenders and similar offences, the Supreme Court recognized that sentencing is an individualized process.  It accepted that Parliament has given specialized discretion to individual sentencing judges.   As a result, the court stated at paragraph 92:

… I believe that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes.

9.The Saskatchewan Court of Appeal has recognized and applied this standard of review on numerous occasions.  In R. v. Campeau5, the Court re-affirmed the standard.  Further, it discussed what constitutes “unreasonableness” and “demonstrable unfitness” at paragraph 5:

This Court considers what constitutes "unreasonable" in R. v. Berntson and "demonstrably unfit" in R. v. Pankewich. In Pankewich, Jackson J.A., for the Court, described demonstrable unfitness as follows:

[31] ..."Demonstrably unfit" has been equated with unreasonableness (see Shropshire at para. 46); "sentences which are clearly or manifestly excessive" (see Shropshire at para. 47 quoting the Nova Scotia Court of Appeal in R. v. Pepin (1990), 98 N.S.R. (2d) 238 (N.S.C.A.) at 251); "falling outside the 'acceptable range"' (see Shropshire at para. 50); sentences where there is a "substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes" (see M. (C.A.) at para. 92) ... McDonnell [[1997] 1 S.C.R. 948] also states that a wide deviation from the accepted "starting-point" of sentencing for an offence will not, in and of itself, render a sentence demonstrably unfit, but rather is a factor in determining demonstrable unfitness…

10.In R. v. Rezale6, the Ontario Court of Appeal defined an error in principle as follows:

Error in principle is a familiar basis for reviewing the exercise of judicial discretion.  It connotes, at least, failing to take into account a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to relevant factors, overemphasizing relevant factors and, more generally, it includes an error of law.

PART I – STATEMENT OF FACTS

11.The Canadian Human Rights Tribunal (“CHRT”) held that the Appellant, Mr. Terry Tremaine, was engaging in discriminatory practice contrary to s. 13 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (“CHRA”) on February 2, 2007.  The Tribunal held that Mr. Tremaine’s messages violated s. 13(1) of the CHRA and issued a cease and desist order and a fine in the amount on $4,000.  Mr. Tremaine was not represented by counsel at the CHRT hearing.7 

12.Still unrepresented, he applied for judicial review of the Tribunal’s decision.  On September 18, 2008, the Federal Court found that the Tribunal’s decision was not unreasonable.  The Court held that neither the cease and desist order, nor the $4,000 fine were unreasonable.  Notwithstanding that the Appellant was not represented by counsel, the Federal Court declined to consider his application with respect to the constitutionality of s. 13(1) of the CHRA because he did not provide the requisite notice as required by the Federal Courts Act, RSC 1985, c. F-7. The Court further declined a request to have the judicial review adjourned pending the outcome of the constitutional application made in CHRC and Warman v. Lemire, 2012 FC 1162 (F.C.T.D.).

13.The facts underlying both the Tribunal decision and the judicial review concern Mr. Tremaine’s postings on 2 internet sites.  First, Mr. Tremaine is the Webmaster of the National Socialist Party of Canada website.  Second, he is a member of an American website known as “Stormfront”.  Stormfront provides forums where people can exchange ideas and messages in the form of postings.  The website is clearly geared towards white supremacy and neo-Nazi ideology, and is basically a cyber-meeting place for like-minded individuals.  Though you need to be a member to post on the website, any member of the public can download the content.  The slogan “White Power World Wide” appears on the Home Page of Stormfront, so the nature of the website is very clear to all visitors.  The Appellant posted on the website under the pseudonym “MathDoktor99”.  The majority of the postings attributed to the Appellant are repugnant and deeply offensive to the vast majority of Canadians.8 

14.The Appellant did not appeal the decision of the Federal Court.

15.In 2009, the Canadian Human Rights Commission (the “Commission”) filed a motion in Federal Court for an order that the Appellant be found in contempt of the order of the Tribunal.  The motion was heard by Justice Harrington of the Trial Division of the Federal Court.

16.Justice Harrington held that though the Commission had established beyond a reasonable doubt that the Appellant had knowledge of the order of the Tribunal, it could not establish that he had knowledge that the order had been registered with the Federal Court until March, 2009.  He dismissed the charges for contempt, finding that the Commission had to register the Tribunal’s order with the Federal Court and serve the Appellant before it could be enforced.  The learned Trial Justice also dismissed the Appellant’s argument that he had not “communicated” within the meaning of s. 13(1) of the CHRA.

17.The Commission successfully appealed this decision to this Court.  The majority of the Federal Court of Appeal found that there was no legal principle that restricted the use of contempt powers to orders issued by superior courts.  It concluded that the CHRT’s decisions were no less enforceable by superior courts than the decisions of the superior courts themselves.  This Honourable Court declined to order a new hearing and instead substituted a conviction for civil contempt.  It directed that the matter be returned to the Federal Court for sentencing.

18.Counsel for the Appellant unsuccessfully applied for leave to appeal this Honourable Court’s decision to the Supreme Court of Canada.  The matter was thus remitted back to the Federal Court Trial Division for sentencing.  It proceeded on the basis that the Appellant had been convicted of civil contempt.9 

19.As it was a civil contempt, the Commission submitted that the Appellant ought to be detained until his contempt was purged.  The Commission further submitted that as the matter was a civil contempt, the Appellant had the right to purge the contempt and therefore avoid imprisonment.  The Commission submitted that if the Appellant did not purge his contempt, that he ought to be imprisoned until he do so.10 

20.The Commission also sought that the Appellant remove the offending material from the National Socialist Party of Canada website and request that Stormfront remove his previous posts that were the subject of the contempt.

21.The complainant, Mr. Richard Warman, sought a period of unconditional imprisonment of 3 to 6 months.11The complainant further submitted that rather than ordering the Appellant to remove the infringing posts from the National Socialist website, the court ought to order the site shut down in its entirety.12 

22.The Appellant’s counsel unsuccessfully tried to argue that the Appellant did not have the requisite mens rea.  The Appellant further argued that for a period of time wherein the Appellant was found to be in contempt, s. 13(1) of the CHRA was found to be not constitutionally valid.  The Appellant argued that he was under an honest mistake of law and did not believe that the Tribunal’s decision was enforceable.  He further argued that the order of the Tribunal was ambiguous in that it prohibited “telephonic” communication rather than internet communication.  The Appellant submitted that there should be an order for compliance, and in default of compliance, 60 to 80 days imprisonment.  In effect, he asked for a sentence of imprisonment to be suspended to allow him time to purge his civil contempt.13 

23.The Trial Division of the Federal Court sentenced the Appellant to 30 days imprisonment.  It further ordered him to cease communicating or causing to communicate material of the type or substantially similar type to that found by the Tribunal and Federal Court to be likely to expose a person or persons to hatred or contempt on the basis of a prohibited ground of discrimination in violation of s. 13(1) of the CHRA.  It held that the Appellant would be imprisoned for a further 6 months or until he complies with the Court’s order, and directed the Appellant to approach Stormfront.org with a request to remove postings from their website and to remove specified postings from the National Socialist Party of Canada website.

24.In the decision under appeal, the learned Trial Justice began his decision by declaring that “the time [had] come at last to penalize Mr. Tremaine for acting in contempt of an order of the Canadian Human Rights Tribunal.”  The Court further noted the offensive nature of Mr. Tremaine’s messages.  It dismissed the Notice of Constitutional Question filed by the Appellant at the Sentencing Hearing, echoing its oral ruling at the sentencing hearing, in which it dismissed the motion without hearing evidence.  The court held that it was “most disturbing” that the Appellant had testified at the Sentencing Hearing that he had sold control of the National Socialist Party of Canada website to an American through Mr. Bernard Klatt.  The learned Trial Judge added that it was “obvious that Mr. Tremaine was attempting to put his website out of this Court’s reach”.  The learned Justice also saw fit to admonish the Appellant’s previous counsel in relation to submissions he made with respect to the Complainant.

25.It should be noted that the materials that were the subject matter of the previous hearings were also the subject matters of criminal proceedings in the Province of Saskatchewan.  The Appellant was charged with breaching s. 319 of the Criminal Code.  The Regina Police Service executed a search warrant and invaded his home and seized his computer.  As a result of an alleged breach of bail conditions, the Appellant served 22 days at the Regina Provincial Correctional Centre on remand.  The substantive s. 319 charge was eventually judicially stayed by the Saskatchewan Court of Queen’s Bench due to unreasonable delay.  The breach allegation was also stayed.14 

26.On December 3, 2012, previous counsel for the Appellant sent a letter to the Registrar of the Federal Court of Canada outlining the steps the Appellant had taken to comply with the order.15 

27.The Appellant, Terry Tremaine, is a 64 year old Canadian citizen residing in Regina, Saskatchewan.  He has a Master of Science in Mathematics, and has completed some doctoral studies at Queen’s University.  As a result of this litigation, his 20 year academic career has been completely destroyed.  Though there was no suggestion his personal political views ever affected his teaching career, the University of Saskatchewan dismissed him when the Complainant contacted them about Mr. Tremaine and threatened to go to the media if the institution did not take disciplinary action.  Subsequent to the loss of his profession, Mr. Tremaine suffered from depression that was so severe he required hospitalization.  He has been unable to find lasting, meaningful employment since his termination and is now indigent, and a qualified applicant for representation by Legal Aid Saskatchewan.16 

PART II – ISSUES

28.It is respectfully submitted that this appeal raises the following issues:

A.Did the learned sentencing Judge err in law and principle by failing to consider and apply the principle of restraint?

B.Did the learned sentencing Judge err by overemphasizing the principle of deterrence while paying insufficient attention to the individual circumstances of the Appellant?

C.Did the learned sentencing Judge err in law by, in effect, sentencing the Appellant for criminal contempt, notwithstanding that this Court has convicted him of civil contempt, and the Commission proceeded on that basis at the Sentencing Hearing?

i.Does the Sentence conform with the Parity Principle?

D.Did the learned sentencing Judge err in law by declining to consider the mitigating factor that the Appellant had been in prison for 22 days as a result of criminal charges involving the same complainant and substantially the same evidence?

E.While considering the hateful nature of the Appellant’s comments, did the learned sentencing Judge err by declining to also consider the broad social and legal factors that were relevant to the analysis of a just and proper sanction?

PART III - ARGUMENT

A.Did the learned sentencing Judge err in law and principle by failing to consider and apply the principle of restraint?

29.Though the law concerning both civil and criminal contempt is rooted in the common law rather than statute, the potential implications for a loss of liberty arising from a finding of contempt has led the courts to consistently apply the criminal standard of proof beyond a reasonable doubt.17  The criminal nature of contempt proceedings, even in a civil context, has led the established jurisprudence to accept that the principles of sentencing outlined in the Criminal Code, R.S.C. 1985, c. C-46 (“Code”) are instructive and should be followed.

30.In International Forest Products Ltd. v. Kern18, the British Columbia Court of Appeal reviewed the sentence for criminal contempt imposed on a protestor disobeying an injunction obtained by the plaintiff logging company.  The court considered its function as a reviewing court on appeal, and held that “[s]entencing for criminal contempt must be guided by principle and no better guide exists than those Criminal Code provisions which largely codified the judge-made rules on sentencing”.19  It went on to assess whether the original sentence was demonstrably unfit.

31.The Newfoundland Court of Appeal has also applied this reasoning.  In Puddester v. Newfoundland (Attorney General)20 the court held that both the principles and the sentencing options outlined in the Criminal Code can be adopted and employed in contempt proceedings.21  In Ontario, the Superior Court of Justice has even considered sentencing an offender to a conditional sentence of imprisonment, relying on a procedural rule giving a trial judge broad discretion in contempt sentencing.22 

32.With respect to the principle of restraint, this Honourable Court has affirmed its applicability in sentencing for contempt in Federal Court.  Relying in part on the seminal case of R. v. Gladue23, this court has held that a sentencing court must consider all other sanctions that may be appropriate before considering imprisonment, especially in cases involving citizens with no prior criminal record.  In Canadian Human Rights Commission v. Winnicki,24 this court stated at para. 20 (emphasis added):

The authorities are clear that a Court should take special care in imposing a sentence of imprisonment upon a first offender. The trial judge should have either a pre-sentence report or some very clear statement with respect to the accused's background and circumstances. This is particularly true of youthful offenders such as the appellant. Further it has been recognized that except for very serious offences and offences involving violence, the primary objective of individual deterrence can be best achieved by either a suspended sentence or probation or a very short term of imprisonment followed by a term of probation. (see R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688). In R. v. Priest, [1996] O.J. No. 3369, at paragraphs 20 and 23 the Ontario Court of Appeal stated:

The duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence. It should be clear from the record of the proceedings, preferably in the trial judge's reasons, why the circumstances of this particular case require that this first offender must receive a sentence of imprisonment. The trial judge had no material before him from which he could possibly have made this determination. His reasons are barren of any lawful justification for such a radical departure from this well-established principle especially in the case of a youthful first offender.

Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence. …

Likewise, in R. v. Curran (1973), 57 Cr. App. R. 945 it was noted that,

As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offence, and imposed as this sentence was, for reasons of general deterrence, that is as a warning to others. The length of a first sentence is more reasonably determined by considerations of individual deterrence; and what sentence is needed to teach this particular offender a lesson which he has not learnt from the lighter sentences which he has previously received.

33.The common law principle of restraint required that if imprisonment must be imposed for an offence, the shortest amount of time possible in the circumstances should be given.  Parliament codified and expanded this principle in ss. 718.2 (d) and (e) of the Code, which require sentencing judges to consider all available sanctions other than imprisonment that are reasonable in the circumstances.  It is respectfully submitted that this reflects an intention that imprisonment be considered a punishment of last resort.

34.As was the case in Winnicki25, the learned sentencing Judge did not consider the impact of the fact that the Appellant was a first offender in his reasons.  Moreover, he did not direct his mind to the accepted principle that in arriving at a just sanction, serious consideration must be given to dispositions other than imprisonment.  It is obvious that he did not consider suspending the prison sentence to allow the Appellant to purge his contempt to be sufficient.  However, it is apparent from the reasons that he did not consider alternative dispositions, such as probation with a community service order, which would have been more appropriate in the circumstances.  Even though the Rules don’t specifically provide for this type of disposition, it is submitted that the Federal Court has an inherent jurisdiction to control its own process.  This jurisdiction includes a wide discretion in imposing sanctions for civil contempt.  In Canadian Copyright Licensing Agency v. U-Compute,26 the Federal Court imposed probation with community service hours on an offender with two prior convictions for contempt of court.  

35.It is respectfully submitted that by not analyzing and applying the principle of restraint, the learned sentencing Judge erred in law.

B.Did the learned sentencing Judge err by overemphasizing the principle of deterrence while paying insufficient attention to the individual circumstances of the Appellant?

36.This court affirmed in Winnicki that it is an error for a sentencing Judge in contempt proceedings to neglect to consider the background of the citizen found in contempt.27  The rationale for the rule is that just sanctions require an assessment of both the circumstances of the offence and the offender.  A balancing of these circumstances is essential because sentencing is an individualized process.

37.The evidence at the sentencing hearing indicated that sometime after the complaint was filed with the Commission, the Complainant contacted the Appellant’s employer, the University of Saskatchewan.  He advised the University that the complaint had been filed, and requested that they take disciplinary action against the Appellant.  The Complainant advised that if the University did not take action, local and national media would be advised of the situation.  Mr. Tremaine, whose views were now exposed, was fired.  His twenty year academic career is in ruins, and he has been unable to maintain regular employment since. He is now on social assistance in Saskatchewan.  After being fired by the University, he fell into a deep depression, and was admitted to the psychiatric ward at the Regina General Hospital.28 

38.Neither this evidence, nor the fact that Mr. Tremaine was a first offender, was mentioned in the decision under appeal.  While it is recognized that the learned sentencing Judge considered several factors in this case to be aggravating, he had a legal duty to at least factor the mitigating circumstances into the final analysis.  This Honourable Court gave a clear direction in Winnicki that he must do so.

39.Every citizen, no matter how distasteful the court may view their conduct, is entitled to have a sentencing court consider the impact that the proceedings has had on his/her personal circumstances.  Justice demands nothing less.  It is submitted that the learned sentencing Judge made a very clear error in this respect. 

C.Did the learned sentencing Judge err in law by, in effect, sentencing the Appellant for criminal contempt, notwithstanding that this Court has convicted him of civil contempt, and the Commission proceeded on that basis at the Sentencing Hearing?

40.At one time, the practical difference between civil and criminal contempt was difficult to discern.  In UNA v. Alberta (Attorney-General),29 the Supreme Court of Canada considered this distinction.  Speaking for the Court, McLachlin J. (as she then was) stated at para. 20-21:

Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependant on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.

These same courts found it necessary to distinguish between civil and criminal contempt. A person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt. However, when the element of public defiance of the court's process in a way calculated to lessen societal respect for the courts is added to the breach, it becomes criminal. This distinction emerges from Poje v. British Columbia (Attorney General), [1953] 1 S.C.R. 516, 17 C.R. 176, 105 C.C.C. 311, [1953] 2 D.L.R. 785, at p. 527 [S.C.R.], per Kellock J.:

The context in which these incidents occurred, the large numbers of men involved and the public nature of the defiance of the order of the court transfer the conduct here in question from the realm of a mere civil contempt, such as an ordinary breach of injunction with respect to private rights in a patent or trade-mark, for example, into the realm of a public depreciation of the authority of the court tending to bring the administration of justice into scorn.

41.As outlined by the court, criminal contempt requires proof of a requisite mens rea, including full knowledge that the public defiance will depreciate the authority of the court.30  In civil contempt, mens rea is not a factor until the sentencing stage.31 

42.The Appellant was convicted of civil contempt.  The Sentencing Hearing proceeded on this basis.  Counsel for the Commission was clear on this point, and very fairly pointed out to the Court that in civil contempt, it is generally accepted that the offender ought to be given the opportunity to purge their contempt.32  It is submitted that this comment is consistent with much of the jurisprudence.  After reviewing numerous cases involving both civil and criminal contempt, the B.C. Supreme Court in Telus Communications Inc. v. T. W. U.33 stated (emphasis added):

In reviewing the decisions where criminal and civil contempt have been found, it is apparent that most contempt proceedings involving labour/management disputes or civil "protest" disobedience have proceeded as criminal contempt, there is a wide variation in the punishment thought to be appropriate for any particular "type" of contempt, there appears to be little difference between the punishment imposed for criminal contempt and the punishment imposed for civil contempt, but incarceration is usually reserved for situations where criminal contempt has been found.

43.Though imprisonment is certainly possible in cases of civil contempt, it is submitted that it should not be commonly given, especially to a citizen without a prior record.  It is submitted that the learned sentencing Judge erred by failing to consider the distinction between civil and criminal contempt.  Effectively, the court imposed a sentence for criminal contempt notwithstanding that the Appellant had only been convicted of civil contempt.

44.This error, either alone or in combination with the errors of failing to consider both the principle of restraint and the personal circumstances of the Appellant,  led to the imposition of a sentence that was demonstrably unfit. With respect, it is manifestly excessive and not appropriate for a first offender convicted of civil contempt.

i.Parity Principle

45.As this court is well aware, another important principle of sentencing is that the sentence imposed be consistent with sentences imposed on similar offenders in similar situations.  For the purposes of assessing whether the sentence conforms to the parity principle, it is useful to consider sentences imposed in other contempt cases.

46.In MacMillan Bloedel Ltd. v. Simpson34 the court considered sentences for criminal contempt, which included jail sentences imposed on several citizens, including first offenders.  However the court pointed out that earlier in the litigation, several other individuals involved in the same protest were given fines, or prison sentences that were suspended to allow for an opportunity for the order to be followed.35  It was only when it was clear that previous lenient sentences were not effecting the Court’s purpose that the sanction of unsuspended imprisonment was employed.

47.In Regina (City) v. Cunnigham,36 the plaintiff municipality obtained an injunction enjoining the defendant from continuing to operate a strip club in a manner than contravened the city Zoning Bylaw.  Mr. Cuningham did not appeal the injunction.  After being convicted of criminal contempt, Cunningham was sentenced to a $2000 fine and 6 months imprisonment, suspended if he obeyed the injunction.  He did not purge his contempt and instead publicly declared that the club would stay open.  He was eventually committed to prison.  However, it is significant that even though Cunningham was convicted of criminal contempt, he was initially given a chance to purge the contempt before imprisonment was imposed.

48.In Winnicki,37 this court reduced a 9 month sentence for contempt of the Federal Court to time served, which was 83 days.  This case is factually similar to the case at bar, but it is not clear whether the finding was of civil or criminal contempt.  Mr. Winnicki had violated an injunction issued by the Federal Court Trial Division.

49.The B.C. Supreme Court sentenced several individuals for civil contempt in Telus Communications v. T.W.U.38  The sentences included orders compelling donations to charity, orders compelling community service, along with various fines and costs awards.

50.Other cases include:
i.Canadian Copyright Licensing Agency v. U-Compute39 – Civil Contempt, offender had two prior convictions.  He was sentenced to imprisonment, but it was suspended and included an order for community service work.

ii.Salt River First Nation 195 v. Marie40 – Civil Contempt, fines with default imprisonment for one defendant

iii.Telewizja Polsat SA v. Radiopol Inc41 – Civil Contempt, offender shows no remorse.  6 months imprisonment, suspended to allow for compliance.

iv.Canada (Minister of National Revenue) v. Money Stop Ltd.42 – Offender given 30 days to comply after contempt hearing and did not do so.  Eventual sentence included imprisonment, but it was suspended to allow for compliance.

D.Did the learned sentencing Judge err in law by declining to consider the mitigating factor that the Appellant had been in prison for 22 days as a result of criminal charges involving the same complainant and substantially the same evidence?

51.As this court is aware, it is a common practice for criminal courts to factor pre-trial custody in to the analysis of an appropriate sentence.  It is submitted that this practice is rooted, fundamentally, in fairness and equity.  The most common legal regime employed to give effect to this principle of fairness is s. 719 of the Criminal Code.  However, it is not the only means by which the courts achieve similar ends.

52.There is nothing in the language of s. 719 of the Code to suggest that a citizen should be given credit for time spent on strict bail conditions while he/she awaits a disposition.  Nevertheless, strict release conditions are a deprivation of liberty.  The appellate courts have responded by requiring sentencing courts to factor these conditions into the analysis as mitigating factors.  In R. v. Downes43, the Ontario Court of Appeal reviewed Canadian jurisprudence and concluded that stringent bail conditions must be taken into account by sentencing Judges as a mitigating circumstance.44  The court did not mandate that a specific quantum of credit be given, as it recognized that different circumstances will require judges to vary its final impact on sentence.  While there is no strict formula, there is no doubt that pre-trial deprivations of liberty must at least be considered.  Though in a later case the court declined to hold that this principle could reduce a statutorily mandated minimum sentence, the basic principle remains law in Ontario.45 

53.Rather than through a specific statutory provision, the source of this rule is the courts’ desire to fulfill its role in delivering a just sanction on a citizen convicted of an offence.  In considering this principle and its underlying values, it is submitted that it should be applied in the case at bar.  Though the criminal proceedings were eventually stayed, Mr. Tremaine was detained at the Regina Provincial Correctional Centre for 22 days as a result of what appears to be the same evidence and witnesses that were before the CHRT.  He has thus incurred a serious deprivation of liberty as a result of what is substantially the same conduct.  The Appellant admits that there is no specific statutory compulsion to consider his previous imprisonment.  However it is respectfully submitted that the court’s duty to consider all relevant circumstances in arriving at a just sanction mandates that it should have at least factored into the learned sentencing Judge’s analysis.  The Appellant respectfully submits that by declining to even consider his pre-trial detention, the learned sentencing Judge erred in principle.

E.While considering the hateful nature of the Appellant’s comments, did the learned sentencing Judge err by declining to also consider the broad social and legal factors that were relevant to the analysis of a just and proper sanction?

54.At paragraph 26 of the Judgment under appeal, the learned sentencing Judge asserts that “this case is about law and order”.46  On its face, it may seem to be a correct proposition.  The law of contempt is concerned with the rule of law.  However, it is beyond doubt that the facts and the underlying legal and social context are always part of the sentencing process.  It is precisely because every sentence occurs within a larger social context that principles such as general deterrence and denunciation are considered and weighed against the individual needs of the citizens – both victim and offender - before the court.  Broad considerations are a necessary part of the task of arriving at a fit and just sanction.

55.The learned sentencing Judge understood this general proposition.  This can be deduced from the obvious concern he had about the conduct of both the Appellant and his previous counsel.  For example, he inferred from the evidence of the Appellant’s sale of the National Socialist Party of Canada website that it was “obvious that [he] was attempting to put his website out of the court’s reach” (para. 20).  He referred to Mr. Tremaine as “the villain” (para. 24).  He remarked that the Appellant’s previous counsel “used the courtroom as a bully pulpit to attack Mr. Warman” (para. 22).  He made special mention that, in this case, the court was no longer concerned about “free speech”.47  It should also be noted that in his submissions, the complainant urged the court that it “weighs upon the judgment of this court that the material is vicious hate propaganda”.48 

56.The Appellant does not quarrel with the learned sentencing Judge’s right and duty to consider other relevant factors beyond the simple fact of the contempt in imposing sentence.  Indeed, the central message of the argument in this Memorandum is that he ought to have considered more factors and principles than he did.  It would be less than honest to suggest that this case is merely about the fact of the civil contempt, as the very facts upon which the conviction is founded concern expression, albeit expression that has been determined to be hateful.   A sentencing court must balance many factors in relatively rare situations like the one presented in the case before this Honourable Court.

57.In R. v. Nasogaluak49, the Supreme Court of Canada considered the extent to which the Charter of Rights and Freedoms affects the sentencing process.  Though the case concerned the impact of a specific egregious breach of Nasogaluak’s rights on the sentencing process where a mandatory minimum was concerned, the court outlined some important general principles.  The Supreme Court of Canada affirmed that a sentencing judge always had the authority to consider the impact of an infringement of a citizen’s Charter rights in arriving at a just sanction, and there is no requirement for a formal application for a remedy.  The reason for this is that the court understood that a “fit” sentence is one that respects and considers the fundamental values enshrined in the Charter.  At paragraph 48-49 (emphasis added):

Indeed, the sentencing regime under Canadian law must be implemented within, and not apart from, the framework of the Charter.  Sentencing decisions are always subject to constitutional scrutiny.  A sentence cannot be “fit” if it does not respect the fundamental values enshrined in the Charter.  Thus, incidents alleged to constitute a Charter violation can be considered in sentencing, provided that they bear the necessary connection to the sentencing exercise.  As mitigating factors, the circumstances of the breach would have to align with the circumstances of the offence or the offender, as required by s. 718.2 of the Code.  Naturally, the more egregious the breach, the more attention the court will likely pay to it in determining a fit sentence.

This is consistent with the communicative function of sentencing. A proportionate sentence is one that expresses, to some extent, society’s legitimate shared values and concerns.

58.This case does not concern a specific breach of the Appellant’s Charter rights.  However, that does not mean that the Charter is divorced from the analysis.  Our constitution remains present, and its values must be considered if the court is to arrive at a just and fit sentence.  This is precisely why the hateful nature of the Appellant’s conduct is an aggravating factor.  However, the Charter also speaks to mitigating factors in this case.  Fairness requires that these be considered as well.

59.For civil libertarians who believe that hateful speech should be confronted and challenged, rather than censored by state agents, the constitutional battle is lost.  This is fully and respectfully acknowledged by the Appellant.  Nevertheless, it is vital to recognize the context within which this court is operating.  State infringement on freedom of speech was found to be demonstrably justified in a free and democratic society in the human rights legislative context in Canada (H.R.C.) v. Taylor50 and Saskatchewan (H.R.C.) v. Whatcott.51  However, the process by which the infringement was justified speaks to the fact that the Supreme Court and civil society still recognize that free expression is integral to both democracy and the rule of law - a bedrock right, upon which all other civil rights are built.  Indeed, it is a right integral to our modern conception of the rule of law itself.  The Appellant very respectfully submits that this Honourable Court should approach the issues in this sentencing with humility, fully cognizant of the nature of the s. 1 justification that provides the legal authority to take the liberty of a citizen who, while admittedly is guilty of contempt, is nonetheless on the facts of the case being punished for expressing his political views – however distasteful and repugnant they might be.  This same humility will also allow future courts to be vigilant in ensuring that the definition of “hatred and contempt” is not unduly expanded.

60.This does not mean that the conviction was improper, or that the CHRT and the court are not entitled to ensure its orders are respected and followed.  But, taking the liberty of a citizen is the state’s ultimate weapon, and it is the Appellant’s respectful submission that no court should lightly undertake this task.  This is especially true when the factual nature of the crime involves political speech.52  Justice must be tempered, especially when the legal regime’s constitutional justification rests on the proportional limitation of a fundamental right that resulted from a delicate balance of competing values that are all entrenched in Canada’s supreme law.
61.Again, the legal analysis by which the constitution allows state power to restrict a fundamental civil right under s. 1 of the Charter is itself a delicate balancing exercise that involves limiting freedoms that are part of the supreme law of Canada.   The seminal case on s. 1 is R. v. Oakes.53  At paragraph 66 of the decision, Chief Justice Dickson stated (emphasis added):

It is important to observe at the outset that s. 1 has two functions: first, it constitutionally guarantees the rights and freedoms set out in the provisions which follow; and second, it states explicitly the exclusive justificatory criteria (outside of s. 33 of the Constitution Act, 1982) against which limitations on those rights and freedoms must be measured. Accordingly, any s. 1 inquiry must be premised on an understanding that the impugned limit violates constitutional rights and freedoms — rights and freedoms which are part of the supreme law of Canada. As Wilson J. stated in Singh v. Min. of Employment & Immigration, supra, at p. 218:

... it is important to remember that the courts are conducting this inquiry in light of a commitment to uphold the rights and freedoms set out in the other sections of the Charter.

62.The s. 1 analysis requires the state to prove that the infringement of a constitutional right constitutes a minimal impairment of that right.  Further, the effect of the state infringement must be proportional to its objective.  At paragraph 74-75 (emphasis added):

Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra, at p. 352. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom and the objective which has been identified as of "sufficient importance".

With respect to the third component, it is clear that the general effect of any measure impugned under s. 1 will be the infringement of a right or freedom guaranteed by the Charter; this is the reason why resort to s. 1 is necessary. The inquiry into effects must, however, go further. A wide range of rights and freedoms are guaranteed by the Charter, and an almost infinite number of factual situations may arise in respect of these. Some limits on rights and freedoms protected by the Charter will be more serious than others in terms of the nature of the right or freedom violated, the extent of the violation, and the degree to which the measures which impose the limit trench upon the integral principles of a free and democratic society. Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.

63.The fact that the type of expression uttered in this case has been found to be legally limited pursuant to s. 1 of the Charter does not mean that the underlying importance of free speech is divorced from the sentencing process.  The Charter right does not vanish from existence simply because legislation has been found to legitimately restrict it.  The values underlying the right must remain and factor into the sentencing analysis, because the court’s action in sentencing a citizen is a further infringement that must also be reasonable in the circumstances.  As the Appellant’s right to free speech has been limited, not removed, it is incumbent on any sentencing court to recognize that any action it takes must also be considered a further “effect” of the state’s power to limit the right.  Even if this consideration is difficult or uncomfortable when dealing with actions such as the Appellant’s hateful speech, it is respectfully submitted that a sentencing court must nevertheless measure its response with the underlying values of freedom of expression in mind.

64.Of course, this does not mean that the state cannot restrict the Appellant’s speech.  The Supreme Court of Canada has confirmed that it can.  Equality and the right to be free from discrimination are also integral rights.  The Appellant is not submitting that the court does not have the jurisdiction to take the liberty of a citizen for hateful speech.  What is submitted is that a fit and proper sentence is one in which the court recognizes that the delicate nature of the constitutional balance upon which this jurisdiction rests requires that justice be tempered and measured.  It is submitted that the sentence imposed in this case is also demonstrably unfit because it does not give sufficient weight to the solemn reality that the entire legal regime upon which this Appellant is before the courts rests on a delicate balance that allows for censorship and a limitation of a right of incredible importance to every citizen.  Surely in a situation such as that presented in the case at bar, the principle of restraint takes on special significance.

65.This is so even though the charge is contempt, because the underlying facts of the contempt relate to expression.  Those underlying facts were considered to be aggravating by the learned sentencing Judge.  It is significant to the sentencing process that part of the facts underlying the contempt include the Appellant’s dissemination of electronic books such as The Poisonous Mushroom, The Turner Diaries, and The Protocols of the Learned Elders of Zion,54 especially when this court can take judicial notice of the notorious fact that these very same books are widely available on the internet, and some of them are even sold by online booksellers profiting off of Canadian customers.  This court can further take note that though Adolf Hitler’s Mein Kampf remains available in most major public libraries in Canada, the learned sentencing Judge nevertheless found that the Appellant’s decision to post a large quote from this widely available book was illegal and ordered it removed.55  It is submitted that an action by a court of law to prohibit the distribution of books has no place in a 21st century liberal democracy.  The Appellant respectfully asks the court to consider the implications of imprisoning a citizen in part because he disseminated books.
66.Also included in the broad social context is the fact that Parliament has now repealed the legislative provision on which this entire litigation is based.56  The Appellant understands that does not excuse him from his duty to follow the order of the CHRT.  Nor does it invalidate or question the conviction that this Honourable Court entered upon him.  However, the Appellant submits that Parliament’s action signals an intention to remove the jurisdiction of the CHRT to try these types of cases.  As part of the ongoing dialogue between Parliament and the Courts, it is submitted that it is incumbent on a sentencing Court to factor in Parliament’s message in arriving at a just and fit sentence.

67.With respect, the learned sentencing Judge did not consider the impact of either the underlying constitutional issue or Parliament’s decision to repeal the very legislative provision that formed the basis for the litigation.  As he did not do so, the Appellant respectfully submits that he erred.  The Appellant respectfully asks this court to consider that as the aggravating nature of the facts underlying the contempt must be considered in arriving at a fit sentence, so must the broader social and legal context be considered.  This court is humbly asked to reflect on the implications of taking the liberty of a citizen based on facts such those presented in the case at bar, even if that citizen’s views are repugnant.  It is respectfully submitted that is within the proper function of this court to send a clear instruction to trial-level courts that in sentencing a citizen in cases such as this, the delicate balance of Charter values must be given due consideration and respect.

PART IV – CONCLUSION AND NATURE OF RELIEF REQUESTED

68.The Appellant respectfully submits that the learned sentencing judge erred in law and principle for the reasons outlined in this Memorandum of Law.  The Appellant further submits that the sentence is manifestly harsh, excessive, and demonstrably unfit, especially considering that he is a first offender.

69.The Appellant requests that the 30 days imprisonment portion of the sentence be set aside, with the conditional/suspended portion of the sentence reduced to 60 days.  It further requests that portions of the prohibited material relating to books be severed, specifically “Exhibit H”, “M”, “AA”, “BB”, “CC”, and “DD”.

70.The Appellant asks for costs of the within appeal.

ALL OF WHICH IS RESPECTFULLY SUBMITTED, this ________ day of July, 2013

Legal Aid Saskatchewan

Regina City Area Office

Per:      

Andrew L. Hitchcock

Solicitor for the Appellant, Terry Tremaine

PART V – LIST OF AUTHORITIES

Legislation and Rules of Court

Canada Act 1982 (UK), 1982, c. 11

Canadian Criminal Code, R.S.C 1985, c. C-46

Canadian Human Rights Act, R.S.C. 1985, c. H-6

Charter of Rights and Freedoms, as part of The Constitution Act, 1982,  Schedule B to the

Federal Court Rules, 1998, SOR/98-106

Jurisprudence

Canada (Attorney General) v. de l’Isle (1994), 56 C.P.R. (3d) 371 (Fed.C.A.)

Canada (H.R.C.) v. Taylor [1990] 3 S.C.R. 892 (S.C.C.)

Canada (Minister of National Revenue) v. Money Stop Ltd. 2013 FC 133

Canadian Copyright Licensing Agency v. U-Compute (2005), 284 F.T.R. 116

Canadian Human Rights Commission v. Winnicki, 2007 FCA 52

International Forest Products Ltd. v. Kern, 2001 BCCA 48

MacMillan Bloedel Ltd. v. Simpson (1994), 88 C.C.C. (3d) 148 (B.C. C.A.)

Penthouse International Ltd. v. 163564 Canada Inc., (1995), 63 C.P.R. (3d) 328 (Fed. T.D.)

Puddester v. Newfoundland (Attorney General), 2001 NFCA 25

R. v. Campeau 2009 SKCA 3

R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.)

R. v. Gladue [1999] 1 S.C.R. 688 (S.C.C.)

R. v. Keegstra [1990] 3 S.C.R. 697 (S.C.C.)

R. v. M. (C.A.) [1996] 1 S.C.R. 500 (S.C.C.)

R. v. Nasogaluak [2010] 1 S.C.R. 206 (S.C.C.)

R. v. Oakes [1986] 1 S.C.R. 103 (S.C.C.)

R. v. Shopshire [1995] 4 S.C.R. 227 (S.C.C.)

R. v. Yue (2007), 226 C.C.C. (3d) 349 (Ont. C.A.); leave to appeal to S.C.C. refused; (2008), 253 O.A.C. 397 (S.C.C.)

Regina (City) v. Cunningham, [1994] 8 W.W.R. 457 (Sask. C.A.)

Salt River First Nation 195 v. Marie, 2006 FC 1420

Telewizja Polsat SA v. Radiopol Inc. 2006 FC 137

Telus Communications Ltd. v. T.W.U. 2006 BCSC 397; reversed in part on the issue of costs; 2008 BCCA 144

U.N.A. v. Alberta (Attorney General) [1992] 1 S.C.R. 901 (S.C.C.)

Saskatchewan (H.R.C.) v. Whatcott 2013 SCC 11

1 (1994), 56 C.P.R. (3d) 371 (Fed.C.A.)

2 Ibid  at para. 6

3 [1995] 4 S.C.R. 227

4 [1996] 1 S.C.R. 500

5 2009 SKCA 3

6 (1996), 112 CCC (3rd 97) Ont. C.A.

7 Warman and CHRC v. Terry Tremaine, 2007 CHRT 2 (Appeal Book filed in Court File A-468-10)

8 Appeal Book filed in A-468-10, Vol. 1, Tab 4

9 Appeal Book at p. 239

10 Appeal Book at p. 240 - 244

11 Appeal Book, at p. 252

12 Appeal Book, at p. 261

13 Appeal Book, at p. 266 – 268, 270

14 Appeal Book, p. 384-385

15 Appeal Book, p. 370-371

16 Appeal Book, p. 112-122

17 See: Rule 469, Federal Courts Rules, SOR/98-106 (“Rules”); and Brilliant Trading Inc. v. Wong, 2005 FC 1214 at para. 15.

18 2001 BCCA 48

19 Ibid at para. 20

20 2001 NFCA 25

21 See especially Ibid at para 32, 54-55

22 Sussex Group Ltd. v. 3933938 Canada Inc., 2003 CanLII 27188 (ON SC)

23 [1999] 1 S.C.R. 688 (S.C.C.)

24 2007 FCA 52

25 Ibid at para 21

26 (2005) 284 FTR 116 

27 Winnicki, supra note 24 at para. 21

28 Appeal Book, at 118-120

29 [1992] 1 S.C.R. 901 (S.C.C.)

30 Ibid. at para. 24-25

31 See: Penthouse International Ltd. v. 163564 Canada Inc. (1995), 63 C.P.R. (3d) 328 (F.C.T.D.)

32 Appeal Book at 240

33 2006 BCSC 397; reversed in part on the issue of costs; 2008 BCCA 144

34 (1994), 88 C.C.C. (3d) 148 (B.C. C.A.)

35 See Ibid, at para 15-21, 58

36 [1994] 8 W.W.R. 457 (Sask. C.A.)

37 Winnicki, supra note 27

38 Telus Communications supra, note 33

39 2005 FC 1644

40 2006 FC 1420

41 2006 FC 137

42 2013 FC 133

43 (2006), 205 C.C.C. (3d) 488 (Ont. C.A.)

44 Ibid, see especially: para 30-33

45 See: R. v. Yue (2007), 226 C.C.C. (3d) 349 (Ont. C.A.); leave to appeal to the Supreme Court of Canada refused; (2008), 253 O.A.C. 397 (S.C.C.)

46 Appeal Book at p. 12

47 Judgment under appeal at para. 25, Appeal Book at p. 12

48 Appeal Book at 251.

49 [2010] 1 S.C.R. 206

50 [1990] 3 S.C.R. 892 (S.C.C.)

51 2013 SCC 11

52 in R. v. Keegstra [1990] 3 S.C.R. 697, the Supreme Court of Canada was clear that even hate propaganda constitutes “political expression” at para. 95

53 [1986] 1 S.C.R. 103 (S.C.C.)

54 Appeal Book filed in Court file A-468-10, Affidavit of Richard Warman, p. 140

55 Appeal Book, at p. 17

56 Bill C-304 An Act to Amend the Canadian Human Rights Act (Protecting Freedom), Royal Assent Statutes of Canada: 2013, c. 37]

Originally, Federal Court Judge Found Mr. Tremaine not guilty as the February, 2008  Canadian Human Rightds Tribunal “cease and desist order” had not been served on Mr. Tremaine until August, 2009. Apparently, his postings from February, 2008 until later that year were not sufficiently toned down in terms of privileged minorities for Mr.Warman’s sensibilities.. Also, he had not removed a long list of offending passages — although the poorly written order didn’t instruct him to do so. In 2011, the Federal Court of Appeal on a 2-1 vote instated a finding of guilt and overturned the acquittal. It was back to Judge Harrington for sentencing in Vancouver in October, 2012. Earlier last year, the Supreme Court denied leave to appeal.
Remember, Sec. 13 had already been repealed by the House of Commons in June, 2012. So, Mr. Warman was being punished for contempt of a vague order imposed under a law that was so foul it had been repealed. The Senate repealed the law in June, 2013 and repeal was granted immediate Royal Assent. This makes the prospect of Mr. Tremaine heading for prison for “contempt of court” for failing to obey a vague order under a law that has been repealed even more ludicrous
Don’t let them tell you Canada is a free country. Next time some earnest do gooder reminds you of the fate of dissidents in Red China or Burma or Cuba, be sympathetic but remind him or her that Canada has no reason to be self righteous.
Our courts are quite happy to jail dissidents and gag opinion on the Internet, especially where the dissident has criticized powerful privileged groups.
In China, if you criticize the powerful Communist Party, they send your impertinent butt to jail. In Canada, if you criticize privileged minorities, as has scholar and dissident Terry Tremaine, they fling your dissident self in prison.
To all the naive folks listening to those tv ads about the 30th Anniversary of the Charter: Do you still think your rights are protected? Not if you cross politically powerful and privileged minorities.
Paul Fromm,
Director
CANADIAN ASSOCIATION FOR FREE EXPRESSION
OVERVIEW 1

i. Standard of Review 2

PART I – STATEMENT OF FACTS 4

PART II – ISSUES 9

PART III – ARGUMENT 10

A. Did the learned sentencing Judge err in law and  principle by failing to consider and apply the principle of restraint? 10

B. Did the learned sentencing Judge err by overemphasizing  the principle of deterrence while paying insufficient attention to the  individual circumstances of the Appellant? 13

C. Did the learned sentencing Judge err in law by,  in effect, sentencing the Appellant for criminal contempt, notwithstanding  that this Court has convicted him of civil contempt, and the Commission  proceeded on that basis at the Sentencing Hearing? 14

i. Parity Principle 16

D. Did the learned sentencing Judge err in law by declining to  consider the mitigating factor that the Appellant had been in prison  for 22 days as a result of criminal charges involving the same complainant  and substantially the same evidence? 18

PART IV – CONCLUSION AND NATURE OF RELIEF  REQUESTED 26

PART V – LIST OF AUTHORITIES 28

 

 

 

Court File  No.:  A-493-12

 

FEDERAL COURT OF APPEAL

BETWEEN:

 

tERRy TREMAINE

APPELLANT

and

 

Canadian human rights  commission

and

richard warman

RESPONDENTS

 

 

 

MEMORANDUM OF FACT AND LAW OF  THE APPELLANT

 

 

 

OVERVIEW

 

  1. The evidence disclosed throughout this litigation establishes   that the Appellant’s political message is, doubtless, deeply offensive   to the overwhelming majority of Canadian citizens.  This Honourable   Court has convicted the Appellant of civil contempt of the Canadian Human Rights Tribunal, which had previously ordered the Appellant to “cease and desist” from communications of the type that resulted in the   finding that he exposed protected groups of his fellow citizens to hatred   or contempt.  This is an undeniable fact.

 

  1. It is readily acknowledged that a conviction for   civil contempt is a serious matter.  Nevertheless, the fundamental   principles of sentencing mandated by Parliament – and consistently applied by Canadian courts sentencing   citizens for contempt – must be properly applied to every citizen found   guilty of an offence.  The specific facts of a rare case such as this also   call for the consideration of broader legal principles. It is the role of the Appellate Courts to endeavor to ensure this is accomplished.

 

  1. At the heart of this appeal is the Appellant’s assertion that these principles were not applied   appropriately.  It is readily admitted that this case involves   communications that are hateful, and that was clearly a concern to the   learned sentencing Judge.  Mr. Justice Harrington was entitled   to consider this as an aggravating factor.  However, the learned sentencing Judge was still required to balance this with other   factors and correctly apply the appropriate principles.  This case   called for the Court to sentence a citizen for a civil contempt as a first offender.  The learned sentencing Judge had a legal duty to give adequate consideration to the   fundamental principle of restraint and the important mitigating factors   that arose from the Appellant’s personal circumstances, as well as the surrounding   social and legal context within which the offence occurred.  The Appellant will respectfully submit that adequate consideration of these principles and factors was not given in the case at bar, therefore causing   the learned sentencing Judge to commit a reversible error.  These errors in law and principle led to   a further error: that the sentence is manifestly excessive, and more   appropriate for a criminal contempt.

 

  1. Though the Appellant will advance two further arguments, it   is primarily because of these three errors that the learned sentencing Judge imposed a sentence which is, in all the circumstances   of this case, demonstrably unfit.

 

    1. Standard of Review

 

  1. Before discussing the law concerning the governing   standard of review to be applied in this case, it should first be acknowledged   that the grounds of appeal argued in this Memorandum will differ from   the grounds asserted by previous counsel in the Notice of Appeal.    Nevertheless, all of the Appellant’s submissions concern issues that were before the   learned sentencing Judge and are properly before this Court.    The Appellant respectfully submits that this Court has jurisdiction   to hear this appeal as is framed in this Memorandum.

 

  1. In Canada (Attorney General) v.   de l’Isle1 this Court held that, with respect to a sentence   for contempt, an appellate court may intervene only if the sentence   imposed is “excessive or inappropriate having regard to the circumstance,   or if that judge erred in law in passing sentence.”2  Though this appeal concerns a sentence for   civil contempt, the Appellant’s liberty interests are directly engaged and, as a   result, contempt is to be treated as quasi-criminal in nature.    For this reason, it is submitted that the deferential approach adopted   in de l’Isle can be expanded upon by applying the principles   outlined by appellate level sentencing cases in Canadian criminal law.

 

  1. The standard of review to be employed by Appellate   Courts when adjudicating sentence appeals is outlined by the Supreme   Court of Canada in R. v. Shropshire3.  The standard was considered further in R. v. M. (C.A.)4.  At paragraph 90, the court stated:

 

Put simply, absent an error in principle, failure  to consider a relevant factor, or an overemphasis of the appropriate  factors, a court of appeal should only intervene to vary a sentence  imposed at trial if the sentence is demonstrably unfit.

 

  1. While recognizing the important role appellate courts   play in minimizing disparity of sentencing for similar offenders and   similar offences, the Supreme Court recognized that sentencing is an   individualized process.  It accepted that Parliament has given   specialized discretion to individual sentencing judges.     As a result, the court stated at paragraph 92:

 

… I believe that a court of appeal should only  intervene to minimize the disparity of sentences where the sentence  imposed by the trial judge is in substantial and marked departure from  the sentences customarily imposed for similar offenders committing similar  crimes.

 

 

  1. The Saskatchewan Court of Appeal has recognized and applied this standard of review   on numerous occasions.  In R. v. Campeau5, the Court re-affirmed the standard.  Further,   it discussed what constitutes “unreasonableness” and “demonstrable unfitness” at paragraph 5:

 

This Court considers what constitutes “unreasonable”  in R. v. Berntson and “demonstrably  unfit” in R. v. Pankewich. In Pankewich, Jackson J.A.,  for the Court, described demonstrable unfitness as follows:

 

[31] …”Demonstrably unfit” has been equated  with unreasonableness (see Shropshire at para. 46);  “sentences which are clearly or manifestly excessive” (see Shropshire at para. 47  quoting the Nova Scotia Court of Appeal in R. v. Pepin (1990), 98  N.S.R. (2d) 238 (N.S.C.A.) at 251); “falling outside the ‘acceptable  range”‘ (see Shropshire at para. 50);  sentences where there is a “substantial and marked departure from  the sentences customarily imposed for similar offenders committing similar  crimes” (see M. (C.A.) at para. 92)  … McDonnell [[1997] 1 S.C.R.  948] also states that a wide deviation from the accepted “starting-point”  of sentencing for an offence will not, in and of itself, render a sentence  demonstrably unfit, but rather is a factor in determining demonstrable  unfitness…

 

  1. In R. v. Rezale6, the Ontario Court of Appeal defined an error in   principle as follows:

 

Error in principle is a familiar basis for reviewing  the exercise of judicial discretion.  It connotes, at least, failing  to take into account a relevant factor, taking into account an irrelevant  factor, failing to give sufficient weight to relevant factors, overemphasizing  relevant factors and, more generally, it includes an error of law.

 

 

PART I – STATEMENT OF FACTS

 

  1. The Canadian Human Rights Tribunal (“CHRT”) held that the Appellant, Mr. Terry Tremaine, was   engaging in discriminatory practice contrary to s. 13 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (“CHRA”) on February 2, 2007.  The Tribunal held that   Mr. Tremaine’s messages violated s. 13(1) of the CHRA and issued a cease and desist order and a fine in   the amount on $4,000.  Mr. Tremaine was not represented by counsel   at the CHRT hearing.7  

 

  1. Still unrepresented, he applied for judicial review   of the Tribunal’s decision.  On September 18, 2008, the Federal   Court found that the Tribunal’s decision was not unreasonable.  The Court held   that neither the cease and desist order, nor the $4,000 fine were unreasonable.  Notwithstanding   that the Appellant was not represented by counsel, the Federal Court   declined to consider his application with respect to the constitutionality   of s. 13(1) of the CHRA because he did not provide the requisite notice   as required by the Federal Courts Act, RSC 1985, c. F-7. The Court further declined a request to have the   judicial review adjourned pending the outcome of the constitutional   application made in CHRC and Warman v. Lemire, 2012 FC 1162 (F.C.T.D.).

 

  1. The facts underlying both the Tribunal decision and the   judicial review concern Mr. Tremaine’s postings on 2 internet sites.  First, Mr. Tremaine is the Webmaster of the National Socialist Party   of Canada website.  Second, he is a member of an American website   known as “Stormfront”.  Stormfront provides forums where people can exchange ideas   and messages in the form of postings.  The website is clearly geared towards white   supremacy and neo-Nazi ideology, and is basically a cyber-meeting place for like-minded individuals.  Though you need to be a member to post on   the website, any member of the public can download the content.    The slogan “White Power World Wide” appears on the Home Page of Stormfront, so the nature of the website is very clear to all visitors.  The Appellant posted on the website under   the pseudonym “MathDoktor99”.  The majority of the postings attributed to   the Appellant are repugnant and deeply offensive to the vast majority   of Canadians.8  

 

  1. The Appellant did not appeal the decision of the   Federal Court.

 

  1. In 2009, the Canadian Human Rights Commission (the “Commission”) filed a motion in Federal Court for an order that   the Appellant be found in contempt of the order of the Tribunal.    The motion was heard by Justice Harrington of the Trial Division of   the Federal Court.

 

  1. Justice Harrington held that though the Commission   had established beyond a reasonable doubt that the Appellant had knowledge   of the order of the Tribunal, it could not establish that he had knowledge   that the order had been registered with the Federal Court until March,   2009.  He dismissed the charges for contempt, finding that the Commission had to register the Tribunal’s order with the Federal Court and serve the Appellant   before it could be enforced.  The learned Trial Justice also dismissed   the Appellant’s argument that he had not “communicated” within the meaning of s. 13(1) of the CHRA.

 

  1. The Commission successfully appealed this decision   to this Court.  The majority of the Federal Court of Appeal found   that there was no legal principle that restricted the use of contempt   powers to orders issued by superior courts.  It concluded that   the CHRT’s decisions were no less enforceable by superior courts   than the decisions of the superior courts themselves.  This Honourable Court declined to order a new hearing   and instead substituted a conviction for civil contempt.  It directed   that the matter be returned to the Federal Court for sentencing.

 

  1. Counsel for the Appellant unsuccessfully applied for leave to appeal this   Honourable Court’s decision to the Supreme Court of Canada.  The   matter was thus remitted back to the Federal Court Trial Division for sentencing.  It proceeded on the basis that the Appellant had been   convicted of civil contempt.9  

 

  1. As it was a civil contempt, the Commission submitted   that the Appellant ought to be detained until his contempt was purged.    The Commission further submitted that as the matter was a civil contempt,   the Appellant had the right to purge the contempt and therefore avoid   imprisonment.  The Commission submitted that if the Appellant did   not purge his contempt, that he ought to be imprisoned until he do so.10  

 

  1. The Commission also sought that the Appellant remove   the offending material from the National Socialist Party of Canada website   and request that Stormfront remove his previous posts that were the   subject of the contempt.

 

  1. The complainant, Mr. Richard Warman, sought a period   of unconditional imprisonment of 3 to 6 months.11The complainant further submitted that rather than   ordering the Appellant to remove the infringing posts from the National   Socialist website, the court ought to order the site shut down in its   entirety.12

 

  1. The Appellant’s counsel unsuccessfully tried to argue that the Appellant   did not have the requisite mens rea.  The Appellant further argued that for a period of time wherein the Appellant was found to be in contempt, s. 13(1) of the CHRA was found to be not constitutionally valid.    The Appellant argued that he was under an honest mistake of law and   did not believe that the Tribunal’s decision was enforceable.  He further argued   that the order of the Tribunal was ambiguous in that it prohibited “telephonic” communication rather than internet communication. The Appellant submitted that there should be an   order for compliance, and in default of compliance, 60 to 80 days imprisonment.    In effect, he asked for a sentence of imprisonment to be suspended to allow   him time to purge his civil contempt.13  

 

  1. The Trial Division of the Federal Court sentenced the Appellant to 30 days imprisonment.  It further ordered him to cease communicating or causing   to communicate material of the type or substantially similar type to   that found by the Tribunal and Federal Court to be likely to expose   a person or persons to hatred or contempt on the basis of a prohibited   ground of discrimination in violation of s. 13(1) of the CHRA.  It held that the Appellant would be imprisoned for   a further 6 months or until he complies with the Court’s order, and directed the Appellant to approach Stormfront.org with a   request to remove postings from their website and to remove specified   postings from the National Socialist Party of Canada website.

 

  1. In the decision under appeal, the learned Trial Justice   began his decision by declaring that “the time [had] come at last to penalize Mr. Tremaine   for acting in contempt of an order of the Canadian Human Rights Tribunal.”  The Court further noted the offensive nature of   Mr. Tremaine’s messages.  It dismissed the Notice of Constitutional Question   filed by the Appellant at the Sentencing Hearing, echoing its oral ruling at the sentencing hearing,   in which it dismissed the motion without hearing evidence. The court held that it was “most disturbing” that the Appellant had testified at the Sentencing   Hearing that he had sold control of the National Socialist Party of   Canada website to an American through Mr. Bernard Klatt.  The learned Trial Judge added that it was “obvious that Mr. Tremaine was attempting to put his website out of this Court’s reach”.  The learned Justice also saw fit to admonish the Appellant’s previous counsel in relation to submissions he made   with respect to the Complainant.

 

  1. It should be noted that the materials that were the   subject matter of the previous hearings were also the subject matters   of criminal proceedings in the Province of Saskatchewan.  The Appellant   was charged with breaching s. 319 of the Criminal Code.  The Regina Police Service executed a search   warrant and invaded his home and seized his computer.  As a result   of an alleged breach of bail conditions, the Appellant served 22 days   at the Regina Provincial Correctional Centre on remand.  The substantive s. 319 charge was eventually judicially stayed by the Saskatchewan Court of Queen’s Bench due to unreasonable delay.  The breach allegation was also stayed.14  

 

  1. On December 3, 2012, previous counsel for the Appellant   sent a letter to the Registrar of the Federal Court of Canada outlining   the steps the Appellant had taken to comply with the order.15  

 

  1. The Appellant, Terry Tremaine, is a 64 year old Canadian   citizen residing in Regina, Saskatchewan.  He has a Master of Science   in Mathematics, and has completed some doctoral studies at Queen’s University.  As a result of this litigation, his 20 year academic   career has been completely destroyed.  Though there was no suggestion   his personal political views ever affected his teaching career, the   University of Saskatchewan dismissed him when the Complainant contacted   them about Mr. Tremaine and threatened to go to the media if the institution   did not take disciplinary action.  Subsequent to the loss of his   profession, Mr. Tremaine suffered from depression that was so severe   he required hospitalization.  He has been unable to find lasting,   meaningful employment since his termination and is now indigent, and a qualified applicant for representation   by Legal Aid Saskatchewan.16  

 

PART II – ISSUES

 

  1. It is respectfully submitted that this appeal raises   the following issues:

 

    1. Did the learned sentencing Judge err in law and principle   by failing to consider and apply the principle of restraint?

 

    1. Did the learned sentencing Judge err by overemphasizing   the principle of deterrence while paying insufficient attention to the   individual circumstances of the Appellant?

 

 

    1. Did the learned sentencing Judge err in law by, in   effect, sentencing the Appellant for criminal contempt, notwithstanding   that this Court has convicted him of civil contempt, and the Commission   proceeded on that basis at the Sentencing Hearing?

 

      1. Does the Sentence conform with the Parity Principle?

 

    1. Did the learned sentencing Judge err in law by declining   to consider the mitigating factor that the Appellant had been in prison   for 22 days as a result of criminal charges involving the same complainant   and substantially the same evidence?

 

    1. While considering the hateful nature of the Appellant’s comments, did the learned sentencing Judge err by   declining to also consider the broad social and legal factors that were   relevant to the analysis of a just and proper sanction?

 

PART III – ARGUMENT

 

  1. Did the learned sentencing Judge err in law and principle by failing   to consider and apply the principle of restraint?

 

  1. Though the law concerning both civil and criminal   contempt is rooted in the common law rather than statute, the potential   implications for a loss of liberty arising from a finding of contempt   has led the courts to consistently apply the criminal standard of proof   beyond a reasonable doubt.17  The criminal nature of contempt proceedings,   even in a civil context, has led the established jurisprudence to accept   that the principles of sentencing outlined in the Criminal Code, R.S.C. 1985, c. C-46 (“Code”) are instructive and should be followed.

 

  1. In International Forest Products   Ltd. v. Kern18, the British Columbia Court of Appeal reviewed the   sentence for criminal contempt imposed on a protestor disobeying an injunction obtained by the plaintiff logging company.  The court considered its function as a reviewing   court on appeal, and held that “[s]entencing for criminal contempt must be guided by   principle and no better guide exists than those Criminal Code provisions which largely codified the judge-made   rules on sentencing”.19  It went on to assess whether the original   sentence was demonstrably unfit.

 

  1. The Newfoundland Court of Appeal has also applied   this reasoning.  In Puddester v. Newfoundland (Attorney General)20 the court held that both the principles and the   sentencing options outlined in the Criminal Code can be adopted and employed in contempt proceedings.21  In Ontario, the Superior Court of Justice   has even considered sentencing an offender to a conditional sentence   of imprisonment, relying on a procedural rule giving a trial judge broad   discretion in contempt sentencing.22  

 

  1. With respect to the principle of restraint, this   Honourable Court has affirmed its applicability in sentencing for contempt   in Federal Court.  Relying in part on the seminal case of R. v. Gladue23, this court has held that a sentencing court must consider all   other sanctions that may be appropriate before considering imprisonment,   especially in cases involving citizens with no prior criminal record.    In Canadian Human Rights Commission v. Winnicki,24 this court stated at para. 20 (emphasis added):

 

The authorities are clear that  a Court should take special care in imposing a sentence of imprisonment  upon a first offender. The trial judge should have either a pre-sentence  report or some very clear statement with respect to the accused’s background  and circumstances. This is particularly true of youthful offenders such  as the appellant. Further it has been recognized that except for very  serious offences and offences involving violence, the primary objective  of individual deterrence can be best achieved by either a suspended  sentence or probation or a very short term of imprisonment followed  by a term of probation. (see R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688). In R. v. Priest, [1996] O.J.  No. 3369, at paragraphs 20 and 23 the Ontario Court of Appeal stated:

 

The duty to explore other  dispositions for a first offender before imposing a custodial sentence  is not an empty formalism which can be avoided merely by invoking the  objective of general deterrence. It should be clear from the record  of the proceedings, preferably in the trial judge’s reasons, why the  circumstances of this particular case require that this first offender  must receive a sentence of imprisonment. The trial judge had no material before him from  which he could possibly have made this determination. His reasons are  barren of any lawful justification for such a radical departure from  this well-established principle especially in the case of a youthful  first offender.

 

Even if a custodial sentence was appropriate  in this case, it is a well-established principle of sentencing laid  down by this court that a first sentence of imprisonment should be as  short as possible and tailored to the individual circumstances of the  accused rather than solely for the purpose of general deterrence. …

 

Likewise, in R. v. Curran (1973), 57  Cr. App. R. 945 it was noted that,

 

As a general rule it is undesirable that a first  sentence of immediate imprisonment should be very long, disproportionate  to the gravity of the offence, and imposed as this sentence was, for  reasons of general deterrence, that is as a warning to others. The length  of a first sentence is more reasonably determined by considerations  of individual deterrence; and what sentence is needed to teach this  particular offender a lesson which he has not learnt from the lighter  sentences which he has previously received.

 

  1. The common law principle of restraint required that   if imprisonment must be imposed for an offence, the shortest amount   of time possible in the circumstances should be given.  Parliament   codified and expanded this principle in ss. 718.2 (d) and (e) of the Code, which require sentencing judges to consider all available   sanctions other than imprisonment that are reasonable in the circumstances.  It is respectfully submitted that this reflects   an intention that imprisonment be considered a punishment of last resort.

 

  1. As was the case in Winnicki25, the learned sentencing Judge did not consider the   impact of the fact that the Appellant was a first offender in his reasons.    Moreover, he did not direct his mind to the accepted principle that   in arriving at a just sanction, serious consideration must be given   to dispositions other than imprisonment.  It is obvious that he did not consider suspending   the prison sentence to allow the Appellant to purge his contempt to   be sufficient.  However, it is apparent from the reasons that he   did not consider alternative dispositions, such as probation with a   community service order, which would have been more appropriate in the   circumstances.  Even though the Rules don’t specifically provide for this type of disposition,   it is submitted that the Federal Court has an inherent jurisdiction   to control its own process.  This jurisdiction includes a wide   discretion in imposing sanctions for civil contempt.  In Canadian Copyright Licensing   Agency v. U-Compute,26 the Federal Court imposed probation with community   service hours on an offender with two prior convictions for contempt   of court. 

 

  1. It is respectfully submitted that by not analyzing and applying the principle of restraint, the learned sentencing Judge erred in law.

 

  1. Did the learned sentencing Judge err by overemphasizing the principle   of deterrence while paying insufficient attention to the individual   circumstances of the Appellant?

 

  1. This court affirmed in Winnicki that it is an error for a sentencing Judge in contempt proceedings to neglect   to consider the background of the citizen found in contempt.27  The rationale for the rule is that just sanctions   require an assessment of both the circumstances of the offence and the   offender.  A balancing of these circumstances is essential because   sentencing is an individualized process.

 

 

  1. The evidence at the sentencing hearing indicated   that sometime after the complaint was filed with the Commission, the   Complainant contacted the Appellant’s employer, the University of Saskatchewan.    He advised the University that the complaint had been filed, and requested   that they take disciplinary action against the Appellant.  The   Complainant advised that if the University did not take action, local   and national media would be advised of the situation.  Mr. Tremaine, whose views were now exposed, was fired.    His twenty year academic career is in ruins, and he has been unable   to maintain regular employment since. He is now on social assistance   in Saskatchewan.  After being fired by the University, he fell into a deep depression, and was admitted to   the psychiatric ward at the Regina General Hospital.28  

 

  1. Neither this evidence, nor the fact that Mr. Tremaine   was a first offender, was mentioned in the decision under appeal.  While it is recognized that the learned sentencing Judge considered several factors in this case to   be aggravating, he had a legal duty to at least factor the mitigating   circumstances into the final analysis.  This Honourable Court gave a clear direction in Winnicki that he must do so.

 

  1. Every citizen, no matter how distasteful the court   may view their conduct, is entitled to have a sentencing   court consider the impact that the proceedings has had on his/her personal   circumstances.  Justice demands nothing less.  It is submitted   that the learned sentencing Judge made a very clear error in this respect.

 

  1. Did the learned sentencing Judge err in law by, in effect, sentencing   the Appellant for criminal contempt, notwithstanding that this Court   has convicted him of civil contempt, and the Commission proceeded on   that basis at the Sentencing Hearing?

 

  1. At one time, the practical difference between civil   and criminal contempt was difficult to discern.  In UNA v. Alberta (Attorney-General),29 the Supreme Court of Canada considered this distinction.    Speaking for the Court, McLachlin J. (as she then was) stated at para. 20-21:

 

Both civil and criminal contempt of court rest on  the power of the court to uphold its dignity and process. The rule of  law is at the heart of our society; without it there can be neither  peace, nor order nor good government. The rule of law is directly dependant  on the ability of the courts to enforce their process and maintain their  dignity and respect. To maintain their process and respect, courts since  the 12th century have exercised the power to punish for contempt of  court.

 

These same courts found it necessary to distinguish  between civil and criminal contempt. A person who simply breaches a  court order, for example by failing to abide by visiting hours stipulated  in a child custody order, is viewed as having committed civil contempt.  However, when the element of public defiance of the court’s process  in a way calculated to lessen societal respect for the courts is added  to the breach, it becomes criminal. This distinction emerges from Poje v. British Columbia (Attorney General), [1953] 1 S.C.R. 516, 17 C.R. 176, 105 C.C.C. 311,  [1953] 2 D.L.R. 785, at p. 527 [S.C.R.], per Kellock J.:

 

The context in which these incidents occurred, the large numbers of  men involved and the public nature of the defiance of the order of the  court transfer the conduct here in question from the realm of a mere  civil contempt, such as an ordinary breach of injunction with respect  to private rights in a patent or trade-mark, for example, into the realm  of a public depreciation of the authority of the court tending to bring  the administration of justice into scorn.

 

  1. As outlined by the court, criminal contempt requires proof of a requisite mens rea, including full knowledge that the public defiance   will depreciate the authority of the court.30  In civil contempt, mens rea is not a factor until the sentencing stage.31  

 

  1. The Appellant was convicted of civil contempt.    The Sentencing Hearing proceeded on this basis.  Counsel for   the Commission was clear on this point, and very fairly pointed out   to the Court that in civil contempt, it is generally accepted that the   offender ought to be given the opportunity to purge their contempt.32  It is submitted that this comment is consistent   with much of the jurisprudence.  After reviewing numerous cases   involving both civil and criminal contempt, the B.C. Supreme Court in Telus Communications Inc. v.   T. W. U.33 stated (emphasis added):

 

In reviewing the decisions where criminal and civil  contempt have been found, it is apparent that most contempt proceedings  involving labour/management disputes or civil “protest” disobedience  have proceeded as criminal contempt, there is a wide variation in the  punishment thought to be appropriate for any particular “type”  of contempt, there appears to be little difference between the punishment  imposed for criminal contempt and the punishment imposed for civil contempt, but incarceration is usually  reserved for situations where criminal contempt has been found.

 

  1. Though imprisonment is certainly possible in cases   of civil contempt, it is submitted that it should not be commonly given,   especially to a citizen without a prior record.  It is submitted   that the learned sentencing Judge erred by failing to consider the distinction   between civil and criminal contempt.  Effectively, the court imposed   a sentence for criminal contempt notwithstanding that the Appellant   had only been convicted of civil contempt.

 

  1. This error, either alone or in combination with the errors   of failing to consider both the principle of restraint and the personal   circumstances of the Appellant, led to the imposition of a sentence that was demonstrably unfit. With respect, it is manifestly excessive and not appropriate for a first offender convicted of civil contempt.

 

    1. Parity Principle

 

  1. As this court is well aware, another important principle   of sentencing is that the sentence imposed be consistent with sentences   imposed on similar offenders in similar situations.  For the purposes of assessing whether the sentence conforms to the parity principle, it is useful to consider sentences   imposed in other contempt cases.

 

  1. In MacMillan Bloedel Ltd. v. Simpson34 the court considered sentences for criminal contempt,   which included jail sentences imposed on several citizens, including   first offenders.  However the court pointed out that earlier in   the litigation, several other individuals involved in the same protest   were given fines, or prison sentences that were suspended to allow for   an opportunity for the order to be followed.35  It was only when it was clear that previous   lenient sentences were not effecting the Court’s purpose that the sanction of unsuspended imprisonment   was employed.

 

  1. In Regina (City) v. Cunnigham,36 the plaintiff municipality obtained an injunction   enjoining the defendant from continuing to operate a strip club in a   manner than contravened the city Zoning Bylaw.  Mr. Cuningham did   not appeal the injunction.  After being convicted of criminal contempt,   Cunningham was sentenced to a $2000 fine and 6 months imprisonment,   suspended if he obeyed the injunction.  He did not purge his contempt   and instead publicly declared that the club would stay open.  He was eventually committed to prison.  However,   it is significant that even though Cunningham was convicted of criminal   contempt, he was initially given a chance to purge the contempt before imprisonment was imposed.

 

  1. In Winnicki,37 this court reduced a 9 month sentence for contempt   of the Federal Court to time served, which was 83 days.  This case   is factually similar to the case at bar, but it is not clear whether the finding   was of civil or criminal contempt.  Mr. Winnicki had violated an injunction issued by the Federal Court Trial Division.

 

  1. The B.C. Supreme Court sentenced several individuals   for civil contempt in Telus Communications v. T.W.U.38 The sentences included orders compelling donations   to charity, orders compelling community service, along with various fines and costs awards.

 

 

  1. Other cases include:
    1. Canadian Copyright Licensing   Agency v. U-Compute39 – Civil Contempt, offender had two prior convictions.    He was sentenced to imprisonment, but it was suspended and included   an order for community service work.

 

    1. Salt River First Nation 195 v.   Marie40 – Civil Contempt, fines with default imprisonment   for one defendant

 

    1. Telewizja Polsat SA v. Radiopol   Inc41 – Civil Contempt, offender shows no remorse.  6 months imprisonment,   suspended to allow for compliance.

 

    1. Canada (Minister of National   Revenue) v. Money Stop Ltd.42 – Offender given 30 days to comply after contempt   hearing and did not do so.  Eventual sentence included imprisonment,   but it was suspended to allow for compliance.

 

  1. Did the learned sentencing Judge err in law by declining to consider   the mitigating factor that the Appellant had been in prison for 22 days   as a result of criminal charges involving the same complainant and substantially   the same evidence?

 

  1. As this court is aware, it is a common practice for   criminal courts to factor pre-trial custody in to the analysis of an   appropriate sentence.  It is submitted that this practice is rooted,   fundamentally, in fairness and equity.  The most common legal regime   employed to give effect to this principle of fairness is s. 719 of the Criminal Code.  However, it is not the only means by which the courts   achieve similar ends.

 

  1. There is nothing in the language of s. 719 of the Code to suggest that a citizen should be given credit   for time spent on strict bail conditions while he/she awaits a disposition.    Nevertheless, strict release conditions are a deprivation of liberty.  The appellate courts have responded   by requiring sentencing courts to factor these conditions into the analysis   as mitigating factors.  In R. v. Downes43, the Ontario Court of Appeal reviewed Canadian jurisprudence   and concluded that stringent bail conditions must be taken into account   by sentencing Judges as a mitigating circumstance.44  The court did not mandate that a specific   quantum of credit be given, as it recognized that different circumstances   will require judges to vary its final impact on sentence.  While there is no strict formula, there is no doubt   that pre-trial deprivations of liberty must at least be considered.  Though   in a later case the court declined to hold that this principle could   reduce a statutorily mandated minimum sentence, the basic principle   remains law in Ontario.45  

 

  1. Rather than through a specific statutory provision,   the source of this rule is the courts’ desire to fulfill its role in delivering a just sanction   on a citizen convicted of an offence.  In considering this principle   and its underlying values, it is submitted that it should be applied   in the case at bar.  Though the criminal proceedings were eventually   stayed, Mr. Tremaine was detained at the Regina Provincial Correctional   Centre for 22 days as a result of what appears to be the same evidence and witnesses that were before the CHRT.  He has thus incurred a serious deprivation of liberty as a result of what is substantially   the same conduct.  The Appellant admits that there is no specific statutory   compulsion to consider his previous imprisonment.  However it is   respectfully submitted that the court’s duty to consider all relevant circumstances in arriving   at a just sanction mandates that it should have at least factored into   the learned sentencing Judge’s analysis.  The Appellant respectfully submits   that by declining to even consider his pre-trial detention, the learned sentencing   Judge erred in principle.

 

  1. While considering the hateful   nature of the Appellant’s comments, did the learned sentencing   Judge err by declining to also consider the broad social and legal factors   that were relevant to the analysis of a just and proper sanction?

 

 

  1. At paragraph 26 of the Judgment under appeal, the   learned sentencing Judge asserts that “this case is about law and order”.46 On its face, it may seem to be a correct proposition.    The law of contempt is concerned with the rule of law.  However,   it is beyond doubt that the facts and the underlying legal and social   context are always part of the sentencing process.  It is precisely   because every sentence occurs within a larger social context that principles   such as general deterrence and denunciation are considered and weighed   against the individual needs of the citizens – both victim and offender – before the court.  Broad considerations are   a necessary part of the task of arriving at a fit and just sanction.

 

  1. The learned sentencing Judge understood this general   proposition.  This can be deduced from the obvious concern he had   about the conduct of both the Appellant and his previous counsel.    For example, he inferred from the evidence of the Appellant’s sale of the National Socialist Party of Canada website that it was “obvious that [he] was attempting to put his website   out of the court’s reach” (para. 20).  He referred to Mr. Tremaine as “the villain” (para. 24).  He remarked that the Appellant’s previous counsel “used the courtroom as a bully pulpit to attack Mr.   Warman” (para. 22).  He made special mention that, in   this case, the court was no longer concerned about “free speech”.47  It should also be noted that in his submissions,   the complainant urged the court that it “weighs upon the judgment of this court that the material is vicious hate propaganda”.48  

 

  1. The Appellant does not quarrel with the learned sentencing Judge’s right and duty to consider other relevant factors   beyond the simple fact of the contempt in imposing sentence.  Indeed,   the central message of the argument in this Memorandum is that he ought to have considered more factors and principles than he did.  It would be   less than honest to suggest that this case is merely about the fact   of the civil contempt, as the very facts upon which the conviction is   founded concern expression, albeit expression that has been determined   to be hateful.  A sentencing court must balance many factors in relatively   rare situations like the one presented in the case before this Honourable   Court.

 

  1. In R. v. Nasogaluak49, the Supreme Court of Canada considered the extent   to which the Charter of Rights and Freedoms affects the sentencing process.  Though the   case concerned the impact of a specific egregious breach of Nasogaluak’s rights on the sentencing process where a mandatory   minimum was concerned, the court outlined some important general principles.    The Supreme Court of Canada affirmed that a sentencing judge always   had the authority to consider the impact of an infringement of a citizen’s Charter rights in arriving at a just sanction, and there is no requirement   for a formal application for a remedy.  The reason for this is   that the court understood that a “fit” sentence is one that respects and considers the fundamental   values enshrined in the Charter.  At paragraph 48-49 (emphasis added):

 

Indeed, the sentencing regime under Canadian law  must be implemented within, and not apart from, the framework of the Charter.  Sentencing decisions are always subject to constitutional  scrutiny.  A sentence cannot be “fit”  if it does not respect the fundamental values enshrined in the Charter.  Thus, incidents alleged to constitute a Charter violation can be considered in sentencing, provided  that they bear the necessary connection to the sentencing exercise.   As mitigating factors, the circumstances of the breach would have to  align with the circumstances of the offence or the offender, as required  by s. 718.2 of the Code.  Naturally, the more  egregious the breach, the more attention the court will likely pay to  it in determining a fit sentence.

 

This is consistent with the communicative  function of sentencing. A proportionate sentence is one that expresses,  to some extent, society’s legitimate shared values and concerns.

 

  1. This case does not concern a specific breach of the Appellant’s Charter rights.  However, that does not mean that the Charter is divorced from the analysis.  Our constitution   remains present, and its values must be considered if the court is to   arrive at a just and fit sentence.  This is precisely why the hateful nature of the Appellant’s conduct is an aggravating factor.  However,   the Charter also speaks to mitigating factors in this case.  Fairness requires that these be considered as well.

 

  1. For civil libertarians who believe that hateful speech   should be confronted and challenged, rather than censored by state agents, the constitutional   battle is lost.  This is fully and respectfully acknowledged by   the Appellant.  Nevertheless, it is vital to recognize the context within which   this court is operating.  State infringement on   freedom of speech was found to be demonstrably justified in a free and   democratic society in the human rights legislative context in Canada (H.R.C.) v. Taylor50 and Saskatchewan (H.R.C.) v. Whatcott.51  However, the process by which the infringement   was justified speaks to the fact that the Supreme Court and civil society still recognize that   free expression is integral to both democracy and the rule of law – a bedrock right, upon which all other civil rights   are built.  Indeed, it is a right integral to our modern conception   of the rule of law itself.  The Appellant very respectfully submits that this Honourable Court should   approach the issues in this sentencing with humility, fully cognizant of the nature of the s. 1 justification that provides the legal authority to   take the liberty of a citizen who, while admittedly is guilty of contempt,   is nonetheless on the facts of the case being punished for expressing his political views – however distasteful and repugnant they might be.    This same humility will also allow future courts to be vigilant in ensuring   that the definition of “hatred and contempt” is not unduly expanded.

 

  1. This does not mean that the conviction was improper,   or that the CHRT and the court are not entitled to ensure its orders are respected   and followed.  But, taking the liberty of a citizen is the state’s ultimate weapon, and it is the Appellant’s respectful submission that no court should lightly   undertake this task.  This is especially true when the factual   nature of the crime involves political speech.52  Justice must be tempered, especially when   the legal regime’s constitutional justification rests on the proportional limitation of a fundamental right that resulted from   a delicate balance of competing values that are all entrenched in Canada’s supreme law.
  2. Again, the legal analysis by which the constitution   allows state power to restrict a fundamental civil right under s. 1   of the Charter is itself a delicate balancing exercise that involves   limiting freedoms that are part of the supreme law of Canada.     The seminal case on s. 1 is R. v. Oakes.53 At paragraph 66 of the decision, Chief Justice Dickson   stated (emphasis added):

 

It is important to observe at the outset that s.  1 has two functions: first, it constitutionally guarantees the rights  and freedoms set out in the provisions which follow; and second, it  states explicitly the exclusive justificatory criteria (outside of s.  33 of the Constitution Act, 1982) against which limitations on those  rights and freedoms must be measured. Accordingly, any s. 1 inquiry  must be premised on an understanding that the impugned limit violates  constitutional rights and freedoms — rights and freedoms which are  part of the supreme law of Canada. As Wilson J. stated in Singh v. Min. of Employment &  Immigration, supra, at p. 218:

 

… it is important to remember  that the courts are conducting this inquiry in light of a commitment  to uphold the rights and freedoms set out in the other sections of the Charter.

 

  1. The s. 1 analysis requires the state to prove that the infringement of a constitutional right constitutes a minimal impairment of that right.  Further,   the effect of the state infringement must be proportional to its objective. At paragraph 74-75 (emphasis added):

 

Second, once a sufficiently significant objective  is recognized, then the party invoking s. 1 must show that the means  chosen are reasonable and demonstrably justified. This involves “a  form of proportionality test”: R. v. Big M Drug Mart Ltd.,  supra, at p. 352. Although the nature of the proportionality test will  vary depending on the circumstances, in each case courts will be required  to balance the interests of society with those of individuals and groups.  There are, in my view, three important components of a proportionality  test. First, the measures adopted must be carefully designed to achieve  the objective in question. They must not be arbitrary, unfair or based  on irrational considerations. In short, they must be rationally connected  to the objective. Second, the means, even if rationally  connected to the objective in this first sense, should impair “as  little as possible” the right or freedom in question: R. v. Big M Drug Mart Ltd.,  supra, at p. 352. Third, there must be a proportionality between the effects of the measures  which are responsible for limiting the Charter right or freedom and  the objective which has been identified as of “sufficient importance”.

 

With respect to the third component, it is clear  that the general effect of any measure impugned under s. 1 will be the  infringement of a right or freedom guaranteed by the Charter; this is  the reason why resort to s. 1 is necessary. The inquiry into effects  must, however, go further. A wide range of rights and freedoms are guaranteed  by the Charter, and an almost infinite number of factual situations  may arise in respect of these. Some limits on rights and freedoms protected  by the Charter will be more serious than others in terms of the nature  of the right or freedom violated, the extent of the violation, and the  degree to which the measures which impose the limit trench upon the  integral principles of a free and democratic society. Even if an objective  is of sufficient importance, and the first two elements of the proportionality  test are satisfied, it is still possible that, because of the severity  of the deleterious effects of a measure on individuals or groups, the  measure will not be justified by the purposes it is intended to serve. The more severe the deleterious  effects of a measure, the more important the objective must be if the  measure is to be reasonable and demonstrably justified in a free and  democratic society.

 

  1. The fact that the type of expression uttered in this   case has been found to be legally limited pursuant to s. 1 of the Charter does not mean that the underlying importance of free   speech is divorced from the sentencing process.  The Charter right does not vanish from existence simply because   legislation has been found to legitimately restrict it.  The values underlying the right must remain and factor   into the sentencing analysis, because the court’s action in sentencing a citizen is a further infringement   that must also be reasonable in the circumstances.  As the Appellant’s right to free speech has been limited, not removed, it is incumbent on any sentencing   court to recognize that any action it takes must also be considered   a further “effect” of the state’s power to limit the right.  Even if this consideration   is difficult or uncomfortable when dealing with actions such as the   Appellant’s hateful speech, it is respectfully submitted that   a sentencing court must nevertheless measure its response with the underlying   values of freedom of expression in mind.

 

 

  1. Of course, this does not mean that the state cannot   restrict the Appellant’s speech.  The Supreme Court of Canada has confirmed   that it can.  Equality and the right to be free from discrimination   are also integral rights.  The Appellant is not submitting that   the court does not have the jurisdiction to take the liberty of a citizen for hateful speech.  What is submitted   is that a fit and proper sentence is one in which the court recognizes   that the delicate nature of the constitutional balance upon which this   jurisdiction rests requires that justice be tempered   and measured.  It is submitted that the sentence imposed in this   case is also demonstrably unfit because it does not give sufficient   weight to the solemn reality that the entire legal regime upon which this Appellant is before   the courts rests on a delicate balance that allows for censorship and   a limitation of a right of incredible importance to every citizen.    Surely in a situation such as that presented in the case at bar, the   principle of restraint takes on special significance.

 

  1. This is so even though the charge is contempt, because   the underlying facts of the contempt relate to expression.  Those   underlying facts were considered to be aggravating by the learned sentencing Judge.  It is significant to the sentencing process that   part of the facts underlying the contempt include the Appellant’s dissemination of electronic books such as The Poisonous Mushroom, The Turner   Diaries, and The Protocols of the Learned Elders   of Zion,54 especially when this court can take judicial notice   of the notorious fact that these very same books are widely available on the internet, and some   of them are even sold by online booksellers profiting off of Canadian   customers.  This court can further take note that though Adolf   Hitler’s Mein Kampf remains available in most major public libraries   in Canada, the learned sentencing Judge nevertheless found that the Appellant’s decision to post a large quote from this widely   available book was illegal and ordered it removed.55  It is submitted that an action by a court   of law to prohibit the distribution of books has no place in a 21st century liberal democracy.  The Appellant respectfully asks the court to consider   the implications of imprisoning a citizen in part because he disseminated books.
  2. Also included in the broad social context is the   fact that Parliament has now repealed the legislative provision on which   this entire litigation is based.56  The Appellant understands that does not excuse   him from his duty to follow the order of the CHRT.    Nor does it invalidate or question the conviction that this Honourable   Court entered upon him.  However, the Appellant submits that Parliament’s action signals an intention to remove the jurisdiction of the CHRT to try these   types of cases.  As part of the ongoing dialogue between Parliament   and the Courts, it is submitted that it is incumbent on a sentencing   Court to factor in Parliament’s message in arriving at a just and fit sentence.

 

  1. With respect, the learned sentencing Judge did not   consider the impact of either the underlying constitutional issue or   Parliament’s decision to repeal the very legislative provision   that formed the basis for the litigation.  As he did not do so,   the Appellant respectfully submits that he erred.  The Appellant   respectfully asks this court to consider that as the aggravating nature   of the facts underlying the contempt must be considered in arriving   at a fit sentence, so must the broader social and legal context be considered.    This court is humbly asked to reflect on the implications of taking the liberty   of a citizen based on facts such those presented in the case at bar,   even if that citizen’s views are repugnant.  It is respectfully submitted that is within   the proper function of this court to send a clear instruction to trial-level   courts that in sentencing a citizen in cases such as this, the delicate   balance of Charter values must be given due consideration and respect.

 

PART IV – CONCLUSION AND NATURE  OF RELIEF REQUESTED

 

  1. The Appellant respectfully submits that the learned   sentencing judge erred in law and principle for the reasons outlined   in this Memorandum of Law.  The Appellant further submits that   the sentence is manifestly harsh, excessive, and demonstrably unfit,   especially considering that he is a first offender.

 

  1. The Appellant requests that the 30 days imprisonment   portion of the sentence be set aside, with the conditional/suspended portion of the sentence reduced   to 60 days.  It further requests that portions of the prohibited   material relating to books be severed, specifically “Exhibit H”, “M”, “AA”, “BB”, “CC”, and “DD”.

 

  1. The Appellant asks for costs of the within appeal.

 

ALL OF WHICH IS RESPECTFULLY SUBMITTED, this ________  day of July, 2013

 

Legal Aid Saskatchewan

Regina City Area Office

 

 

Per:

Andrew L. Hitchcock

Solicitor for the Appellant, Terry Tremaine

 

 

PART V – LIST OF AUTHORITIES

 

Legislation and Rules  of Court

Canada Act 1982 (UK), 1982, c.  11

Canadian Criminal Code, R.S.C 1985, c. C-46

Canadian Human Rights Act, R.S.C. 1985, c. H-6

Charter of Rights and Freedoms, as part of The Constitution Act, 1982, Schedule B to the

Federal Court Rules, 1998, SOR/98-106

 

Jurisprudence

 

Canada (Attorney General) v.  de l’Isle (1994), 56 C.P.R. (3d) 371 (Fed.C.A.)

Canada (H.R.C.) v. Taylor [1990] 3 S.C.R. 892 (S.C.C.)

Canada (Minister of National  Revenue) v. Money Stop Ltd. 2013 FC 133

Canadian Copyright Licensing  Agency v. U-Compute (2005), 284 F.T.R. 116

Canadian Human Rights Commission  v. Winnicki, 2007 FCA 52

International Forest Products  Ltd. v. Kern, 2001 BCCA 48

MacMillan Bloedel Ltd. v. Simpson (1994), 88 C.C.C. (3d) 148 (B.C. C.A.)

Penthouse International Ltd.  v. 163564 Canada Inc., (1995), 63 C.P.R. (3d) 328 (Fed. T.D.)

Puddester v. Newfoundland (Attorney  General), 2001 NFCA 25

R. v. Campeau 2009 SKCA 3

R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.)

R. v. Gladue [1999] 1 S.C.R. 688 (S.C.C.)

R. v. Keegstra [1990] 3 S.C.R. 697 (S.C.C.)

R. v. M. (C.A.) [1996] 1 S.C.R. 500 (S.C.C.)

R. v. Nasogaluak [2010] 1 S.C.R. 206 (S.C.C.)

R. v. Oakes [1986] 1 S.C.R. 103 (S.C.C.)

R. v. Shopshire [1995] 4 S.C.R. 227 (S.C.C.)

R. v. Yue (2007), 226 C.C.C. (3d) 349 (Ont. C.A.); leave to appeal to S.C.C. refused;  (2008), 253 O.A.C. 397 (S.C.C.)

Regina (City) v. Cunningham, [1994] 8 W.W.R. 457 (Sask. C.A.)

Salt River First Nation 195 v.  Marie, 2006 FC 1420

Telewizja Polsat SA v. Radiopol  Inc. 2006 FC 137

Telus Communications Ltd. v.  T.W.U. 2006 BCSC 397; reversed in part on the issue  of costs; 2008 BCCA 144

U.N.A. v. Alberta (Attorney General) [1992] 1 S.C.R. 901 (S.C.C.)

Saskatchewan (H.R.C.) v. Whatcott 2013 SCC 11

1 (1994), 56 C.P.R. (3d) 371 (Fed.C.A.)

2 Ibid at para. 6

3 [1995] 4 S.C.R. 227

4 [1996] 1 S.C.R. 500

5 2009 SKCA 3

6 (1996), 112 CCC (3rd 97) Ont. C.A.

7 Warman  and CHRC v. Terry Tremaine, 2007 CHRT 2 (Appeal Book filed in  Court File A-468-10)

8 Appeal Book filed in A-468-10, Vol. 1, Tab 4

9 Appeal Book at p. 239

10 Appeal Book at  p. 240 – 244

11 Appeal Book, at p. 252

12 Appeal Book, at p. 261

13 Appeal Book, at p. 266 – 268, 270

14 Appeal Book, p. 384-385

15 Appeal Book, p. 370-371

16 Appeal Book, p. 112-122

17 See: Rule 469, Federal Courts Rules, SOR/98-106 (“Rules”); and Brilliant  Trading Inc. v. Wong, 2005 FC 1214 at para. 15.

18 2001 BCCA 48

19 Ibid at para. 20

20 2001 NFCA 25

21 See especially Ibid at para 32, 54-55

22 Sussex  Group Ltd. v. 3933938 Canada Inc., 2003 CanLII 27188 (ON SC)

23 [1999] 1 S.C.R. 688 (S.C.C.)

24 2007 FCA 52

25 Ibid at para 21

26 (2005) 284 FTR 116

27 Winnicki, supra note 24 at para. 21

28 Appeal Book, at 118-120

29 [1992] 1 S.C.R. 901 (S.C.C.)

30 Ibid.  at para. 24-25

31 See: Penthouse International Ltd. v. 163564 Canada Inc. (1995),  63 C.P.R. (3d) 328 (F.C.T.D.)

32 Appeal Book at 240

33 2006 BCSC 397; reversed in part on the issue of costs; 2008 BCCA 144

34 (1994), 88 C.C.C. (3d) 148 (B.C. C.A.)

35 See Ibid, at para 15-21, 58

36 [1994] 8 W.W.R. 457 (Sask. C.A.)

37 Winnicki,  supra note 27

38 Telus  Communications supra, note 33

39 2005 FC 1644

40 2006 FC 1420

41 2006 FC 137

42 2013 FC 133

43 (2006), 205 C.C.C. (3d) 488 (Ont. C.A.)

44 Ibid,  see especially: para 30-33

45 See: R. v. Yue (2007), 226 C.C.C. (3d) 349 (Ont. C.A.); leave to appeal  to the Supreme Court of Canada refused; (2008), 253 O.A.C. 397 (S.C.C.)

46 Appeal Book at p. 12

47 Judgment under appeal at para. 25, Appeal Book at p. 12

48 Appeal Book at 251.

49 [2010] 1 S.C.R. 206

50 [1990] 3 S.C.R. 892 (S.C.C.)

51 2013 SCC 11

52 in R. v. Keegstra [1990] 3 S.C.R. 697, the Supreme Court of Canada was  clear that even hate propaganda constitutes “political expression”  at para. 95

53 [1986] 1 S.C.R. 103 (S.C.C.)

54 Appeal Book filed in Court file A-468-10, Affidavit of Richard Warman,  p. 140

55 Appeal Book, at p. 17

56 Bill C-304 An Act to Amend the Canadian Human Rights Act (Protecting Freedom),  Royal Assent Statutes of Canada: 2013, c. 37]

Canada’s New Immigration Minister Welcomes Russian Homosexuals As “Refugees”

Canada’s New Immigration Minister Welcomes Russian Homosexuals As “Refugees”
 Chris Alexander, Canada’s new Minister of  Immigration is off to a bad start with an announcement that Canada will welcome Russian homosexuals who claim persecution.
 
Image Canada’s new Refugee Class

 

LifeSite News (August 13, 2013) reports: “Canada’s newly appointed immigration minister said that Russia is wrong in restricting homosexual propaganda aimed at youth and indicated that refugee claims by Russian homosexuals will be given serious consideration by the Conservative government.
Speaking at a Canadian citizenship ceremony in Surrey, B.C. on August 12, Citizenship and Immigration Minister Chris Alexander said the Conservative government of Stephen Harper has made its position on the Russian laws against homosexual proselytizing known and that Russian refugee claims ‘related to this particular issue will of course be looked at very seriously by our very generous system.’
‘This is a rights issue and Canadian values… require us to speak up when those rights are violated in gross ways,” Alexander said according to a Global News report. ‘We are going to speak out about Russia’s inappropriate actions in this area until the situation improves.’ …
Campaign Life Coalition gives Alexander a “caution” status for his voting record on life and family issues. …
Alexander voted against Stephen Woodworth’s Motion 312 to study whether a child in the womb is a human being based on the preponderance of evidence from modern medical science.
He voted for Bill C279, the ‘transgender & transsexual empowerment bill which added the radical concepts of “gender identity” and ‘gender expression’ as protected rights in the Human Rights Act and Criminal Code.
Prime Minister Harper recently waded into the mainstream media frenzy surrounding the Russian law banning homosexual propaganda, suggesting that Russian authorities are cracking down on people because they are homosexual.
“I think it’s important to recognize there are some controversies in this matter, but the reality is that our position is that we don’t imprison or kill people for acts committed freely between adults,” Harper said according to a Globe and Mail report.
‘We don’t imprison people for their expressing political positions. I think our position in this regard represents the position of Canadians and they expect that we speak in favour of these rights,’ he added during a speech in Miramichi, New Brunswick.
However, homosexuality itself is not prosecuted in Russia. Instead the Russian government recently voted, 436 to 0, to ban homosexual propagandizing by foreign or domestic activists.
The new law prohibits the promotion of homosexuality, and other deviant sexual behaviors, among minors by making it illegal to give children ‘information aimed at forming non-traditional sexual behavior among children, suggesting this behavior is attractive, and making a false statement about the socially equal nature of traditional and non-traditional relationships.’
Individuals using the Internet to spread homosexualist propaganda can be fined up to 5,000 roubles (US $155); officials can be fined up to 10 times that amount. The maximum fine is one million roubles (US $30,800).
Foreigners found in violation of the law can be arrested and held for up to 15 days before being deported.
The legislation will effectively outlaw ‘gay pride’  festivals and stop attempts by foreign homosexualist activist groups to normalize their lifestyles or campaign for same-sex legal recognition in Russia.
Prime Minister Vladimir Putin defended the bill, saying that while it is ‘necessary to defend the rights of sexual minorities,’ Russian public opinion must also be respected. A state-sponsored poll found that 88 percent of Russians agree with the homosexual propaganda ban.
Under the law, Foreign Affairs Minister John Baird, who is on record for promoting homosexual rights as a key component of Canada’s foreign policy, could theoretically run afoul of Russian law.
Last year Baird told the Montreal Council on Foreign Relations that he is ‘aggressively’ pursuing what he called Canada’s “principled, values-based” foreign policy.
As part of that effort, Baird said that he is working with western countries to promote homosexual rights in countries around the world where ‘violent mobs … seek to criminalize homosexuality,’ and to make Canada “a welcoming haven for homosexual refugees.”
REAL Women of Canada recently blasted Baird for trying to impose what it describes as ‘his own perspective on homosexuality’ in foreign countries such as Uganda, Kenya, and Russia that have passed laws aimed at preserving the traditional family structure.
“Just who does John Baird think he is, using taxpayers’ money to promote his own personal agenda and endeavouring to set standards for the laws of foreign countries?” asked Gwen Landolt, National Vice-President of REAL Women of Canada, in an August 8th press release.
REAL women slammed Baird for ‘working extensively behind the scenes to prevent Russia from passing legislation designated to protect Russian minors from homosexual propaganda.’”
The Conservative government’s militant adoption of a key lank in the Obama foreign policy — promoting homosexual rights around the world is most peculiar. Many members of Harper’s caucus and vast numbers of his supporters are social conservatives. The Prime Minister’s assertion: “We don’t imprison people for their expressing political positions,” is laughable. Brad Love is in prison today solely for the non-violent expression of his political views. Arthur Topham an anti-Zionist blogger may face the same fate in an upcoming trial under Sec. 319 of Canada’s Criminal Code the notorious “hate law” which bans precisely that — political opinion, if is harshly critical of privileged minorities.
Let’s be quite clear: Since the time of President Brois Yeltsin, homosexual activity among adults is not illegal in Russia. The news laws simply outlaw homosexual advocacy or recruitment.
Has the Tory Government become a captive of the homosexual lobby? There are some disturbing signs it has. In the wakw od Russian Sports Minister Vitaly Mutko warning athletes heading for the 2014 Winter Games at Sochi to refrain from “homosexual propaganda” spurred Canadian Foreign Minister John Baird to sputter: “This mean-spirited and hateful law will affect all Russians 365 days of the year. … It is an incitement of intolerance, which breeds hate. And intolerance and hate breed violence.” (Globe and Mail, August 2, 2013)
The Globe and Mail editorial board, which is a virtual arm of the homosexual lobby, of course, approved. In an editorial entitled “Russia’s curious pre-Sochi crackdown”, The Globe (August 5, 2013) enthused: “Canadians should be encouraged by their government’s vocal stance in defence of the gay, lebian and transgendered communities in other countries.”
Frustrated Conservative party supporters and backbenchers will note the absence of any comparable concern about countries where Christians are routinely massacred, like, say, India where Hindu extremists frequently murder of burn out Christian villagers.
In an equally disturbing and related issue, the Tories have made a judicial reference to the Supreme Court of Canada asking for guidance as to how much the Senate can be reformed without seeking provincial consent. The Globe and Mail (August 1, 2013) reports the government’s disturbing argument and train of thought: “The government asked the Supreme Court to adopt a flexible approach to determine how its Senate reform plans  jibe with the Canadian constitution — just like years ago when it ruled in favour of allowing same sex marriage. ‘Slavish adherence to original intent has been rejected by this court … in, for example, the Same Sex Marriage Reference, where the court held that the understanding of ‘marriage\ that prevailed in 1867 should not be determinative of our present day understanding,’ the government argued.” That’s right. The Constitution doesn’t mean what its words mean; it is to be interpreted flexibly to mean whatever the cultural communists on the Supreme Court want it to mean.
As we observe the triumph of the homosexual agenda in Ottawa, even under a nominally “conservative” government, we are revolted at the gall of the revolutionaries on the Supreme Court, who,  in ruling that Christian traditionalist activist and homosexual critic Bill Whatcott should be gagged, insisted that homosexuals were a “vulnerable” minority, likely to be intimidated or silenced by Mr. Whatcott’s few hundred pamphlets.
Finally, the much persecuted Mr. Whatcott comments in his blog:
“Hmmm, it just occurred to me, five months ago my so-called “hate speech” conviction, imposed by a kangaroo tribunal in Saskatchewan was upheld by the Supreme Court of Canada. I was made liable for a big fine and all of the Kangaroo Commission’s court costs. My so-called “hate speech” was actually accurate medical and social facts on the downside of homosexuality and the good news that God is able to set homosexuals free.
From the point of view of logic, my speech on important moral and political issues related to homosexuality seems more meritorious to me than the right to show gay propaganda to children over their parent’s objections. My speech was directed at the general public, not primary school children.
Maybe, I could qualify as a refugee to Russia? God knows the Marxism being imposed on Canada is starting to feel stifling!”

Contact Info:
Immigration Minister Chris Alexander Constituency Office 100 Westney Road South, Unit E101, Ajax, Ontario   L1S 7H3 Phone: 905-426-6808 Fax: 905-426-9564 Email:
chris.alexander@parl.gc.ca
Prime Minister Stephen Harper House of Commons, Ottawa, Ontario, K1A 0A6 Phone: 613-992-4211 Fax: 613-941-6900 E-mail:
stephen.harper@parl.gc.ca