Impoverished Arthur Topham Charged Under Canada’s Notorious “Hate Law”, Turned Down for Legal Aid: Poor, but Not Poor Enough; Complex Case, but Not Complex Enough
Poor people can get legal aid in Canada! Dream on. Arthur Topham is very poor but the nitpicking B.C. government won’t grant him legal aid to fight anti-free speech charges under Canada’s notorious “hate law”, Sec. 319 of the Criminal Code. Apparently, after humiliating disclosure of every aspect of his finances, he’s deemd not poor enough. Also, despite the facts that Sec. 319 is a rarified piece of Canadian legislation and there has been more than 1,000pages of disclosure, the BC government doesn’t feel the case is too complex for an untutored layman.
November 20th, 2013
Dear Free Speech Advocates and Radical Press Supporters,
My last Legal Update was sent out well over four months ago on July 11th, 2013 so for those who may not recall all what transpired up to that point I’ll give a brief overview so as to put subsequent events into some meaningful context.
All of what is going on concerns the matter of the Sec. 319(2) CCC charge and arrest for the purported crime of “willfully promoting hatred against ‘people of the Jewish religion or ethnic group’” originally brought on by B’nai Brith Canada’s Harry Abrams and serial Section 13 complainant Richard Warman.
Crown had anticipated that the Attorney General’s office was going to go for a “direct indictment” and skip the preliminary hearing stage of events but that strategy fell through on July 8th, 2013. That then brought my proposal to file for a Rowbotham application back to the forefront. As explained in earlier Updates the Rowbotham application was part of my former counsel’s plan to get government funded legal counsel to defend me and to act on my behalf during the preliminary inquiry to determine the merits of the aforementioned Sec. 319(2) charge. Of course when Doug was alive it was he who anticipated being that counsel.
I had met with the Trial Coordinator and via telephone spoke with Keith Evans, legal counsel for the B.C. Attorney General’s office in order to discuss my Rowbotham application which he was overseeing. Prior to that I had already submitted my Notice of Application and Affidavit to the AG’s regarding the Rowbotham back on April 23, 2013 and received a package of material back from Mr. Evans on May 11th explaining all the additional information that I was expected to furnish him with prior to a hearing taking place on the matter.
On August 13th I met again with the Trial Coordinator and a date was set to hold a hearing on the Rowbotham application on Monday, November 18th, 2013.
During the interim time period leading up the hearing I had to furnish the AG’s office with as much documentation as I possibly could that would show that I was not in a financial position to be able to afford to hire a lawyer to represent me at the upcoming preliminary hearing scheduled for January 22nd, 2014. As a result the month of September leading into the early weeks of October were spend doing what was basically a forensic audit of all of my finances and sending all of this information to the Attorney General’s office in Vancouver, B.C. It was quite time consuming and left little opportunity for doing much else besides publishing the occasional article on the website. Keith Evans of the AG’s office was very congenial and willing to assist me with any questions that that arose during the period that I was amassing all of my evidence I felt would show that I was in fact indigent and unable to cover the cost of a hiring a lawyer. The term “indigent” is one that the AG’s office uses and it means “impoverished or destitute or poverty-stricken or disadvantaged, hard up, etc.” All of these descriptive words I felt fitted my circumstances.
Approximately one week before the hearing on November 18th, I received all of this information back from the AG’s office along with all of my email exchanges with AG lawyer Keith Evans. The booklet containing these communications ended up being 455 pages in length!
Radical Press Publisher Arthur Topham displaying the Rowbotham application documents from the B.C. Attorney General’s office
There are basically two main features or parts to a Rowbotham application, the first deals with having to prove you are in fact “indigent” and the second being able to argue that your particular case is complex and out of the ordinary to the point where it is evident that without legal representation you would not have a chance of a fair trial and therefore your Charter right to a fair trial would be infringed upon.
The hearing began at 9:30 a.m. in the Quesnel courthouse with Judge Morgan presiding. Also in attendance was Christina Drake, a lawyer working for the Attorney General’s office out of Victoria, B.C. who had flown up to argue against the application.
Judge Morgan began by asking me to explain to him why I felt I was unable to afford to hire a lawyer and why I felt my case was so “extraordinarily complex” (another expression that the AG’s office employed throughout their argument repeatedly). I then proceeded to tell him about how I have been battling with legal issues brought on by B’nai Brith Canada’s two separate complaints, (the sec. 13(1) Canadian Human Rights Act complaint from 2007 and the Sec. 319(2) CCC charge of May 16th, 2012), for the past six years and how having to do all the legal work on my own has affected my ability to earn a sufficient income that would allow me to hire a lawyer.
Following all of that (which took a couple of hours) I then outlined for the Judge the reasons why I felt my case was unusual and complex enough that it warranted having a professional legal expert to represent me during the preliminary hearing stage so as to show how the illegal search warrant that resulted in the invasion of my home and the theft of all of my computers and electronic files was an actual criminal offence on the part of the RCMP and the B.C. Hate Crime Team led by Det. Cst. Terry Wilson. It was my argument that because of this initial illegal act that the case should be thrown out at the preliminary hearing stage. In fact my former lawyer Mr. Christie had planned to set aside five days for the preliminary hearing in order to accomplish this. After his demise the court changed that time period from five days to five hours! Obviously they felt that whatever Mr. Christie was planning to present to the court didn’t warrant further consideration after he was out of the picture.
Due to space constraints I won’t go into the details of my argument for why I felt the case is complex other than I told the Judge that, based upon my personal experience with the whole free speech issue over the past six years, I felt it was the aim of Jewish lobby groups here in Canada, specifically B’nai Brith Canada, to set a precedent using my charge so that, were they successful in obtaining a conviction, it would affect every other publisher and writer in Canada who might try and criticize either the Jew’s-only state of Israel or anything else related to the Zionist political ideology or their religious practices as found in Judaism and the Talmud. It would, in other words, create a stifling climate of censorship that would negatively affect every Canadian’s right to freedom of speech and expression as stated in the Canada’s Charter of Rights and Freedoms.
One additional point needs to be emphasized here regarding all of the sec. 13 controversy that has taken place over the past quarter century or longer. When I began to speak to Judge Morgan about sec. 13(1) and about the fact that the federal government had repealed that section of the Canadian Human Rights Code back in June of 2012 he confessed that he knew nothing about the whole issue! I was literally taken aback by this unexpected pronouncement on his part and my facial expression must have surprised him as he then stated that he actually sat on a “human rights” committee of some sort and, yet, he was still unaware of the whole issue. Then, only to exacerbate his revelations further, the lawyer for the Attorney General’s office also spoke up and informed the court that she, too, was aware of what was going on in terms of Section 13 and the Canadian Human Rights Code.
After a lunch break the hearing continued and Christina Drake, representing the Attorney General’s office, gave her arguments as to why I ought to be refused the Rowbotham order. She cited numerous case law examples and how in one way or another none of them met the financial threshold that the Crown demands. Of course it’s always a great advantage to be able to be the party that sets the threshold in the first place and when it comes to the state having to pay for a lawyer to defend an accused (and presumed innocent) citizen the Crown finds such a proposal most abhorrent and the thought of it appears to terrify them that such a precedent might actually occur (as it did in the case of Rowbotham) and they would have to actually defray the costs of a Canadian citizen receiving justice in the courts of the land.
When the issue of complexity was addressed Drake stated:
• [The applicant] Has four years of university education and communicates effectively orally and in writing, as evidenced by the sophisticated written summary he provided of the arguments he wishes to make with respect to the search warrant;
• Has experience in legal and quasi-legal proceedings, specifically in the context of a human rights complaint in which it appears that he represented himself;
Of course in to my way of thinking there’s no direct correlation between a person’s ability to express themselves either orally or through the written word or having obtained a Teaching certificate for Elementary school and their ability to perform the work of a qualified and legally trained lawyer. To try and suggest that this is the case would be akin to asserting that the Applicant, because of his university training, would also be qualified to perform the work of a surgeon.
Drake argued that I hadn’t done enough to show that I had contacted other lawyers in order to find out if they would work at lower rates and represent me. Of course I had checked into this and did contact those who I felt might come to my defense but I never received a reply back from them. Again, what the AG’s office intentionally appears to overlook is the reality that defending cases such as mine is a very serious matter for any lawyer who wants to steer clear of being labeled a defender of “hate mongers” and “anti-Semites” and “racists” and end up with a reputation such as that which Douglas Christie acquired by his willingness to defend those charged with “hate crimes”. To defend a person against a charge of “willfully promoting hatred against ‘people of the Jewish religion or ethnic group’” is to accept that you will will also be attacked by these very same foreign lobbyists who are now threatening me.
It was around 4:00 p.m. by the time the AG’s argument was completed. I was then given an opportunity to “sum up” my financial picture which I proceeded to do culminating by emphasizing once again that I and my wife have been forced to live an extremely minimalist existence ever since 2007 and that this ought to be given consideration. Judge Morgan then left the courtroom for about fifteen minutes and returned to give his decision. Predictably, based upon the AG’s argument, he concluded that I hadn’t met the financial threshold and so therefore my reasons regarding the complexity of the case wouldn’t be considered. He added further that this might change after the preliminary hearing when, should the case go to trial (which it appears is highly likely), that I would then have the opportunity to file another Rowbotham application and give it another shot so to speak.
When we left the courthouse it was -20 Celcius outside with a cold, bitter wind blowing. Rather fitting in some respects.