Political Prisoner Leroy St. Germaine Sentenced to a Year’s House Arrest for Satire
Political Prisoner Leroy St. Germaine was sentenced to a year’s house arrest bu Judge Richard Blouin. He cannot leave his house except for medical or legal appointments, church, or four hours a week shopping. Lawyers will seek bail pending appeal for leroy next week.
On August 22, 2019, a lower court judge unexpectedly sentenced our Editor-In-Chief Dr. James Sears to ONE YEAR IN JAIL for cracking jokes about women and Jews. After the judge read out his sentence, Dr. Sears was swarmed by guards, one flashing handcuffs. Dr. Sears calmly handed everything in his possession to his wife and 4 year old son, except for his crucifix which he clutched as the guards handcuffed him and led him off. He was standing tall and beaming with pride. His final words to us were “See you guys!”
But what the lower court judge didn’t know is that ever since he convicted us back in January, Dr. Sears has been studying case law. So after spending 5 days in jail, on August 27, 2019, like Jesus, Dr. Sears rose again! He took the paddy wagon from the jail to the courthouse, and handed a kick-ass “Notice of Appeal” to a Superior Court judge. Dr. Sears accused the lower court judge of being biased and giving insufficient reasons for convicting us, and making other legal errors. The Superior Court judge agreed with Dr. Sears that his appeal has merit, and she quickly released him on “Bail Pending Appeal”. He walked out of the court and back into the arms of his wife and son, fresh handcuff marks still on his wrists in the same spots where Jesus was wounded when he was nailed to the cross.
One of his bail conditions was to convince me to temporarily take down the Your Ward News website until the appeal is heard in a few months. I agreed to do it to help keep my Christian comrade out of the slammer. I get sentenced on August 29, 2019, and I’ll be joining him in an appeal of my conviction and sentence. I’m confident we’re both going to win our appeals. When that happens, the website comes back online and we get a brand new trial. And this time around, we’re going to win it!
Savage Sentence Handed Out to Dr. James Sears for Satire
TORONTO. August 22, 2019. Today Provincial Court Judge Richard Blouin blew it. He had the chance to declare a mistrial for outrageously ineffective representation but instead chose to sentence Dr. James Sears, editor of the satirical YOUR WARD NEWS to the maximum — a year in prison, six months each consecutive on two counts of wilfully promoting hate against privileged minorities — Jews and Women.
Despite evidence in e-mail exchanges that lawyer Dean Embry had refused Dr. Sears instruction to call expert witnesses and to make certain submissions, the judge, sticking by a fellow lawyer declared: ” “Mr. Embry approached the case tactically and professionally. This was not incompetence or worse. This was a lawyer doing his job. It just didn’t work.”
The judge then got down to sentencing. He declared that Dr. Sears deserved at least 18 months. A conviction attracts only a maximum of six months. Agreeing to the Crown’s demands for the maximum sentence of six months on each count to be served concurrently, the judge gave Dr. Sears a year.
The judge faithfully echoed a line spread by Canada’s Jewish lobby that criticism of Jews leads to violence: ” “Mr. Sears promoted hate to a vast audience in an era where online exposure to this material inexorably leads to extremism and the potential of mass casualties.” Oddly, in press reports, Noah Shack of the Centre for Israel and Jewish Affairs said much the same thing: “Those who promote hatred must be held accountable. What starts with words can often lead to violence.” At an earlier sentencing hearing, Dr. Sears had submitted evidence that YOUR WARD NEWS‘s satire serves as a safety valve and offers a voice to many people marginalized by political correctness. he cited two examples of people who had threatened violence but who had calmed down once their stories appeared in YOUR WARD NEWS.
Dr, Sears wife Colette and his four year old son attended the sentencing. The boy saw his father handcuffed and led away. Dr. Sears gave his wife his car keys and cellphone and insisted on keeping his chain and crucifix as he headed to the cells.
A woman supported called out: “This is not right.” The judge threatened to have her removed. The woman, who grew up in communist Eastern Europe, left the court in tears with memories of exactly the same things in her homeland.
In a press scrum afterwards, Paul Fromm, Director of the Canadian Association for Free Expression, warned an extremely hostile reporter: “This is a sad day for freedom of speech and freedom of the press. This is North Korea lite. CAFE has supported YOUR WARD NEWS all along in its fight for freedom. Neither the Crown nor the judge could see that this paper was satirical. My parents if alive today would have wondered what they risked their youth for. My father served three and a half years in the Royal Canadian Navy; my mother six years as a nurse in the Canadian Army. They thought they were fighting for freedom and against people who jailed writers and threw people in prison for the non-violent expression of their religious or political views.”
“Dr. Sears is a Christian martyr,” another supporter said.
Publisher Leroy St. Germaine will be sentenced August 29. A proud Metis, he was entitled to the Aboriginal discount, or special reduction of sentences in view of his ethnicity. At a previous hearing the judge urged him to accept mediation — a sitdown with Jews and women who had complained against YOUR WARD NEWS. “Fuck that,” he told his lawyer.
So, August 29 will show whether our cultural Marxist courts will send a proud, ailing 77-year old Metis to prison for the non-violent publication of his political and religious views.
A notice of appeal against the conviction was filed earlier this week. Another lawyer will appear in Provincial Court on Friday to seek Dr. Sears release on bail pending appeal.
TORONTO — A Toronto editor found guilty in January of promoting hatred against women and Jews was given more time on Thursday to say why he believes his lawyer threw the case.
In addition, Ontario court Judge Richard Blouin gave James Sears, who is looking to reopen his trial, two weeks to come up with a list of proposed witnesses and a summary of what evidence they might offer.
“I’ve never done or seen one of these applications,” Blouin said of the bid to reopen the trial. “It’s an unusual procedure. One we’re all working our way through.”
Blouin also put off sentencing for LeRoy St. Germaine, 77, publisher of Your Ward News, who was found guilty along with Sears.
The judge has been pressing St. Germaine, who has Metis background, to agree to a sentencing circle — a form of mediation in which a wrongdoer engages with their victims, in this case women and members of the Jewish community.
St. Germaine’s lawyer suggested his client was open to the concept — but not if he had to go into the mediation with apologies up front.
“The whole terms of reference might be a sticking point,” Blouin acknowledged. “(But) skilled facilitators have a way of getting to things over time.”
Blouin was insistent that a facilitated discussion of strongly opposed views in a “controlled, thoughtful arena” would be a good thing. He gave until Aug. 22 to come up with a plan or, he said, he would simply continue with sentencing St. Germaine.
For his part, Sears, 55, failed to produce a sworn affidavit Thursday as the judge had asked on why he felt his trial lawyer, Dean Embry, had deliberately blown the case.
Sears fired Embry, who denies any wrongdoing, after sentencing submissions in April. The editor claims he wanted to call defence witnesses but the lawyer refused.
“Mr. Sears hasn’t provided an affidavit on ineffective assistance of counsel,” Blouin said. “That needs to be done immediately.”
Blouin gave Sears until Aug. 8 to provide the sworn statement. The affidavit, as well as one from Embry, would be crucial in deciding whether to reopen the trial, the judge said.
“I would think, given the allegations against him, that Mr. Embry would want to respond,” Blouin said.
“There is no evidence whatsoever on the record to support the claim of ineffective assistance of counsel,” prosecutor Robin Flumerfelt said.
“I’m absorbing all this,” Sears said. “I’m not a lawyer.”
Sears, who also failed to provide a list of proposed witnesses, complained about finding experts, saying it’s hard to get in touch with academics during August. Sears said he expected to come up with an expert in satire and English.
The judge, who is retiring at the end of the month, was unmoved, saying the proceedings have dragged on long enough. He gave Sears until Aug. 15 to say who he would call to testify, their qualifications, and how their evidence would affect the case.
Sears and St. Germaine were responsible for Your Ward News, a free publication court heard was distributed to more than 300,000 homes and businesses in the Toronto area and available online. The publication consistently portrayed women and Jews in beyond ugly terms.
The Crown wants a total one-year jail term for Sears and six months for St. Germaine.
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.
Taube: Why the ruling against Your Ward News hurts free speech in Canada
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.
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.
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
Giovinazzo………………………………………………………………………….. counsel for the Crown
Murphy……………………………. s. 486 counsel for the defendant Leroy St. Germaine[1]
Gray …………………………………. s. 486 counsel for the defendant James Sears
The defendant James Sears…………………………………………………………. on his own behalf
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”
[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
