Former Political Prisoners & Thought Criminals Dr. James Sears & Leroy St. Germaine Seek Postponement of Appeal for Time to Prepare Constitutional Challenge

TORONTO, November 4, 2020. Tomorrow former political prisoners Dr. James Sears, editor, and Leroy St. Germaine, publisher of the satirical tabloid YOUR WAR NEWS, will appear in a phone conference before Mr.Justice Peter Cavanaugh to seek an adjournment of their appeal scheduled for November 10. They seek the adjournment to properly prepare a constitutional challenge to an interlocutory decision by Justice Ackhtar,, October 8, granting a Crown request that the Appeal, originally scheduled for October 13-15 be held by video Zoom rather that in person.

The appelants were granted time until November 10 to prepare their presentation and exhibits to fit the video format. The Appeal is against both their conviction and sentence (the maximum one year) of charges of “wilfully promoting hate” against two privileged minorities – women and Jews — contrary to Sec. 319 of the Criminal Code, Canada’snotorious hate law.

Dr. Sears and Mr. St. Germaine need more time to prepare and file Constitutional challenge and advise the 10 provincial and two territorial Attorneys-General. Dr. Sears told CAFE that the Constitutional challenge focuses on the order that the Appeal be conducted by Zoom. There will be witnesses in the Appeal — lawyer Dean Embry and Dr.Sears, among them. The Zoom venue does not allow the judge to gauge facial clues and interaction to assess credibility of witnesses, as a live hearing would do. “The Zoom ruling denies us a fair trial,” as guaranteed under Sec. 7 of the Charter which guarantees natural justice, he said.

1.      The Appellant consented to appear at a case management conference
before Justice Akhtar at 4:30 PM on Friday October 9th. He was informed of
the conference only a few hours before it was scheduled to commence.
Furthermore, it was scheduled only one half of a business hour before an
October 13th appeal hearing scheduled months in advance was to commence.

2.      Just prior to the conference, Mr. Bernstein forwarded The Appellant a
copy of an anti-facemask flyer without any context as to why it was
relevant to the case management conference. During the case management
conference Mr. Bernstein claimed to Justice Akhtar that he had never seen
the flyer before. However, at the end of an October 13th appearance before
His Honour, he admitted to having had it in his possession for 3 months,
as it had been forwarded to him by Mr. McCuaig on instruction of The
Appellant on July 9th.

3.      The October 9th case management conference lasted approx. 30 minutes
and moved lightning fast. Since it was scheduled to be a case management
conference, The Appellant was under the impression that it was just a
casual, off-the-record discussion of the logistics of the trial. During
this case management conference, Justice Akhtar was honourable enough to
admit that he made an error in scheduling the trial; that he had meant to
schedule it as an in-person hearing as agreed upon by all participants,
but instead it was scheduled to proceed by ZOOM.

4.      During this case management conference, Mr. Bernstein brought up the
anti-facemask flyer, claimed his life was in danger being in the same room
as The Appellant and/or The Appellant’s supporters, and requested that the
mode of the appeal hearing be changed to one to be held by ZOOM. Mr.
Bernstein was the only participant who had concern about appearing in
person, so The Appellant spontaneously consented to Mr. Bernstein
appearing by ZOOM whilst everyone else would appear in person.

5.      Justice Akhtar made the erroneous assumption that The Appellant could
not enter the courthouse without wearing a mask. That is simply not true,
as the Ontario Human Rights Codes clearly provides exemptions for a number
of reasons.

6.      The Chief Justice of the Superior Court has set strict practice
guidelines, one being that all self-represented appellants must appear in
person.

7.      The Appellant was given no notice before the case management conference
before Justice Akhtar, that he would be arguing a motion to change the
months-ago agreed-upon method by which the appeal would be heard.
Therefore, The Appellant did not have time to review case law and case
studies in order to argue against the motion. During this snap, surprise
motion hearing, The Appellant was told by lawyers participating in the
conference that the case law was not in his favour; and Justice Akhtar
accepted these declarations as gospel. The Appellant vehemently objected.
Nonetheless, supposedly an order to hold the appeal by ZOOM arose out of
this hearing (and there is a reason why The Appellant employs the term
“supposedly”).

8.      The Appellant has never been served with a copy of this supposed order.

9.      The Appellant has never been served with written reasons for this
supposed order.

10.     Upon attempting to order transcripts for this snap, surprise motion
hearing, the transcription company replied “The courthouse is saying they
sent the recording in error for October 9th, 2020.  It was a case
management hearing and therefore cannot be transcribed without a court
order.” Therefore, this order, if it exists at all, is not reviewable,
which is clearly unconstitutional. The Appellant asserts that as such, the
order is not enforceable.

11.     The Appellant spent approx. 2 weeks after October 13th trying to
figure out how to present evidence for his appeal hearing, by ZOOM instead
of in-person, including how to present documentation to Mr. Embry during
cross-examination on his affidavit. Hearing preparation has been extremely
frustrating; appearing by video will surely hinder The Appellant’s ability
to argue his case.

12.     Furthermore, The Appellant has been extremely troubled by the October
9th ambush. Intrusive thoughts of this egregious abuse of process have
made it difficult for him to concentrate on preparing for his
involuntarily ZOOM hearing. So for his own peace of mind The Appellant
took a break from preparing his appeal strategy and decided to confirm
that the lawyers at the case management conference were not being
disingenuous or incompetent in claiming that the case law surrounding
involuntary ZOOM hearings was clearly stacked against him.

13.     After a few days of deep research, The Appellant was disturbed to
discover that he had been misled; it appears that no case law exists where
any participant can be forced to proceed by video; case law merely
establishes where judges can order voluntary remote appearances for
participants over the objections of other participants who will appear in
person. Furthermore, upon reviewing Parliamentary debate transcripts, it
is clear that the law which expanded the auspices of remote appearances
was never meant to apply to situations such as the one before This
Honourable Court.

14.     In addition to reviewing case law surrounding the constitutionality of
forcing him to proceed by ZOOM, The Appellant reviewed procedural case law
in order to establish which court to apply to for relief arising out of
the abusive interlocutory order; an order which was argued with no notice,
in clear violation of the Principles of Natural Justice. The key case in
that regards appears to be Regina v Johnson out of the Appeals Court of
Ontario. To sum up, according to Johnson, The Appellant must ask the trial
judge (or in this case, the appeals judge at the level of court out of
which the interlocutory order arose) to hear the Charter case. In other
words, application to a superior court for prerogative writ or Charter
relief in the course of criminal proceedings must establish that
extraordinary circumstances exist such that interests of justice
necessitate immediate granting of relief (that would only apply if His
Honour denies The Appellant’s motion and tries to force him to undergo
video cross-examination on November 10th). Otherwise, issues arising in
the context of criminal prosecution should ordinarily be dealt with within
the established trial and appeal process; in this case, within the
Superior Court.

15.     Because time is of the essence, The Appellant prepared a very rough
Form 1 which Mr. McCuaig was kind enough to serve upon the Crown on
October 30th, asking for an urgent hearing before His Honour. The Crown
built upon the abuse of process by claiming that the motion was not being
brought in the right court, even though The Appellant can clearly read
English and has become pretty good at understanding case law. The Crown
made this determination so quickly that they clearly had not referenced
the necessary case law. The further building upon the already established
pattern of abuses of process, The Crown actually had the audacity to
inform Mr. McCauig by email that they were never served, even though their
email denying service, in and of itself, provided evidence of service!