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

 

 

 

 

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.

 

1. 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:

 

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

 

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

 

 

3. 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?

 

4. 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?

 

5. 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?

 

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.

 

2. 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.

 

3. 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.

 

1. 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:

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.

 

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

 

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

 

4. 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.

 

4. 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.

 

5. 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 21^st 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 (3^rd 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]