Judge Moore’s Decision Acquitting Dr. James Sears in the Kinsella’s “Uttering Threats” Vanity Prosecution

ONTARIO COURT OF JUSTICE

CITATION:  R. v. Sears, 2018 ONCJ 866

DATE:  2018 12 10

COURT FILE No.:  Toronto 4811 998 17 10000304 01

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JAMES SEARS

Before Justice D. Moore

Heard on October 23-25, 30, and November 6, 2018

Reasons for Judgment released on December 10, 2018

1. Giovinazzo………………………………………………………………………….. counsel for the Crown
2. Murphy…………………………….  s. 486 counsel for the defendant Leroy St. Germaine[1]
3. Gray …………………………………. s. 486 counsel for the defendant James Sears

The defendant James Sears…………………………………………………………. on his own behalf

1. MOORE J.:

[1]           Mr. Sears is charged with “Threatening Death” contrary to s. 264.1 of the Criminal Code.   Although there was no formal admission, it was not seriously contested that Mr. Sears wrote the purported threat in an article that was published in the summer 2017 edition of “Your Ward News” a publication which lists him as the “Editor in Chief”.

[2]           The alleged threat is contained in an article[2] about an investigation of Mr. Sears by the Children’s Aid Society wherein he is extremely critical of the Society, to put it mildly.  In the article Mr. Sears theorizes that the cause of the Children’s Aid Society investigation was either the complainant Lisa Kinsella herself, or someone associated with her, or perhaps someone who had read an article she published online in the Huffington Post that was critical of Mr. Sears and Your Ward News.[3]  The alleged threat is the following passage:

I have not told our story to anyone until now.  My close friends will first learn of it in this article and wonder why I kept it from them.  No offence, but Colette and I remained silent because we have more morals than Lisa and Warren Kinsella.  You see, if I told my friends, thousands of people on my mailing list, and hundreds of thousands of readers of Your Ward News [emphasis in original] about it, while a CAS investigation was active and our son could still have been kidnapped, there was the chance that some hothead who cares deeply about me and my family, would lose it and do something illegal, like bludgeon the Kinsella’s to death.  No matter how little respect I have for them, as a Christian, I chose to turn the other cheek and let enough time pass for the people who love, would give their lives for, or would go to jail for, me and my family, to react with cooler heads.[4]

[3]           Is the above passage a threat to kill Warren and Lisa Kinsella?  This is the central issue for me to determine.  In R. v. McRae[5] the Supreme Court of Canada set out the law as follows:

10     … The question of whether words constitute a threat is a question of law to be decided on an objective standard…

11     The starting point of the analysis should always be the plain and ordinary meaning of the words uttered. Where the words clearly constitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete. However, in some cases, the context reveals that words that would on their face appear threatening may not constitute threats within the meaning of s. 264.1(1)(a) (see e.g. O’Brien, at paras. 10-12). In other cases, contextual factors might have the effect of elevating to the level of threats words that would, on their face, appear relatively innocent (see e.g. R. v. MacDonald (2002), 2002 CanLII 14251 (ON CA), 166 O.A.C. 121, where the words uttered were “You’re next”).

….

15     Thus, while testimony from persons who heard or were the object of the threat may be considered in applying this objective test, the question in relation to the prohibited act is not whether people in fact felt threatened. As the Court of Appeal for Ontario put it in Batista, witness opinions are relevant to the application of the reasonable person standard; however, they are not determinative, given that they amount to personal opinions and “d[o] not necessarily satisfy the requirements of the legal test” (para. 26).

16     To conclude on this point, the prohibited act of the offence of uttering threats will be made out if a reasonable person fully aware of the circumstances in which the words were uttered or conveyed would have perceived them to be a threat of death or bodily harm.

[4]           I find that the plain and ordinary meaning of the words in the impugned passage do not constitute a threat to kill the Kinsellas.  In R. v. Clemente[6] the Supreme Court of Canada cited the Oxford English Dictionary definition of a threat, “A denunciation to a person of ill to befall him; esp. a declaration of hostile determination or of loss, pain, punishment or damage to be inflicted in retribution for or conditionally upon some course; a menace.” [emphasis in original]  A threat must thus be forward-looking, not a comment on something that could have or even should have happened in the past if certain conditions had been met.  For this reason, coupled with the stated desire in the passage that Mr. Sears timed the article to avoid the risk of someone bludgeoning the Kinsellas to death I cannot find on this first step of the analysis that a threat is made out.

[5]           That does not end the matter, of course.  I must now consider whether contextual factors give the passage a threatening meaning not apparent on a plain reading.

[6]           Warren and Lisa Kinsella gave evidence over the course of three days.  To say that their “relationship”[7] with Mr. Sears is an extremely hostile one would be a vast understatement.  The “relationship” commenced several years ago and consisted of writings by Mr. Sears and others published in Your Ward News about initially Warren and later Lisa Kinsella with accompanying photoshopped images and graphics.  The articles and images are derogatory, demeaning, insulting, rude, crude, and designed, according to Mr. Sears, to incite and provoke a response from Mr. Kinsella in order to bring attention to Your Ward News (as Mr. Kinsella has a significant public profile).[8]  In addition to the personal attacks the content of Your Ward News generally is deeply offensive to both Warren and Lisa Kinsella.  In response they participated in, organized, and/or commenced a variety of legal and political actions aimed at exposing, opposing, and/or shutting down Your Ward News.  They wrote articles, held press conferences, lobbied politicians, and commenced this proceeding by laying a private information, amongst other things.

[7]           I completely accept their evidence that they perceived the reference to “bludgeon the Kinsella’s to death” as a call to action and a real threat to their personal safety that they took seriously.  I also find that their negative views of Your Ward News and Mr. Sears are completely understandable, justified, and sincerely held.  However, I find their interpretation of the alleged threat to be of little assistance to me in assessing on an objective basis how a reasonable person would interpret the words written, since when it comes to Mr. Sears and Your Ward News they are the opposite of dispassionate and unbiased.  They perceive everything in the worst possible light.[9]

[8]            The Crown submitted that my interpretation of the alleged threat should be guided by a review of a number of other articles and graphic depictions in Your Ward News and to that end filed Exhibits 3 and 4, containing the June, July, and November, 2015, February, Spring, Summer and Fall, 2016 editions of Your Ward News in addition to the Summer 2017 edition which contains the alleged threat.  These editions of Your Ward News essentially make up the entirety of the Crown’s case other than the testimony of Lisa and Warren Kinsella.

[9]           I certainly agree that due to:

•     the history of animus in the articles by Mr. Sears in Your Ward News directed at Warren and Lisa Kinsella,
•     the history of animus in the graphical depictions of Warren and Lisa Kinsella in Your Ward News (which although Mr. Sears likely did not create them as Editor I find he must have had some control over them, particularly when the graphics accompany an article by Mr. Sears[10])
•     the occasional use of “coded” or symbolic language in Your Ward News by Mr. Sears
•     the article containing the alleged threat was about what Mr. Sears portrayed as a significant threat to the safety and wellbeing of his infant son and not a more general political issue;
•     the article blaming Lisa Kinsella for directly or indirectly causing this threat to his family
•     Mr. Sears’ statement in an article unrelated to Warren or Lisa Kinsella in 2015 that, “I do not believe in vigilante justice unless someone is threatening the life or wellbeing of me or my family.”

it is possible to reasonably interpret the impugned passage as a threat to kill.  This interpretation results from focusing in on “some hothead who cares deeply about me and my family, would lose it and do something illegal like bludgeon the Kinsella’s to death…people who love, would give their lives for, or would go to jail for, me and my family” and ignoring other portions of the passage as being there for the purpose of creating plausible deniability or as “window dressing” for “veiling” the threat.

[10]        While this possible reasonable interpretation was certainly sufficient to justify the laying of the charge and the initiation of process on the standard of reasonable and probable grounds,[11] the standard I must consider is proof beyond a reasonable doubt.  That latter standard requires that I must acquit Mr. Sears unless the evidence satisfies me that the only reasonable interpretation of the passage is that it is a threat.  A finding that a threat to kill is a possible, or even the most likely, reasonable interpretation must lead to an acquittal.[12]

[11]        Having considered all of the evidence I am unable to find that the threat to kill interpretation set out above is even the most likely interpretation, let alone the only reasonable interpretation.  In my view a reasonable person looking at all the evidence would find that the most likely interpretation is the plain and ordinary meaning of the words and the contextual evidence does not justify displacing that meaning for the more sinister one of a threat to kill.

[12]        Had I found that the words did indeed constitute a threat to kill I would have concluded that Mr. Sears did intend them to be so, since in my view the evidence clearly establishes beyond a reasonable doubt that Mr. Sears chooses his words very carefully and deliberately, and there would not have been a doubt about there being a secondary, innocent meaning between these very hostile parties.[13]

[13]        I would like to express my sincere gratitude to Mr. Giovinazzo, Mr. Murphy, and Mr. Gray for providing tremendous assistance to me in what has been at times a very difficult, emotional case.  All three conducted themselves in the finest traditions of the Bar and I commend them.

[14]        I find Mr. Sears not guilty of threatening to kill Warren and Lisa Kinsella and order that an acquittal be entered.

Released:  December 10, 2018

Signed: Justice D. Moore

[1] On October 25, 2018 I granted a nonsuit application brought by Mr. St. Germain at the close of the Crown’s case and accordingly dismissed the charge against him.

[2] Exhibit 4 Tab 2 p. 6-7, J. Sears in Your Ward News Summer 2017, “Children’s Aid: Righteous Crusade or Greedy Charade”

[3] Exhibit 20, article by L. Kinsella from the Huffington Post, “I’m Fighting to Keep a Neo-Nazi Paper Out of My Neighbourhood”

[4] Exhibit 4 tab 2 p. 7

[5] [2013] S.C.J. No. 68 at paras. 10-16

[6] 1994 CanLII 49 (SCC), [1994] S.C.J. No. 50 at para. 7

[7] I use quotation marks as the Kinsellas had apparently never been in Mr. Sears’ presence until this trial.

[8] Exhibit 3, Tab 1, Your Ward News, June 2015, p. 1-2 “I Love Pulling Warren Kinsella’s Strings!” article by James Sears

[9] Because I have decided to give little weight to their perceptions of the alleged threat due to their admitted bias (something not seriously contested by the Crown during submissions) I will refrain from conducting a detailed credibility analysis.  Suffice it to say that Mr. Murphy and Mr. Gray were extremely effective in their cross examinations.

[10] Exhibit 3, Tab 4, Spring 2016 Edition of Your Ward News, p. 3 “Message from our Editor-in-Chief” by James Sears, “I must dedicate two solid weeks per month to prepare each issue.  I must direct our talented graphic artist Robert James on exactly how I want the paper laid out and what images I want created”.

[11] As I had earlier found in dismissing Mr. Sears’ and Mr. St. Germain’s application for a stay of proceedings, oral reasons on September 20, 2018

[12] The Crown conceded this was the correct interpretation of the law.  Although not directly on point see the decision of the Supreme Court of Canada in R. v. Villaroman 2016 SCC 33 (CanLII), [2016], 1 S.C.R. 1000 at paras. 16-43

[13] Also see Exhibit 3, Tab 1, Your Ward News, June 2015, p. 1-2 “I Love Pulling Warren Kinsella’s Strings!” article by James Sears