Huge Victory for Free Speech in Topham Case: Judge Refuses Crown’s Demand that Bail Require Shutdown of Radicalpress.com
It is a sign of how degraded a country we have become that we must hail the fact that a British Columbia Criminal Court judge refused demands by the Crown to impose as a bail condition in new “hate law” charges against publisher and blogger Arthur Topham that he remove ALL content from his website Radicalpress.com and that he not post on ANY website.
In other words, before any trial as to whether the contents of a small portion of Radicalpress.com constituted “wilful promotion of hate” under Canada’s notorious “hate law”, Mr. Topham was to be gagged.
The case for new bail conditions was argued in Quesnel, British Columbia on April 9.
- Crown Counsel Jennifer Johnston acted as if it had already been established that some of the contents on Radicalpress.com, including a satire of the book Germany Must Perish, was “hate” and that some of Mr. Topham’s recent writings are also “hate”. Her say so was enough to make it so, in her submissions. She said: “There is strong evidence that Mr. Topham continues to promote hatred of people of Jewish origin, in such articles as Salute to Zionism, on his website. The Crown is asking for bail to prevent Mr. Topham from continuing to publish ‘hate’ and compound the same offence while on bail. ” Then, with totally muddled reasoning, she continued: “The mere possibility that Mr. Topham might be successful with one of the defences is not enough to continue to publish ‘hate.'” But, clearly, if the defence were successful, the publications would not be hate. Even she admitted that only a small portion of Radicalpress.com dealt with Jews or Zionism. “There’s other stuff going on there, yes.”
As a precedent, she cited the judgment in the “hate law” case against Bill Noble, who was self represented. He was sentenced to six months in jail for Internet postings and a three year gag preventing him from posting on the Internet or owning a computer or any device like a smart phone capable to accessing the Internet. This pretty piece of Stalinism was imposed, not in North Korea or Cuba, but in Canada.
Mr. Topham, although self represented, marched into court with a masterful submission which had been prepared for him and a three-inch thick Book of Authorities.
Mr. Topham’s Memorandum argued that penalties were being imposed before an finding of fault. “Even if the order sought was capable of suppressing hate propaganda, it would not be justifiable in this case as it would not minimally impair the Respondent’s Charter rights. The conditions sought by the Crown would not merely prohibit the Respondent from publishing hateful material, but would, in fact, prevent him from publishing any material.”
A comment Judge Morgan made offered a clue to his decision: “Where the dividing line is between free speech and the limits on speech in society is the crux of this case.”
Here are the key paragraphs of the decision refusing to impose a gag order bail condition on the beleaguered Quesnel publisher.
 Considerations of bail in section 319(2) prosecutions (willfully promoting hatred) are somewhat different from the usual criminal prosecutions. This is because the central issue at trial will not be what occurred , but will be what effect resulted. The publicly communicated statements will have to be established by the Crown to promote ‘hatred’ as the word is defined in Canadian jurisprudence.
 The primary remedy sought by the Crown if successful at trial will be to prevent Mr. Topham (and thereby perhaps others) from posting hate promoted material. The Crown is, in effect, seeking the same remedy pre-trial through a cease and desist bail order. To be successful the court would have to be satisfied that on the test of a balance of probabilities all aspects of Crown’s case will be made out, including that the effect of the communications of concern will meet the threshold of promoting hatred. In effect, the court is being asked to decide the case on the balance of probability standard.
 On the other hand, it is an initially forceful consideration when dealing with material that is clearly repugnant and offensive, to ask what harm would result by simply shutting it down until the matter can be decided at trial. One can easily imagine situations where the material is so repugnant and offensive that even solely from the judge’s perspective and without direct evidence of harm, the likely risk of harm will be evident and outweigh a temporary curtailment of Charter rights.
 However, court ordered prior restraint on a person’s s. 2(b) Charter right to freedom of thought, belief, opinion and expression, has the risk of being overbroad and should be granted only in clear cases.
 In the case before me, the material of concern is primarily material written by others and allegedly posted by Mr. Topham on his website. The one document I was referred to that involved a minor amount of originality is entitled ‘Israel Must Perish’ and is based on a document written many years ago by someone else entitled ‘Germany Must Perish’. In ‘Israel Must Perish’ the accused is alleged to have replaced all references to ‘Germany’ with ‘Israel’ and all references to ‘Germans’ with ‘Jews’. Mr. Topham has published both versions on his website. Mr. Topham says – and is not contradicted by the Crown – that all of the material of concern is available on other internet sites not controlled by him, including notable sites such as Amazon.com and Archive.org.
 There is some evidence that Mr. Topham uses his website to publish other materials that are not alleged to foster hate, and to use it for other reasons, such as providing a voice to other fringe persons or groups. As of late, he has been using his website in an attempt to raise money to pay for a lawyer to defend him against the present charges.
 Although I give Crown credit for being open to finding ways to minimally impair Mr. Topham’s rights while at the same time addressing the concern of the publication of the offensive material, I find that in this case, ordering Mr. Topham to shut down his website may well be an over broad prior restraint and that, based on the evidence before me, the effect on reducing any harm caused may well be minimal given the material is primarily not original and is available from other internet sources.
 I agree with Ms. Johnston that ordering Mr. Topham to remove from his website any reference to people of Jewish religion or ethnic origin would be like having him pick out pepper. What I foresee from this is any effort to carve a fine balance would very possibly lead to breach related charges arising from confusion and misinterpretation.
 The Crown’s goal of stopping Mr. Topham from putting on his website offensive material will of course depend on whether Crown is successful at trial in establishing the offensive material has the effect of promoting hate. If the Crown proves its case, the sentencing judge will be in a much informed position in determining the appropriate breadth of restraint orders and other sanctions.
 Although I decline to order as a condition of bail that Mr. Topham stop operating his entire website or to order that he cease and desist from posting any materials referencing people of the Jewish religion or ethnic origin, I am satisfied that his Undertaking should be amended to include a condition that he not post on any internet site or otherwise publish the names of the two civilian complainants already referred to in condition 2. of his present Undertaking, and that he immediately remove their names from any internet site he has direct or indirect control of . I find that there may be a risk of harm or intimidation in posting the names of these civilian complainants.
Provincial Court Judge
This final condition is odd and one which Mr. Topham may appeal. Under his original bail conditions, he is already not allowed to contact or communicate (except through his lawyer) with the two chronic complainants. Thus, he is not to publish the names of Richard Warman or Harry Abrams on Radicalpress.com or “any internet site he has direct or indirect control of . I find that there may be a risk of harm or intimidation in posting the names of these civilian complainants.”
Both these men are long-time antagonists of Mr. Topham. They are players and have repeatedly sought to silence people with whom they disagree or who, in their view, have hateful ideas. Why shouldn’t they be named? Allowing for semi secret complaints would seem to undermine the openness of our legal system. Abrams was the original complainant in the case against Radicalpress.com in 2007 under the now repealed Sec. 13 of the Canadian Human Rights Act. When the case was adjourned sine die in 2009 and it appeared that the section was about to be repealed by Parliament, Abrams was joined by Warman in 2011 in making complaints to the B.C. “Hate” Squad under Sec. 319 of the Criminal Code.
No evidence was submitted to the Court of any “harm or intimidation” that had been done to the complainants as a result of their names being mentioned on Radicalpress.com over the seven year life of the efforts to gag the anti-Zionist dissident.
Mr. Topham notes: ” I’ve had to file another application to question the new condition that says I can’t have either Warman’s or Abrams’ name on my website. That would eliminate all the legal documents with their names on them. Rather weird. I can see removing the names from my own articles, commentary, etc. but not court documents.”
CANADIAN ASSOCIATION FOR FREE EXPRESSION