Sears’ St. Germaine Appeal Against “Hate Law” Conviction & Sentence Proceeds Under Protest Via Zoom
On Thursday, November 5, Judge Peter Cavanaugh turned down a motion for postponement of the Appeal proceedings as a previous judge had abruptly ordered the Appeal by Dr. James Sears and Leroy St. Germaine to proceed by Zoom after the Crown Attorney said his life was a risk in open court as Dr. Sears cannot, for religious and medical reason, wear a mask.
The Appeal is against both the conviction and maximum one year sentence handed handed down in the matter of Sec. 319 “hate law” charges against satirical broadsheet editor Dr. James Sears and publisher Leroy St. Germaine,
In a piece of legal arcana, the judge ruled that the order was not appealable at this stage but could only be challenged at a further appeal.
Former Political Prisoners & Thought Criminals Dr. James Sears & Leroy St. Germaine Seek Postponement of Appeal for Time to Prepare Constitutional Challenge
TORONTO, November 4, 2020. Tomorrow former political prisoners Dr. James Sears, editor, and Leroy St. Germaine, publisher of the satirical tabloid YOUR WAR NEWS, will appear in a phone conference before Mr.Justice Peter Cavanaugh to seek an adjournment of their appeal scheduled for November 10. They seek the adjournment to properly prepare a constitutional challenge to an interlocutory decision by Justice Ackhtar,, October 8, granting a Crown request that the Appeal, originally scheduled for October 13-15 be held by video Zoom rather that in person.
The appelants were granted time until November 10 to prepare their presentation and exhibits to fit the video format. The Appeal is against both their conviction and sentence (the maximum one year) of charges of “wilfully promoting hate” against two privileged minorities – women and Jews — contrary to Sec. 319 of the Criminal Code, Canada’snotorious hate law.
Dr. Sears and Mr. St. Germaine need more time to prepare and file Constitutional challenge and advise the 10 provincial and two territorial Attorneys-General. Dr. Sears told CAFE that the Constitutional challenge focuses on the order that the Appeal be conducted by Zoom. There will be witnesses in the Appeal — lawyer Dean Embry and Dr.Sears, among them. The Zoom venue does not allow the judge to gauge facial clues and interaction to assess credibility of witnesses, as a live hearing would do. “The Zoom ruling denies us a fair trial,” as guaranteed under Sec. 7 of the Charter which guarantees natural justice, he said.
1. The Appellant consented to appear at a case management conference before Justice Akhtar at 4:30 PM on Friday October 9th. He was informed of the conference only a few hours before it was scheduled to commence. Furthermore, it was scheduled only one half of a business hour before an October 13th appeal hearing scheduled months in advance was to commence.
2. Just prior to the conference, Mr. Bernstein forwarded The Appellant a copy of an anti-facemask flyer without any context as to why it was relevant to the case management conference. During the case management conference Mr. Bernstein claimed to Justice Akhtar that he had never seen the flyer before. However, at the end of an October 13th appearance before His Honour, he admitted to having had it in his possession for 3 months, as it had been forwarded to him by Mr. McCuaig on instruction of The Appellant on July 9th.
3. The October 9th case management conference lasted approx. 30 minutes and moved lightning fast. Since it was scheduled to be a case management conference, The Appellant was under the impression that it was just a casual, off-the-record discussion of the logistics of the trial. During this case management conference, Justice Akhtar was honourable enough to admit that he made an error in scheduling the trial; that he had meant to schedule it as an in-person hearing as agreed upon by all participants, but instead it was scheduled to proceed by ZOOM.
4. During this case management conference, Mr. Bernstein brought up the anti-facemask flyer, claimed his life was in danger being in the same room as The Appellant and/or The Appellant’s supporters, and requested that the mode of the appeal hearing be changed to one to be held by ZOOM. Mr. Bernstein was the only participant who had concern about appearing in person, so The Appellant spontaneously consented to Mr. Bernstein appearing by ZOOM whilst everyone else would appear in person.
5. Justice Akhtar made the erroneous assumption that The Appellant could not enter the courthouse without wearing a mask. That is simply not true, as the Ontario Human Rights Codes clearly provides exemptions for a number of reasons.
6. The Chief Justice of the Superior Court has set strict practice guidelines, one being that all self-represented appellants must appear in person.
7. The Appellant was given no notice before the case management conference before Justice Akhtar, that he would be arguing a motion to change the months-ago agreed-upon method by which the appeal would be heard. Therefore, The Appellant did not have time to review case law and case studies in order to argue against the motion. During this snap, surprise motion hearing, The Appellant was told by lawyers participating in the conference that the case law was not in his favour; and Justice Akhtar accepted these declarations as gospel. The Appellant vehemently objected. Nonetheless, supposedly an order to hold the appeal by ZOOM arose out of this hearing (and there is a reason why The Appellant employs the term “supposedly”).
8. The Appellant has never been served with a copy of this supposed order.
9. The Appellant has never been served with written reasons for this supposed order.
10. Upon attempting to order transcripts for this snap, surprise motion hearing, the transcription company replied “The courthouse is saying they sent the recording in error for October 9th, 2020. It was a case management hearing and therefore cannot be transcribed without a court order.” Therefore, this order, if it exists at all, is not reviewable, which is clearly unconstitutional. The Appellant asserts that as such, the order is not enforceable.
11. The Appellant spent approx. 2 weeks after October 13th trying to figure out how to present evidence for his appeal hearing, by ZOOM instead of in-person, including how to present documentation to Mr. Embry during cross-examination on his affidavit. Hearing preparation has been extremely frustrating; appearing by video will surely hinder The Appellant’s ability to argue his case.
12. Furthermore, The Appellant has been extremely troubled by the October 9th ambush. Intrusive thoughts of this egregious abuse of process have made it difficult for him to concentrate on preparing for his involuntarily ZOOM hearing. So for his own peace of mind The Appellant took a break from preparing his appeal strategy and decided to confirm that the lawyers at the case management conference were not being disingenuous or incompetent in claiming that the case law surrounding involuntary ZOOM hearings was clearly stacked against him.
13. After a few days of deep research, The Appellant was disturbed to discover that he had been misled; it appears that no case law exists where any participant can be forced to proceed by video; case law merely establishes where judges can order voluntary remote appearances for participants over the objections of other participants who will appear in person. Furthermore, upon reviewing Parliamentary debate transcripts, it is clear that the law which expanded the auspices of remote appearances was never meant to apply to situations such as the one before This Honourable Court.
14. In addition to reviewing case law surrounding the constitutionality of forcing him to proceed by ZOOM, The Appellant reviewed procedural case law in order to establish which court to apply to for relief arising out of the abusive interlocutory order; an order which was argued with no notice, in clear violation of the Principles of Natural Justice. The key case in that regards appears to be Regina v Johnson out of the Appeals Court of Ontario. To sum up, according to Johnson, The Appellant must ask the trial judge (or in this case, the appeals judge at the level of court out of which the interlocutory order arose) to hear the Charter case. In other words, application to a superior court for prerogative writ or Charter relief in the course of criminal proceedings must establish that extraordinary circumstances exist such that interests of justice necessitate immediate granting of relief (that would only apply if His Honour denies The Appellant’s motion and tries to force him to undergo video cross-examination on November 10th). Otherwise, issues arising in the context of criminal prosecution should ordinarily be dealt with within the established trial and appeal process; in this case, within the Superior Court.
15. Because time is of the essence, The Appellant prepared a very rough Form 1 which Mr. McCuaig was kind enough to serve upon the Crown on October 30th, asking for an urgent hearing before His Honour. The Crown built upon the abuse of process by claiming that the motion was not being brought in the right court, even though The Appellant can clearly read English and has become pretty good at understanding case law. The Crown made this determination so quickly that they clearly had not referenced the necessary case law. The further building upon the already established pattern of abuses of process, The Crown actually had the audacity to inform Mr. McCauig by email that they were never served, even though their email denying service, in and of itself, provided evidence of service!