Overview of the Arthur Topham Free Speech Case
Regina v Radical Press Legal Update # 25
December 4th, 2015
Dear Free Speech Defenders and Radical Press Supporters,
The trial of Roy Arthur Topham by the government of Canada, aka “Regina”, finally got underway Monday, October 26, 2015 in Quesnel, B.C., twelve hundred and fifty-eight days (1258) after his arrest on May 16, 2012. The Indictment stated that Arthur Topham did “willfully promote hatred against an identifiable group, people of the Jewish religion or ethnic origin, contrary to Section 319(2) of the Criminal Code.”
There was a marked difference between the previous 24 court sessions where Arthur and his wife Shastah had attended court. In none of the earlier appearances was there any presence of RCMP officers yet now that the trial was actually beginning, there suddenly appeared an over abundance of police who commenced performing what turned out to be a very obvious, onerous, time-consuming and intimidating “security” check system, not only for those attending the trial but also for anyone from the general public who had to enter the provincial government building on other business related matters. It was definitely an “over-kill” approach obviously initiated by the Crown and the motives for doing so were suspected to be little more than an unabashed attempt at creating the illusion that this trial was of such supreme importance a high level of security was deemed necessary. Every person entering the building had to remove all their belongings from their person and then proceed through a body scanner. Following that they had to be additionally gone over with a special “wand” by a police officer to detect any metal objects that might still be on them.
When Supreme Court Justice Bruce Butler eventually arrived the bulk of the day was taken up with jury selection. A 12 member jury composed of eight women and four men were chosen from the local community. After that the trial commenced, running over the scheduled 10-day period to fourteen consecutive days and culminating on November 12th when the jury finally reached its verdict.
Of primary importance in understanding the nature and outcome of the trial is the fact that Roy Arthur Topham was charged TWICE with the same Sec. 319(2) criminal offence. The first time was the day of his arrest on May 16, 2012 and the second time was January 14, 2014. The wording of the second Indictment was identical to that of the first. The reason for the second charge, like that of the first, was so that Crown might try again to have Topham’s bail conditions altered in order to prevent him from publishing. These additional attempts (there were three in all) to increase the severity of the bail conditions were buttressed upon the questionable pretext by Crown that the police investigation was “ongoing” and therefore the second Indictment (Count 2) was merely a result of additional evidence gleaned from posts Arthur Topham had added to his website after his initial bail conditions ended on October 9, 2015 (when Crown failed to hand down their initial Indictment within the prescribed time frame allotted them).
From the time of his arrest on May 16th until October 9, 2015 Topham was not permitted to post anything to his site.
It’s fundamental to bear this in mind when attempting to understand why the jury concluded that Arthur Topham was guilty on Count 1 and not guilty on Count 2.
Throughout the course of the trial weekly updates on what transpired in the courtroom were published onRadicalPress.com along with editorial commentary and photos. The “Report on first week of Supreme Court Trial R v Roy Arthur Topham” came out November 1, 2015 and can be found here. The second, “Report on week two of Supreme Court Trial R v Roy Arthur Topham” can be found here. Rather than repeat what was said in those articles it’s suggested that readers go to them further information.
Expert Witness for the defence
The defence was most fortunate in being able to solicit and obtain the expert testimony of Gilad Atzmon, a former Israeli citizen, accomplished philosopher, scholar, writer and Jazz musician who graciously consented to appear on behalf of Arthur Topham free of charge. Gilad Atzmon’s testimony to the jury was covered on RadicalPress.com in a November 9, 2015 article titled, “The Expert Witness – Part 1 by Gilad Atzmon“. Mr. Atzmon’s intellectual/literary forte revolves around his best selling book The Wandering Who? which is a serious academic work in the relatively new field of Jewish Identity politics.
Cross-examination of former Det. Cst. Terry Wilson and Crown’s Expert Witness Len Rudner
[Editor’s Note: It must be stated here that until the actual transcripts of the proceedings are obtained the commentary below regarding cross-examination of these two Crown witnesses, in particular Crown’s Exert Witness Len Rudner, should be considered more anecdotal rather than precise and factual. Again, please refer to the two weekly reports mentioned above for greater detail on this portion of the trial.
Defence Attorney Barclay Johnson’s cross-examination of Crown’s two witnesses revealed to the court that both of these individuals had personal axes to grind when it came to their testimony against Topham or their actions (as in the case of Terry Wilson) while carrying out the investigation into Topham’s website.
Unfortunately, in the case of Crown’s Expert Witness Len Rudner, it wasn’t until after his testimony and cross-examination that the defence became aware of a very serious, glaring breach of legal protocol with respect to Rudner’s sworn statements to the court. The immediate result of this new-found evidence was a call by Defence for a mistrial based upon an accusation of perjury on the part of Rudner but that move on Johnson’s part was dismissed by Justice Butler as coming too late in the proceedings.
The Crown’s forte
Throughout the whole of the 14-day trial what stood out most for the defence (as well as many observers in the gallery) was the overwhelming volume of documentary evidence (all taken from the RadicalPress.com website) which the Crown downloaded on to the jury. Coupled with that fact was the additionally onerous presence of two bulky Binders which were of such poor quality they were virtually unreadable, thus making the task of comprehending the details of the evidence not only formidable but in all likelihood an impossibility for the jury to comprehend. In fact it wasn’t until the morning of Friday, November 6th, ten days into the trial, that new exhibits of Binders 3 & 4 were finally made available to jury members.
Charge to the jury
On the afternoon of Tuesday, November 10th, 2015 Supreme Court Justice Bruce Butler read out his Charge to the jury. On top of the other thousands of pages of online books and articles the jury was now given an additional 62-page document instructing them on how to go about deliberating on all of the evidence presented over the previous 12 days of the trial. After reading out the document to the jury Justice Butler then instructed them to retire and seek a decision on the two counts.
The decision was rendered on the morning of Thursday, November 12, 2015 at 11:27 a.m.
Count 1: Guilty
Count 2: Not Guilty
Immediately following the jury’s decision Justice Butler thanked the jury members for having done their civic duties then dismissed them. Next he told Crown and Defence that court would reconvene at 1:30 p.m. at which time any additional matters related to the trial would be dealt with.
New Bail Conditions Sought by Crown
When court reconvened at 1:40 p.m. Crown immediately brought up the issue of changing Topham’s bail conditions again. Defence objected as did Justice Butler and a new date was set for a bail hearing; one which was to take place on November 19th but was subsequently changed to November 20th, 2015.
The bail hearing began at 10:00 a.m. on Friday, November 20, 2015 with both Justice Butler and Defence Attorney Barclay Johnson appearing via telephone. Crown counsel Jennifer Johnston and Arthur Topham were present in the Quesnel Supreme Court.
Justice Butler listened to Crown’s arguments for wanting severe restrictions on Topham’s ability to continue publishing on his website and then heard Defence’s arguments against such proposals.
It ended up being a very short session; one that culminated in Justice Butler’s decision to refuse Crown’s request pending the outcome of both Crown’s Sentencing position which was slated tentatively for January 25, 2016 plus the Constitutional challenge to Sec. 319(2) of the Criminal Code of Canada which was also set to be heard before Justice Butler during the same week of January 25 – 29, 2016. Justice Butler did grant one small concession to Crown when they asked that a photo on RadicalPress.com, depicting from a distance the crowd of potential jurors lined up outside the courthouse on Monday, October 26, 2015, be removed from Topham’s website. Topham willingly consented to remove it and that concluded the bail hearing.
The Future and the Silver Lining: The Constitutional Challenge to Sec . 319(2)
Once the initial shock of the guilty verdict in Count 1 had subsided and time allowed for a reconsideration of all of the events surrounding the trial it became apparent that the verdict of “Guilty” in Count 1 was, in reality, the key to opening the door for the Defence’s ultimate objective which was to challenge the Constitutional legitimacy of the actual section of the Canadian Criminal Code (Sec. 319(2) now containing the infamous “Hate Propaganda” legislation which threatens freedom of expression for all Canadians.
Back in the spring of 2015 on March 23rd Arthur Topham’s legal counsel Barclay Johnson had served a constitutional notice on the Crown. The purpose was to present before a Supreme Court Justice a Charter argument challenging the legitimacy of the now existing Sec. 319(2) “Hate Propaganda” legislation. Eventually the date of June 22nd, 2015 was set to hear the Charter argument in the B.C. Supreme Court in Vancouver.
The Issues that Arthur Topham wanted raised and which were included in his Memorandum of Argument were as follows:
• Section 319(2) of the Criminal Code constitutes an infringement of Section 2(b) of the Charter of Rights and Freedoms.
• The Crown bears the onus of justifying the infringement of Charter rights on a case-by-case basis.
• The present case is distinguishable from Keegstra on its facts.
• The infringement of Section 2(b) of the Charter is not reasonably justified by Section 1 in the circumstances of this case, and specifically:
The “pressing and substantial objective” of legislation must be defined narrowly for the purpose of a Section 1 analysis.
• The use of Section 319(2) in this case is not rationally connected to the pressing and substantial objective of preventing harms associated with hate propaganda.
• Criminal prosecution by indictment is not a minimal impairment of the Applicant’s Charter rights.
• The infringement of the Applicant’s Charter rights is disproportionate to any possible salutary effect that Section 319(2) could have in the circumstances of this case.
• The appropriate remedy is to read into the law a constitutional exemption, to the effect that Section 319(2) is not a reasonable limit on Section 2(b) in circumstances where the allegedly hateful material is legal to possess and lawfully available from other sources.
Arguments, Counter Arguments and Reasons for Judgment
For the full text of the Memorandum of Argument please go here and read it in pdf format.
The full text of the Respondent Crown’s Submissions concerning Charter S. 1 Justification and R v. Keegstra can be viewed here.
A copy of the Applicant’s Reply to Crown’s arguments can be found here.
Justice Butler’s Reasons for Judgment.
The future of Sec. 319(2) of Canada’s Criminal Code will depend in part on the outcome of the planned Constitutional challenge now scheduled to take place during the week of January 25 – 29, 2016. In the interim period leading up to that challenge Topham will remain free to continue to publish and to carry on with his solicitations for funding in order to persevere with his efforts to have this unconstitutional section of Canada’s Criminal Code repealed.
Should the challenge to Sec. 319(2) fail then the next step will be an appeal of the guilty verdict in Count 1.
In order to support Arthur Topham’s ongoing efforts to protect Canada’s Constitutional Rights and Freedoms as contained in the Charter, donations can be made online via his GoGetFunding site located at http://gogetfunding.com/
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