The Crown Wants a Year in the Gulag for Satire — Dr. Sears Sentencing, Toronto, Friday, April 26

 

The Crown Wants a Year in the Gulag for Satire — Dr. Sears Sentencing, Toronto, Friday, April 26

 

 

The Crown is asking for a year in prison for an Aboriginal publisher of YOUR WARD NEWS Leroy St. Germaine and Dr. James Sears, Canada’s most gifted satirist. Provincial Court (College & Yonge), Friday, April 26, Good Friday in the Greek Orthodox calendar. Will Dr. Sears get crucified? There’ll be international observers watching Canada;s Cultural Marxist courts in action.

No photo description available.

Taube: Why the ruling against Your Ward News hurts free speech in Canada

Taube: Why the ruling against Your Ward News hurts free speech in Canada

Your Ward News winter 2017
The cover of Your Ward News’ winter 2017 edition.

Freedom of speech has always been on shaky ground in Canada. While many people claim to support this important right, they often smother it with stringent conditions and restrictions that makes speech anything but free.

In fact, a recent Ontario court ruling produced one of the most damaging blows to free speech ever seen in this country.

On Jan. 24, Judge Richard Blouin ruled that James Sears and Leroy St. Germaine – the editor-in-chief and publisher, respectively, of the controversial free newspaper Your Ward News (YWN) – were guilty of promoting hatred against Jews and women. Although the two men claimed their publication was nothing more than a satirical endeavour, the judge disagreed. “YWN repeatedly and consistently dehumanized Jews and women,” Bouin argued, and the paper’s proprietors “were fully aware of the unrelenting promotion of hate.”

The people who had been pushing for Sears and St. Germaine to be prosecuted, which included Liberal strategists Warren and Lisa Kinsella and Canada Anti-Hate Network chair Bernie Farber, were understandably elated. Farber, in fact, said this was the “kind of verdict that Canadians are going to rejoice in.”

No, they won’t – and they shouldn’t.

To be clear, I agree that Your Ward News is an awful publication. I’ve read it twice and I found the things written about the Kinsellas and others offensive at best.

My main concern, however, is the serious blow to free speech in Canada caused by using the Criminal Code to prosecute real or perceived hate speech.

 

As I’ve written before, free speech is the defence of ideas that are either objective or objectionable. We must be willing to support views that appear right to us, and tolerate views that seem wrong. This doesn’t mean we’re required to agree with different points of view, but we must always defend a person’s right to make their views heard in a non-violent manner.

Hate speech has always followed the same principle, long before the removal of Sec. 13 of the Canadian Human Rights Act – which, in my view, was something to cheer about if you truly support free speech.

People living in a liberal democracy are free to hate, whether we like it or not. The laws of our land cannot, should not and must not forbid any individual or group from feeling differently than, or even loathing, another individual or group.

This doesn’t mean we have to agree with other people’s views. We have every right to object to them, but we have to accept that they have the right to speak their minds.

Hence, people are allowed to hold the most vile and repulsive beliefs about any religious, racial or gender group in Canada and beyond. And yes, this includes Jews and women.

The one notable exception is when hate speech evolves from offensive words and personal beliefs, to the act of physical violence. It’s one thing to hate a person or group, but quite another to wish them bodily harm.

This fine line played a role in the first case against Sears and St. Germaine in December. It was based on a passage in the Summer 2017 issue of YWN, which read, in part, “there was the chance that some hothead who cares deeply about me and my family would lose it and do something illegal, like bludgeon the Kinsella’s to death.”

Judge Dan Moore ruled against the Kinsellas because the “plain and ordinary meaning of the words” didn’t constitute a death threat. With respect to the theory of reasonable doubt, Moore correctly said that, “Having considered all of the evidence I am unable to find that the threat to kill interpretation … is even the most likely interpretation, let alone the only reasonable interpretation.”

Hence, the recent court case against Sears and St. Germaine proved a salient point: critiques of hate speech are just as wrong-headed as critiques of free speech. This doesn’t a constitute victory, ladies and gentlemen. Rather, it’s an enormous loss to our personal rights and freedoms.

A TRAVESTY OF FAIRNESS: YOUR WARD NEWS, CANADA POST, AND THE CPCA REVIEW BOARD

A TRAVESTY OF FAIRNESS: YOUR WARD NEWS, CANADA POST, AND THE CPCA REVIEW BOARD

POSTED MARCH 1, 2019
BY JAMIE CAMERON

Senseless and grotesque

Your Ward News (YWN) is a publication of unremitting offensiveness – in truth it is little more than a senseless and grotesque cartoon. Yet that is largely beside the point under the Charter. Though it took time and a concerted campaign by those offended by YWN’s existence, the law’s force was eventually brought to bear on its publishers. On May 26, 2016, the Minister of Public Works issued an Interim Prohibitory Order (IPO) under s.43(1) of the Canada Post Corporation Act (CPCA). This order banned YWN’s publishers, James Sears and Laurence Ste. Germaine, from using Canada’s postal service for all purposes, including the likes of letters to an MP, bill paying, and holiday cards. On January 24, 2019 – some 2½ years later – Sears and Ste. Germaine were convicted under the Criminal Codeon two counts of promoting hatred, respectively, against women and Jews.

The criminal prosecution and IPO directly engaged the constitutional rights of YWN’s publishers under s.2(b) of the Charter of Rights and Freedoms. While procedural protections are embedded in the criminal process, the CPCA provides little more than gossamer fairness to anyone who challenges an IPO. Quite apart from the ban itself, the s.2(b) rights of Sears and Ste. Germaine were severely compromised by the CPCA process of review.

Intolerating freedom

In principle, s.2(b) protects all expressive activity, no matter how offensive or repulsive, as the very concept of freedom would be meaningless under any other view. Yet s.2(b) is too often a guarantee in name only: in practice, Canada’s democratic community shows scant tolerance for those who hold objectionable views and spread objectionable messages. Ironically, the community’s intolerance of such views fundamentally reflects an intolerance of freedom itself.

Instead, freedom demands and rests on an ethic of democratic humility, which can be thought of as a form of resistance to righteousness and a willingness to let unpopular others think, speak, and challenge, even and especially in radical ways or tones of voice. Regrettably, this virtue – both historically and at present – is in short supply.  Rather, those who are feared or disliked are marginalized and their freedom placed in jeopardy.

In all this a vital point in discourse on expressive freedom can sometimes be missed – that freedom is as profoundly threatened by a defective process as by a prior restraint or criminal conviction. The point is well illustrated by the CPCA process.

A chronology of delay

In authorizing the Minister to issue prohibitory orders banning access to Canada Post, the CPCA pays minimal attention to process values. In this instance, neither the Minister nor the YWN Review Board was under any statutory imperative to comply with standards for a fair and timely process. As the Board put it somewhat backwardly, stating that “[t]here is nothing” in the legislation “which would compel the Minister to disregard Charter values when issuing an IPO”.[1]

A person who is subject to an IPO (“affected person”) can request a review of the Minister’s order. Under s. 44 the Minister has a duty to appoint a review board, though not to do so in any fair, timely, or expeditious manner. Here the Minister did not fulfill this duty until December 9, 2016, did not inform Sears and Ste. Germaine of the appointments, and did not announce the Board until January 9, 2017.  The Minister never explained to the Board or the affected persons why it took more than 6 months simply to appoint a panel.

The YWN Review Board held its first hearing on April 25, 2017, about 5 months after being appointed and almost one year after the IPO was issued. The Review Board did not make a decision on preliminary issues until November 2017, did not hear submissions on the IPO until January 2018, and did not submit its Report to the Minister until August 29, 2018. All told, the Board’s review of the Minister’s IPO took almost 21 months to complete.

During this period, YWN’s publishers were under an interim ban not to use Canada’s national public service for any purpose, including those that were indisputably innocent. In addition, Sears and Ste. Germaine were put to the expense of appearing at and defending their constitutional rights in an extended process that granted YWN’s opponents full rights of participation.

Almost 30 months passed from the time the IPO was issued, on May 26, 2016, to November 15, 2018, when the Minister released the Review Board’s Report and issued a Final Prohibitory Order (FPO) banning the publishers from distributing YWN through Canada Post.[2]The key signposts in this chronology of delay are:

May 26, 2016                                Minister’s IPO

June 6 & 9, 2016                           Sears and Ste. Germaine request a review of the IPO

December 9, 2016                        Minister appoints a Review Board

December 16, 2016                       Sears and Ste. Germaine contact the Minister

January 9, 2017                             Minister announces the Review Board

April 25, 2017                               Review Board’s first hearing

August 9 & 10, 2017                    Review Board’s hearing on preliminary issues

November 2, 2017                        Review Board’s decision on preliminary issues

Jan 3, 22-26; Feb 26 2018            Review Board hearings

August 29, 2018                           Review Board Report to Minister

November 15, 2018                      Minister releases Report and issues FPO

Process matters

The YWN Review Board was handicapped from the start. Section 44(1) of the CPCA sets no criteria for panel membership, except to specify that one of three of its members must be a lawyer. Given the gravity of the issues at stake and level of public interest, the panel required expertise or experience in one or more of regulatory decision-making, the criminal law, and Charter of Rights and Freedoms. At the very least, the panel should have been assisted by counsel; had counsel been retained, the YWN Board might have avoided a protracted process and conducted a review that stood on firmer legal and constitutional ground.[3]

The Minister delayed the process by not appointing a Review Board in a timely way and was responsible for other delays and deficiencies. Though required to do so under s.43(1) of the CPCA, at no time did the Minister provide reasons for the IPO. The May 26, 2016 order simply stated that the Minister had reasonable grounds to believe that Sears and Ste. Germaine were using Canada Post to commit criminal offences (i.e. hate propaganda and defamatory libel). The Minister never provided the particulars of YWN issues or content that provided grounds for the IPO.[4]

The Board’s Ruling on Preliminary Issues found that the Minister violated her statutory duty to provide reasons and held that the breach of duty was not cured. At that point, the panel should have terminated the hearing, advised the Minister that her IPO was in breach of the CPCA, and informed her that the order could not legally be sustained.[5]The Board chose instead to deflect the problem, citing fairness to the interested parties – “participants would be denied a voice on topics about which many feel strongly”[6]– and faulting counsel for Sears and Ste. Germaine for changing her position.[7]The Ruling stated that the IPO is a serious matter, noted that the affected persons “are not given any opportunity to address the complaint except under this review process”, and acknowledged that that for the process to be meaningful they should be informed of the particulars of the Minister’s reasonable grounds. Having made those findings, the Board stated that the process would continue nonetheless, because the failure to provide reasons could be dealt with in the final report and recommendations.[8]

From that point on, Sears and Ste, Germaine could not receive a fair hearing. In the absence of reasons, there was no evidence of the grounds the Minister relied on in issuing the postal ban.[9]This made it impossible for the Board to reviewher decision and divine what grounds she could or might have had for ordering the IPO. Parenthetically, the Minister’s failure to provide reasons strongly suggests that she gave no consideration to the constitutional rights of Sears and Ste. Germaine, as she was required to do.[10]

In the absence of reasons or evidence from the Minister, the Review Board allowed interested parties to fill the gap. The Minister’s case for the IPO was made by others who were granted standing to support the IPO, and provided extensive written and oral evidence and submissions throughout. The Report plainly and explicitly relied on that work in concluding that the Ministerhad reasonable grounds to order the IPO.[11]

This unusual turn of events followed from the Review Board’s decision to recognize and grant standing to 16 individuals, 15 interested persons, and 10 community organizations and public interest groups. In this way, a review of the Minister’s decision was transformed into an open forum for YWN’s opponents to dominate the proceedings.

This “big tent” approach to CPCA review contributed to an unwieldy and protracted process. In practice, it imposed a burden on Sears and Ste. Germaine to respond to multiple parties and their interpretation of the criminal law – a burden that would never be imposed on them in a criminal setting. More fundamentally, the Board turned the process on its head, transforming a review of the Minister’s IPO for the benefit of the affected persons into an opportunity for YWN’s opponents to advance their interpretation of the Code’s hate propaganda and defamatory libel provisions.

Absolute ban and prior restraint

Throughout, the scope and gravity of the postal ban was minimized by the Attorney General and third party organizations who maintained that the IPO was not a prior restraint. Their logic was that because YWN could be distributed by other means the Minister’s IPO was not a restraint and did not violate the Charter. Such a claim misunderstands the nature and seriousness of a prior restraint.

Prior restraint is an egregious form of censorship that occurs when the state halts expressive activity, in advance, and to prevent it being communicated. In other words, the exercise of a right is pre-empted or blocked before it can be known whether or not the material – when published or distributed – will be constitutionally innocent or transgressive. The gravamen of prior restraint is an act of censorship by the state, which is exactly what the Minister’s IPO did by prohibiting Sears and Ste. Germaine from all use of the postal service. As a matter of law it was therefore irrelevant that YWN might be distributed elsewhere, like on Malta, the internet, or Mars.

The definition of a prior restraint is well established in law and the issue should not have been contentious.  In the absence of expertise, the Board struggled with it and ultimately hedged, finding that s.43(1) “might” authorize a prior restraint and providing a muffled conclusion that, in the “narrow” context of the postal service, the standard was rigorous to ensure that IPOs are not issued “capriciously”.[12]Note, however, that the legislation presupposes the Minister’s compliance to give reasons.

The Board also found that IPOs are meant to be temporary – though that is not the way s.46’s statutory presumption works – and are subject to comprehensive review – but only when review is requested within 10 days and the Minister sees fit to appoint a panel. Despite those problems, the Board readily concluded that an absolute ban is not unconstitutional as an interim measure, adding that in any case the affected persons could have asked the Minister to consent to exceptions.[13]This, it bears noting, is the same Minister who did not provide reasons, delayed appointment of the review board, and failed to advise the affected persons when a panel was appointed.

Also minimized during the hearing was the severity of the interference with constitutional rights. The Minister’s IPO gratuitously banned Sears and Ste. Germaine from using Canada Post for personal and business purposes unrelated to YWN. Curiously, this issue was deflected to a side discussion of whether the CPCA granted the Minister discretion to narrow the order.[14]Actually, the point does not matter so much. If she had discretion, the IPO gratuitously violated the rights of Sears and Ste. Germaine by denying them all access to Canada Post for almost 30 months. And if not, the IPO was just as damning because the Minister issued an absolute ban without reasons and without apparent regard for the constitutional rights at stake.  Either way the Minister’s IPO was seriously in breach of s.2(b) of the Charter.[15]

More important than a ban on the use of Canada Post was the shabby process that began on May 26, 2016 and did not end until November 15, 2018. This chronology of delay and irregularity is compelling demonstration that, without procedural fairness, the Charter’s guarantee of expressive freedom is little more than a façade or shell. Quite apart from the ban itself, the process surrounding the IPO was a travesty of fairness.

To the Review Board’s credit

The Review Board called attention to the Minister’s unexplained delay in appointing a panel but defended its own process as being beyond reproach.[16]As discussed, the Board made choices and decisions that extended and distorted the review process to the disadvantage of Sears and Ste. Germaine.

To the Board’s credit, the Report recommended that the CPCA be amended or regulations enacted to address some of the statute’s deficiencies. The Review Board’s action items include the time limit for the appointment of a review board, standards of proof (i.e., who has the onus at such hearings), and the remedial powers of the Minister under s.43(1) and 45(3).

A mandate for change

While helpful, the Board’s recommendations reveal a limited grasp of what went wrong in this process.

A primary concern arises from the framework for IPO and FPOs. By statutory presumption, the Minister’s order becomes final ten days after notice of an IPO is sent, without any further steps or process (s.46). In other words, the Minister can conclusively ban – or censor – a person from Canada Post simply by giving notice of the order. There is no right of appeal 10 days after a FPO is issued. Meanwhile, where an “affected person” requests a review of the IPO, the Minister is not required to appoint a review board in a timely manner or within any time frame whatsoever. At a minimum, the statute should require appointment of a review board within a specified time period, and should provide a means of appeal from a FPO.

Problematically, the CPCA provides little or no framework for the review process, leaving it largely to the discretion of an ad hoc panel that might not have adjudicative or subject matter expertise. In appropriate circumstances, it may be necessary and justifiable for the Minister of Public Works to issue an IPO or FPO. Yet the exercise of this rare and draconian power must comply with the rule of law, including standards of procedural fairness. For the Review Board to excuse the Minister’s failure to provide reasons and proceed anyway, granting multiple parties standing to address the core issues, and then decide those issues without evidence from the decision-maker, was manifestly unfair to Sears and Ste. Germaine. Though interim and final prohibitory orders are relatively infrequent under the CPCA, the YWN hearing showed how a process can go awry when an inexperienced panel is required to manage a complex process in the absence of procedural framework or direction.

The CPCA’s provisions on prohibitory orders have not been amended since the Charter was enactedin 1982. These provisions are grossly deficient to manage the administrative and constitutional elements of a review process that in many cases will affect constitutional rights. Tinkering and modest reforms will not be sufficient; what is called for, instead, is an overhaul of the CPCA’s provisions for making prohibitory orders.


[1]Report and Recommendations of Board of Review (Report) at 33 (my emphasis).

[2]Under the FPO, Sears and Ste. Germaine may use Canada Post for personal purposes but are banned from using the postal service to distribute YWN or other “substantially similar” material.

[3]It is rumoured that the Review Board was informally assisted by a law professor; if this is true, it was not disclosed to the parties and is yet another troubling irregularity in this process.

[4]On March 21, 2017, the AG provided the names of individuals who might have been the subject of defamatory libel, and on January 3., 2018, almost 20 months after the IPO, the Attorney General advised that the alleged hate propaganda was against Jews.

[5]The author and CFE took the position throughout that the Minister’s failure to give reasons was a fatal defect and determinative of the proceedings; in the circumstances, we nonetheless participated in the hearing on the constitutional issues.

[6]Ruling on Preliminary Issues at 7.

[7]It is unclear whether the Board misunderstood counsel; even if it was aware of her position that the hearing should be limited to the constitutional issues, the Board would have heard the evidence and submissions on hate propaganda. As the Report declared, “the Board [was] not prepared to limit its report to constitutional issues only”. Report at 11.

[8]Ruling on Preliminary Issues at 6, 7.

[9]Apart from the preliminary issues and constitutional submissions, the Minister did not participate in the proceedings.

[10]See Report at 37 (stating that the absence of reasons was problematic, adding that the Board was not able to determine whether the Minister turned her mind to the issue of balancing Charter values and, if she did, whether she concluded that no balancing was required or intended the IPO to reflect a balancing exercise).

[11]Report at 15-19; 20-22; 44-45; 47.

[12]Report, at 37.

[13]Report, at 38.

[14]The author and CFE took the position that the IPO was a prior restraint and absolute ban; we did not participate in discussion of the Minister’s discretion to narrow the order and offered no view on the issue of statutory interpretation.

[15]The Board incorrectly concluded that the duty to balance Charter values under Dorédid not apply to a blanket ban; the Minister had a duty under the Charter to balance constitutional values whether the IPO imposed an blanket or partial ban on access to postal services.

[16]Report at 13.

Judge Moore’s Decision Acquitting Dr. James Sears in the Kinsella’s “Uttering Threats” Vanity Prosecution

Judge Moore’s Decision Acquitting Dr. James Sears in the Kinsella’s “Uttering Threats” Vanity Prosecution

 

ONTARIO COURT OF JUSTICE

CITATION:  R. v. Sears, 2018 ONCJ 866

DATE:  2018 12 10

COURT FILE No.:  Toronto 4811 998 17 10000304 01

 

 

BETWEEN:

 

HER MAJESTY THE QUEEN

 

— AND —

 

JAMES SEARS

 

 

Before Justice D. Moore

Heard on October 23-25, 30, and November 6, 2018

Reasons for Judgment released on December 10, 2018

 

 

  1. Giovinazzo………………………………………………………………………….. counsel for the Crown
  2. Murphy…………………………….  s. 486 counsel for the defendant Leroy St. Germaine[1]
  3. Gray …………………………………. s. 486 counsel for the defendant James Sears

The defendant James Sears…………………………………………………………. on his own behalf

 

  1. MOORE J.:

[1]           Mr. Sears is charged with “Threatening Death” contrary to s. 264.1 of the Criminal Code.   Although there was no formal admission, it was not seriously contested that Mr. Sears wrote the purported threat in an article that was published in the summer 2017 edition of “Your Ward News” a publication which lists him as the “Editor in Chief”.

[2]           The alleged threat is contained in an article[2] about an investigation of Mr. Sears by the Children’s Aid Society wherein he is extremely critical of the Society, to put it mildly.  In the article Mr. Sears theorizes that the cause of the Children’s Aid Society investigation was either the complainant Lisa Kinsella herself, or someone associated with her, or perhaps someone who had read an article she published online in the Huffington Post that was critical of Mr. Sears and Your Ward News.[3]  The alleged threat is the following passage:

I have not told our story to anyone until now.  My close friends will first learn of it in this article and wonder why I kept it from them.  No offence, but Colette and I remained silent because we have more morals than Lisa and Warren Kinsella.  You see, if I told my friends, thousands of people on my mailing list, and hundreds of thousands of readers of Your Ward News [emphasis in original] about it, while a CAS investigation was active and our son could still have been kidnapped, there was the chance that some hothead who cares deeply about me and my family, would lose it and do something illegal, like bludgeon the Kinsella’s to death.  No matter how little respect I have for them, as a Christian, I chose to turn the other cheek and let enough time pass for the people who love, would give their lives for, or would go to jail for, me and my family, to react with cooler heads.[4]

[3]           Is the above passage a threat to kill Warren and Lisa Kinsella?  This is the central issue for me to determine.  In R. v. McRae[5] the Supreme Court of Canada set out the law as follows:

10     … The question of whether words constitute a threat is a question of law to be decided on an objective standard…

11     The starting point of the analysis should always be the plain and ordinary meaning of the words uttered. Where the words clearly constitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete. However, in some cases, the context reveals that words that would on their face appear threatening may not constitute threats within the meaning of s. 264.1(1)(a) (see e.g. O’Brien, at paras. 10-12). In other cases, contextual factors might have the effect of elevating to the level of threats words that would, on their face, appear relatively innocent (see e.g. R. v. MacDonald (2002), 2002 CanLII 14251 (ON CA), 166 O.A.C. 121, where the words uttered were “You’re next”).

….

15     Thus, while testimony from persons who heard or were the object of the threat may be considered in applying this objective test, the question in relation to the prohibited act is not whether people in fact felt threatened. As the Court of Appeal for Ontario put it in Batista, witness opinions are relevant to the application of the reasonable person standard; however, they are not determinative, given that they amount to personal opinions and “d[o] not necessarily satisfy the requirements of the legal test” (para. 26).

16     To conclude on this point, the prohibited act of the offence of uttering threats will be made out if a reasonable person fully aware of the circumstances in which the words were uttered or conveyed would have perceived them to be a threat of death or bodily harm.

[4]           I find that the plain and ordinary meaning of the words in the impugned passage do not constitute a threat to kill the Kinsellas.  In R. v. Clemente[6] the Supreme Court of Canada cited the Oxford English Dictionary definition of a threat, “A denunciation to a person of ill to befall him; esp. a declaration of hostile determination or of loss, pain, punishment or damage to be inflicted in retribution for or conditionally upon some course; a menace.” [emphasis in original]  A threat must thus be forward-looking, not a comment on something that could have or even should have happened in the past if certain conditions had been met.  For this reason, coupled with the stated desire in the passage that Mr. Sears timed the article to avoid the risk of someone bludgeoning the Kinsellas to death I cannot find on this first step of the analysis that a threat is made out.

[5]           That does not end the matter, of course.  I must now consider whether contextual factors give the passage a threatening meaning not apparent on a plain reading.

[6]           Warren and Lisa Kinsella gave evidence over the course of three days.  To say that their “relationship”[7] with Mr. Sears is an extremely hostile one would be a vast understatement.  The “relationship” commenced several years ago and consisted of writings by Mr. Sears and others published in Your Ward News about initially Warren and later Lisa Kinsella with accompanying photoshopped images and graphics.  The articles and images are derogatory, demeaning, insulting, rude, crude, and designed, according to Mr. Sears, to incite and provoke a response from Mr. Kinsella in order to bring attention to Your Ward News (as Mr. Kinsella has a significant public profile).[8]  In addition to the personal attacks the content of Your Ward News generally is deeply offensive to both Warren and Lisa Kinsella.  In response they participated in, organized, and/or commenced a variety of legal and political actions aimed at exposing, opposing, and/or shutting down Your Ward News.  They wrote articles, held press conferences, lobbied politicians, and commenced this proceeding by laying a private information, amongst other things.

[7]           I completely accept their evidence that they perceived the reference to “bludgeon the Kinsella’s to death” as a call to action and a real threat to their personal safety that they took seriously.  I also find that their negative views of Your Ward News and Mr. Sears are completely understandable, justified, and sincerely held.  However, I find their interpretation of the alleged threat to be of little assistance to me in assessing on an objective basis how a reasonable person would interpret the words written, since when it comes to Mr. Sears and Your Ward News they are the opposite of dispassionate and unbiased.  They perceive everything in the worst possible light.[9]

[8]            The Crown submitted that my interpretation of the alleged threat should be guided by a review of a number of other articles and graphic depictions in Your Ward News and to that end filed Exhibits 3 and 4, containing the June, July, and November, 2015, February, Spring, Summer and Fall, 2016 editions of Your Ward News in addition to the Summer 2017 edition which contains the alleged threat.  These editions of Your Ward News essentially make up the entirety of the Crown’s case other than the testimony of Lisa and Warren Kinsella.

[9]           I certainly agree that due to:

  •     the history of animus in the articles by Mr. Sears in Your Ward News directed at Warren and Lisa Kinsella,
  •     the history of animus in the graphical depictions of Warren and Lisa Kinsella in Your Ward News (which although Mr. Sears likely did not create them as Editor I find he must have had some control over them, particularly when the graphics accompany an article by Mr. Sears[10])
  •     the occasional use of “coded” or symbolic language in Your Ward News by Mr. Sears
  •     the article containing the alleged threat was about what Mr. Sears portrayed as a significant threat to the safety and wellbeing of his infant son and not a more general political issue;
  •     the article blaming Lisa Kinsella for directly or indirectly causing this threat to his family
  •     Mr. Sears’ statement in an article unrelated to Warren or Lisa Kinsella in 2015 that, “I do not believe in vigilante justice unless someone is threatening the life or wellbeing of me or my family.”

it is possible to reasonably interpret the impugned passage as a threat to kill.  This interpretation results from focusing in on “some hothead who cares deeply about me and my family, would lose it and do something illegal like bludgeon the Kinsella’s to death…people who love, would give their lives for, or would go to jail for, me and my family” and ignoring other portions of the passage as being there for the purpose of creating plausible deniability or as “window dressing” for “veiling” the threat.

[10]        While this possible reasonable interpretation was certainly sufficient to justify the laying of the charge and the initiation of process on the standard of reasonable and probable grounds,[11] the standard I must consider is proof beyond a reasonable doubt.  That latter standard requires that I must acquit Mr. Sears unless the evidence satisfies me that the only reasonable interpretation of the passage is that it is a threat.  A finding that a threat to kill is a possible, or even the most likely, reasonable interpretation must lead to an acquittal.[12]

[11]        Having considered all of the evidence I am unable to find that the threat to kill interpretation set out above is even the most likely interpretation, let alone the only reasonable interpretation.  In my view a reasonable person looking at all the evidence would find that the most likely interpretation is the plain and ordinary meaning of the words and the contextual evidence does not justify displacing that meaning for the more sinister one of a threat to kill.

[12]        Had I found that the words did indeed constitute a threat to kill I would have concluded that Mr. Sears did intend them to be so, since in my view the evidence clearly establishes beyond a reasonable doubt that Mr. Sears chooses his words very carefully and deliberately, and there would not have been a doubt about there being a secondary, innocent meaning between these very hostile parties.[13]

[13]        I would like to express my sincere gratitude to Mr. Giovinazzo, Mr. Murphy, and Mr. Gray for providing tremendous assistance to me in what has been at times a very difficult, emotional case.  All three conducted themselves in the finest traditions of the Bar and I commend them.

[14]        I find Mr. Sears not guilty of threatening to kill Warren and Lisa Kinsella and order that an acquittal be entered.

Released:  December 10, 2018

 

 

 

 

Signed: Justice D. Moore

[1] On October 25, 2018 I granted a nonsuit application brought by Mr. St. Germain at the close of the Crown’s case and accordingly dismissed the charge against him.

[2] Exhibit 4 Tab 2 p. 6-7, J. Sears in Your Ward News Summer 2017, “Children’s Aid: Righteous Crusade or Greedy Charade”

[3] Exhibit 20, article by L. Kinsella from the Huffington Post, “I’m Fighting to Keep a Neo-Nazi Paper Out of My Neighbourhood”

[4] Exhibit 4 tab 2 p. 7

[5] [2013] S.C.J. No. 68 at paras. 10-16

[6] 1994 CanLII 49 (SCC), [1994] S.C.J. No. 50 at para. 7

[7] I use quotation marks as the Kinsellas had apparently never been in Mr. Sears’ presence until this trial.

[8] Exhibit 3, Tab 1, Your Ward News, June 2015, p. 1-2 “I Love Pulling Warren Kinsella’s Strings!” article by James Sears

[9] Because I have decided to give little weight to their perceptions of the alleged threat due to their admitted bias (something not seriously contested by the Crown during submissions) I will refrain from conducting a detailed credibility analysis.  Suffice it to say that Mr. Murphy and Mr. Gray were extremely effective in their cross examinations.

[10] Exhibit 3, Tab 4, Spring 2016 Edition of Your Ward News, p. 3 “Message from our Editor-in-Chief” by James Sears, “I must dedicate two solid weeks per month to prepare each issue.  I must direct our talented graphic artist Robert James on exactly how I want the paper laid out and what images I want created”.

[11] As I had earlier found in dismissing Mr. Sears’ and Mr. St. Germain’s application for a stay of proceedings, oral reasons on September 20, 2018

[12] The Crown conceded this was the correct interpretation of the law.  Although not directly on point see the decision of the Supreme Court of Canada in R. v. Villaroman 2016 SCC 33 (CanLII), [2016], 1 S.C.R. 1000 at paras. 16-43

[13] Also see Exhibit 3, Tab 1, Your Ward News, June 2015, p. 1-2 “I Love Pulling Warren Kinsella’s Strings!” article by James Sears

Canadian Jewish News Devotes Extensive Coverage To CAFE Response to Postal Ban on YWN


Canadian Jewish News Devotes Extensive Coverage To CAFE Response to Postal Ban on YWN

MINISTER UPHOLDS MAIL BAN ON YOUR WARD NEWS

A Canada Post truck delivers mail in Montreal.

The federal government is making permanent an interim order preventing Canada Post from delivering Your Ward News, a quarterly publication whose content has prompted hate crimes charges.

Carla Qualtrough, the minister responsible for the national mail carrier, said that after considering the recommendations of an independent board of review, “I have decided to issue a final prohibitory order that will prevent the delivery of the publication Your Ward News, or any substantially similar material developed by its authors, through Canada Post’s unaddressed bulk mail. My decision is consistent with the applicable legislation and the government’s values and stance on inclusiveness and diversity.”

The post office has not delivered Your Ward News since May 26, 2016, when an interim prohibitory order was issued by the minister of public works and government services.

At the time, postal workers, along with many people who had received the tabloid in their mailboxes unbidden, were angry at the content of the paper, which they say crossed the line into pro-Nazi hate propaganda.

READ: EDITOR AND PUBLISHER OF YOUR WARD NEWS APPEAR IN COURT

The minister’s decision prompted a request for a review by James Sears, editor-in-chief of Your Ward News, and Leroy St. Germaine, its publisher. An independent review board was convened. It held hearings, received submissions and considered the legal basis for denying mail service to the paper. The Centre for Israel and Jewish Affairs (CIJA), the League for Human Rights of B’nai Brith Canada and the Friends of the Simon Wiesenthal Center (FSWC), among others, were granted legal standing before the board and made written and oral submissions.

On Nov. 15, 2017, while the board was still considering the case, Sears and St. Germaine were charged with wilfully promoting hatred against Jews and women. The charges arose out of material published in Your Ward News. That trial is expected to get underway in the near future.

The board submitted its report to the minister on Aug. 28. It found that the process of denying mailing privileges to Your Ward News was not procedurally unfair, that “there were reasonable grounds to believe that the affected persons (Sears and St. Germaine) have, by means of mail, sent or caused to be sent items that include hate propaganda” and material that could be considered defamatory.

Jewish groups applauded the minister’s decision to impose a permanent ban on the delivery of Your Ward News.

The cover of the Fall 2018 edition of Your Ward News.

“We commend Minister Qualtrough for her principled decision. Your Ward News promotes disgusting anti-Semitic conspiracy theories, misogyny, homophobia and racism,” said Noah Shack, CIJA’s vice-president for the Greater Toronto Area.

“Our taxpayer-funded mail service should not be used to distribute such hateful content to hundreds of thousands of households. It is shocking that such vile messages are being peddled here in Canada in 2018. Just think about a Holocaust survivor picking up their mail, only to find neo-Nazi propaganda on their doorstep. This is totally unacceptable.”

“Given the victimization of our community alongside its disrespect of women and most other communities, we are very pleased about this outcome. This is in addition to hate crime charges laid against the paper’s authors now underway,” said Avi Benlolo, FSWC’s president and CEO.

“However, the paper is still being published and distributed by hand and online. We are calling on continued Crown prosecution to the fullest extent of the law and on the federal government to reinstate Section 13 of the (Canadian Human Rights Act), which dealt with online hate speech.”

The cover of the Winter 2018 edition of Your Ward News.

Not everyone applauded the minister’s decision. Paul Fromm, a long time supporter of white supremacist causes and director of the Canadian Association for Free Expression (CAFE), responded to the board’s findings on CAFE’s website.

“Your report takes Canada one sad further step into the swamp of a cultural Marxist police state. How can we wag our prissy preaching finger at Russia or Iran for suppressing criticism and free speech and do much the same thing here? You have joined a long list of humourless puritans (religious and otherwise) through the centuries (who were) unable to appreciate spirited satire, which pricked the pompous and privileged and supported the ignored and dispossessed,” Fromm wrote.

“We note the minister has adopted your key recommendations for censorship forever of a publication. Interestingly, people who actually commit vile acts like murder, as opposed to people who say offensive things about privileged minorities, do not face a lifetime penalty.”

SHOW YOUR SUPPORT FOR DR. JAMES SEARS AND YOUR WARD NEWS — ATTEND THE FINAL SUMMATIONS & LAST DAY OF THE TRIAL

SHOW YOUR SUPPORT FOR DR. JAMES SEARS AND YOUR WARD NEWS — ATTEND THE FINAL SUMMATIONS & LAST DAY OF THE TRIAL
Things have been going very well in Warren & Lisa Kinsella’s vanity prosecution of Dr. James Sears and Leroy St. Germaine for allegedly “uttering a threat” in YOUR WARD NEWS against the Kinsella. These drama queens took their complaint to two different police personnel and two different Crowns. All told them there was no threat and no case. They laid a private charge and the Crown took it over.
 
As you have seen from my reports, Dr. Sears lawyers have humiliated the Kinsellas, caught them in, er, shall we say, many untruths and exposed their visceral hatred of Dr. Sears and desire to bankrupt him and shut down the hilarious, satirical YOUR WARD NEWS by any means necessary.
 
On Thursday, the judge delivered a directed verdict and the charges against Leroy  ST. Germaine were withdrawn. One down; one to go.
 
In a somewhat frightening incident, during the noon break, defence lawyer Chris Murphy was assaulted at Starbucks by a sixtyish, fat, greying woman who spat on him before several witnesses. She may have been part of what Dr. Sears terms “post-menopausal crazy cat ladies” who seem to make up part of the Kinsellas’ anti-racist entourage. The assault was brought to the attention of the Court,.
 
Come out and by your presence witness for free speech. The final day of the trail is Tuesday, October 20 at 10:00. It will be on the second floor of the College Park Building, southwest corner of Yonge and College.
Image may contain: 2 people, people standing and shoes

The Complaining Kinsellas Unravel During Withering Cross-examination in the YOUR WARD NEWS “Uttering Threats” Case

The Complaining Kinsellas Unravel During Withering Cross-examination in the YOUR WARD NEWS “Uttering Threats” Case
 
TORONTO, October 24, 2018. The trial of YOUR WARD NEWS editor Dr. James Sears and publisher Leroy St. Germaine of charges of “uttering threats” continued in Toronto today Defence lawyers (Chris Murphy for Mr. St. Germaine) and (George Gray for Dr. Sears) painted a picture of an ugly feud going back to 2015 as the Kinsellas and their group STAMP (Standing Together Against Mailing Prejudice) sought to drive the satirical tabloid out of business by any means necessary, including, Warren Kinsella admitted trying to bankrupt Dr. Sears: “I want to do whatever it takes to shut this paper down,” he snapped.
 
The defence attorneys shredded the credibility of the complainant couple is rigorous cross-examination. George Gray revisited Kinsella’s extraordinary assertion from the previous day that he was only “vaguely aware” that Dr. Sears was running for mayor of Toronto. After some technical fumbling the testimony from yesterday was played back to the court. Mr. Gray said:   “I submit you absolutely knew he was running” and references a tweet where Kinsella praised John Tory for refusing to participate in any “all candidates” debate where either Dr, Sears or populis videographer Faith Goldy were present because they were “White supremacists.” Having tried to muddy the waters by saying it took 25 signatures to nominate a candidate and that he did not keep close track of Dr. Sears’ campaign, Kinsella admitted: “I authorized the article. James Sears name never passed Mr. Tory’s lips. We do not want to legitimize White supremacy, misogyny and anti-Semitism,”
 
Mr. Gray also reminded Mr. Kinsella of his fighting tweet on October 22, urging supporters to come to the court proceedings, or help in other ways by donating money. However, as the Crown is prosecuting the case, the Kinsellas have no expenses. “In your view, it’s ethical to solicit funds for other proceedings.” Earlier Kinsella had admitted the funds would assist in other legal cases, a defamation action, they are pursuing against YOUR WARD NEWS.
 
Kinsella was visibly angry when confronted with his nickname “Prince of Darkness.” He insisted that short-lived Tory Kim Campbell called his that after her disastrous campaign. Kinsella had been a close war room advisor to victor Jean Chretien. He then added that his publisher had insisted on this handle. He concluded by asserting: “It’s what Mr. Sears does manipulating Wikipedia.” How he might do this was never explained.
 
Mr. Gray then confronted him with the name of the punk band he has played in SFH. Kinsella feigned surprise that Mr. Gray did not know what the initials meant and then explained “Shit From Hell”. Mr. Gray suggested that Prince of Darkness and Shit From Hell might explain the demonic and religious themes in some of YWN’s cartooning about the Kinsellas.
 
In the afternoon, Lisa Kinsella took the stand. In her testimony, she exposed the snowflake nature of this complaining couple. She explained the various action they and STAMP have taken — using her lobbying skills and insider Ottawa connections to get Dr. Sears and Mr. St. Germaine’s mailing rights removed, calling advertisers urging them to cease advertising in YWN, and lobbying with Jewish groups to get Dr. Sears and Mr,. St. Germaine charged under the “hate law”..
 
However, when Dr. Sears sought a review of the Interim Prohibitory order, she asked the review panel “not to ask her to give her address” as she was sworn in. [Paul Fromm, representing CAFE at these hearings had objected to this special privilege. He had argued for openness and transparency.]
 
The alleged threat in this case arose out of a reaction by Dr. Sears to the Children’s Aid Society being called to investigate his family and care of their young son. Six months later, Dr. Sears said he had not written about this malicious trick earlier because  “there was the chance that some hothead … would lose it and do something illegal, like bludgeon the Kinsellas to death … I chose to turn the other cheek and let enough time pass for (those) people to react with cool heads. As a Christian, I don’t want to see harm come to the Kinsellas and have delayed this information to let tempers cool”
 
As on the previous day, questioning centred on a tweet by Warren Kinsella calling Dr. Sears a “neo-Nazi serial sex offender” and attaching an article which posted his picture, street address, picture of his house, car, licence plate number and a picture thereof. She said her husband never posted Dr. Sears’ address. The article said: Dr. Sears ” seems to think he can sexually harass people and promote all kinds of racist Nazi bullshit with little consequence … here’s his home address and some personal info for anyone who’s interested.”
 
“Do you think this is a call to action?” Mr. Gray asked. Lisa Kinsella bobbed and weaved: “Well, my husband didnt’ write this and I am not responsible for what my husband does. I cannot  speculate” whether it’s a call to action.
 
Finally, she insisted: “It’s not a call to action when compared to what was written about us.”
 
The trial continues before Judge Dan Moore on Thursday. — Paul Fromm

Stunning Revelation at Sears & St. Germaine “Uttering Threats” Trial: Kinsella Says Richard Warman Sicked Children’s Aid on Dr. Sears

Stunning Revelation at Sears & St. Germaine “Uttering Threats” Trial: Kinsella Says Richard Warman Sicked Children’s Aid on Dr. Sears
 
TORONTO. October 23, 2018. First, complainant and witness, Warren Kinsella told the Court that he had not called the Children’s Aid Society to investigate YOUR WARD NEWS editor Dr. James Sears and his family’s treatment of his young son. “But, he added, “I am aware of who did.” Near the end of today’s opening of the “uttering threats” trial of Dr. Sears and publisher Leroy St. Germaine, defence lawyer Chris Murphy returned to this issue. Warren Kinsella revealed that Ottawa lawyer and dedicated free speech opponent Richard Warman told a meeting of STAMP (Standing Together Against Mail Prejudice), Kinsella’s East End Toronto anti-YOUR WARD NEWS group that he had sicked CAS on Warman. Warman had earlier pressured Canada Post Corporation and the then Minister of Supply and Procurement Judy Foote to issue a Prohibitory Order against Dr. Sears and Mr. St. Germaine preventing them from sending any mail in Canada.
 
Dr. Sears has suspected that it was one or both of the Kinsellas, Warren or his second wife Lisa, who had maliciously contacted CAS. This had led to the sentence in the Summer, 2017 issue of YWN that resulted in the private charge filed by the Kinsellas. Sears said he waited months to inform his ‘thousands’ of friends and followers about the apparent CAS investigation due to fear that ‘some hothead who cares deeply about me and my family, would lose it and do something illegal, like bludgeon the Kinsellas to death.’” That passage, the Kinsellas alleged, constitutes a threat. The Kinsellas had twice approached the police and the Crown to lay “uttering threats” charges but were told these words didn’t constitute a threat.
Kinsella came across as arrogant and vain as he argued with the much younger Mr. Murphy. “Those are two questions,” he said several times in an imperious tone. “Which one do you want me to answer?”
 
Mr. Murphy unravelled Kinsella’s righteous warrior image and revealed him to be shaky about the truth. He put a tweet to him that Kinsella had sent in 2015 accusing Dr. Sears of having “a long career of sexually assaulting women and now publishing a junk newspaper.” Attached to this tweet was a document giving Dr. Sears’ home address, including a picture of his residence, and his car’s make and licence plate, along with a picture. Warren Kinsella had complained that satirical attacks on him in YWN had made him fearful for his safety. He had improved his home security system after, he claimed, his house had been egged. “I don’t remember sending this tweet. I did not write this tweet,” Kinsella insisted. “I retweeted it. I have not seen this attachment before.” Yet, he expressed no condemnation of this targetting of Dr. Sears. Mr. Murphy argued that it was not a re-tweet.
 
Shortly after this tweet appeared, Leroy St. Germaine offered between $100 and $1,000 for information leading to the conviction of the Kinsellas. Kinsella who has a penchant for the dramatic insisted this was a “bounty on my life.”

SEARS AND ST. GERMAINE.JPG
 
“Considering what you know now, do you still think the offer for information was a ‘bounty on your life’?”
 
Mr. Murphy argued that the Kinsellas are both public figures and have engaged in a long battle with YOUR WARD NEWS, admitting to trying to get their mailing rights taken away and with getting them charged under Canada’s notorious “hate law” (Section 319) of the Criminal Code.
 
In a dramatic moment, Mr. Murphy put to Mr. Kinsella an October 22 message written by Kinsella entitled “help us fight hate, urging people to attend today’s trial. “We expect the media and the usual cabal” of free speech supporters. In the end of this appeal to rally his followers, he says those who can’t attend “can support us in some other way.” And, there, said Mr. Murphy, is your PayPal icon. Mr. Murphy noted that the Crown was bearing the costs of this prosecution. Kinsella said the money would go for the libel case Lisa has launched against Dr. Sears and Mr. St. Germaine. Mr. Murphy pointed out that that was not mentioned. According to Kinsella, the only response thus far had been from a gay, female rabbinical scholar in New York City who had sent $300.
 
Mr. Kinsella, when asked whether he had notified the media, admitted:  “Yes, sir, my staff did.” The media were out in force and Dr. Sears gave many interviews.
 
As so often in his career, Warren Kinsella seems to have some special relationship with officialdom. Most witnesses sit on hard benches outside the College Street courtrooms until they are summoned. Not Warren. He was sequestered in some private room until he got the call some 45 minutes into the trial. He was accompanied in by Detective Yurmolak of the Metropolitan Toronto Police Service. The detective sat at the prosecution table and hovered close to Kinsella. Perhaps in the hyperventilating imaginations of anti-free speechers like Kinsella the satirical words of YOUR WARD NEWS might suddenly turn into swords.
 
Also in attendance was Bernie Farber, another complainant against YOUR WARD NEWS who has tried mightily to silence it. At the lunch break, he and Kinsella engaged in a powerful embrace. [You can’t make this stuff up.]
 
So inept and hostile is much of the fake news media that one outlet didn’t even know the case being tried. CITY-TV reported that Dr. Sears and Mr. St. Germaine were on trial for “hate speech.” — Paul Fromm
[A fuller report will follow later.]

The Ontario Civil Liberties Association Calls on Ontario Attorney General to Revoke Consent for ‘Hate’ Charges Against Dr. Sears & Leroy St. Germaine (YOUR WARD NEWS); Kevin J. Johnston & Bill Whatcott

The Ontario Civil Liberties Association Calls on Ontario Attorney General to Revoke Consent for ‘Hate’ Charges Against Dr. Sears & Leroy St. Germaine (YOUR WARD NEWS); Kevin J. Johnston & Bill Whatcott
http://ocla.ca/wp-content/uploads/2018/07/2018-07-24-Letter-OCLA-to-AG-Ontario-Mulroney.pdf 
Media Release: 
The Ontario Civil Liberties Association (OCLA) has sent a letter to Ontario’s new 
Attorney General Caroline Mulroney, re: Criminal code censorship prosecutions in Ontario.
By Email
 
July 24, 2018

 

Hon. Caroline Mulroney
Attorney General of Ontario
Ontario, Canada
Dear Attorney General Mulroney:
 
Re:  Criminal Code censorship prosecutions in Ontario

 

The Ontario Civil Liberties Association (OCLA) advocates for civil and human rights, including the fundamental human right of individual expression, opinion and belief.
We write to ask you to refrain during your mandate from consenting to any prosecutions based on the censorship provisions of the Criminal Code, because the said provisions categorically violate the International Covenant on Civil and Political Rights (the “Covenant”) ratified by Canada in 1976.
The impugned sections of the Criminal Code are:

 

LIBEL
·   S. 296 – Blasphemous libel
·   Ss. 297 to 317 – Defamatory libel

 

HATE PROPAGANDA
·   S. 318 – Advocating genocide
·   S. 319 – Public incitement of hatred / Wilful promotion of hatred
·   Ss. 320 to 320.1 – Warrant of seizure

 

Our point is not that expression cannot be criminal. For example:  ss. 22 and 464 of the Criminal Code, which apply to valid provisions of the Criminal Code.
Our point is that Canada and the provinces are obligated under international law not to enact and use laws that violate fundamental human rights.
The “blasphemous libel” (s. 296) and “defamatory libel” (ss. 297 to 317) provisions are squarely contrary to international law,[1] and opposite to all the relevant joint statements of international rapporteurs on human rights.[2],[3],[4] In particular, the said provisions prescribe imprisonment, whereas international law expressly disallows imprisonment as a penalty for any type of defamation, whether characterized as “criminal” or not.[5]

 

Section 296 will be repealed by Bill C-51 (referred to committee on Senate second reading). The defamatory libel” sections (ss. 297 to 317) are maintained, except that “published” cannot mean solely to the person who is defamed (s. 299(c)).

 

The “advocating genocide” provision of the Criminal Code (s. 318), is noncompliant with the Covenant because it does not prescribe an onus on the state to establish a “direct and immediate connection” to an actual “threat”:[6]

 

When a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.
A valid law prohibiting advocating genocide is required to prescribe that the “advocating” must be credible and causally connected to a palpable threat.
The “public incitement of hatred / wilful promotion of hatred” provisions (s. 319) violate the Covenant because no actual harm to any specific person needs to be proven by the state; nor is the issue incitement of a crime, but rather incitement of “hatred” (an emotion which is not in itself a crime) in unspecified persons at large.
The court is asked to subjectively hypothesize an induced “hatred” at large. The state need only wave the magic wand of “hatred”, subjectively inferred from the impugned expression itself, to imprison an individual for up to two years.
These are victimless crimes of hypothetically inducing emotions transmitted into the ether of society, which hypothetically cause unspecified harm to unspecified persons. No evidence of any kind is needed beyond the impugned expression itself and the context of the expression.
The Supreme Court itself determined this statutory interpretation of prosecutions pursuant to ss. 319(1) and 319(2):[7]
“The offence does not require proof that the communication caused actual hatred. … The risk of hatred caused by hate propaganda is very real.  This is the harm that justifies prosecuting individuals under this section [319] of the Criminal Code.  In the Media Case, the ICTR said that ‘[t]he denigration of persons on the basis of their ethnic identity or other group membership in and of itself, as well as in its other consequences, can be an irreversible harm’.”  [Emphasis added]
The proverbial slippery slope has now led us beyond this victimless crime — in which any effect or harm from the expression need not be proven and cannot be tested — to a place where “holocaust denial” is argued to automatically generate the said hatred at large. On the contrary, the Covenant holds the state to an entirely different standard:[8]

 

Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression. The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events.

 

The impugned Criminal Code provisions include overt “book burning” clauses (ss. 319(4), 320 and 320.1) for recorded materials that are subjectively hypothesized to induce “hatred” in the reader, listener or viewer.
Canada has an obligation to remove these laws,[9] an obligation that it appears to be largely disregarding despite our calls starting in February 2016.
All prosecutions pursuant to the impugned provisions are fundamentally unjust towards the individual, extraordinarily wasteful of public resources, and harmful to democracy itself.

 

The “hate propaganda” prosecutions are structurally political because they are made at the discretion of the Attorney General (ss. 318(3), 319(6) and 320(7)). They have a potential to be used as propaganda and societal manipulation, much as witch trials were used in the Reformation in competing for “religious market share” between Catholics and Protestants.[10] Those who seek censorship of a particular negative view are often partisans of a particular political party or ideology or may have a special interest they wish to advance. Reactions to views one finds repugnant are emotional vectors that can align, consolidate, increase or strengthen partisan affiliation when the issue is predictably mediatized through a controversial trial.

 

In addition, we ask you to retract the Attorney General’s consent for all the ongoing such prosecutions, which were consented to by the previous Attorney General despite our requests.

 

We know of three current such prosecutions being pursued in Ontario:
  • Kevin Johnston – for expressed negative opinions about Muslims
  • James Sears – for expressed negative opinions about women and Jews
  • Bill Whatcott – for expressed negative opinions about gays

 

Please let us know your responses so that we may report these to our members and to the public.
Yours truly,
Joseph Hickey
Executive Director
Ontario Civil Liberties Association (OCLA) http://ocla.ca
613-252-6148 (c)
Cc: Hon. Jody Wilson-Raybould, Attorney General of Canada, Jody.Wilson-Raybould@parl.gc.camcu@justice.gc.ca
[1] General comment No. 34, International Covenant on Civil and Political Rights, Human Rights Committee, 102nd
session, CCPR/C/GC/34, <http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf>, paras. 47 to 49
[2] JOINT DECLARATION: Current Challenges to Media Freedom, by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, 30 November 2000, <http://www.osce.org/fom/40190>
[3] JOINT DECLARATION, by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, 10 December 2002, <http://www.osce.org/fom/39838>
[4] JOINT DECLARATION ON DEFAMATION OF RELIGIONS, AND ANTI-TERRORISM AND ANTI-EXTREMISM LEGISLATION, by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the ACHPR (African Commission on Human and Peoples’ Rights) Special Rapporteur on Freedom of Expression and Access to Information, 10 December 2008, <http://www.osce.org/fom/35639>
[5] General comment No. 34, International Covenant on Civil and Political Rights, Human Rights Committee, 102nd
session, CCPR/C/GC/34, <http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf>, para. 47
[6] See Article 20 of the Covenant; and see General comment No. 34, International Covenant on Civil and Political Rights, Human Rights Committee, 102nd session, CCPR/C/GC/34, para. 35
[7] Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 SCR 100, 2005 SCC 40 (CanLII), <http://canlii.ca/t/1l249>, at para. 102
[8] General comment No. 34, International Covenant on Civil and Political Rights, Human Rights Committee, 102nd session, CCPR/C/GC/34, <http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf>, at para. 49
[9] General comment No. 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, International Covenant on Civil and Political Rights, Human Rights Committee, 80th session, CCPR/C/21/Rev.1/Add. 13, 26 May 2004, <http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=478b26ae2>, para. 13
[10] “Witch Trials” by Peter T. Leeson and Jacob W. Russ, The Economic Journal, 2017, DOI: 10.1111/ecoj.12498
Contact:
Joseph Hickey
Executive Director
Ontario Civil Liberties Association (OCLA) http://ocla.ca
613-252-6148 (c)