New “Hate” Charge Files Against Topham: Defence Denied Statement of Particulars

New “Hate” Charge Files Against Topham: Defence Denied Statement of Particulars

Here’s the executive summary of this update in Arthur Topham and his Radicalpress.com’s battle against charges under Canada’s notorious thought control “hate law” (Sec. 319 of the Criminal Code.)

1. Mr. Topham, a layman with no background in law, has been denied legal aid  in a Rowbotham Application. He must handle his defence in his preliminary hearing alone.

2. Just before the preliminary hearing was to start, January 22, he was charged with a third count of “hate”:
I, “Roy Arthur Topham, between the 29th of January, 2013 and the 11th day of December, 2013, inclusive, at or near Quesnel, in the Province of British Columbia, did by communicating statements, other than in private conversation, willfully promoting hatred against an identifiable group, people of the Jewish religion or ethnic origin, contrary to Section 319(2) of the Criminal Code.”   
Notice: There are no specifics as to which statements are deemed to have promoted hatred against this privileged group. It’s hard to organize a response or defence in a background. This is prosecution by ambush.

3. The Court refused to compel the Crown to produce Mr. Topham’s tormenters, complainants Richard   Warman and B’nai Brith operative Harry Abrams or the two “hate squad” investigating officers (Terry Wilson and Normandie Levas.)

4. The Court turned down Mr. Topham’s application for particulars on the two original counts: specifically, which posts were deemed to promote hatred against Jews.

5. Finally, with the full might of the State arrayed against an impoverished, unrepresented victim, wave the bully fist of further restrictions on him: Crown Counsel Johnson announced, writes Mr Topham, that “ after the upcoming Preliminary Inquiry an application would then be made to the court in order that Crown might attempt to impose new restrictions on me to prevent me from publishing any more truthful articles and opinions on RadicalPress.com.”|

Paul Fromm
Director
CANADIAN ASSOCIATION FOR FREE EXPRESSION
 

 

Regina v The Radical Press: LEGAL UPDATE #16

January 16th, 2014

Dear Free Speech Advocates and Radical Press Supporters,

 

My last update of November 20th, 2013 focused mainly on the Rowbotham application that I had applied for in order to have Regina pay for a lawyer to defend me against her spurious sec. 319(2) “hate crime” charge that resulted in my arrest and incarceration back on May 16th, 2012. That application was refused by Judge Morgan after a hearing held in the Quesnel court house on November 18th.

Since that date I’ve been back in court a few more times on related matters the most recent being Tuesday, January 14th.

During the November 18th, 2013 Rowbotham hearing Judge Morgan brought up the matter of the particularization of the disclosure (the massive amount of purported “evidence” which the Crown intends to rely upon to justify their having charged and arrested me and stole all of my computers and firearms back in May of 2012). I had made an application to the court back on April 10th of 2013 asking for further particulars and that the Crown to be more specific as to just what articles, posts, etc. were the ones on the website which Regina felt were willfully promoting hatred against “people of the Jewish religion or ethnic group.”  After the Rowbotham application was refused I refiled the original April 10th, 2013 application asking the Judge to order Crown to further particularize the case.

That hearing took place on December 16th, 2013. Judge Morgan reserved his decision until I appeared again January 3rd, 2014 on another related matter. It was then that he handed down his Judgment in which he dismissed my application on the grounds that I was “seeking” “particulars relating to the Crown’s theory.” In the Judge’s estimation, “An order – as set out in his application – for the Crown to particularize the date and time and the exact statement or statements by which the alleged hatred was promoted would have the effect of limiting the Crown’s theory of the case; something that Krindle J. in Pangman (above) at paragraph 3, found there was no authority for and would amount to an extension of the existing law.”  It all sounds good in “theory” doesn’t it?

Following the November 18th, 2013 Rowbotham hearing I contacted Crown Counsel Johnston regarding the matter of witnesses that the Crown was planning to call for the Preliminary Inquiry set for January 22nd, 2014. Counsel informed me that she would only be calling one witness, Barry Salt, a forensic computer technician. More taxpayer money to be spent bringing someone up to Quesnel in order to “prove” that I was the Publisher and Editor of RadicalPress.com a fact which I have never denied.

On December 2nd, 2013 I wrote another letter to CC Johnston regarding the matter of witnesses (or lack thereof) and that Crown was not planning to call either of the complainants (Richard Warman and Harry Abrams) nor the investigating officers (Terry Wilson and Normandie Levas). In that letter I wrote:

As I’m sure you are well aware the preliminary inquiry is an important opportunity for me to cross-examine witnesses and gather relevant evidence for pre-trial Charter applications in Supreme Court. Much of the necessary evidence for the Charter applications will be put on the record at that time and therefore I feel it behooves the Crown, in the interest of justice, to call those persons specified above for cross-examination by myself, or, in the event I am able to procure counsel in advance of the January 22nd date, my legal representative.
I never heard back from CC Johnston on this matter and so I filed another application on December 30th, 2013 stating the reasons as:
“The complainants (Richard Warman and Harry Abrams) and the police investigators (Terry Wilson and Normandie Levas) are relevant and necessary witnesses for the purpose of the preliminary inquiry. The Crown is refusing to to call these witnesses. I respectfully request that the Crown be compelled to produce these witnesses.”
As a result a hearing date was set for January 3rd, 2014. During the hearing Crown argued that they didn’t have to produce any witnesses that they chose not to and downplayed the whole notion of the importance of the Preliminary Hearing process. I was given a fourteen page document indexed as: United States of America v. Shephard [1977] 2 S.C.R. 1067. This document, according to both Judge Morgan and Crown Counsel Johnston, clearing showed that the threshold to be met in order to justify ordering a trial to be held was so low as to be practically impossible to refute. 
Prior to the January 3rd date the Judge had set another date of January 7th, 2014 for what is called a “focus hearing” which, translated into English, means a time to go over the ins and outs of what would be transpiring during the upcoming Preliminary Hearing on Jan. 22nd. He then decided to deal with that matter too on the 3rd and skip the Jan. 7th date. It was during this hearing that Judge Morgan addressed the issue of the thousands of emails which were still on my stolen computers and had not been returned to me. I told the judge that they were relevant to my defence and that they should be returned as part of the disclosure package which had already been returned some months ago. The judge concurred with my argument and after some discussion with Crown directed CC Johnston to contact Det. Cst. Wilson and have him return all of my email correspondence to me. He gave the Crown until January 14th to prepare a response to his recommendation and it was on that date that I was to return to court to find out the results. When I appeared on January 14th I learned that the emails had been downloaded to a file that was supposedly being sent up to the Crown’s office and that I would be notified as soon as it arrived. Judge Morgan told me to contact Crown Counsel’s office if I didn’t hear anything after a couple of days.
It was also on Jan. 14th that I first learned that Crown was also calling Det. Cst. Terry Wilson of the BC Hate Crime Unit to appear at the Preliminary Inquiry. Then, to top things off, came the sudden announcement by Crown Counsel Johnston that the Crown had filed a third count against me! It was a repeat of the original May 16th, 2012 sec. 319(2) CCC charge. This new indictment, known as “Count 3”, had received the consent of the Attorney General of British Columbia on the 31st of December, 2013 and was signed by Peter A. Juk, QC Acting Assistant Deputy Attorney General. The reasons stated were that I, “Roy Arthur Topham, between the 29th of January, 2013 and the 11th day of December, 2013, inclusive, at or near Quesnel, in the Province of British Columbia, did by communicating statements, other than in private conversation, willfully promoting hatred against an identifiable group, people of the Jewish religion or ethnic origin, contrary to Section 319(2) of the Criminal Code.”
Having made this announcement to Judge Morgan and myself CC Johnston then added that nothing more would be forthcoming as a result of it until after the upcoming Preliminary Inquiry when an application would then be made to the court in order that Crown might attempt to impose new restrictions on me to prevent me from publishing any more truthful articles and opinions on RadicalPress.com.
One further thing needs to be added to this update prior to closing off. This morning, January 16th, 2014 I sent a letter to Crown Counsel Johnston informing her that I had subpoenaed two witnesses to appear in my defence for the Preliminary Inquiry slated for January 22nd, 2013.  In that letter I wrote:
“Please take notice that I have subpoenaed and will be calling two witnesses for the Preliminary Inquiry to be held on January 22nd, 2014.
Mr. Frank Frost will be appearing to testify on the urgency to maintain an alternative news media here in British Columbia in order to ensure that criminal activities on the part of the RCMP, the Judiciary and the Attorney General’s office (Crown) are exposed to the general public. Mr. Frost is a strong, knowledgeable advocate and expert witness in the areas of children and family advocacy and pedophilia within B.C.’s judiciary.
Mr. Lonny Landrud will also be appearing to testify on the importance of maintaining an alternative new media. Mr. Landrud is an expert, knowledgeable witness in the area of judicial misfeasance as it pertains to his own case. Mr. Landrud was witness to a murder of a young woman in Quesnel by RCMP officers and subsequent to reporting this heinous crime to the RCMP has been the subject of numerous attempts on his life by the RCMP. In one instance Mr. Landrud was forced to shoot, in self-defence, an RCMP officer who was attempting to murder him in his home. Since the advent of these events Mr. Landrud has been unable to have his case investigated at any level of government after years of sincere effort and the mainstream news media has refused to investigate or cover his plight. Mr. Landrud will be speaking to the court on the pressing need for an alternative news media that will and does cover his untold story.”
The next few days will be spent preparing for the Preliminary Inquiry. I will send out another update sometime after the 22nd and let readers know what transpired on that day.
For Peace, Freedom of Speech and Justice for All,
Arthur Topham

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APPEAL FACTUM OF POLITICAL PRISONER TERRY TREMAINE — SENTENCED TO 6 MONTHS FOR CONTEMPT OF COURT

APPEAL FACTUM OF POLITICAL PRISONER TERRY TREMAINE — SENTENCED TO 6 MONTHS FOR CONTEMPT OF COURT
Last fall Terry Tremaine was hammered with a six month prison term for “contempt of court”, the third such complaint by his tormenter Richard Warman, who had, in addition, filed a Sec. 13 (Internet censorship) Canadian Human Rights complaint, a complaint to his employer which cost Mr. Tremaine his teaching position at the University of Saskatchewan, and a Sec. 319 (“hate law”) complaint under the Criminal Code, which was thrown out by a Regina judge last fall for undue delay but the bail conditions it imposed had kept Mr. Tremaine silenced politically for nearly four years.

Photo: APPEAL FACTUM OF POLITICAL PRISONER TERRY TREMAINE -- SENTENCED TO 6 MONTHS FOR CONTEMPT OF COURT

Last fall Terry Tremaine was hammered with a six month prison term for "contempt of court", the third such complaint by his tormenter Richard Warman, who had, in addition, filed a Sec. 13 (Internet censorship) Canadian Human Rights complaint, a complaint to his employer which cost Mr. Tremaine his teaching position at the University of Saskatchewan, and a Sec. 319 ("hate law") complaint under the Criminal Code, which was thrown out by a Regina judge last fall for undue delay but the bail conditions it imposed had kept Mr. Tremaine silenced politically for nearly four years.

Originally, Federal Court Judge Found Mr. Tremaine not guilty as the February, 2008  Canadian Human Rightds Tribunal "cease and desist order" had not been served on Mr. Tremaine until August, 2009. Apparently, his postings from February, 2008 until later that year were not sufficiently toned down in terms of privileged minorities for Mr.Warman's sensibilities.. Also, he had not removed a long list of offending passages -- although the poorly written order didn't instruct him to do so. In 2011, the Federal Court of Appeal on a 2-1 vote instated a finding of guilt and overturned the acquittal. It was back to Judge Harrington for sentencing in Vancouver in October, 2012. Earlier last year, the Supreme Court denied leave to appeal.

Remember, Sec. 13 had already been repealed by the House of Commons in June, 2012. So, Mr. Warman was being punished for contempt of a vague order imposed under a law that was so foul it had been repealed. The Senate repealed the law in June, 2013 and repeal was granted immediate Royal Assent. This makes the prospect of Mr. Tremaine heading for prison for "contempt of court" for failing to obey a vague order under a law that has been repealed even more ludicrous

Don't let them tell you Canada is a free country. Next time some earnest do gooder reminds you of the fate of dissidents in Red China or Burma or Cuba, be sympathetic but remind him or her that Canada has no reason to be self righteous.

 Our courts are quite happy to jail dissidents and gag opinion on the Internet, especially where the dissident has criticized powerful privileged groups.

 In China, if you criticize the powerful Communist Party, they send your impertinent butt to jail. In Canada, if you criticize privileged minorities, as has scholar and dissident Terry Tremaine, they fling your dissident self in prison.

 To all the naive folks listening to those tv ads about the 30th Anniversary of the Charter: Do you still think your rights are
 protected? Not if you cross politically powerful and privileged minorities.

Paul Fromm,

Director

CANADIAN ASSOCIATION FOR FREE EXPRESSION

OVERVIEW 1

i. Standard of Review 2

PART I – STATEMENT OF FACTS 4

PART II – ISSUES 9

PART III - ARGUMENT 10

A. Did the learned sentencing Judge err in law and principle by failing to consider and apply the principle of restraint? 10

B. Did the learned sentencing Judge err by overemphasizing the principle of deterrence while paying insufficient attention to the individual circumstances of the Appellant? 13

C. Did the learned sentencing Judge err in law by, in effect, sentencing the Appellant for criminal contempt, notwithstanding that this Court has convicted him of civil contempt, and the Commission proceeded on that basis at the Sentencing Hearing? 14

i. Parity Principle 16

D. Did the learned sentencing Judge err in law by declining to consider the mitigating factor that the Appellant had been in prison for 22 days as a result of criminal charges involving the same complainant and substantially the same evidence? 18

PART IV – CONCLUSION AND NATURE OF RELIEF REQUESTED 26

PART V – LIST OF AUTHORITIES 28

Court File No.:  A-493-12

FEDERAL COURT OF APPEAL

BETWEEN:

tERRy TREMAINE

APPELLANT

and 

Canadian human rights commission

and

richard warman

RESPONDENTS

MEMORANDUM OF FACT AND LAW OF THE APPELLANT

OVERVIEW

1.The evidence disclosed throughout this litigation establishes that the Appellant’s political message is, doubtless, deeply offensive to the overwhelming majority of Canadian citizens.  This Honourable Court has convicted the Appellant of civil contempt of the Canadian Human Rights Tribunal, which had previously ordered the Appellant to “cease and desist” from communications of the type that resulted in the finding that he exposed protected groups of his fellow citizens to hatred or contempt.  This is an undeniable fact.

2.It is readily acknowledged that a conviction for civil contempt is a serious matter.  Nevertheless, the fundamental principles of sentencing mandated by Parliament - and consistently applied by Canadian courts sentencing citizens for contempt - must be properly applied to every citizen found guilty of an offence.  The specific facts of a rare case such as this also call for the consideration of broader legal principles. It is the role of the Appellate Courts to endeavor to ensure this is accomplished.

3.At the heart of this appeal is the Appellant’s assertion that these principles were not applied appropriately.  It is readily admitted that this case involves communications that are hateful, and that was clearly a concern to the learned sentencing Judge.  Mr. Justice Harrington was entitled to consider this as an aggravating factor.  However, the learned sentencing Judge was still required to balance this with other factors and correctly apply the appropriate principles.  This case called for the Court to sentence a citizen for a civil contempt as a first offender.  The learned sentencing Judge had a legal duty to give adequate consideration to the fundamental principle of restraint and the important mitigating factors that arose from the Appellant’s personal circumstances, as well as the surrounding social and legal context within which the offence occurred.  The Appellant will respectfully submit that adequate consideration of these principles and factors was not given in the case at bar, therefore causing the learned sentencing Judge to commit a reversible error.  These errors in law and principle led to a further error: that the sentence is manifestly excessive, and more appropriate for a criminal contempt.

4.Though the Appellant will advance two further arguments, it is primarily because of these three errors that the learned sentencing Judge imposed a sentence which is, in all the circumstances of this case, demonstrably unfit.

i.Standard of Review

5.Before discussing the law concerning the governing standard of review to be applied in this case, it should first be acknowledged that the grounds of appeal argued in this Memorandum will differ from the grounds asserted by previous counsel in the Notice of Appeal.  Nevertheless, all of the Appellant’s submissions concern issues that were before the learned sentencing Judge and are properly before this Court.  The Appellant respectfully submits that this Court has jurisdiction to hear this appeal as is framed in this Memorandum.

6.In Canada (Attorney General) v. de l’Isle1 this Court held that, with respect to a sentence for contempt, an appellate court may intervene only if the sentence imposed is “excessive or inappropriate having regard to the circumstance, or if that judge erred in law in passing sentence.”2  Though this appeal concerns a sentence for civil contempt, the Appellant’s liberty interests are directly engaged and, as a result, contempt is to be treated as quasi-criminal in nature.  For this reason, it is submitted that the deferential approach adopted in de l’Isle can be expanded upon by applying the principles outlined by appellate level sentencing cases in Canadian criminal law.

7.The standard of review to be employed by Appellate Courts when adjudicating sentence appeals is outlined by the Supreme Court of Canada in R. v. Shropshire3.  The standard was considered further in R. v. M. (C.A.)4.  At paragraph 90, the court stated:

Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. 

8.While recognizing the important role appellate courts play in minimizing disparity of sentencing for similar offenders and similar offences, the Supreme Court recognized that sentencing is an individualized process.  It accepted that Parliament has given specialized discretion to individual sentencing judges.   As a result, the court stated at paragraph 92:

… I believe that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes.

9.The Saskatchewan Court of Appeal has recognized and applied this standard of review on numerous occasions.  In R. v. Campeau5, the Court re-affirmed the standard.  Further, it discussed what constitutes “unreasonableness” and “demonstrable unfitness” at paragraph 5:

This Court considers what constitutes "unreasonable" in R. v. Berntson and "demonstrably unfit" in R. v. Pankewich. In Pankewich, Jackson J.A., for the Court, described demonstrable unfitness as follows:

[31] ..."Demonstrably unfit" has been equated with unreasonableness (see Shropshire at para. 46); "sentences which are clearly or manifestly excessive" (see Shropshire at para. 47 quoting the Nova Scotia Court of Appeal in R. v. Pepin (1990), 98 N.S.R. (2d) 238 (N.S.C.A.) at 251); "falling outside the 'acceptable range"' (see Shropshire at para. 50); sentences where there is a "substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes" (see M. (C.A.) at para. 92) ... McDonnell [[1997] 1 S.C.R. 948] also states that a wide deviation from the accepted "starting-point" of sentencing for an offence will not, in and of itself, render a sentence demonstrably unfit, but rather is a factor in determining demonstrable unfitness…

10.In R. v. Rezale6, the Ontario Court of Appeal defined an error in principle as follows:

Error in principle is a familiar basis for reviewing the exercise of judicial discretion.  It connotes, at least, failing to take into account a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to relevant factors, overemphasizing relevant factors and, more generally, it includes an error of law.

PART I – STATEMENT OF FACTS

11.The Canadian Human Rights Tribunal (“CHRT”) held that the Appellant, Mr. Terry Tremaine, was engaging in discriminatory practice contrary to s. 13 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (“CHRA”) on February 2, 2007.  The Tribunal held that Mr. Tremaine’s messages violated s. 13(1) of the CHRA and issued a cease and desist order and a fine in the amount on $4,000.  Mr. Tremaine was not represented by counsel at the CHRT hearing.7 

12.Still unrepresented, he applied for judicial review of the Tribunal’s decision.  On September 18, 2008, the Federal Court found that the Tribunal’s decision was not unreasonable.  The Court held that neither the cease and desist order, nor the $4,000 fine were unreasonable.  Notwithstanding that the Appellant was not represented by counsel, the Federal Court declined to consider his application with respect to the constitutionality of s. 13(1) of the CHRA because he did not provide the requisite notice as required by the Federal Courts Act, RSC 1985, c. F-7. The Court further declined a request to have the judicial review adjourned pending the outcome of the constitutional application made in CHRC and Warman v. Lemire, 2012 FC 1162 (F.C.T.D.).

13.The facts underlying both the Tribunal decision and the judicial review concern Mr. Tremaine’s postings on 2 internet sites.  First, Mr. Tremaine is the Webmaster of the National Socialist Party of Canada website.  Second, he is a member of an American website known as “Stormfront”.  Stormfront provides forums where people can exchange ideas and messages in the form of postings.  The website is clearly geared towards white supremacy and neo-Nazi ideology, and is basically a cyber-meeting place for like-minded individuals.  Though you need to be a member to post on the website, any member of the public can download the content.  The slogan “White Power World Wide” appears on the Home Page of Stormfront, so the nature of the website is very clear to all visitors.  The Appellant posted on the website under the pseudonym “MathDoktor99”.  The majority of the postings attributed to the Appellant are repugnant and deeply offensive to the vast majority of Canadians.8 

14.The Appellant did not appeal the decision of the Federal Court.

15.In 2009, the Canadian Human Rights Commission (the “Commission”) filed a motion in Federal Court for an order that the Appellant be found in contempt of the order of the Tribunal.  The motion was heard by Justice Harrington of the Trial Division of the Federal Court.

16.Justice Harrington held that though the Commission had established beyond a reasonable doubt that the Appellant had knowledge of the order of the Tribunal, it could not establish that he had knowledge that the order had been registered with the Federal Court until March, 2009.  He dismissed the charges for contempt, finding that the Commission had to register the Tribunal’s order with the Federal Court and serve the Appellant before it could be enforced.  The learned Trial Justice also dismissed the Appellant’s argument that he had not “communicated” within the meaning of s. 13(1) of the CHRA.

17.The Commission successfully appealed this decision to this Court.  The majority of the Federal Court of Appeal found that there was no legal principle that restricted the use of contempt powers to orders issued by superior courts.  It concluded that the CHRT’s decisions were no less enforceable by superior courts than the decisions of the superior courts themselves.  This Honourable Court declined to order a new hearing and instead substituted a conviction for civil contempt.  It directed that the matter be returned to the Federal Court for sentencing.

18.Counsel for the Appellant unsuccessfully applied for leave to appeal this Honourable Court’s decision to the Supreme Court of Canada.  The matter was thus remitted back to the Federal Court Trial Division for sentencing.  It proceeded on the basis that the Appellant had been convicted of civil contempt.9 

19.As it was a civil contempt, the Commission submitted that the Appellant ought to be detained until his contempt was purged.  The Commission further submitted that as the matter was a civil contempt, the Appellant had the right to purge the contempt and therefore avoid imprisonment.  The Commission submitted that if the Appellant did not purge his contempt, that he ought to be imprisoned until he do so.10 

20.The Commission also sought that the Appellant remove the offending material from the National Socialist Party of Canada website and request that Stormfront remove his previous posts that were the subject of the contempt.

21.The complainant, Mr. Richard Warman, sought a period of unconditional imprisonment of 3 to 6 months.11The complainant further submitted that rather than ordering the Appellant to remove the infringing posts from the National Socialist website, the court ought to order the site shut down in its entirety.12 

22.The Appellant’s counsel unsuccessfully tried to argue that the Appellant did not have the requisite mens rea.  The Appellant further argued that for a period of time wherein the Appellant was found to be in contempt, s. 13(1) of the CHRA was found to be not constitutionally valid.  The Appellant argued that he was under an honest mistake of law and did not believe that the Tribunal’s decision was enforceable.  He further argued that the order of the Tribunal was ambiguous in that it prohibited “telephonic” communication rather than internet communication.  The Appellant submitted that there should be an order for compliance, and in default of compliance, 60 to 80 days imprisonment.  In effect, he asked for a sentence of imprisonment to be suspended to allow him time to purge his civil contempt.13 

23.The Trial Division of the Federal Court sentenced the Appellant to 30 days imprisonment.  It further ordered him to cease communicating or causing to communicate material of the type or substantially similar type to that found by the Tribunal and Federal Court to be likely to expose a person or persons to hatred or contempt on the basis of a prohibited ground of discrimination in violation of s. 13(1) of the CHRA.  It held that the Appellant would be imprisoned for a further 6 months or until he complies with the Court’s order, and directed the Appellant to approach Stormfront.org with a request to remove postings from their website and to remove specified postings from the National Socialist Party of Canada website.

24.In the decision under appeal, the learned Trial Justice began his decision by declaring that “the time [had] come at last to penalize Mr. Tremaine for acting in contempt of an order of the Canadian Human Rights Tribunal.”  The Court further noted the offensive nature of Mr. Tremaine’s messages.  It dismissed the Notice of Constitutional Question filed by the Appellant at the Sentencing Hearing, echoing its oral ruling at the sentencing hearing, in which it dismissed the motion without hearing evidence.  The court held that it was “most disturbing” that the Appellant had testified at the Sentencing Hearing that he had sold control of the National Socialist Party of Canada website to an American through Mr. Bernard Klatt.  The learned Trial Judge added that it was “obvious that Mr. Tremaine was attempting to put his website out of this Court’s reach”.  The learned Justice also saw fit to admonish the Appellant’s previous counsel in relation to submissions he made with respect to the Complainant.

25.It should be noted that the materials that were the subject matter of the previous hearings were also the subject matters of criminal proceedings in the Province of Saskatchewan.  The Appellant was charged with breaching s. 319 of the Criminal Code.  The Regina Police Service executed a search warrant and invaded his home and seized his computer.  As a result of an alleged breach of bail conditions, the Appellant served 22 days at the Regina Provincial Correctional Centre on remand.  The substantive s. 319 charge was eventually judicially stayed by the Saskatchewan Court of Queen’s Bench due to unreasonable delay.  The breach allegation was also stayed.14 

26.On December 3, 2012, previous counsel for the Appellant sent a letter to the Registrar of the Federal Court of Canada outlining the steps the Appellant had taken to comply with the order.15 

27.The Appellant, Terry Tremaine, is a 64 year old Canadian citizen residing in Regina, Saskatchewan.  He has a Master of Science in Mathematics, and has completed some doctoral studies at Queen’s University.  As a result of this litigation, his 20 year academic career has been completely destroyed.  Though there was no suggestion his personal political views ever affected his teaching career, the University of Saskatchewan dismissed him when the Complainant contacted them about Mr. Tremaine and threatened to go to the media if the institution did not take disciplinary action.  Subsequent to the loss of his profession, Mr. Tremaine suffered from depression that was so severe he required hospitalization.  He has been unable to find lasting, meaningful employment since his termination and is now indigent, and a qualified applicant for representation by Legal Aid Saskatchewan.16 

PART II – ISSUES

28.It is respectfully submitted that this appeal raises the following issues:

A.Did the learned sentencing Judge err in law and principle by failing to consider and apply the principle of restraint?

B.Did the learned sentencing Judge err by overemphasizing the principle of deterrence while paying insufficient attention to the individual circumstances of the Appellant?

C.Did the learned sentencing Judge err in law by, in effect, sentencing the Appellant for criminal contempt, notwithstanding that this Court has convicted him of civil contempt, and the Commission proceeded on that basis at the Sentencing Hearing?

i.Does the Sentence conform with the Parity Principle?

D.Did the learned sentencing Judge err in law by declining to consider the mitigating factor that the Appellant had been in prison for 22 days as a result of criminal charges involving the same complainant and substantially the same evidence?

E.While considering the hateful nature of the Appellant’s comments, did the learned sentencing Judge err by declining to also consider the broad social and legal factors that were relevant to the analysis of a just and proper sanction?

PART III - ARGUMENT

A.Did the learned sentencing Judge err in law and principle by failing to consider and apply the principle of restraint?

29.Though the law concerning both civil and criminal contempt is rooted in the common law rather than statute, the potential implications for a loss of liberty arising from a finding of contempt has led the courts to consistently apply the criminal standard of proof beyond a reasonable doubt.17  The criminal nature of contempt proceedings, even in a civil context, has led the established jurisprudence to accept that the principles of sentencing outlined in the Criminal Code, R.S.C. 1985, c. C-46 (“Code”) are instructive and should be followed.

30.In International Forest Products Ltd. v. Kern18, the British Columbia Court of Appeal reviewed the sentence for criminal contempt imposed on a protestor disobeying an injunction obtained by the plaintiff logging company.  The court considered its function as a reviewing court on appeal, and held that “[s]entencing for criminal contempt must be guided by principle and no better guide exists than those Criminal Code provisions which largely codified the judge-made rules on sentencing”.19  It went on to assess whether the original sentence was demonstrably unfit.

31.The Newfoundland Court of Appeal has also applied this reasoning.  In Puddester v. Newfoundland (Attorney General)20 the court held that both the principles and the sentencing options outlined in the Criminal Code can be adopted and employed in contempt proceedings.21  In Ontario, the Superior Court of Justice has even considered sentencing an offender to a conditional sentence of imprisonment, relying on a procedural rule giving a trial judge broad discretion in contempt sentencing.22 

32.With respect to the principle of restraint, this Honourable Court has affirmed its applicability in sentencing for contempt in Federal Court.  Relying in part on the seminal case of R. v. Gladue23, this court has held that a sentencing court must consider all other sanctions that may be appropriate before considering imprisonment, especially in cases involving citizens with no prior criminal record.  In Canadian Human Rights Commission v. Winnicki,24 this court stated at para. 20 (emphasis added):

The authorities are clear that a Court should take special care in imposing a sentence of imprisonment upon a first offender. The trial judge should have either a pre-sentence report or some very clear statement with respect to the accused's background and circumstances. This is particularly true of youthful offenders such as the appellant. Further it has been recognized that except for very serious offences and offences involving violence, the primary objective of individual deterrence can be best achieved by either a suspended sentence or probation or a very short term of imprisonment followed by a term of probation. (see R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688). In R. v. Priest, [1996] O.J. No. 3369, at paragraphs 20 and 23 the Ontario Court of Appeal stated:

The duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence. It should be clear from the record of the proceedings, preferably in the trial judge's reasons, why the circumstances of this particular case require that this first offender must receive a sentence of imprisonment. The trial judge had no material before him from which he could possibly have made this determination. His reasons are barren of any lawful justification for such a radical departure from this well-established principle especially in the case of a youthful first offender.

Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence. …

Likewise, in R. v. Curran (1973), 57 Cr. App. R. 945 it was noted that,

As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offence, and imposed as this sentence was, for reasons of general deterrence, that is as a warning to others. The length of a first sentence is more reasonably determined by considerations of individual deterrence; and what sentence is needed to teach this particular offender a lesson which he has not learnt from the lighter sentences which he has previously received.

33.The common law principle of restraint required that if imprisonment must be imposed for an offence, the shortest amount of time possible in the circumstances should be given.  Parliament codified and expanded this principle in ss. 718.2 (d) and (e) of the Code, which require sentencing judges to consider all available sanctions other than imprisonment that are reasonable in the circumstances.  It is respectfully submitted that this reflects an intention that imprisonment be considered a punishment of last resort.

34.As was the case in Winnicki25, the learned sentencing Judge did not consider the impact of the fact that the Appellant was a first offender in his reasons.  Moreover, he did not direct his mind to the accepted principle that in arriving at a just sanction, serious consideration must be given to dispositions other than imprisonment.  It is obvious that he did not consider suspending the prison sentence to allow the Appellant to purge his contempt to be sufficient.  However, it is apparent from the reasons that he did not consider alternative dispositions, such as probation with a community service order, which would have been more appropriate in the circumstances.  Even though the Rules don’t specifically provide for this type of disposition, it is submitted that the Federal Court has an inherent jurisdiction to control its own process.  This jurisdiction includes a wide discretion in imposing sanctions for civil contempt.  In Canadian Copyright Licensing Agency v. U-Compute,26 the Federal Court imposed probation with community service hours on an offender with two prior convictions for contempt of court.  

35.It is respectfully submitted that by not analyzing and applying the principle of restraint, the learned sentencing Judge erred in law.

B.Did the learned sentencing Judge err by overemphasizing the principle of deterrence while paying insufficient attention to the individual circumstances of the Appellant?

36.This court affirmed in Winnicki that it is an error for a sentencing Judge in contempt proceedings to neglect to consider the background of the citizen found in contempt.27  The rationale for the rule is that just sanctions require an assessment of both the circumstances of the offence and the offender.  A balancing of these circumstances is essential because sentencing is an individualized process.

37.The evidence at the sentencing hearing indicated that sometime after the complaint was filed with the Commission, the Complainant contacted the Appellant’s employer, the University of Saskatchewan.  He advised the University that the complaint had been filed, and requested that they take disciplinary action against the Appellant.  The Complainant advised that if the University did not take action, local and national media would be advised of the situation.  Mr. Tremaine, whose views were now exposed, was fired.  His twenty year academic career is in ruins, and he has been unable to maintain regular employment since. He is now on social assistance in Saskatchewan.  After being fired by the University, he fell into a deep depression, and was admitted to the psychiatric ward at the Regina General Hospital.28 

38.Neither this evidence, nor the fact that Mr. Tremaine was a first offender, was mentioned in the decision under appeal.  While it is recognized that the learned sentencing Judge considered several factors in this case to be aggravating, he had a legal duty to at least factor the mitigating circumstances into the final analysis.  This Honourable Court gave a clear direction in Winnicki that he must do so.

39.Every citizen, no matter how distasteful the court may view their conduct, is entitled to have a sentencing court consider the impact that the proceedings has had on his/her personal circumstances.  Justice demands nothing less.  It is submitted that the learned sentencing Judge made a very clear error in this respect. 

C.Did the learned sentencing Judge err in law by, in effect, sentencing the Appellant for criminal contempt, notwithstanding that this Court has convicted him of civil contempt, and the Commission proceeded on that basis at the Sentencing Hearing?

40.At one time, the practical difference between civil and criminal contempt was difficult to discern.  In UNA v. Alberta (Attorney-General),29 the Supreme Court of Canada considered this distinction.  Speaking for the Court, McLachlin J. (as she then was) stated at para. 20-21:

Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependant on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.

These same courts found it necessary to distinguish between civil and criminal contempt. A person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt. However, when the element of public defiance of the court's process in a way calculated to lessen societal respect for the courts is added to the breach, it becomes criminal. This distinction emerges from Poje v. British Columbia (Attorney General), [1953] 1 S.C.R. 516, 17 C.R. 176, 105 C.C.C. 311, [1953] 2 D.L.R. 785, at p. 527 [S.C.R.], per Kellock J.:

The context in which these incidents occurred, the large numbers of men involved and the public nature of the defiance of the order of the court transfer the conduct here in question from the realm of a mere civil contempt, such as an ordinary breach of injunction with respect to private rights in a patent or trade-mark, for example, into the realm of a public depreciation of the authority of the court tending to bring the administration of justice into scorn.

41.As outlined by the court, criminal contempt requires proof of a requisite mens rea, including full knowledge that the public defiance will depreciate the authority of the court.30  In civil contempt, mens rea is not a factor until the sentencing stage.31 

42.The Appellant was convicted of civil contempt.  The Sentencing Hearing proceeded on this basis.  Counsel for the Commission was clear on this point, and very fairly pointed out to the Court that in civil contempt, it is generally accepted that the offender ought to be given the opportunity to purge their contempt.32  It is submitted that this comment is consistent with much of the jurisprudence.  After reviewing numerous cases involving both civil and criminal contempt, the B.C. Supreme Court in Telus Communications Inc. v. T. W. U.33 stated (emphasis added):

In reviewing the decisions where criminal and civil contempt have been found, it is apparent that most contempt proceedings involving labour/management disputes or civil "protest" disobedience have proceeded as criminal contempt, there is a wide variation in the punishment thought to be appropriate for any particular "type" of contempt, there appears to be little difference between the punishment imposed for criminal contempt and the punishment imposed for civil contempt, but incarceration is usually reserved for situations where criminal contempt has been found.

43.Though imprisonment is certainly possible in cases of civil contempt, it is submitted that it should not be commonly given, especially to a citizen without a prior record.  It is submitted that the learned sentencing Judge erred by failing to consider the distinction between civil and criminal contempt.  Effectively, the court imposed a sentence for criminal contempt notwithstanding that the Appellant had only been convicted of civil contempt.

44.This error, either alone or in combination with the errors of failing to consider both the principle of restraint and the personal circumstances of the Appellant,  led to the imposition of a sentence that was demonstrably unfit. With respect, it is manifestly excessive and not appropriate for a first offender convicted of civil contempt.

i.Parity Principle

45.As this court is well aware, another important principle of sentencing is that the sentence imposed be consistent with sentences imposed on similar offenders in similar situations.  For the purposes of assessing whether the sentence conforms to the parity principle, it is useful to consider sentences imposed in other contempt cases.

46.In MacMillan Bloedel Ltd. v. Simpson34 the court considered sentences for criminal contempt, which included jail sentences imposed on several citizens, including first offenders.  However the court pointed out that earlier in the litigation, several other individuals involved in the same protest were given fines, or prison sentences that were suspended to allow for an opportunity for the order to be followed.35  It was only when it was clear that previous lenient sentences were not effecting the Court’s purpose that the sanction of unsuspended imprisonment was employed.

47.In Regina (City) v. Cunnigham,36 the plaintiff municipality obtained an injunction enjoining the defendant from continuing to operate a strip club in a manner than contravened the city Zoning Bylaw.  Mr. Cuningham did not appeal the injunction.  After being convicted of criminal contempt, Cunningham was sentenced to a $2000 fine and 6 months imprisonment, suspended if he obeyed the injunction.  He did not purge his contempt and instead publicly declared that the club would stay open.  He was eventually committed to prison.  However, it is significant that even though Cunningham was convicted of criminal contempt, he was initially given a chance to purge the contempt before imprisonment was imposed.

48.In Winnicki,37 this court reduced a 9 month sentence for contempt of the Federal Court to time served, which was 83 days.  This case is factually similar to the case at bar, but it is not clear whether the finding was of civil or criminal contempt.  Mr. Winnicki had violated an injunction issued by the Federal Court Trial Division.

49.The B.C. Supreme Court sentenced several individuals for civil contempt in Telus Communications v. T.W.U.38  The sentences included orders compelling donations to charity, orders compelling community service, along with various fines and costs awards.

50.Other cases include:
i.Canadian Copyright Licensing Agency v. U-Compute39 – Civil Contempt, offender had two prior convictions.  He was sentenced to imprisonment, but it was suspended and included an order for community service work.

ii.Salt River First Nation 195 v. Marie40 – Civil Contempt, fines with default imprisonment for one defendant

iii.Telewizja Polsat SA v. Radiopol Inc41 – Civil Contempt, offender shows no remorse.  6 months imprisonment, suspended to allow for compliance.

iv.Canada (Minister of National Revenue) v. Money Stop Ltd.42 – Offender given 30 days to comply after contempt hearing and did not do so.  Eventual sentence included imprisonment, but it was suspended to allow for compliance.

D.Did the learned sentencing Judge err in law by declining to consider the mitigating factor that the Appellant had been in prison for 22 days as a result of criminal charges involving the same complainant and substantially the same evidence?

51.As this court is aware, it is a common practice for criminal courts to factor pre-trial custody in to the analysis of an appropriate sentence.  It is submitted that this practice is rooted, fundamentally, in fairness and equity.  The most common legal regime employed to give effect to this principle of fairness is s. 719 of the Criminal Code.  However, it is not the only means by which the courts achieve similar ends.

52.There is nothing in the language of s. 719 of the Code to suggest that a citizen should be given credit for time spent on strict bail conditions while he/she awaits a disposition.  Nevertheless, strict release conditions are a deprivation of liberty.  The appellate courts have responded by requiring sentencing courts to factor these conditions into the analysis as mitigating factors.  In R. v. Downes43, the Ontario Court of Appeal reviewed Canadian jurisprudence and concluded that stringent bail conditions must be taken into account by sentencing Judges as a mitigating circumstance.44  The court did not mandate that a specific quantum of credit be given, as it recognized that different circumstances will require judges to vary its final impact on sentence.  While there is no strict formula, there is no doubt that pre-trial deprivations of liberty must at least be considered.  Though in a later case the court declined to hold that this principle could reduce a statutorily mandated minimum sentence, the basic principle remains law in Ontario.45 

53.Rather than through a specific statutory provision, the source of this rule is the courts’ desire to fulfill its role in delivering a just sanction on a citizen convicted of an offence.  In considering this principle and its underlying values, it is submitted that it should be applied in the case at bar.  Though the criminal proceedings were eventually stayed, Mr. Tremaine was detained at the Regina Provincial Correctional Centre for 22 days as a result of what appears to be the same evidence and witnesses that were before the CHRT.  He has thus incurred a serious deprivation of liberty as a result of what is substantially the same conduct.  The Appellant admits that there is no specific statutory compulsion to consider his previous imprisonment.  However it is respectfully submitted that the court’s duty to consider all relevant circumstances in arriving at a just sanction mandates that it should have at least factored into the learned sentencing Judge’s analysis.  The Appellant respectfully submits that by declining to even consider his pre-trial detention, the learned sentencing Judge erred in principle.

E.While considering the hateful nature of the Appellant’s comments, did the learned sentencing Judge err by declining to also consider the broad social and legal factors that were relevant to the analysis of a just and proper sanction?

54.At paragraph 26 of the Judgment under appeal, the learned sentencing Judge asserts that “this case is about law and order”.46  On its face, it may seem to be a correct proposition.  The law of contempt is concerned with the rule of law.  However, it is beyond doubt that the facts and the underlying legal and social context are always part of the sentencing process.  It is precisely because every sentence occurs within a larger social context that principles such as general deterrence and denunciation are considered and weighed against the individual needs of the citizens – both victim and offender - before the court.  Broad considerations are a necessary part of the task of arriving at a fit and just sanction.

55.The learned sentencing Judge understood this general proposition.  This can be deduced from the obvious concern he had about the conduct of both the Appellant and his previous counsel.  For example, he inferred from the evidence of the Appellant’s sale of the National Socialist Party of Canada website that it was “obvious that [he] was attempting to put his website out of the court’s reach” (para. 20).  He referred to Mr. Tremaine as “the villain” (para. 24).  He remarked that the Appellant’s previous counsel “used the courtroom as a bully pulpit to attack Mr. Warman” (para. 22).  He made special mention that, in this case, the court was no longer concerned about “free speech”.47  It should also be noted that in his submissions, the complainant urged the court that it “weighs upon the judgment of this court that the material is vicious hate propaganda”.48 

56.The Appellant does not quarrel with the learned sentencing Judge’s right and duty to consider other relevant factors beyond the simple fact of the contempt in imposing sentence.  Indeed, the central message of the argument in this Memorandum is that he ought to have considered more factors and principles than he did.  It would be less than honest to suggest that this case is merely about the fact of the civil contempt, as the very facts upon which the conviction is founded concern expression, albeit expression that has been determined to be hateful.   A sentencing court must balance many factors in relatively rare situations like the one presented in the case before this Honourable Court.

57.In R. v. Nasogaluak49, the Supreme Court of Canada considered the extent to which the Charter of Rights and Freedoms affects the sentencing process.  Though the case concerned the impact of a specific egregious breach of Nasogaluak’s rights on the sentencing process where a mandatory minimum was concerned, the court outlined some important general principles.  The Supreme Court of Canada affirmed that a sentencing judge always had the authority to consider the impact of an infringement of a citizen’s Charter rights in arriving at a just sanction, and there is no requirement for a formal application for a remedy.  The reason for this is that the court understood that a “fit” sentence is one that respects and considers the fundamental values enshrined in the Charter.  At paragraph 48-49 (emphasis added):

Indeed, the sentencing regime under Canadian law must be implemented within, and not apart from, the framework of the Charter.  Sentencing decisions are always subject to constitutional scrutiny.  A sentence cannot be “fit” if it does not respect the fundamental values enshrined in the Charter.  Thus, incidents alleged to constitute a Charter violation can be considered in sentencing, provided that they bear the necessary connection to the sentencing exercise.  As mitigating factors, the circumstances of the breach would have to align with the circumstances of the offence or the offender, as required by s. 718.2 of the Code.  Naturally, the more egregious the breach, the more attention the court will likely pay to it in determining a fit sentence.

This is consistent with the communicative function of sentencing. A proportionate sentence is one that expresses, to some extent, society’s legitimate shared values and concerns.

58.This case does not concern a specific breach of the Appellant’s Charter rights.  However, that does not mean that the Charter is divorced from the analysis.  Our constitution remains present, and its values must be considered if the court is to arrive at a just and fit sentence.  This is precisely why the hateful nature of the Appellant’s conduct is an aggravating factor.  However, the Charter also speaks to mitigating factors in this case.  Fairness requires that these be considered as well.

59.For civil libertarians who believe that hateful speech should be confronted and challenged, rather than censored by state agents, the constitutional battle is lost.  This is fully and respectfully acknowledged by the Appellant.  Nevertheless, it is vital to recognize the context within which this court is operating.  State infringement on freedom of speech was found to be demonstrably justified in a free and democratic society in the human rights legislative context in Canada (H.R.C.) v. Taylor50 and Saskatchewan (H.R.C.) v. Whatcott.51  However, the process by which the infringement was justified speaks to the fact that the Supreme Court and civil society still recognize that free expression is integral to both democracy and the rule of law - a bedrock right, upon which all other civil rights are built.  Indeed, it is a right integral to our modern conception of the rule of law itself.  The Appellant very respectfully submits that this Honourable Court should approach the issues in this sentencing with humility, fully cognizant of the nature of the s. 1 justification that provides the legal authority to take the liberty of a citizen who, while admittedly is guilty of contempt, is nonetheless on the facts of the case being punished for expressing his political views – however distasteful and repugnant they might be.  This same humility will also allow future courts to be vigilant in ensuring that the definition of “hatred and contempt” is not unduly expanded.

60.This does not mean that the conviction was improper, or that the CHRT and the court are not entitled to ensure its orders are respected and followed.  But, taking the liberty of a citizen is the state’s ultimate weapon, and it is the Appellant’s respectful submission that no court should lightly undertake this task.  This is especially true when the factual nature of the crime involves political speech.52  Justice must be tempered, especially when the legal regime’s constitutional justification rests on the proportional limitation of a fundamental right that resulted from a delicate balance of competing values that are all entrenched in Canada’s supreme law.
61.Again, the legal analysis by which the constitution allows state power to restrict a fundamental civil right under s. 1 of the Charter is itself a delicate balancing exercise that involves limiting freedoms that are part of the supreme law of Canada.   The seminal case on s. 1 is R. v. Oakes.53  At paragraph 66 of the decision, Chief Justice Dickson stated (emphasis added):

It is important to observe at the outset that s. 1 has two functions: first, it constitutionally guarantees the rights and freedoms set out in the provisions which follow; and second, it states explicitly the exclusive justificatory criteria (outside of s. 33 of the Constitution Act, 1982) against which limitations on those rights and freedoms must be measured. Accordingly, any s. 1 inquiry must be premised on an understanding that the impugned limit violates constitutional rights and freedoms — rights and freedoms which are part of the supreme law of Canada. As Wilson J. stated in Singh v. Min. of Employment & Immigration, supra, at p. 218:

... it is important to remember that the courts are conducting this inquiry in light of a commitment to uphold the rights and freedoms set out in the other sections of the Charter.

62.The s. 1 analysis requires the state to prove that the infringement of a constitutional right constitutes a minimal impairment of that right.  Further, the effect of the state infringement must be proportional to its objective.  At paragraph 74-75 (emphasis added):

Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra, at p. 352. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom and the objective which has been identified as of "sufficient importance".

With respect to the third component, it is clear that the general effect of any measure impugned under s. 1 will be the infringement of a right or freedom guaranteed by the Charter; this is the reason why resort to s. 1 is necessary. The inquiry into effects must, however, go further. A wide range of rights and freedoms are guaranteed by the Charter, and an almost infinite number of factual situations may arise in respect of these. Some limits on rights and freedoms protected by the Charter will be more serious than others in terms of the nature of the right or freedom violated, the extent of the violation, and the degree to which the measures which impose the limit trench upon the integral principles of a free and democratic society. Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.

63.The fact that the type of expression uttered in this case has been found to be legally limited pursuant to s. 1 of the Charter does not mean that the underlying importance of free speech is divorced from the sentencing process.  The Charter right does not vanish from existence simply because legislation has been found to legitimately restrict it.  The values underlying the right must remain and factor into the sentencing analysis, because the court’s action in sentencing a citizen is a further infringement that must also be reasonable in the circumstances.  As the Appellant’s right to free speech has been limited, not removed, it is incumbent on any sentencing court to recognize that any action it takes must also be considered a further “effect” of the state’s power to limit the right.  Even if this consideration is difficult or uncomfortable when dealing with actions such as the Appellant’s hateful speech, it is respectfully submitted that a sentencing court must nevertheless measure its response with the underlying values of freedom of expression in mind.

64.Of course, this does not mean that the state cannot restrict the Appellant’s speech.  The Supreme Court of Canada has confirmed that it can.  Equality and the right to be free from discrimination are also integral rights.  The Appellant is not submitting that the court does not have the jurisdiction to take the liberty of a citizen for hateful speech.  What is submitted is that a fit and proper sentence is one in which the court recognizes that the delicate nature of the constitutional balance upon which this jurisdiction rests requires that justice be tempered and measured.  It is submitted that the sentence imposed in this case is also demonstrably unfit because it does not give sufficient weight to the solemn reality that the entire legal regime upon which this Appellant is before the courts rests on a delicate balance that allows for censorship and a limitation of a right of incredible importance to every citizen.  Surely in a situation such as that presented in the case at bar, the principle of restraint takes on special significance.

65.This is so even though the charge is contempt, because the underlying facts of the contempt relate to expression.  Those underlying facts were considered to be aggravating by the learned sentencing Judge.  It is significant to the sentencing process that part of the facts underlying the contempt include the Appellant’s dissemination of electronic books such as The Poisonous Mushroom, The Turner Diaries, and The Protocols of the Learned Elders of Zion,54 especially when this court can take judicial notice of the notorious fact that these very same books are widely available on the internet, and some of them are even sold by online booksellers profiting off of Canadian customers.  This court can further take note that though Adolf Hitler’s Mein Kampf remains available in most major public libraries in Canada, the learned sentencing Judge nevertheless found that the Appellant’s decision to post a large quote from this widely available book was illegal and ordered it removed.55  It is submitted that an action by a court of law to prohibit the distribution of books has no place in a 21st century liberal democracy.  The Appellant respectfully asks the court to consider the implications of imprisoning a citizen in part because he disseminated books.
66.Also included in the broad social context is the fact that Parliament has now repealed the legislative provision on which this entire litigation is based.56  The Appellant understands that does not excuse him from his duty to follow the order of the CHRT.  Nor does it invalidate or question the conviction that this Honourable Court entered upon him.  However, the Appellant submits that Parliament’s action signals an intention to remove the jurisdiction of the CHRT to try these types of cases.  As part of the ongoing dialogue between Parliament and the Courts, it is submitted that it is incumbent on a sentencing Court to factor in Parliament’s message in arriving at a just and fit sentence.

67.With respect, the learned sentencing Judge did not consider the impact of either the underlying constitutional issue or Parliament’s decision to repeal the very legislative provision that formed the basis for the litigation.  As he did not do so, the Appellant respectfully submits that he erred.  The Appellant respectfully asks this court to consider that as the aggravating nature of the facts underlying the contempt must be considered in arriving at a fit sentence, so must the broader social and legal context be considered.  This court is humbly asked to reflect on the implications of taking the liberty of a citizen based on facts such those presented in the case at bar, even if that citizen’s views are repugnant.  It is respectfully submitted that is within the proper function of this court to send a clear instruction to trial-level courts that in sentencing a citizen in cases such as this, the delicate balance of Charter values must be given due consideration and respect.

PART IV – CONCLUSION AND NATURE OF RELIEF REQUESTED

68.The Appellant respectfully submits that the learned sentencing judge erred in law and principle for the reasons outlined in this Memorandum of Law.  The Appellant further submits that the sentence is manifestly harsh, excessive, and demonstrably unfit, especially considering that he is a first offender.

69.The Appellant requests that the 30 days imprisonment portion of the sentence be set aside, with the conditional/suspended portion of the sentence reduced to 60 days.  It further requests that portions of the prohibited material relating to books be severed, specifically “Exhibit H”, “M”, “AA”, “BB”, “CC”, and “DD”.

70.The Appellant asks for costs of the within appeal.

ALL OF WHICH IS RESPECTFULLY SUBMITTED, this ________ day of July, 2013

Legal Aid Saskatchewan

Regina City Area Office

Per:      

Andrew L. Hitchcock

Solicitor for the Appellant, Terry Tremaine

PART V – LIST OF AUTHORITIES

Legislation and Rules of Court

Canada Act 1982 (UK), 1982, c. 11

Canadian Criminal Code, R.S.C 1985, c. C-46

Canadian Human Rights Act, R.S.C. 1985, c. H-6

Charter of Rights and Freedoms, as part of The Constitution Act, 1982,  Schedule B to the

Federal Court Rules, 1998, SOR/98-106

Jurisprudence

Canada (Attorney General) v. de l’Isle (1994), 56 C.P.R. (3d) 371 (Fed.C.A.)

Canada (H.R.C.) v. Taylor [1990] 3 S.C.R. 892 (S.C.C.)

Canada (Minister of National Revenue) v. Money Stop Ltd. 2013 FC 133

Canadian Copyright Licensing Agency v. U-Compute (2005), 284 F.T.R. 116

Canadian Human Rights Commission v. Winnicki, 2007 FCA 52

International Forest Products Ltd. v. Kern, 2001 BCCA 48

MacMillan Bloedel Ltd. v. Simpson (1994), 88 C.C.C. (3d) 148 (B.C. C.A.)

Penthouse International Ltd. v. 163564 Canada Inc., (1995), 63 C.P.R. (3d) 328 (Fed. T.D.)

Puddester v. Newfoundland (Attorney General), 2001 NFCA 25

R. v. Campeau 2009 SKCA 3

R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.)

R. v. Gladue [1999] 1 S.C.R. 688 (S.C.C.)

R. v. Keegstra [1990] 3 S.C.R. 697 (S.C.C.)

R. v. M. (C.A.) [1996] 1 S.C.R. 500 (S.C.C.)

R. v. Nasogaluak [2010] 1 S.C.R. 206 (S.C.C.)

R. v. Oakes [1986] 1 S.C.R. 103 (S.C.C.)

R. v. Shopshire [1995] 4 S.C.R. 227 (S.C.C.)

R. v. Yue (2007), 226 C.C.C. (3d) 349 (Ont. C.A.); leave to appeal to S.C.C. refused; (2008), 253 O.A.C. 397 (S.C.C.)

Regina (City) v. Cunningham, [1994] 8 W.W.R. 457 (Sask. C.A.)

Salt River First Nation 195 v. Marie, 2006 FC 1420

Telewizja Polsat SA v. Radiopol Inc. 2006 FC 137

Telus Communications Ltd. v. T.W.U. 2006 BCSC 397; reversed in part on the issue of costs; 2008 BCCA 144

U.N.A. v. Alberta (Attorney General) [1992] 1 S.C.R. 901 (S.C.C.)

Saskatchewan (H.R.C.) v. Whatcott 2013 SCC 11

1 (1994), 56 C.P.R. (3d) 371 (Fed.C.A.)

2 Ibid  at para. 6

3 [1995] 4 S.C.R. 227

4 [1996] 1 S.C.R. 500

5 2009 SKCA 3

6 (1996), 112 CCC (3rd 97) Ont. C.A.

7 Warman and CHRC v. Terry Tremaine, 2007 CHRT 2 (Appeal Book filed in Court File A-468-10)

8 Appeal Book filed in A-468-10, Vol. 1, Tab 4

9 Appeal Book at p. 239

10 Appeal Book at p. 240 - 244

11 Appeal Book, at p. 252

12 Appeal Book, at p. 261

13 Appeal Book, at p. 266 – 268, 270

14 Appeal Book, p. 384-385

15 Appeal Book, p. 370-371

16 Appeal Book, p. 112-122

17 See: Rule 469, Federal Courts Rules, SOR/98-106 (“Rules”); and Brilliant Trading Inc. v. Wong, 2005 FC 1214 at para. 15.

18 2001 BCCA 48

19 Ibid at para. 20

20 2001 NFCA 25

21 See especially Ibid at para 32, 54-55

22 Sussex Group Ltd. v. 3933938 Canada Inc., 2003 CanLII 27188 (ON SC)

23 [1999] 1 S.C.R. 688 (S.C.C.)

24 2007 FCA 52

25 Ibid at para 21

26 (2005) 284 FTR 116 

27 Winnicki, supra note 24 at para. 21

28 Appeal Book, at 118-120

29 [1992] 1 S.C.R. 901 (S.C.C.)

30 Ibid. at para. 24-25

31 See: Penthouse International Ltd. v. 163564 Canada Inc. (1995), 63 C.P.R. (3d) 328 (F.C.T.D.)

32 Appeal Book at 240

33 2006 BCSC 397; reversed in part on the issue of costs; 2008 BCCA 144

34 (1994), 88 C.C.C. (3d) 148 (B.C. C.A.)

35 See Ibid, at para 15-21, 58

36 [1994] 8 W.W.R. 457 (Sask. C.A.)

37 Winnicki, supra note 27

38 Telus Communications supra, note 33

39 2005 FC 1644

40 2006 FC 1420

41 2006 FC 137

42 2013 FC 133

43 (2006), 205 C.C.C. (3d) 488 (Ont. C.A.)

44 Ibid, see especially: para 30-33

45 See: R. v. Yue (2007), 226 C.C.C. (3d) 349 (Ont. C.A.); leave to appeal to the Supreme Court of Canada refused; (2008), 253 O.A.C. 397 (S.C.C.)

46 Appeal Book at p. 12

47 Judgment under appeal at para. 25, Appeal Book at p. 12

48 Appeal Book at 251.

49 [2010] 1 S.C.R. 206

50 [1990] 3 S.C.R. 892 (S.C.C.)

51 2013 SCC 11

52 in R. v. Keegstra [1990] 3 S.C.R. 697, the Supreme Court of Canada was clear that even hate propaganda constitutes “political expression” at para. 95

53 [1986] 1 S.C.R. 103 (S.C.C.)

54 Appeal Book filed in Court file A-468-10, Affidavit of Richard Warman, p. 140

55 Appeal Book, at p. 17

56 Bill C-304 An Act to Amend the Canadian Human Rights Act (Protecting Freedom), Royal Assent Statutes of Canada: 2013, c. 37]

Originally, Federal Court Judge Found Mr. Tremaine not guilty as the February, 2008  Canadian Human Rightds Tribunal “cease and desist order” had not been served on Mr. Tremaine until August, 2009. Apparently, his postings from February, 2008 until later that year were not sufficiently toned down in terms of privileged minorities for Mr.Warman’s sensibilities.. Also, he had not removed a long list of offending passages — although the poorly written order didn’t instruct him to do so. In 2011, the Federal Court of Appeal on a 2-1 vote instated a finding of guilt and overturned the acquittal. It was back to Judge Harrington for sentencing in Vancouver in October, 2012. Earlier last year, the Supreme Court denied leave to appeal.
Remember, Sec. 13 had already been repealed by the House of Commons in June, 2012. So, Mr. Warman was being punished for contempt of a vague order imposed under a law that was so foul it had been repealed. The Senate repealed the law in June, 2013 and repeal was granted immediate Royal Assent. This makes the prospect of Mr. Tremaine heading for prison for “contempt of court” for failing to obey a vague order under a law that has been repealed even more ludicrous
Don’t let them tell you Canada is a free country. Next time some earnest do gooder reminds you of the fate of dissidents in Red China or Burma or Cuba, be sympathetic but remind him or her that Canada has no reason to be self righteous.
Our courts are quite happy to jail dissidents and gag opinion on the Internet, especially where the dissident has criticized powerful privileged groups.
In China, if you criticize the powerful Communist Party, they send your impertinent butt to jail. In Canada, if you criticize privileged minorities, as has scholar and dissident Terry Tremaine, they fling your dissident self in prison.
To all the naive folks listening to those tv ads about the 30th Anniversary of the Charter: Do you still think your rights are protected? Not if you cross politically powerful and privileged minorities.
Paul Fromm,
Director
CANADIAN ASSOCIATION FOR FREE EXPRESSION
OVERVIEW 1

i. Standard of Review 2

PART I – STATEMENT OF FACTS 4

PART II – ISSUES 9

PART III – ARGUMENT 10

A. Did the learned sentencing Judge err in law and  principle by failing to consider and apply the principle of restraint? 10

B. Did the learned sentencing Judge err by overemphasizing  the principle of deterrence while paying insufficient attention to the  individual circumstances of the Appellant? 13

C. Did the learned sentencing Judge err in law by,  in effect, sentencing the Appellant for criminal contempt, notwithstanding  that this Court has convicted him of civil contempt, and the Commission  proceeded on that basis at the Sentencing Hearing? 14

i. Parity Principle 16

D. Did the learned sentencing Judge err in law by declining to  consider the mitigating factor that the Appellant had been in prison  for 22 days as a result of criminal charges involving the same complainant  and substantially the same evidence? 18

PART IV – CONCLUSION AND NATURE OF RELIEF  REQUESTED 26

PART V – LIST OF AUTHORITIES 28

 

 

 

Court File  No.:  A-493-12

 

FEDERAL COURT OF APPEAL

BETWEEN:

 

tERRy TREMAINE

APPELLANT

and

 

Canadian human rights  commission

and

richard warman

RESPONDENTS

 

 

 

MEMORANDUM OF FACT AND LAW OF  THE APPELLANT

 

 

 

OVERVIEW

 

  1. The evidence disclosed throughout this litigation establishes   that the Appellant’s political message is, doubtless, deeply offensive   to the overwhelming majority of Canadian citizens.  This Honourable   Court has convicted the Appellant of civil contempt of the Canadian Human Rights Tribunal, which had previously ordered the Appellant to “cease and desist” from communications of the type that resulted in the   finding that he exposed protected groups of his fellow citizens to hatred   or contempt.  This is an undeniable fact.

 

  1. It is readily acknowledged that a conviction for   civil contempt is a serious matter.  Nevertheless, the fundamental   principles of sentencing mandated by Parliament – and consistently applied by Canadian courts sentencing   citizens for contempt – must be properly applied to every citizen found   guilty of an offence.  The specific facts of a rare case such as this also   call for the consideration of broader legal principles. It is the role of the Appellate Courts to endeavor to ensure this is accomplished.

 

  1. At the heart of this appeal is the Appellant’s assertion that these principles were not applied   appropriately.  It is readily admitted that this case involves   communications that are hateful, and that was clearly a concern to the   learned sentencing Judge.  Mr. Justice Harrington was entitled   to consider this as an aggravating factor.  However, the learned sentencing Judge was still required to balance this with other   factors and correctly apply the appropriate principles.  This case   called for the Court to sentence a citizen for a civil contempt as a first offender.  The learned sentencing Judge had a legal duty to give adequate consideration to the   fundamental principle of restraint and the important mitigating factors   that arose from the Appellant’s personal circumstances, as well as the surrounding   social and legal context within which the offence occurred.  The Appellant will respectfully submit that adequate consideration of these principles and factors was not given in the case at bar, therefore causing   the learned sentencing Judge to commit a reversible error.  These errors in law and principle led to   a further error: that the sentence is manifestly excessive, and more   appropriate for a criminal contempt.

 

  1. Though the Appellant will advance two further arguments, it   is primarily because of these three errors that the learned sentencing Judge imposed a sentence which is, in all the circumstances   of this case, demonstrably unfit.

 

    1. Standard of Review

 

  1. Before discussing the law concerning the governing   standard of review to be applied in this case, it should first be acknowledged   that the grounds of appeal argued in this Memorandum will differ from   the grounds asserted by previous counsel in the Notice of Appeal.    Nevertheless, all of the Appellant’s submissions concern issues that were before the   learned sentencing Judge and are properly before this Court.    The Appellant respectfully submits that this Court has jurisdiction   to hear this appeal as is framed in this Memorandum.

 

  1. In Canada (Attorney General) v.   de l’Isle1 this Court held that, with respect to a sentence   for contempt, an appellate court may intervene only if the sentence   imposed is “excessive or inappropriate having regard to the circumstance,   or if that judge erred in law in passing sentence.”2  Though this appeal concerns a sentence for   civil contempt, the Appellant’s liberty interests are directly engaged and, as a   result, contempt is to be treated as quasi-criminal in nature.    For this reason, it is submitted that the deferential approach adopted   in de l’Isle can be expanded upon by applying the principles   outlined by appellate level sentencing cases in Canadian criminal law.

 

  1. The standard of review to be employed by Appellate   Courts when adjudicating sentence appeals is outlined by the Supreme   Court of Canada in R. v. Shropshire3.  The standard was considered further in R. v. M. (C.A.)4.  At paragraph 90, the court stated:

 

Put simply, absent an error in principle, failure  to consider a relevant factor, or an overemphasis of the appropriate  factors, a court of appeal should only intervene to vary a sentence  imposed at trial if the sentence is demonstrably unfit.

 

  1. While recognizing the important role appellate courts   play in minimizing disparity of sentencing for similar offenders and   similar offences, the Supreme Court recognized that sentencing is an   individualized process.  It accepted that Parliament has given   specialized discretion to individual sentencing judges.     As a result, the court stated at paragraph 92:

 

… I believe that a court of appeal should only  intervene to minimize the disparity of sentences where the sentence  imposed by the trial judge is in substantial and marked departure from  the sentences customarily imposed for similar offenders committing similar  crimes.

 

 

  1. The Saskatchewan Court of Appeal has recognized and applied this standard of review   on numerous occasions.  In R. v. Campeau5, the Court re-affirmed the standard.  Further,   it discussed what constitutes “unreasonableness” and “demonstrable unfitness” at paragraph 5:

 

This Court considers what constitutes “unreasonable”  in R. v. Berntson and “demonstrably  unfit” in R. v. Pankewich. In Pankewich, Jackson J.A.,  for the Court, described demonstrable unfitness as follows:

 

[31] …”Demonstrably unfit” has been equated  with unreasonableness (see Shropshire at para. 46);  “sentences which are clearly or manifestly excessive” (see Shropshire at para. 47  quoting the Nova Scotia Court of Appeal in R. v. Pepin (1990), 98  N.S.R. (2d) 238 (N.S.C.A.) at 251); “falling outside the ‘acceptable  range”‘ (see Shropshire at para. 50);  sentences where there is a “substantial and marked departure from  the sentences customarily imposed for similar offenders committing similar  crimes” (see M. (C.A.) at para. 92)  … McDonnell [[1997] 1 S.C.R.  948] also states that a wide deviation from the accepted “starting-point”  of sentencing for an offence will not, in and of itself, render a sentence  demonstrably unfit, but rather is a factor in determining demonstrable  unfitness…

 

  1. In R. v. Rezale6, the Ontario Court of Appeal defined an error in   principle as follows:

 

Error in principle is a familiar basis for reviewing  the exercise of judicial discretion.  It connotes, at least, failing  to take into account a relevant factor, taking into account an irrelevant  factor, failing to give sufficient weight to relevant factors, overemphasizing  relevant factors and, more generally, it includes an error of law.

 

 

PART I – STATEMENT OF FACTS

 

  1. The Canadian Human Rights Tribunal (“CHRT”) held that the Appellant, Mr. Terry Tremaine, was   engaging in discriminatory practice contrary to s. 13 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (“CHRA”) on February 2, 2007.  The Tribunal held that   Mr. Tremaine’s messages violated s. 13(1) of the CHRA and issued a cease and desist order and a fine in   the amount on $4,000.  Mr. Tremaine was not represented by counsel   at the CHRT hearing.7  

 

  1. Still unrepresented, he applied for judicial review   of the Tribunal’s decision.  On September 18, 2008, the Federal   Court found that the Tribunal’s decision was not unreasonable.  The Court held   that neither the cease and desist order, nor the $4,000 fine were unreasonable.  Notwithstanding   that the Appellant was not represented by counsel, the Federal Court   declined to consider his application with respect to the constitutionality   of s. 13(1) of the CHRA because he did not provide the requisite notice   as required by the Federal Courts Act, RSC 1985, c. F-7. The Court further declined a request to have the   judicial review adjourned pending the outcome of the constitutional   application made in CHRC and Warman v. Lemire, 2012 FC 1162 (F.C.T.D.).

 

  1. The facts underlying both the Tribunal decision and the   judicial review concern Mr. Tremaine’s postings on 2 internet sites.  First, Mr. Tremaine is the Webmaster of the National Socialist Party   of Canada website.  Second, he is a member of an American website   known as “Stormfront”.  Stormfront provides forums where people can exchange ideas   and messages in the form of postings.  The website is clearly geared towards white   supremacy and neo-Nazi ideology, and is basically a cyber-meeting place for like-minded individuals.  Though you need to be a member to post on   the website, any member of the public can download the content.    The slogan “White Power World Wide” appears on the Home Page of Stormfront, so the nature of the website is very clear to all visitors.  The Appellant posted on the website under   the pseudonym “MathDoktor99”.  The majority of the postings attributed to   the Appellant are repugnant and deeply offensive to the vast majority   of Canadians.8  

 

  1. The Appellant did not appeal the decision of the   Federal Court.

 

  1. In 2009, the Canadian Human Rights Commission (the “Commission”) filed a motion in Federal Court for an order that   the Appellant be found in contempt of the order of the Tribunal.    The motion was heard by Justice Harrington of the Trial Division of   the Federal Court.

 

  1. Justice Harrington held that though the Commission   had established beyond a reasonable doubt that the Appellant had knowledge   of the order of the Tribunal, it could not establish that he had knowledge   that the order had been registered with the Federal Court until March,   2009.  He dismissed the charges for contempt, finding that the Commission had to register the Tribunal’s order with the Federal Court and serve the Appellant   before it could be enforced.  The learned Trial Justice also dismissed   the Appellant’s argument that he had not “communicated” within the meaning of s. 13(1) of the CHRA.

 

  1. The Commission successfully appealed this decision   to this Court.  The majority of the Federal Court of Appeal found   that there was no legal principle that restricted the use of contempt   powers to orders issued by superior courts.  It concluded that   the CHRT’s decisions were no less enforceable by superior courts   than the decisions of the superior courts themselves.  This Honourable Court declined to order a new hearing   and instead substituted a conviction for civil contempt.  It directed   that the matter be returned to the Federal Court for sentencing.

 

  1. Counsel for the Appellant unsuccessfully applied for leave to appeal this   Honourable Court’s decision to the Supreme Court of Canada.  The   matter was thus remitted back to the Federal Court Trial Division for sentencing.  It proceeded on the basis that the Appellant had been   convicted of civil contempt.9  

 

  1. As it was a civil contempt, the Commission submitted   that the Appellant ought to be detained until his contempt was purged.    The Commission further submitted that as the matter was a civil contempt,   the Appellant had the right to purge the contempt and therefore avoid   imprisonment.  The Commission submitted that if the Appellant did   not purge his contempt, that he ought to be imprisoned until he do so.10  

 

  1. The Commission also sought that the Appellant remove   the offending material from the National Socialist Party of Canada website   and request that Stormfront remove his previous posts that were the   subject of the contempt.

 

  1. The complainant, Mr. Richard Warman, sought a period   of unconditional imprisonment of 3 to 6 months.11The complainant further submitted that rather than   ordering the Appellant to remove the infringing posts from the National   Socialist website, the court ought to order the site shut down in its   entirety.12

 

  1. The Appellant’s counsel unsuccessfully tried to argue that the Appellant   did not have the requisite mens rea.  The Appellant further argued that for a period of time wherein the Appellant was found to be in contempt, s. 13(1) of the CHRA was found to be not constitutionally valid.    The Appellant argued that he was under an honest mistake of law and   did not believe that the Tribunal’s decision was enforceable.  He further argued   that the order of the Tribunal was ambiguous in that it prohibited “telephonic” communication rather than internet communication. The Appellant submitted that there should be an   order for compliance, and in default of compliance, 60 to 80 days imprisonment.    In effect, he asked for a sentence of imprisonment to be suspended to allow   him time to purge his civil contempt.13  

 

  1. The Trial Division of the Federal Court sentenced the Appellant to 30 days imprisonment.  It further ordered him to cease communicating or causing   to communicate material of the type or substantially similar type to   that found by the Tribunal and Federal Court to be likely to expose   a person or persons to hatred or contempt on the basis of a prohibited   ground of discrimination in violation of s. 13(1) of the CHRA.  It held that the Appellant would be imprisoned for   a further 6 months or until he complies with the Court’s order, and directed the Appellant to approach Stormfront.org with a   request to remove postings from their website and to remove specified   postings from the National Socialist Party of Canada website.

 

  1. In the decision under appeal, the learned Trial Justice   began his decision by declaring that “the time [had] come at last to penalize Mr. Tremaine   for acting in contempt of an order of the Canadian Human Rights Tribunal.”  The Court further noted the offensive nature of   Mr. Tremaine’s messages.  It dismissed the Notice of Constitutional Question   filed by the Appellant at the Sentencing Hearing, echoing its oral ruling at the sentencing hearing,   in which it dismissed the motion without hearing evidence. The court held that it was “most disturbing” that the Appellant had testified at the Sentencing   Hearing that he had sold control of the National Socialist Party of   Canada website to an American through Mr. Bernard Klatt.  The learned Trial Judge added that it was “obvious that Mr. Tremaine was attempting to put his website out of this Court’s reach”.  The learned Justice also saw fit to admonish the Appellant’s previous counsel in relation to submissions he made   with respect to the Complainant.

 

  1. It should be noted that the materials that were the   subject matter of the previous hearings were also the subject matters   of criminal proceedings in the Province of Saskatchewan.  The Appellant   was charged with breaching s. 319 of the Criminal Code.  The Regina Police Service executed a search   warrant and invaded his home and seized his computer.  As a result   of an alleged breach of bail conditions, the Appellant served 22 days   at the Regina Provincial Correctional Centre on remand.  The substantive s. 319 charge was eventually judicially stayed by the Saskatchewan Court of Queen’s Bench due to unreasonable delay.  The breach allegation was also stayed.14  

 

  1. On December 3, 2012, previous counsel for the Appellant   sent a letter to the Registrar of the Federal Court of Canada outlining   the steps the Appellant had taken to comply with the order.15  

 

  1. The Appellant, Terry Tremaine, is a 64 year old Canadian   citizen residing in Regina, Saskatchewan.  He has a Master of Science   in Mathematics, and has completed some doctoral studies at Queen’s University.  As a result of this litigation, his 20 year academic   career has been completely destroyed.  Though there was no suggestion   his personal political views ever affected his teaching career, the   University of Saskatchewan dismissed him when the Complainant contacted   them about Mr. Tremaine and threatened to go to the media if the institution   did not take disciplinary action.  Subsequent to the loss of his   profession, Mr. Tremaine suffered from depression that was so severe   he required hospitalization.  He has been unable to find lasting,   meaningful employment since his termination and is now indigent, and a qualified applicant for representation   by Legal Aid Saskatchewan.16  

 

PART II – ISSUES

 

  1. It is respectfully submitted that this appeal raises   the following issues:

 

    1. Did the learned sentencing Judge err in law and principle   by failing to consider and apply the principle of restraint?

 

    1. Did the learned sentencing Judge err by overemphasizing   the principle of deterrence while paying insufficient attention to the   individual circumstances of the Appellant?

 

 

    1. Did the learned sentencing Judge err in law by, in   effect, sentencing the Appellant for criminal contempt, notwithstanding   that this Court has convicted him of civil contempt, and the Commission   proceeded on that basis at the Sentencing Hearing?

 

      1. Does the Sentence conform with the Parity Principle?

 

    1. Did the learned sentencing Judge err in law by declining   to consider the mitigating factor that the Appellant had been in prison   for 22 days as a result of criminal charges involving the same complainant   and substantially the same evidence?

 

    1. While considering the hateful nature of the Appellant’s comments, did the learned sentencing Judge err by   declining to also consider the broad social and legal factors that were   relevant to the analysis of a just and proper sanction?

 

PART III – ARGUMENT

 

  1. Did the learned sentencing Judge err in law and principle by failing   to consider and apply the principle of restraint?

 

  1. Though the law concerning both civil and criminal   contempt is rooted in the common law rather than statute, the potential   implications for a loss of liberty arising from a finding of contempt   has led the courts to consistently apply the criminal standard of proof   beyond a reasonable doubt.17  The criminal nature of contempt proceedings,   even in a civil context, has led the established jurisprudence to accept   that the principles of sentencing outlined in the Criminal Code, R.S.C. 1985, c. C-46 (“Code”) are instructive and should be followed.

 

  1. In International Forest Products   Ltd. v. Kern18, the British Columbia Court of Appeal reviewed the   sentence for criminal contempt imposed on a protestor disobeying an injunction obtained by the plaintiff logging company.  The court considered its function as a reviewing   court on appeal, and held that “[s]entencing for criminal contempt must be guided by   principle and no better guide exists than those Criminal Code provisions which largely codified the judge-made   rules on sentencing”.19  It went on to assess whether the original   sentence was demonstrably unfit.

 

  1. The Newfoundland Court of Appeal has also applied   this reasoning.  In Puddester v. Newfoundland (Attorney General)20 the court held that both the principles and the   sentencing options outlined in the Criminal Code can be adopted and employed in contempt proceedings.21  In Ontario, the Superior Court of Justice   has even considered sentencing an offender to a conditional sentence   of imprisonment, relying on a procedural rule giving a trial judge broad   discretion in contempt sentencing.22  

 

  1. With respect to the principle of restraint, this   Honourable Court has affirmed its applicability in sentencing for contempt   in Federal Court.  Relying in part on the seminal case of R. v. Gladue23, this court has held that a sentencing court must consider all   other sanctions that may be appropriate before considering imprisonment,   especially in cases involving citizens with no prior criminal record.    In Canadian Human Rights Commission v. Winnicki,24 this court stated at para. 20 (emphasis added):

 

The authorities are clear that  a Court should take special care in imposing a sentence of imprisonment  upon a first offender. The trial judge should have either a pre-sentence  report or some very clear statement with respect to the accused’s background  and circumstances. This is particularly true of youthful offenders such  as the appellant. Further it has been recognized that except for very  serious offences and offences involving violence, the primary objective  of individual deterrence can be best achieved by either a suspended  sentence or probation or a very short term of imprisonment followed  by a term of probation. (see R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688). In R. v. Priest, [1996] O.J.  No. 3369, at paragraphs 20 and 23 the Ontario Court of Appeal stated:

 

The duty to explore other  dispositions for a first offender before imposing a custodial sentence  is not an empty formalism which can be avoided merely by invoking the  objective of general deterrence. It should be clear from the record  of the proceedings, preferably in the trial judge’s reasons, why the  circumstances of this particular case require that this first offender  must receive a sentence of imprisonment. The trial judge had no material before him from  which he could possibly have made this determination. His reasons are  barren of any lawful justification for such a radical departure from  this well-established principle especially in the case of a youthful  first offender.

 

Even if a custodial sentence was appropriate  in this case, it is a well-established principle of sentencing laid  down by this court that a first sentence of imprisonment should be as  short as possible and tailored to the individual circumstances of the  accused rather than solely for the purpose of general deterrence. …

 

Likewise, in R. v. Curran (1973), 57  Cr. App. R. 945 it was noted that,

 

As a general rule it is undesirable that a first  sentence of immediate imprisonment should be very long, disproportionate  to the gravity of the offence, and imposed as this sentence was, for  reasons of general deterrence, that is as a warning to others. The length  of a first sentence is more reasonably determined by considerations  of individual deterrence; and what sentence is needed to teach this  particular offender a lesson which he has not learnt from the lighter  sentences which he has previously received.

 

  1. The common law principle of restraint required that   if imprisonment must be imposed for an offence, the shortest amount   of time possible in the circumstances should be given.  Parliament   codified and expanded this principle in ss. 718.2 (d) and (e) of the Code, which require sentencing judges to consider all available   sanctions other than imprisonment that are reasonable in the circumstances.  It is respectfully submitted that this reflects   an intention that imprisonment be considered a punishment of last resort.

 

  1. As was the case in Winnicki25, the learned sentencing Judge did not consider the   impact of the fact that the Appellant was a first offender in his reasons.    Moreover, he did not direct his mind to the accepted principle that   in arriving at a just sanction, serious consideration must be given   to dispositions other than imprisonment.  It is obvious that he did not consider suspending   the prison sentence to allow the Appellant to purge his contempt to   be sufficient.  However, it is apparent from the reasons that he   did not consider alternative dispositions, such as probation with a   community service order, which would have been more appropriate in the   circumstances.  Even though the Rules don’t specifically provide for this type of disposition,   it is submitted that the Federal Court has an inherent jurisdiction   to control its own process.  This jurisdiction includes a wide   discretion in imposing sanctions for civil contempt.  In Canadian Copyright Licensing   Agency v. U-Compute,26 the Federal Court imposed probation with community   service hours on an offender with two prior convictions for contempt   of court. 

 

  1. It is respectfully submitted that by not analyzing and applying the principle of restraint, the learned sentencing Judge erred in law.

 

  1. Did the learned sentencing Judge err by overemphasizing the principle   of deterrence while paying insufficient attention to the individual   circumstances of the Appellant?

 

  1. This court affirmed in Winnicki that it is an error for a sentencing Judge in contempt proceedings to neglect   to consider the background of the citizen found in contempt.27  The rationale for the rule is that just sanctions   require an assessment of both the circumstances of the offence and the   offender.  A balancing of these circumstances is essential because   sentencing is an individualized process.

 

 

  1. The evidence at the sentencing hearing indicated   that sometime after the complaint was filed with the Commission, the   Complainant contacted the Appellant’s employer, the University of Saskatchewan.    He advised the University that the complaint had been filed, and requested   that they take disciplinary action against the Appellant.  The   Complainant advised that if the University did not take action, local   and national media would be advised of the situation.  Mr. Tremaine, whose views were now exposed, was fired.    His twenty year academic career is in ruins, and he has been unable   to maintain regular employment since. He is now on social assistance   in Saskatchewan.  After being fired by the University, he fell into a deep depression, and was admitted to   the psychiatric ward at the Regina General Hospital.28  

 

  1. Neither this evidence, nor the fact that Mr. Tremaine   was a first offender, was mentioned in the decision under appeal.  While it is recognized that the learned sentencing Judge considered several factors in this case to   be aggravating, he had a legal duty to at least factor the mitigating   circumstances into the final analysis.  This Honourable Court gave a clear direction in Winnicki that he must do so.

 

  1. Every citizen, no matter how distasteful the court   may view their conduct, is entitled to have a sentencing   court consider the impact that the proceedings has had on his/her personal   circumstances.  Justice demands nothing less.  It is submitted   that the learned sentencing Judge made a very clear error in this respect.

 

  1. Did the learned sentencing Judge err in law by, in effect, sentencing   the Appellant for criminal contempt, notwithstanding that this Court   has convicted him of civil contempt, and the Commission proceeded on   that basis at the Sentencing Hearing?

 

  1. At one time, the practical difference between civil   and criminal contempt was difficult to discern.  In UNA v. Alberta (Attorney-General),29 the Supreme Court of Canada considered this distinction.    Speaking for the Court, McLachlin J. (as she then was) stated at para. 20-21:

 

Both civil and criminal contempt of court rest on  the power of the court to uphold its dignity and process. The rule of  law is at the heart of our society; without it there can be neither  peace, nor order nor good government. The rule of law is directly dependant  on the ability of the courts to enforce their process and maintain their  dignity and respect. To maintain their process and respect, courts since  the 12th century have exercised the power to punish for contempt of  court.

 

These same courts found it necessary to distinguish  between civil and criminal contempt. A person who simply breaches a  court order, for example by failing to abide by visiting hours stipulated  in a child custody order, is viewed as having committed civil contempt.  However, when the element of public defiance of the court’s process  in a way calculated to lessen societal respect for the courts is added  to the breach, it becomes criminal. This distinction emerges from Poje v. British Columbia (Attorney General), [1953] 1 S.C.R. 516, 17 C.R. 176, 105 C.C.C. 311,  [1953] 2 D.L.R. 785, at p. 527 [S.C.R.], per Kellock J.:

 

The context in which these incidents occurred, the large numbers of  men involved and the public nature of the defiance of the order of the  court transfer the conduct here in question from the realm of a mere  civil contempt, such as an ordinary breach of injunction with respect  to private rights in a patent or trade-mark, for example, into the realm  of a public depreciation of the authority of the court tending to bring  the administration of justice into scorn.

 

  1. As outlined by the court, criminal contempt requires proof of a requisite mens rea, including full knowledge that the public defiance   will depreciate the authority of the court.30  In civil contempt, mens rea is not a factor until the sentencing stage.31  

 

  1. The Appellant was convicted of civil contempt.    The Sentencing Hearing proceeded on this basis.  Counsel for   the Commission was clear on this point, and very fairly pointed out   to the Court that in civil contempt, it is generally accepted that the   offender ought to be given the opportunity to purge their contempt.32  It is submitted that this comment is consistent   with much of the jurisprudence.  After reviewing numerous cases   involving both civil and criminal contempt, the B.C. Supreme Court in Telus Communications Inc. v.   T. W. U.33 stated (emphasis added):

 

In reviewing the decisions where criminal and civil  contempt have been found, it is apparent that most contempt proceedings  involving labour/management disputes or civil “protest” disobedience  have proceeded as criminal contempt, there is a wide variation in the  punishment thought to be appropriate for any particular “type”  of contempt, there appears to be little difference between the punishment  imposed for criminal contempt and the punishment imposed for civil contempt, but incarceration is usually  reserved for situations where criminal contempt has been found.

 

  1. Though imprisonment is certainly possible in cases   of civil contempt, it is submitted that it should not be commonly given,   especially to a citizen without a prior record.  It is submitted   that the learned sentencing Judge erred by failing to consider the distinction   between civil and criminal contempt.  Effectively, the court imposed   a sentence for criminal contempt notwithstanding that the Appellant   had only been convicted of civil contempt.

 

  1. This error, either alone or in combination with the errors   of failing to consider both the principle of restraint and the personal   circumstances of the Appellant, led to the imposition of a sentence that was demonstrably unfit. With respect, it is manifestly excessive and not appropriate for a first offender convicted of civil contempt.

 

    1. Parity Principle

 

  1. As this court is well aware, another important principle   of sentencing is that the sentence imposed be consistent with sentences   imposed on similar offenders in similar situations.  For the purposes of assessing whether the sentence conforms to the parity principle, it is useful to consider sentences   imposed in other contempt cases.

 

  1. In MacMillan Bloedel Ltd. v. Simpson34 the court considered sentences for criminal contempt,   which included jail sentences imposed on several citizens, including   first offenders.  However the court pointed out that earlier in   the litigation, several other individuals involved in the same protest   were given fines, or prison sentences that were suspended to allow for   an opportunity for the order to be followed.35  It was only when it was clear that previous   lenient sentences were not effecting the Court’s purpose that the sanction of unsuspended imprisonment   was employed.

 

  1. In Regina (City) v. Cunnigham,36 the plaintiff municipality obtained an injunction   enjoining the defendant from continuing to operate a strip club in a   manner than contravened the city Zoning Bylaw.  Mr. Cuningham did   not appeal the injunction.  After being convicted of criminal contempt,   Cunningham was sentenced to a $2000 fine and 6 months imprisonment,   suspended if he obeyed the injunction.  He did not purge his contempt   and instead publicly declared that the club would stay open.  He was eventually committed to prison.  However,   it is significant that even though Cunningham was convicted of criminal   contempt, he was initially given a chance to purge the contempt before imprisonment was imposed.

 

  1. In Winnicki,37 this court reduced a 9 month sentence for contempt   of the Federal Court to time served, which was 83 days.  This case   is factually similar to the case at bar, but it is not clear whether the finding   was of civil or criminal contempt.  Mr. Winnicki had violated an injunction issued by the Federal Court Trial Division.

 

  1. The B.C. Supreme Court sentenced several individuals   for civil contempt in Telus Communications v. T.W.U.38 The sentences included orders compelling donations   to charity, orders compelling community service, along with various fines and costs awards.

 

 

  1. Other cases include:
    1. Canadian Copyright Licensing   Agency v. U-Compute39 – Civil Contempt, offender had two prior convictions.    He was sentenced to imprisonment, but it was suspended and included   an order for community service work.

 

    1. Salt River First Nation 195 v.   Marie40 – Civil Contempt, fines with default imprisonment   for one defendant

 

    1. Telewizja Polsat SA v. Radiopol   Inc41 – Civil Contempt, offender shows no remorse.  6 months imprisonment,   suspended to allow for compliance.

 

    1. Canada (Minister of National   Revenue) v. Money Stop Ltd.42 – Offender given 30 days to comply after contempt   hearing and did not do so.  Eventual sentence included imprisonment,   but it was suspended to allow for compliance.

 

  1. Did the learned sentencing Judge err in law by declining to consider   the mitigating factor that the Appellant had been in prison for 22 days   as a result of criminal charges involving the same complainant and substantially   the same evidence?

 

  1. As this court is aware, it is a common practice for   criminal courts to factor pre-trial custody in to the analysis of an   appropriate sentence.  It is submitted that this practice is rooted,   fundamentally, in fairness and equity.  The most common legal regime   employed to give effect to this principle of fairness is s. 719 of the Criminal Code.  However, it is not the only means by which the courts   achieve similar ends.

 

  1. There is nothing in the language of s. 719 of the Code to suggest that a citizen should be given credit   for time spent on strict bail conditions while he/she awaits a disposition.    Nevertheless, strict release conditions are a deprivation of liberty.  The appellate courts have responded   by requiring sentencing courts to factor these conditions into the analysis   as mitigating factors.  In R. v. Downes43, the Ontario Court of Appeal reviewed Canadian jurisprudence   and concluded that stringent bail conditions must be taken into account   by sentencing Judges as a mitigating circumstance.44  The court did not mandate that a specific   quantum of credit be given, as it recognized that different circumstances   will require judges to vary its final impact on sentence.  While there is no strict formula, there is no doubt   that pre-trial deprivations of liberty must at least be considered.  Though   in a later case the court declined to hold that this principle could   reduce a statutorily mandated minimum sentence, the basic principle   remains law in Ontario.45  

 

  1. Rather than through a specific statutory provision,   the source of this rule is the courts’ desire to fulfill its role in delivering a just sanction   on a citizen convicted of an offence.  In considering this principle   and its underlying values, it is submitted that it should be applied   in the case at bar.  Though the criminal proceedings were eventually   stayed, Mr. Tremaine was detained at the Regina Provincial Correctional   Centre for 22 days as a result of what appears to be the same evidence and witnesses that were before the CHRT.  He has thus incurred a serious deprivation of liberty as a result of what is substantially   the same conduct.  The Appellant admits that there is no specific statutory   compulsion to consider his previous imprisonment.  However it is   respectfully submitted that the court’s duty to consider all relevant circumstances in arriving   at a just sanction mandates that it should have at least factored into   the learned sentencing Judge’s analysis.  The Appellant respectfully submits   that by declining to even consider his pre-trial detention, the learned sentencing   Judge erred in principle.

 

  1. While considering the hateful   nature of the Appellant’s comments, did the learned sentencing   Judge err by declining to also consider the broad social and legal factors   that were relevant to the analysis of a just and proper sanction?

 

 

  1. At paragraph 26 of the Judgment under appeal, the   learned sentencing Judge asserts that “this case is about law and order”.46 On its face, it may seem to be a correct proposition.    The law of contempt is concerned with the rule of law.  However,   it is beyond doubt that the facts and the underlying legal and social   context are always part of the sentencing process.  It is precisely   because every sentence occurs within a larger social context that principles   such as general deterrence and denunciation are considered and weighed   against the individual needs of the citizens – both victim and offender – before the court.  Broad considerations are   a necessary part of the task of arriving at a fit and just sanction.

 

  1. The learned sentencing Judge understood this general   proposition.  This can be deduced from the obvious concern he had   about the conduct of both the Appellant and his previous counsel.    For example, he inferred from the evidence of the Appellant’s sale of the National Socialist Party of Canada website that it was “obvious that [he] was attempting to put his website   out of the court’s reach” (para. 20).  He referred to Mr. Tremaine as “the villain” (para. 24).  He remarked that the Appellant’s previous counsel “used the courtroom as a bully pulpit to attack Mr.   Warman” (para. 22).  He made special mention that, in   this case, the court was no longer concerned about “free speech”.47  It should also be noted that in his submissions,   the complainant urged the court that it “weighs upon the judgment of this court that the material is vicious hate propaganda”.48  

 

  1. The Appellant does not quarrel with the learned sentencing Judge’s right and duty to consider other relevant factors   beyond the simple fact of the contempt in imposing sentence.  Indeed,   the central message of the argument in this Memorandum is that he ought to have considered more factors and principles than he did.  It would be   less than honest to suggest that this case is merely about the fact   of the civil contempt, as the very facts upon which the conviction is   founded concern expression, albeit expression that has been determined   to be hateful.  A sentencing court must balance many factors in relatively   rare situations like the one presented in the case before this Honourable   Court.

 

  1. In R. v. Nasogaluak49, the Supreme Court of Canada considered the extent   to which the Charter of Rights and Freedoms affects the sentencing process.  Though the   case concerned the impact of a specific egregious breach of Nasogaluak’s rights on the sentencing process where a mandatory   minimum was concerned, the court outlined some important general principles.    The Supreme Court of Canada affirmed that a sentencing judge always   had the authority to consider the impact of an infringement of a citizen’s Charter rights in arriving at a just sanction, and there is no requirement   for a formal application for a remedy.  The reason for this is   that the court understood that a “fit” sentence is one that respects and considers the fundamental   values enshrined in the Charter.  At paragraph 48-49 (emphasis added):

 

Indeed, the sentencing regime under Canadian law  must be implemented within, and not apart from, the framework of the Charter.  Sentencing decisions are always subject to constitutional  scrutiny.  A sentence cannot be “fit”  if it does not respect the fundamental values enshrined in the Charter.  Thus, incidents alleged to constitute a Charter violation can be considered in sentencing, provided  that they bear the necessary connection to the sentencing exercise.   As mitigating factors, the circumstances of the breach would have to  align with the circumstances of the offence or the offender, as required  by s. 718.2 of the Code.  Naturally, the more  egregious the breach, the more attention the court will likely pay to  it in determining a fit sentence.

 

This is consistent with the communicative  function of sentencing. A proportionate sentence is one that expresses,  to some extent, society’s legitimate shared values and concerns.

 

  1. This case does not concern a specific breach of the Appellant’s Charter rights.  However, that does not mean that the Charter is divorced from the analysis.  Our constitution   remains present, and its values must be considered if the court is to   arrive at a just and fit sentence.  This is precisely why the hateful nature of the Appellant’s conduct is an aggravating factor.  However,   the Charter also speaks to mitigating factors in this case.  Fairness requires that these be considered as well.

 

  1. For civil libertarians who believe that hateful speech   should be confronted and challenged, rather than censored by state agents, the constitutional   battle is lost.  This is fully and respectfully acknowledged by   the Appellant.  Nevertheless, it is vital to recognize the context within which   this court is operating.  State infringement on   freedom of speech was found to be demonstrably justified in a free and   democratic society in the human rights legislative context in Canada (H.R.C.) v. Taylor50 and Saskatchewan (H.R.C.) v. Whatcott.51  However, the process by which the infringement   was justified speaks to the fact that the Supreme Court and civil society still recognize that   free expression is integral to both democracy and the rule of law – a bedrock right, upon which all other civil rights   are built.  Indeed, it is a right integral to our modern conception   of the rule of law itself.  The Appellant very respectfully submits that this Honourable Court should   approach the issues in this sentencing with humility, fully cognizant of the nature of the s. 1 justification that provides the legal authority to   take the liberty of a citizen who, while admittedly is guilty of contempt,   is nonetheless on the facts of the case being punished for expressing his political views – however distasteful and repugnant they might be.    This same humility will also allow future courts to be vigilant in ensuring   that the definition of “hatred and contempt” is not unduly expanded.

 

  1. This does not mean that the conviction was improper,   or that the CHRT and the court are not entitled to ensure its orders are respected   and followed.  But, taking the liberty of a citizen is the state’s ultimate weapon, and it is the Appellant’s respectful submission that no court should lightly   undertake this task.  This is especially true when the factual   nature of the crime involves political speech.52  Justice must be tempered, especially when   the legal regime’s constitutional justification rests on the proportional limitation of a fundamental right that resulted from   a delicate balance of competing values that are all entrenched in Canada’s supreme law.
  2. Again, the legal analysis by which the constitution   allows state power to restrict a fundamental civil right under s. 1   of the Charter is itself a delicate balancing exercise that involves   limiting freedoms that are part of the supreme law of Canada.     The seminal case on s. 1 is R. v. Oakes.53 At paragraph 66 of the decision, Chief Justice Dickson   stated (emphasis added):

 

It is important to observe at the outset that s.  1 has two functions: first, it constitutionally guarantees the rights  and freedoms set out in the provisions which follow; and second, it  states explicitly the exclusive justificatory criteria (outside of s.  33 of the Constitution Act, 1982) against which limitations on those  rights and freedoms must be measured. Accordingly, any s. 1 inquiry  must be premised on an understanding that the impugned limit violates  constitutional rights and freedoms — rights and freedoms which are  part of the supreme law of Canada. As Wilson J. stated in Singh v. Min. of Employment &  Immigration, supra, at p. 218:

 

… it is important to remember  that the courts are conducting this inquiry in light of a commitment  to uphold the rights and freedoms set out in the other sections of the Charter.

 

  1. The s. 1 analysis requires the state to prove that the infringement of a constitutional right constitutes a minimal impairment of that right.  Further,   the effect of the state infringement must be proportional to its objective. At paragraph 74-75 (emphasis added):

 

Second, once a sufficiently significant objective  is recognized, then the party invoking s. 1 must show that the means  chosen are reasonable and demonstrably justified. This involves “a  form of proportionality test”: R. v. Big M Drug Mart Ltd.,  supra, at p. 352. Although the nature of the proportionality test will  vary depending on the circumstances, in each case courts will be required  to balance the interests of society with those of individuals and groups.  There are, in my view, three important components of a proportionality  test. First, the measures adopted must be carefully designed to achieve  the objective in question. They must not be arbitrary, unfair or based  on irrational considerations. In short, they must be rationally connected  to the objective. Second, the means, even if rationally  connected to the objective in this first sense, should impair “as  little as possible” the right or freedom in question: R. v. Big M Drug Mart Ltd.,  supra, at p. 352. Third, there must be a proportionality between the effects of the measures  which are responsible for limiting the Charter right or freedom and  the objective which has been identified as of “sufficient importance”.

 

With respect to the third component, it is clear  that the general effect of any measure impugned under s. 1 will be the  infringement of a right or freedom guaranteed by the Charter; this is  the reason why resort to s. 1 is necessary. The inquiry into effects  must, however, go further. A wide range of rights and freedoms are guaranteed  by the Charter, and an almost infinite number of factual situations  may arise in respect of these. Some limits on rights and freedoms protected  by the Charter will be more serious than others in terms of the nature  of the right or freedom violated, the extent of the violation, and the  degree to which the measures which impose the limit trench upon the  integral principles of a free and democratic society. Even if an objective  is of sufficient importance, and the first two elements of the proportionality  test are satisfied, it is still possible that, because of the severity  of the deleterious effects of a measure on individuals or groups, the  measure will not be justified by the purposes it is intended to serve. The more severe the deleterious  effects of a measure, the more important the objective must be if the  measure is to be reasonable and demonstrably justified in a free and  democratic society.

 

  1. The fact that the type of expression uttered in this   case has been found to be legally limited pursuant to s. 1 of the Charter does not mean that the underlying importance of free   speech is divorced from the sentencing process.  The Charter right does not vanish from existence simply because   legislation has been found to legitimately restrict it.  The values underlying the right must remain and factor   into the sentencing analysis, because the court’s action in sentencing a citizen is a further infringement   that must also be reasonable in the circumstances.  As the Appellant’s right to free speech has been limited, not removed, it is incumbent on any sentencing   court to recognize that any action it takes must also be considered   a further “effect” of the state’s power to limit the right.  Even if this consideration   is difficult or uncomfortable when dealing with actions such as the   Appellant’s hateful speech, it is respectfully submitted that   a sentencing court must nevertheless measure its response with the underlying   values of freedom of expression in mind.

 

 

  1. Of course, this does not mean that the state cannot   restrict the Appellant’s speech.  The Supreme Court of Canada has confirmed   that it can.  Equality and the right to be free from discrimination   are also integral rights.  The Appellant is not submitting that   the court does not have the jurisdiction to take the liberty of a citizen for hateful speech.  What is submitted   is that a fit and proper sentence is one in which the court recognizes   that the delicate nature of the constitutional balance upon which this   jurisdiction rests requires that justice be tempered   and measured.  It is submitted that the sentence imposed in this   case is also demonstrably unfit because it does not give sufficient   weight to the solemn reality that the entire legal regime upon which this Appellant is before   the courts rests on a delicate balance that allows for censorship and   a limitation of a right of incredible importance to every citizen.    Surely in a situation such as that presented in the case at bar, the   principle of restraint takes on special significance.

 

  1. This is so even though the charge is contempt, because   the underlying facts of the contempt relate to expression.  Those   underlying facts were considered to be aggravating by the learned sentencing Judge.  It is significant to the sentencing process that   part of the facts underlying the contempt include the Appellant’s dissemination of electronic books such as The Poisonous Mushroom, The Turner   Diaries, and The Protocols of the Learned Elders   of Zion,54 especially when this court can take judicial notice   of the notorious fact that these very same books are widely available on the internet, and some   of them are even sold by online booksellers profiting off of Canadian   customers.  This court can further take note that though Adolf   Hitler’s Mein Kampf remains available in most major public libraries   in Canada, the learned sentencing Judge nevertheless found that the Appellant’s decision to post a large quote from this widely   available book was illegal and ordered it removed.55  It is submitted that an action by a court   of law to prohibit the distribution of books has no place in a 21st century liberal democracy.  The Appellant respectfully asks the court to consider   the implications of imprisoning a citizen in part because he disseminated books.
  2. Also included in the broad social context is the   fact that Parliament has now repealed the legislative provision on which   this entire litigation is based.56  The Appellant understands that does not excuse   him from his duty to follow the order of the CHRT.    Nor does it invalidate or question the conviction that this Honourable   Court entered upon him.  However, the Appellant submits that Parliament’s action signals an intention to remove the jurisdiction of the CHRT to try these   types of cases.  As part of the ongoing dialogue between Parliament   and the Courts, it is submitted that it is incumbent on a sentencing   Court to factor in Parliament’s message in arriving at a just and fit sentence.

 

  1. With respect, the learned sentencing Judge did not   consider the impact of either the underlying constitutional issue or   Parliament’s decision to repeal the very legislative provision   that formed the basis for the litigation.  As he did not do so,   the Appellant respectfully submits that he erred.  The Appellant   respectfully asks this court to consider that as the aggravating nature   of the facts underlying the contempt must be considered in arriving   at a fit sentence, so must the broader social and legal context be considered.    This court is humbly asked to reflect on the implications of taking the liberty   of a citizen based on facts such those presented in the case at bar,   even if that citizen’s views are repugnant.  It is respectfully submitted that is within   the proper function of this court to send a clear instruction to trial-level   courts that in sentencing a citizen in cases such as this, the delicate   balance of Charter values must be given due consideration and respect.

 

PART IV – CONCLUSION AND NATURE  OF RELIEF REQUESTED

 

  1. The Appellant respectfully submits that the learned   sentencing judge erred in law and principle for the reasons outlined   in this Memorandum of Law.  The Appellant further submits that   the sentence is manifestly harsh, excessive, and demonstrably unfit,   especially considering that he is a first offender.

 

  1. The Appellant requests that the 30 days imprisonment   portion of the sentence be set aside, with the conditional/suspended portion of the sentence reduced   to 60 days.  It further requests that portions of the prohibited   material relating to books be severed, specifically “Exhibit H”, “M”, “AA”, “BB”, “CC”, and “DD”.

 

  1. The Appellant asks for costs of the within appeal.

 

ALL OF WHICH IS RESPECTFULLY SUBMITTED, this ________  day of July, 2013

 

Legal Aid Saskatchewan

Regina City Area Office

 

 

Per:

Andrew L. Hitchcock

Solicitor for the Appellant, Terry Tremaine

 

 

PART V – LIST OF AUTHORITIES

 

Legislation and Rules  of Court

Canada Act 1982 (UK), 1982, c.  11

Canadian Criminal Code, R.S.C 1985, c. C-46

Canadian Human Rights Act, R.S.C. 1985, c. H-6

Charter of Rights and Freedoms, as part of The Constitution Act, 1982, Schedule B to the

Federal Court Rules, 1998, SOR/98-106

 

Jurisprudence

 

Canada (Attorney General) v.  de l’Isle (1994), 56 C.P.R. (3d) 371 (Fed.C.A.)

Canada (H.R.C.) v. Taylor [1990] 3 S.C.R. 892 (S.C.C.)

Canada (Minister of National  Revenue) v. Money Stop Ltd. 2013 FC 133

Canadian Copyright Licensing  Agency v. U-Compute (2005), 284 F.T.R. 116

Canadian Human Rights Commission  v. Winnicki, 2007 FCA 52

International Forest Products  Ltd. v. Kern, 2001 BCCA 48

MacMillan Bloedel Ltd. v. Simpson (1994), 88 C.C.C. (3d) 148 (B.C. C.A.)

Penthouse International Ltd.  v. 163564 Canada Inc., (1995), 63 C.P.R. (3d) 328 (Fed. T.D.)

Puddester v. Newfoundland (Attorney  General), 2001 NFCA 25

R. v. Campeau 2009 SKCA 3

R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.)

R. v. Gladue [1999] 1 S.C.R. 688 (S.C.C.)

R. v. Keegstra [1990] 3 S.C.R. 697 (S.C.C.)

R. v. M. (C.A.) [1996] 1 S.C.R. 500 (S.C.C.)

R. v. Nasogaluak [2010] 1 S.C.R. 206 (S.C.C.)

R. v. Oakes [1986] 1 S.C.R. 103 (S.C.C.)

R. v. Shopshire [1995] 4 S.C.R. 227 (S.C.C.)

R. v. Yue (2007), 226 C.C.C. (3d) 349 (Ont. C.A.); leave to appeal to S.C.C. refused;  (2008), 253 O.A.C. 397 (S.C.C.)

Regina (City) v. Cunningham, [1994] 8 W.W.R. 457 (Sask. C.A.)

Salt River First Nation 195 v.  Marie, 2006 FC 1420

Telewizja Polsat SA v. Radiopol  Inc. 2006 FC 137

Telus Communications Ltd. v.  T.W.U. 2006 BCSC 397; reversed in part on the issue  of costs; 2008 BCCA 144

U.N.A. v. Alberta (Attorney General) [1992] 1 S.C.R. 901 (S.C.C.)

Saskatchewan (H.R.C.) v. Whatcott 2013 SCC 11

1 (1994), 56 C.P.R. (3d) 371 (Fed.C.A.)

2 Ibid at para. 6

3 [1995] 4 S.C.R. 227

4 [1996] 1 S.C.R. 500

5 2009 SKCA 3

6 (1996), 112 CCC (3rd 97) Ont. C.A.

7 Warman  and CHRC v. Terry Tremaine, 2007 CHRT 2 (Appeal Book filed in  Court File A-468-10)

8 Appeal Book filed in A-468-10, Vol. 1, Tab 4

9 Appeal Book at p. 239

10 Appeal Book at  p. 240 – 244

11 Appeal Book, at p. 252

12 Appeal Book, at p. 261

13 Appeal Book, at p. 266 – 268, 270

14 Appeal Book, p. 384-385

15 Appeal Book, p. 370-371

16 Appeal Book, p. 112-122

17 See: Rule 469, Federal Courts Rules, SOR/98-106 (“Rules”); and Brilliant  Trading Inc. v. Wong, 2005 FC 1214 at para. 15.

18 2001 BCCA 48

19 Ibid at para. 20

20 2001 NFCA 25

21 See especially Ibid at para 32, 54-55

22 Sussex  Group Ltd. v. 3933938 Canada Inc., 2003 CanLII 27188 (ON SC)

23 [1999] 1 S.C.R. 688 (S.C.C.)

24 2007 FCA 52

25 Ibid at para 21

26 (2005) 284 FTR 116

27 Winnicki, supra note 24 at para. 21

28 Appeal Book, at 118-120

29 [1992] 1 S.C.R. 901 (S.C.C.)

30 Ibid.  at para. 24-25

31 See: Penthouse International Ltd. v. 163564 Canada Inc. (1995),  63 C.P.R. (3d) 328 (F.C.T.D.)

32 Appeal Book at 240

33 2006 BCSC 397; reversed in part on the issue of costs; 2008 BCCA 144

34 (1994), 88 C.C.C. (3d) 148 (B.C. C.A.)

35 See Ibid, at para 15-21, 58

36 [1994] 8 W.W.R. 457 (Sask. C.A.)

37 Winnicki,  supra note 27

38 Telus  Communications supra, note 33

39 2005 FC 1644

40 2006 FC 1420

41 2006 FC 137

42 2013 FC 133

43 (2006), 205 C.C.C. (3d) 488 (Ont. C.A.)

44 Ibid,  see especially: para 30-33

45 See: R. v. Yue (2007), 226 C.C.C. (3d) 349 (Ont. C.A.); leave to appeal  to the Supreme Court of Canada refused; (2008), 253 O.A.C. 397 (S.C.C.)

46 Appeal Book at p. 12

47 Judgment under appeal at para. 25, Appeal Book at p. 12

48 Appeal Book at 251.

49 [2010] 1 S.C.R. 206

50 [1990] 3 S.C.R. 892 (S.C.C.)

51 2013 SCC 11

52 in R. v. Keegstra [1990] 3 S.C.R. 697, the Supreme Court of Canada was  clear that even hate propaganda constitutes “political expression”  at para. 95

53 [1986] 1 S.C.R. 103 (S.C.C.)

54 Appeal Book filed in Court file A-468-10, Affidavit of Richard Warman,  p. 140

55 Appeal Book, at p. 17

56 Bill C-304 An Act to Amend the Canadian Human Rights Act (Protecting Freedom),  Royal Assent Statutes of Canada: 2013, c. 37]

ARREST STATEMENT OF ROY ARTHUR TOPHAM REGARDING HIS ARREST AND INCARCERATION BY THE RCMP

ARREST STATEMENT OF ROY ARTHUR TOPHAM REGARDING HIS ARREST AND INCARCERATION BY THE RCMP ON  WEDNESDAY, MAY 16TH, 2012 IN QUESNEL, B.C.  ON THE CHARGE OF:

“Willful Promotion of Hatred CC 319(2)”

Posted May 16th, 2013 on 1st Anniversary of this Event

By

Arthur Topham

[Editor’s Note: In the interests of freedom of speech and freedom of the Internet I am posting my “Arrest Statement” which my former lawyer Mr. Douglas Christie advised me to write soon after my arrest on May 16th, 2012. His wise counsel was that this case would likely drag on in the courts for years and by the time it came to trial (should such an event arise) that many of the details of my recollection of that fateful day would by then be hazy and doubtful. Acting on Mr. Christie’s advice I wrote out a detailed description of what took place that May morning last year. It’s an interesting picture of what can happen to you here in Canada should the Jewish lobby decide they don’t like being criticized. Read. Heed. And please pass it on to your friends and associates. ~Arthur Topham]

On Wednesday, May 16th, 2012 I started out my work day travelling out to my mining property on the 2400 Rd off the Barkerville Hwy to meet up with the Petro Canada fuel truck at 9:30 a.m. I was having the company fuel truck filled with 1200 gallons of diesel fuel for use during the upcoming placer mining operations for this season. When that was completed I returned home to my residence at 4633 Barkerville Hwy and prepared for a trip up to Prince George where I had to go to the Richie  Bros. Auctioneers site to pick up some mining equipment that my business associate had recently purchased at an auction on May 10th. My business partner and wife, Shastah Topham, came along with me and we left our home at approximately 11:00 a.m. heading west toward Quesnel.

Plans had also been made ahead of time to meet another mining associate at Princess Auto in Prince George at 1 p.m. and between the two of us we would haul equipment back to my placer claims on the 2400 Road.

Due to the fact that the Petro Canada fuel truck was a bit late in arriving at the site plus the additional time necessary to fuel the 1200 gallon truck I was running behind schedule by about half an hour.

We were travelling in a 2009 Chev pickup owned by my mining associate with whom I am presently in a Joint Venture Agreement.

When one leaves my property at 4633 Barkerville Hwy you must turn right on to the Barkerville Hwy in order to travel toward Quesnel and Hwy 97 the route necessary to travel in order to get to Prince George. The section of Hwy 26 (Barkerville Hwy) that runs past my residence stretches in a straight line for approximately 1 km. As soon as I pulled out on to the road I immediately saw that there was a white pickup truck sitting adjacent to the eastbound lane of highway just before the road descended down a small dip and passes Cottonwood Historic Site.

As we drove toward it I remarked to my wife, “There’s the cops sitting there. Looks like they’re either waiting to catch Willie again or maybe they’re doing surveillance on Don Carter’s property. Don Carter has been experiencing ongoing harassment by the Canadian Revenue Agency over the past few years and has also had numerous encounters with the RCMP in conjunction with the CRA.

As we approached the white pickup we could see two men in dark clothing sitting in it trying to look as unobtrusive as possible. Again I said to my wife, “If we weren’t running so damn late I’d stop and asked them if they were lost or needed any assistance.”

As we crested the dip and passed Cottonwood Historic Site I noted that within a minute or so the white pickup was now following us. I asked my wife is she was buckled up (she was) and then I set my vehicle on cruise control at about 95 cpm. The limit was 90 kph so I knew that at least if the cops were going to stop me they wouldn’t have the excuse that I was speeding.

As we proceeded on toward Quesnel Shastah was spoon-feeding me my breakfast as I drove because we were too late for me to sit down at home and eat before leaving. I remarked to my wife that the cops were likely watching us through their binoculars and wondering what she was doing. We also were discussing the vehicle that was now so obviously tailing us. It’s always a joke for the locals around Cottonwood when the police come and try to set up either a surveillance vehicle or radar to catch unwary speeders. The cops never seem to understand that when you live in a very small, tight-knit community that everyone in the area is very aware of who drives what type of vehicle and when they see a vehicle parked on the side of the highway with people sitting in it they know right away that they’re either broke down or else cops.

We continued along the highway talking about cops and related issues until we reached the top of 11 Mile Hill. When one begins to descend you are overlooking the Fraser Valley viewshed and can see westward for over a hundred kilometres. About half way down I noted that a regular white coloured RCMP van with the usual bells and whistles was now directly behind the white pickup. At the same time, due to the steep grade of the hill, I was also watching my own speedometer to make sure I didn’t begin coasting beyond the 100 km speed limit. As we neared the bottom of the hill the RCMP van’s lights came on. I told Shastah and proceeded to slow down and pull over on the right hand side of the highway just where the road levelled off.

I asked my wife to open the glove box and get the vehicle insurance out. At the same time I reached for my wallet in order to get my driver’s license ready to show the police.

By the time we did these two tasks more police vehicles arrived and there were suddenly four or more of them along the side of the highway. I rolled down my window and in the rear view mirror could see three or more officers approaching the rear of the truck. One of them called out to me by name saying “Mr. Topham, would you get out of the vehicle and come to the rear of the vehicle.” Knowing that I was driving my business partner’s 2009 Chev Silverado and wasn’t registered to me, I knew immediately that these officers were not not just stopping me on a whim or that they didn’t know who they had been following. I called out of my window, “Do you want to see my driver’s license. One officer, who I realized later was the leader of the pack (Terry Wilson), repeated his command that I get out of the vehicle and again I asked him if I should bring my license to which he answered in the affirmative.

Leaving Shastah inside I got out and walked to the rear of the truck. I was immediately approached by an officer who I assumed was in charge. He introduced himself as Terry Wilson and then told me that I was being placed under arrest. Immediately following that another young male officer came up to me on my left carrying a clipboard in hand and told me that he was going to read me the charge and then proceeded to state, “there are reasonable grounds for believing that the following offences have been committed: “Wilful Promotion of Hatred contrary to Section 319(2) of the Criminal Code.”

He then asked me if I heard and understood what the charges were and in the same breath also said that I had the right to remain silent and that anything I said could and would be used against me. I told him and the rest of the cops standing around that they had no right to be charging me with said crime and their alleged “hate” crime was nothing but more bogus charges likely brought on by Harry Abrams and B’nai Brith Canada and that this whole charade was nothing more that an extension of the Section 13 complaint charge that Abrams had filed against me back in 2007. Meanwhile Wilson and his crew were all standing by with their trusty little digital voice recorders going.

After my little rant I acknowledged that I understood the charges even though I disagreed with them and the Terry Wilson proceeded to tell me to turn around and place my hands on the back of the truck so that he could handcuff and frisk me. When I turned around I noted that other officers, including a female one, had gone to and were talking with my wife Shastah on the passenger side of the vehicle.

When I realized that they were going to haul me off to jail I told Wilson that I would like to leave my personal effects that I had on me with my wife before he handcuffed me and he said that would be okay. I emptied my pockets of cash, keys, a memory stick that had on it a jpg of a Cariboo Placers Mining and Exploration Co business card that I had recently designed and was planning on taking to the printer in Quesnel. Wilson immediately grabbed it and asked what I had on it. I told him but I could sense that he already had it in his mind that possibly he had in his possession some incriminating evidence to back up the phoney charges and he held on to it. I also removed a small Swiss Army pen knife, diamond grit knife sharpener, lighter and then my regular Swiss Army knife which I was carrying in a leather case on my belt. I also removed my wrist watch and laid all of these articles on the retractable cover that was over the box of the truck.

After placing all of my personal effects on the deck cover I put my arms behind my back while Wilson did his thing and placed some plastic cuffs on me. All the while his manner and that of the other arresting officers was civil and congenial and ‘friendly’ to the point of being extreme. They addressed me as “Mr. Topham” and then asked me if I preferred to be addressed as either “Mr. Topham” or “Arthur.” I told them that Arthur was fine.

After Wilson fastened the handcuffs on me I asked him if I could go around the truck and speak to my wife before they took me away. He said that would be okay and then when I went to move another officer came up and held my arm when I began to walk saying that I should be careful not to fall down. I had to laugh to myself at their overly feigned concern for my physical welfare given that I normally am out either in the bush or on my mining claims where I’m climbing over logs or boulders. When I approached Shastah I told her that they had arrested me and were going to take me into town to jail and that she should come to the back of the truck and get my personal belongings. At this point my wife had a look of incredulity on her face and looked at the officers standing around her and said something to the effect, “Are you guys serious? You’re going to arrest my husband?” She was obviously becoming quite distraught. I told her that she would have to drive the truck when they took me away. She was unfamiliar with it as we had just acquired it as part of the business venture that we were in. She got out of the vehicle and came around to the rear where I had placed my personal effects and began putting them in a plastic bag. I then asked her to give me a kiss good bye as I had no idea of how long we might be separated from each other.

Wilson then told me that he would be taking me in to the Quesnel RCMP station and then two young officers held me and steered me toward a smaller, unmarked police vehicle. As we walked along the shoulder of the highway the female cop on my left introduced herself to me saying that her name was Normandie Levas and jokingly remarked that she was the better looking of the lot and that she would assist me in getting into the vehicle with the handcuffs so I didn’t have any trouble. They placed me in the back seat on the passenger side and then the two of them got in and proceeded to drive toward Quesnel with Normandie Levas driving. The female cop placed her digital voice recorder on the divider between the two seats and repeated to me that I was being recorded and then proceeded to elicit conversation from me. Having already told me first off that she was the better looking, attractive cop I jokingly commented to her that little good would it do me as there was no way I could even grope her with my hands behind my back.

It was about a 15 minute drive to the Quesnel police station and as we drove along the two cops got into talking about one thing or another. Again, Normandie Levas asked me if I preferred to be called “Arthur” or “Mr. Topham” and I told her the story about how I had been a school teacher for a number of years and that I had grown tired of hearing “Mr. Topham” “Mr. Topham” all the time from the children that I taught. She asked me what grades I had worked with and I told her that I mainly worked in the elementary level although I had later subbed in the high schools in Quesnel. I also described to her how I had started out my teaching career working in the federal Indian Day School system and from there moved to Wells, B.C. back in 1975 and had since lived in the area for the greater portion of the last forty years.

At one point while we were travelling down the highway I noted that Normandie was speeding well beyond the limit which was max. 90 km and I told her and she slowed down. The conversation turned to gold mining and I asked them if they were aware of the tv series called Gold Rush Alaska and they intimated that they were. I then proceeded to tell them about a local placer miner who was doing very well and was planning to start a made in BC version of a tv series similar to Gold Rush Alaska and that I’d just watched a trailer for it. The BC version was called “Gold Diggers.” I jokingly told them that maybe I could get them parts in the new upcoming drama and the male cop said that he had always wanted to be a movie star. I laughed and said that he would be better off being an honest cop rather than getting involved with Hollywood as it was run by the Jews and he’d eventually have to sell his soul to the Devil if he got caught up in it. Neither of the two cops reacted outwardly to my remark but I was certain they were thinking that they had got a juicy bit of racist hate mongering against the Jews regardless of the fact that what I had said was the truth.

When we arrived at the station and Normandie pulled in to the parking lot at the rear where all the cop cars were parked I asked her if they were going to put a hood over my head so that the local folks wouldn’t see them marching me into jail with handcuffs on. I was of course being facetious but she then turned around the car and proceeded to drive it into the building itself where a door was opened and we entered in. The two cops got out and Normandie then proceeded to remove her gun from her side and placed it in a  box outside the door leading into the station. When she did so I noted that a digital clock on the box read: 12:12 p.m.

I was then escorted into the station and led to the booking desk where I saw Terry Wilson standing in the hallway waiting for me. A young cop inside the office came up with a form in his hand to fill out and for me to sign regarding my personal effects and as he approached me asked me how I was. I thought to myself, “Do they really expect you to give them an honest answer given the circumstances?” and then remarked something to that effect. Terry Wilson then proceeded to ask me some questions about whether or not my home was locked or was wired with any explosive devices or if I had any firearms? I told him, facetiously, to watch out for the “grow op” and that yes, I did have firearms in my home and that two of them were loaded (a Marlin 22 and a Winchester 30-30) and in my bedroom and he should be careful. I also told him that I had two other unloaded rifles upstairs, a 22 calibre and a 30-30 Winchester.

It was at this point that he told me he was going to frisk me again before putting me in a cell and that I should remove me belt and my suspenders and my shoes. I said yes, I guess I’d better remove my suspenders so I couldn’t hang myself while in jail by “suspending” myself from the ceiling!

I then signed the form for my belongings and we proceeded to the jail cell with me walking in my stockinged feet. Wilson said that it would likely be two or three hours before I heard from him and also asked me if I had a lawyer that wished to call. When I mentioned Douglas Christie Wilson said that he knew Doug and would call him. He acted as if he and Doug were old high school buddies but then I thought to myself that yes, being in the “hate” business I’m sure that he would be aware of Mr.  Christie. It was about 12:20 p.m. when I was placed in a cell and the door locked. Wilson said he’d come and get me if he could get in contact with Mr. Christie.

Not too long afterwards Wilson came and opened the door and asked me to go down the hall to a small room where there was a seat and a phone hanging on the wall. He said he had got a hold of Mr. Christie and that when Doug called that a staff person in the office would re-direct the call to the phone in the room and that I would then be able to speak to Mr. Christie in confidence. I just smiled at Wilson when he said this knowing how the system works. I waited in the room and then the call finally came through and I spoke to Doug Christie. He advised me not to tell the police any more that I had to and that he would monitor the situation. I briefly explained what took place and then let the cops know I was done and they escorted me back to the jail cell.

I remained incarcerated throughout the afternoon and into the evening. One one occasion Wilson came again to the cell and got me to go and speak with Mr. Christie who had told me that he would be concerned if I was still being held after a few hours and not released. I didn’t realize at the time that Wilson was telling me it would be just a couple of more hours that the search warrant was for 1700 hours to 2100 hours and that I wouldn’t be released until after they had completed their search of my home.

Around 5 or 6 p.m. someone came by and opened a slot in the door and placed a tray on it with what appeared to be food and drink. They then hit the door with what sounded like a dog chain and left. No voice to say a meal was there. I stared at the tray and thought to myself that there was no way in hell I would accept food under these circumstances. I began to reflect that just a day or so before I was reading about a massive hunger strike that has been going on in Israel where thousands of Palestinians were being held in jail for upwards of years without having been charged with anything. There had been a world-wide call for solidarity with the hunger strikers, their conditions being extremely worse than mine, and so I said to myself that I would fast in solidarity with these political prisoners of the apartheid, Jews-only state of Israel rather than eat upon command. About a half an hour later another shadowy figure walked past the door and hit it again with the chain presumably to remind me that there was food on the tray. No human voice just the sound of metal on metal.

Later on when Wilson returned he asked me why I hadn’t eaten any of the food and I told him about the Palestinians and how I was fasting with them in solidarity. I doubt whether he knew what I was talking about and he said that if there was something else I might like to eat that he would try and get it for me. I hadn’t looked at what was on the plate so I didn’t know what it was. The styrofoam cup likely had coffee or juice in it.

Eventually around 10 p.m or later Wilson finally arrived and I was let out of the cell. He told me that he would be taking me upstairs to an office where my personal belongings would be returned and where we would be having a discussion regarding the charges that would be, of course, digitally recorded. At no point in our conversation did Wilson indicate that our conversations were being video taped. As I was emerging from the cell I looked Wilson in the eyes and asked him just what the charges were. He said that I was being charged for publishing “hatred toward the Jewish population.”

He also told me that even though I was now out of the cell that I was still considered to be under arrest. I proceeded barefoot upstairs to a small office and sat down. Wilson then laid his digital voice recorder on the desk and left the room for about three to five minutes without telling me where he was going. When he returned he gave me copies of the Search Warrant, the Undertaking Given to a Peace Officer or an Officer In Charge which contained the alleged offence of “Wilful Promotion of Hatred” under Section 319(2) of the Criminal Code occurring in “Quesnel, BC” from April 28, 2011 to May 14, 2012 plus a “PROMISE TO APPEAR” document. I informed Wilson at that point that my council had instructed me not to sign any documents and he was fine with that.

Wilson then began his attempt to initiate conversation with me. I had been instructed by my counsel not to engage in any discussions but I failed in that regard when Wilson began talking about how he had been reading the materials on my website RadicalPress.com over the course of the past year and longer and that he had concluded, based upon particular articles,that it was indeed a “hate” site. I countered his remark by stating to Wilson that possibly in his mind he felt it was a “hate” site but that was pure speculation on his part for the alleged complaint by Harry Abrams and Richard Warman was far from substantiated nor was it determined yet by a court of law at this point. He then went on to compliment me on my writing abilities saying that I was a very good writer but immediately launched into the same old standard arguments used by the Jewish Zionists making mention of the fact that I had on my website articles by Eustice Mullins plus the  Protocols of the Learned Elders of Zion. Surely, he remarked, I must know that that small booklet was just a work of fiction designed to implicate the Jews in crimes for which they were innocent. I replied that whether the work was fictitious or not it now stands as a roadmap of the 20th Century clearly delineating the proposed agenda for the Zionists and that the record of events shown throughout that period were solid evidence that the booklet was a preconceived agenda for global hegemony on the part of the Rothschild/Zionist Internationalists. I told Wilson that anyone who had seriously studied 20 century world history (and here I made a point of stressing that I was referring to history written by those who were not pushing the Zionist version of history as it is found in the mainstream media) could easily see that the all the major pieces of the puzzle fell into place in terms of understanding how the Protocols, in fact, outline what the Zionist Jews planned to do in order to gain absolute control over the media, the economy, the judicial system and the political and social structures that comprise the framework upon which the world’s democratic system is based. I could see that Wilson was struggling with the notion of differing versions of history as opposed to just one.

Wilson then brought up the subject of an article which I had posted on my site titled, Israel Must Perish!  He began to tell me how it was an extremely hateful piece of writing and that he wondered why I had written and published such a hate-filled book. I had to laugh aloud (and I did). At the same moment I also thought to myself, “This person is supposed to be the head honcho in charge of determining what is and isn’t to be determined “hate” literature and he doesn’t have a clue what is going on here.” When he said, in a matter of fact tone that I had gone to the trouble of actually publishing this book and posting it on my website I told him that he had the whole thing wrong. I had NOT written such a book. The truth of the matter was that all the vile, hateful statements contained in the supposed book which he thought I had written were, IN FACT, verbatim, direct quotations from a real, actual book written by a Zionist Jew by the name of Theodore N. Kaufman and published in the United States of America back in 1941. The original book was called GERMANY MUST PERISH! and I had taken this booklet and written a parody of it in order to enlighten the public as to who the real perpetrators of supposed “hate literature” were. I don’t think that Wilson understood what a “parody” was and I could also see that he was having trouble understanding what I was explaining to him. I had the distinct impression that he was not happy with the fact that the one article which he apparently felt was conclusive proof that I was publishing “hatred toward the Jewish population” was, in fact, merely a poignant example of their own style of writing being turned upon itself in the form of an imitation in order to highlight their utter malfeasance when it came to denigrating the German people. It was also quite evident to me that the choices of articles which Wilson had used in his interrogation had been supplied to him by Abrams and Warman as absolute examples of “hatred”.

Wilson kept on going on about other materials but I was done with any further discussion and told him so. He then asked me how my experience in jail was and whether or not I was satisfied that I had been treated well. I said that I felt I was generally treated in a respectful manner with one exception. Oh, he said, and what was that? I then point-blank asked him whether or not he wiped his ass after taking a shit. He looked a bit taken aback but replied that he did. Why then did he put me in a cell for close to twelve hours without providing me with the basic necessity of toilet paper so that in the event I had a bowel movement that I could at least wipe myself? Did he expect me to take a crap on camera and then attempt to wash my ass in the little stainless steel sink that was provided and afterwards use my T-shirt to dry my hands? His response was that I could have called out to a guard or the jail keeper down the hall if I was in need of having a crap and that they would then provide me with the necessary accoutrement for the job. I told him that he should have informed me of this process prior to locking me up and leaving me without the bare essentials to attend to any toileting that might arise. Wilson had no further comments to make and then an attendant arrived with my personal belongings and after putting my belt back on Wilson walked with me down to the front entrance of the police station where he let me out the front door. There waiting for me was my dear, distraught wife Shastah.

 

 

SE NOTE: More than ever, now that my former lawyer Douglas Christie has died, I am dependent upon financial help to carry on. 

The struggle to retain our inherent right to freedom of speech doesn’t come without costs both financially and otherwise. Out of necessity, I am forced to ask for financial assistance in this ongoing battle with the foreign Zionist lobbyist/censors who are determined to stop all freedom of expression in Canada. 
Being a ‘Senior Citizen’ on a very limited pension and having now been denied assistance by Legal Aid services here in B.C. I’m left in the unenviable position of having to rely solely upon donations from supporters to pay my legal and related expenses. 

 

I would ask readers to give serious consideration to helping out by either sending a donation via PayPal using either a PayPal account or a credit card or else sending a cheque or Money Order or cash to me via snail mail at the following postal address. Please don’t make the cheque out to “RadicalPress” as that account is no longer available to me.
Arthur Topham
4633 Barkerville Highway
Quesnel, B.C
Canada
V2J 6T8
To access my PayPal button please go to either the Home Page at http://www.radicalpress.com or my blog http://www.quesnelcariboosentinel.com The PayPal button is up on the right hand corner of the Home Page on either site. Feel free to click on it.
For Freedom of Speech, Justice for All,
Sincerely,
Arthur Topham
Pub/Ed
The Radical Press