ONTARIO

SUPERIOR COURT OF JUSTICE

(Toronto Region)

BETWEEN

HER MAJESTY THE QUEEN

Respondent

– and –

JAMES SEARS

Appellant

APPELLANT’S FACTUM

Dr. James N. Sears

6 Kew Beach Avenue

Upper Floor

Toronto, ON

M4L 1B7

Email: leader@NCparty.ca

Tel: 416.488.6142

APPELLANT’S FACTUM – TABLE OF CONTENTS

PART I: STATEMENT OF THE CASE                                                                                    2

PART II: SUMMARY OF THE FACTS                                                                                  11

A. CROWN’S EVIDENCE                                                                                                     12

i. Expert Evidence of Derek Penslar                                                                                   12

ii. Expert Evidence of Janine Benedet                                                                               13

iii. Robert James Interrupts Penslar’s Testimony                                                                14

iv. Evidence of Detective Bisla                                                                                          15

B. DEFENCE EVIDENCE                                                                                                     15

C. SUBMISSIONS BY CROWN COUNSEL                                                                       15

D. SUBMISSIONS BY DEFENCE COUNSEL                                                                    15

E. TRIAL JUDGE’S COMMENTS                                                                                        15

F. TRIAL JUDGE’S DECISION                                                                                            18

PART III – ISSUES AND THE LAW                                                                                        18

A. THE LAW                                                                                                                           18

i. Promotion of Hatred                                                                                                        19

ii. Unreasonable Verdict                                                                                                     19

iii. Insufficient Reasons                                                                                                      19

iv. Misapprehension of Evidence                                                                                        20

B. ANALYSIS                                                                                                                         21

C. SUMMARY                                                                                                                        29

PART IV – ORDER REQUESTED                                                                                           29

PART V – TIME ESTIMATES                                                                                                  30

SCHEDULE A: AUTHORITIES CITED                                                                                 30

SCHEDULE B: LEGISLATION CITED                                                                                 30

 

PART I: STATEMENT OF THE CASE

1. The Appellant was charged with two counts of “wilful promotion of hatred”, one for Jews and one for women, for being Editor-In-Chief of 19 editions of Aboriginal-owned, anti-Marxist, satirical community newspaper “Your Ward News”, from May 2015 to Fall 2017. The charge included two editions that pre-dated The Appellant’s work at YWN (March 2015 & April 2015).
2. On August 15, 2018, The Appellant consented to adding the 3 newest editions of YWN to the information (total 22) in response to the AG consenting to extend charges to Summer 2018.
3. On August 29, 2018, a “prior discreditable conduct” hearing was held before Justice Blouin. On September 19, 2018, he issued a curt, declarative email ruling most of the Crown’s materials admissible, including 1. Website, blog & Twitter (though The Appellant’s authorship was unconfirmed) and 2. A document alluding to two 1992 convictions for sexual assault (even though The Crown and The Appellant’s counsel, Mr. Dean Embry, knew CPIC was clear).
4. From the outset The Appellant and Mr. Embry agreed their defence would be robust, with several expert & fact witnesses and a meticulous evocation of Section 319(3) (a) (b) (c) defences. Subsequently Embry, through several emails, phone calls & brief chats outside the courtroom during recesses, gaslighted and strong-armed The Appellant into agreeing to not call a case.
5. A trial was held in the Ontario Court of Justice, Justice Blouin presiding. On December 4, 2018, The Crown rested their case. Mr. Embry informed The Appellant that The Crown withdrew exculpatory videos from evidence, including a crucial August 21, 2017 interview titled “The Art of Trolling with Dr. James Sears” (embedded on the YWN website almost 3 months before charges were laid) that contradicts the mens rea. The YWN website stayed in evidence to capture the electronic editions of YWN, but that video was selectively-excluded from website evidence.
6. The Appellant tried to convince Mr. Embry to reconsider not calling a case because the exculpatory video was no longer in evidence. He refused. The Appellant advised Mr. Embry to argue in his closing arguments that this video was a de facto extension of the paper, as it was embedded in the YWN website; and also because The Appellant directed readers to view it in his “Message From Our Editor-In-Chief” in the Fall 2017 Edition of YWN. Embry refused.
7. Counter to what was agreed upon, rather than robustly invoking Section 319(3) defences for each YWN excerpt in The Crown’s case, Mr. Embry refused to do more than merely gloss over Section 319(3) in his closing arguments, claiming The Crown would approach their case “generally” and not create a laundry list of cherry-picked offensive excerpts from YWN.
8. Embry received The Crown’s closing arguments, including a laundry list of cherry-picked excerpts. Blindsided, on December 12, 2018 he requested more time to prepare arguments, was granted an extension, but ignored The Appellant’s repeated demands to robustly apply Section 319(3) defences and clearly evoke exculpatory passages for each cherry-picked one.
9. During January 16, 2019 closing arguments, Justice Blouin learned The Crown withdrew exculpatory videos from evidence, thought it was a mistake and expressed surprise. On January 24, 2019, The Appellant was convicted on both counts and His Honour released written reasons.
10. On April 26, 2019 The Appellant requested one hour for his allocution. Justice Blouin was annoyed, fidgety and verbally agitated. He ordered a recess so Mr. Embry could constrain The Appellant. Upon return, The Appellant, flustered and disorganized after being dressed down, delivered a fragment of his allocution. The Appellant said he would speak with Embry about filing further materials. Justice Blouin asked Embry if those materials would be filed, and without even consulting The Appellant or seeing the materials, Embry said it was “very unlikely”.
11. During The Appellant’s truncated allocution, which took place BEFORE submissions were closed, he was able to make reference to most of the violations of his constitutional rights, exclusion of the key exculpatory video from evidence, and various other legal arguments. So The Appellant was in the door with notice of those materials before it was closed by Justice Blouin.
12. On April 27, 2019, Warren & Lisa Kinsella, the key complainants, uploaded a podcast boasting Detective Bisla was their “friend”. Bisla assembled police reports to present to the AG to obtain consent for charges. The reports and victim/community impact statements gathered by her also factored into His Honour’s verdict and sentencing. The Appellant sent the podcast to Mr. Embry, instructing him to inform Justice Blouin so Bisla could be examined on it. He refused.
13. On May 10, 2019, The Appellant instructed Mr. Embry to submit two constitutional challenges. The first directly challenged Section 319(2) based on new research in Behavioural Neuropsychology. The second was related to a violation of The Appellant’s 11(f) right to a jury trial based on the recent Peers decision from the Alberta Court of Appeal, upheld by the Supreme Court. These constitutional challenges were briefly discussed with Embry several months earlier. Embry refused. The Appellant asked that they appear before His Honour ASAP to dismiss him.
14. On May 27, 2019, Mr. Embry’s first available date, The Appellant dismissed him and told Justice Blouin about constitutional challenges, further sentencing materials and other motions Embry refused to submit. Sentencing was put off from May 31 to July 15, 2019, to match the Co-Appellant’s next date. His Honour told The Appellant to submit further materials by June 15, 2019. The Appellant waived his 11(b) rights only for the 45 day delay in sentencing.
15. During the May 27, 2019 court appearance, The Appellant also informed the court of the Kinsellas’ podcast. Within hours it was deleted (first podcast the Kinsellas ever deleted). Only The Appellant, The Crown, Justice Blouin and court staff were in that courtroom. The Appellant suspects The Crown directed the Kinsellas to eliminate the problematic podcast.
16. On June 17, 2019 (June 15 was a Saturday), The Appellant submitted a 79 page omnibus document of unperfected submissions and motion requests (violations of his constitutional rights, the basis for his claim of “ineffective representation”, reasons for asking His Honour to re-open sentencing submissions, and various other motions) with preliminary case law cited to back it up. It clearly stated that none of the motions had yet been perfected and upon Justice Blouin agreeing to re-open submissions, perfected materials would be submitted to the court forthwith.
17. On June 27, 2019, The Crown emailed a response to The Appellant’s omnibus document to Justice Blouin & Co-Appellant’s counsel, but did not cc The Appellant, who was emailed after the fact. The Crown claimed it was an “oversight”. The Appellant emailed the Crown reiterating that his submissions were unperfected and requesting that The Crown appear with him before Justice Blouin forthwith in order to set a timetable. The request was ignored.
18. On July 15, 2019, The Appellant appeared before a visibly-frustrated, rushed-sounding Justice Blouin. Clearly annoyed, he curtly ruled he would only hear the ineffective representation motion, summarily dismissed all the other motions (including the request to re-open sentencing submissions) and asked for details on the expert & fact witnesses Mr. Embry refused to put forth, ruling they would be treated as “fresh evidence” (he released sparse written reasons). He said he was “retiring” at the end of August 2019. (he likely was trying to clear his cases before then)
19. On July 15, 2019, at The Co-Appellant’s sentencing hearing Justice Blouin spontaneously suggested mediation to mitigate his sentence (His Honour is a well-known advocate of mediation, has sat on mediation committees and been interviewed by media about mediation, even for the worst of violent offenders). Then he aggressively offered to assist The Crown and Co-Appellant’s counsel in finding a mediator, but never once extended the same offer to The Appellant!
20. On July 18, 2019, The Appellant forwarded Judicial Assistant Patricia Palmer threatening new voicemails from YWN’s former graphic artist Robert James Orr (schizotypal personality disorder, violent meth head) and an explanation of their significance to sentencing. Obsessed with The Appellant’s wife & child, Orr said if The Appellant was incarcerated he would terrorize his family. The threats were credible as he was arrested for uttering death threats while vandalizing The Appellant’s wife’s car twice at their home, the second time arrested at gunpoint, armed with a big knife whilst on bail from the first attack. He had just received absolute discharges on both counts! Palmer refused to inform His Honour so he could make a legal ruling until The Crown gave her permission! The Crown mischaracterized it as solely a police matter and blocked the email. Orr was a Crown witness but not called for obvious reasons (he created most of YWN’s graphics, was de facto Editor-In-Chief for the March & April 2015 Editions (the first two in evidence), and would testify that no private emails in his possession supported the mens rea).
21. August 1 & 22, 2019 were dates for the ineffective representation motion. On August 1^st Justice Blouin became extremely agitated and fidgety; then in a pressured, frustrated tone, he lambasted The Appellant & The Crown for not submitting sworn affidavits to him. Exasperated, he claimed he demanded them at the July 15^th date. However, the transcript clearly shows he was confused as affidavits were just generally discussed and there was no timetable set.
22. Over The Appellant’s repeated denials, on dates from July 15, 2019 onwards (no room in factum to list them off) an enraged Justice Blouin confronted The Appellant on an accusation that Mr. Embry “threw the case”, clearly based on an out-of-context media quote His Honour read.
23. On August 22, 2019, His Honour stunned The Appellant and Crown as he cut off Jamie Klukach mid-word, claimed he could rule on the ineffective representation motion merely on The Appellant’s sworn affidavit, briefly let The Appellant speak and summarily dismissed the motion. He ignored The Appellant’s written response to Embry’s affidavit and his repeated demands to examine Embry on its veracity and crucial omissions. Then appearing relieved, His Honour quickly delivered a 6 month sentence on each count, consecutively.  The Appellant thought that day was dedicated to the motions hearing, did not expect to be sentenced, and did not put his affairs in order. He was cuffed and led out. Reasons for the sentence and dismissing the motion were released shortly thereafter. On August 27, 2019, after The Appellant spent 6 consecutive days in “full lockdown” in the South Detention Centre (no showers or phone privileges), the first day in solitary confinement due to a bed shortage, he was released on “bail pending appeal”.
24. The Appellant appeals against both convictions and submits that the trial judge erred by:
    1. providing grossly insufficient reasons for either conviction;
    1. exhibiting a reasonable apprehension of bias;
    1. misapplying the presumption of innocence;
    1. misapplying proper procedures;
    1. admitting evidence that ought to have been excluded;
    1. ignoring exculpatory evidence in the form of a video interview;
    1. acting unfairly and against the principles of natural justice by not allowing The Appellant to provide further, fulsome sentencing submissions, considering his counsel was dismissed partially for this reason and his scheduled sentencing date was weeks away;
    1. displaying a clear misapprehension and unreasonable findings of fact at trial;
    1. drawing unreasonable conclusions from the evidence at trial;
    1. contradicting himself in regards to requiring expert testimony to reach his verdict;
    1. denying The Appellant his Common Law right to fully allocute;
    1. failing to consider inferences available from Crown evidence that raised reasonable doubt;
    1. failing to note the absence of evidence with respect to an essential element of the offence of “promotion of hatred”: proof of “wilful” intent, thereby rendering an unreasonable verdict;
    1. declaring The Appellant more culpable than his Co-Appellant whilst failing to explain why that was so when two antedated editions of YWN had already established a clear pattern which his Co-Appellant, in his police interview, admitted he had the final say in;
    1. failing to provide The Appellant with a reasonable opportunity to submit perfected materials with respect to two constitutional challenges;
    1. summarily dismissing an ineffective representation motion that needed further investigation and analysis, whilst ignoring The Appellant’s submission that his acquiescence to and support of Embry’s inept strategy arose out of him being misled and gaslighted;
    1. acting unfairly & against the principles of natural justice by not allowing The Appellant to examine Mr. Embry on his affidavit to settle the accusation of off-the-record gaslighting;
25. The Appellant appeals against his conviction on both counts and submits that he received ineffective representation from counsel;
26. The Appellant appeals against his conviction on both counts and submits that Justice Blouin should have permitted fresh evidence to be heard;
27. The Appellant appeals against his conviction on both counts and submits that because in his reasons Justice Blouin declared that The Appellant deserved 36 months in custody, far above the summary maximum, His Honour had a public duty (NOT a choice) as evidenced by case law provided to him by The Appellant, to fulfil The Appellant’s request to set aside his guilty verdict, declare the trial a preliminary hearing, and set the matter down for trial at Superior Court;
28. The Appellant appeals against his conviction on both counts and submits that he was the victim of an egregious, systematic and cumulative abuse of process that violates the fundamental principles of justice underlying the community’s sense of fair play and decency because:
29. The Crown’s summary election was disingenuous and merely meant to deny The Appellant the benefit of a jury trial, thereby excluding community input from a case which The Crown itself framed as a community-based offense of wide scope and breadth;
30. The Crown elected to fractionate the charge into two, one for each protected group, in tandem with the summary election, in order to circumvent the summary sentencing limits;
31. Realizing that by proceeding summarily the information would only capture 6 months of activity (just the Summer 2017 and Fall 2017 Edition), the Crown misrepresented the inaugural information as one continuous transaction from March 2015 to Fall 2017;
32. Knowing The Appellant’s CPIC was clear, The Crown inappropriately submitted a document alluding to prior convictions solely to sneak in “bad character” evidence; in the alternative, if this Honourable Court feels the onus was on Mr. Embry to have fought to exclude it, this fact should be considered in the ineffective representation motion;
33. The Crown choosing at the last minute to not lead evidence composed of exculpatory videos, after having for months misled The Defence into thinking the videos were entered into permanent evidence by way of the “Prior Discreditable Conduct” package and YWN website, was wanton, high-handed and unfair. The videos were the only materials eliminated from the PDC package and the only key element excluded from the website;
34. Judicial Assistant Patricia Palmer and Assistant Crown Attorney Erica Whitford censored Justice Blouin’s email in order to ensure that sentencing submissions were not re-opened;
35. His comments suggest Justice Blouin’s retirement date affected his decisions, causing him to summarily dismiss several merit-worthy motions, accompanied by sparse reasons, because he had “heard enough” and could not be bothered to put forth any more effort;
36. Two key complainants boasted about a personal relationship with the lead detective, and upon it being exposed, destroyed audio evidence forthwith, making it clear they knew the relationship was inappropriate; Detective Bisla should have been examined on it;
37. Justice Blouin refusing to hear further sentencing submissions was patently unfair since 1. He knew The Appellant dismissed his counsel primarily for refusing to tender these submissions 2. The Appellant informed His Honour of them before submissions were closed (while wrapping up his allocution) 3. His Honour knew these submissions were in lieu of a full allocution; 4. Sentencing was several weeks away;
38. The Appellant appeals against both sentences and submits that the trial judge erred by:
    1. failing to allow The Appellant to tender further, fulsome sentencing submissions;
    1. misapplying Section 718(2)(a)(i), as Parliament never meant it to redundify Section 319;
    1. overemphasizing the # of problematic passages from YWN per timeframe in contrast to the # per timeframe in other cases cited by the court, by not considering the sheer volume of materials from which and time period over which YWN passages were cherry-picked;
    1. underemphasizing that the gravity of supposed “hate” in every single cherry-picked YWN passage was by far on the lowest end of the scale in contrast to every case cited;
    1. failing to consider The Appellant’s lack of previous convictions for crimes of a “hateful” nature, in stark contrast to most other cases cited by the court;
    1. failing to consider that The Appellant posed ZERO RISK if his sentence was served in the community, as he voluntarily sealed the criminalized editions of YWN from public view immediately after Justice Blouin’s unexpected verdict;
    1. failing to consider that due to overcrowding and guard shortages, it is not in the public interest or fair to other prisoners in relation to resource management, to incarcerate non-violent, low risk “Thought Criminals” who are no threat to the public;
    1. failing to consider that The Appellant had a right to be treated at least equally to his more culpable Co-Appellant, by not having applied phantom Gladue provisions to him in order to avoid a judicial apartheid (plus Sears looks more Aboriginal than St. Germaine, lol);
    1. Spontaneously & enthusiastically suggesting the more culpable Co-Appellant could potentially mitigate his sentence through mediation with his “victims” then aggressively & joyfully offering to assist The Crown & Co-Appellant’s counsel in finding a mediator, whilst not offering such mediation to The Appellant.
    1. imposing a custodial sentence AS IF The Appellant posed a public threat, whilst ignoring The Crown’s repeated demands to ban YWN, ban The Appellant from making public statements denigrating women or Jews, sentence him to a long probation, etc., because His Honour trusted The Appellant did NOT pose a public threat;
39. The Appellant appeals against his conviction and his sentence on both counts based on any arguments common to him and his Co-Appellant as put forth by his Co-Appellant’s counsel.
40. The Appellant appeals against his conviction and his sentence on both counts based on all arguments made and authorities cited in The Appellant’s:
    1. 79 page omnibus document of unperfected submissions;
    1. 29 page rebuttal to The Crown’s response to the omnibus document;
    1. 15 page response to the affidavit of Dean Embry.

PART II: SUMMARY OF THE FACTS

• On May 26, 2016, in response to heavy lobbying by several political entities headed or influenced by Liberal Strategists Warren & Lisa Kinsella, a Liberal Cabinet Minister overseeing Canada Post issued a rare executive order revoking The Appellant’s and Co-Appellant’s mailing rights, specifically to hinder delivery of YWN. The Appellants exercised their right to have a “Board of Review” investigate the Minister’s order. The Minister got to pick the board members.
• On November 2, 2017, The Board issuing a preliminary decision in favour of The Appellants, citing that The Minister provided no evidence of “hate speech” (she merely claimed ALL of YWN was problematic). On at least 3 separate occasions before that date, Canada Post lawyers reviewed YWN and determined it did not contain “hate speech”. At least twice before that date, a police spokesman declared to media that YWN had broken no laws.
• Within days of The Appellants’ exoneration, political lobby groups headed or influenced by Warren & Lisa Kinsella, lobbied Ontario’s Liberal AG to find a way to stop YWN (both the Kinsellas and federal/provincial Liberal Parties, were frequent targets of YWN’s political satire). On November 10, 2017, the AG consented to two charges of “promotion of hatred”, one for Jews and one for women (the latter specifically championed by Lisa Kinsella), capturing all editions of YWN dating back to March 2015, including editions cleared by Canada Post lawyers.
• Though from the outset The Crown framed it as a “community values” case involving a heinous and widespread dissemination of “hate speech” impacting most of the Southern Ontario region, they elected to proceed summarily. A trial by judge alone began on November 28, 2018, with The Crown’s evidentiary portion lasting approx. 4 days; The Defence called no case.

A. CROWN’S EVIDENCE

i. Expert Evidence of Derek Penslar (just some examples)

• “So Chateau Rothschild Essence d’Enfant. So it’s essence of child, so it’s the child’s blood and then 1948 was the Star of David. The Star of David therefore showing that it’s Jewish, and 1948 was the year in which the State of Israel was created. So this is a direct borrowing of a famous anti-Semitic trope going back to the 12th Century that Jews ritually murder children, and in the Christian tradition the accusation was that Jews murder the children and they actually drink the blood.” Transcript, Nov 28, 2018, p 33, ln 5

• “That in the 1970’s the Bank of Canada which previously had been able to provide money at low interest rates was forced to give up that practice. The government had to borrow at much higher interest rates thus ruining the Canadian economy and the accusation in Your Ward News is that this practice was the result of influence from Rothschild, that is a Jewish conspiracy. There is no evidence. There is no bases in truth to any of this. There was no such policy in the 1970’s. It’s complete fabrication.” Transcript, Nov 28, 2018, p 36, ln 5

• “Well, “Expel the parasite”, the notion that the country has been infected by something evil and that it has to be – this parasite has to be expelled. It’s a very important component of Nazi ideology and the parasite was ultimately; the parasite was the Jew. That is the Judeo-Capitalist. The Judeo-Marxist. But ultimately, the Jew was the parasite.” Nov 28, 2018, p 51, ln 5

• “Well, it’s not clear. I mean there is a very strong anti-Marxist tone to the newspaper, absolutely true, but the parasite can be – it can be Marxism, yes. There is also vote against Rothschild, so you know who’s the parasite, is it Rothschild, is it the Marxist? I don’t dispute that Your Ward News has a very strong anti-Marxist orientation.” Nov 28, 2018, P 103, ln 5

• Q. “… anti-Semitism does not have to equate to hatred, would you agree with that? A. “I would agree that anti-Semitism is a set of negative emotions about Jews that can be identified with hatred, hostility. I think that’s what I would – how I would define it. I was offering a very quick, you know, summary definition, but you’re right that it a definition that requires greater explanation.” Nov 28, 2018, p 64 ln 25

• “… the majority of North American Jews today are not Talmudic Jews … About 10 to 15 percent of North American Jews are Orthodox, and in that sense, they would be called Talmudic” Nov 28, 2018, p 78, ln 5
•  “A. It’s–you find it in Turkey and in fact it was at the centre of a major Turkish television program a couple of years ago … state-owned television … Q. Okay. So it was something that was widely spread very recently in Turkey and reported in Your Ward News. … A. Well, I don’t if reported would be the right word. I would say replicated.” Nov 28, 2018, p 87, ln 20

• “I don’t know. I mean, the notion of someone being someone’s puppet as a verbal phrase can be used outside of and beyond an anti-Semitic framework. I have not looked into the history, the long history of images of people as puppets, but I do know that the image of the Jew as a puller of strings and a puppet master is very apparent in anti-Semitic propaganda and in Your Ward News.” Nov 28, 2018, p 94, ln 15

• “Q. Okay, and in terms of some of the other imagery, can you opine why there is a Swastika on a recycle bin beside the former premier Kathleen Wynne? A. I think that is a part of the Your Ward News’ general feeling that liberalism broadly understood and liberalism particularly in the Province of Ontario is a form of oppression and it’s a very strange thing because the Swastika is also something that is admired very much in this newspaper, but just as we have seen before in my previous testimony, images can go both ways … So it’s a complicated image because I mean overwhelmingly Your Ward News presents the Swastika in a positive way. It could be and I don’t know, but clearly there is a political intent by putting a Swastika on a recycling bin … It’s not clear. Let’s put it this way. It’s not clear to me where it fits within the framework of anti-Semitism in Your Ward News.” Nov 28, 2018, p 99, ln 10

• In the November 29, 2018 transcript, from page 4, line 20, to page 11, line 30, Penslar admitted on cross-examination by Mr. McCuaig, when presented with an English translation, that he totally misrepresented YWN as being similar to an anti-Semitic Nazi German manuscript!

ii. Expert Evidence of Janine Benedet (just some examples)

• “Feminism is both a social movement and a, a theory – school of thought.” Transcript, Dec 3, 2018, p 8, ln 25
• ‘Well, I think it is important to remember – and, and certainly where the publication is drawing on some of these old documents – that these aren’t beliefs or idea about women that were just invented by the authors of this publication or invented in the last five or ten years. They have deep roots in, in a social system in which historically women have not had equal legal, social, political rights to men. And so it – it’s important to recognize the deep roots of these beliefs and the fact that at a time when they were accepted at – in at least some measure by those in power, they were reflected.” Dec 3, 2018, p 90, ln 25

• “And so, it’s important to, to recognize that, in my opinion, so that we can see that these beliefs can have traction in, in, sort of, real world outcomes and that if they are reinstituted, we can roll back gains that we have made towards, towards women’s equality. So that’s how historically, at least, I would situate these beliefs in the context of the criminal laws around sexual assault, in particular.” Dec 3, 2018, p 92, ln 5

• “I would say that acceptance of these beliefs really threatens to roll back gains that we’ve made in dispelling myths about the inferiority of women. And it is wrong to think that those gains are somehow immutable or fixed and that there isn’t ground to be lost if, if those beliefs about women are allowed to influence the way we make law and policy. So there are – there are concrete risks to society from allowing these beliefs to simply go unchecked and to, to, sort of, cultivating an environment in which those who are drawn to them can find their views reinforced.” Dec 3, 2018, p 121, ln 15

• “If what’s being said – and, and, again, I, I, I want to keep coming back to this – that the man is the head of the household and therefore the woman is subservient to him – again, I think, we’re certainly in the, the realm of statements that could be – that could be understood as part of – part of a system of misogynist beliefs.” Dec 3, 2018, p 128, ln 25

• “Men who disagree with this – with this stance are also caricatured in this publication, often in homophobic terms … Certainly, men who are seen as supporting women labelled as feminists are, are spoken of in disparaging terms” Dec 3, 2018, p 138, ln 25 to p 139, ln 5
• “Q. Okay. But it’s not used interchangeably with women? Well, you couldn’t – you couldn’t replace feminist with women – women with feminist – in this – in Your Ward News and it – and, and have it still make sense? A. No. I mean, I, I suppose, that’s not – I suppose that – that’s right. It’s being used as a particular kind of slur, yes.” Dec 3, 2018, p 142, ln 10

• “Q. …in your survey of, sort of, the area – is the person Dimitri the lover Canada’s, like, leading pick-up artist or seduction guru? A. I’m not sure there’s anyway to, to measure that, but, no. I mean, I understand that to be a persona that’s being adopted by the person who’s writing. It’s a – it’s a boast, right – about – yeah. Q. And similarly with regard to the, the, the wrestling advertisement, the bios that are under Dimitri the lover and the other people, would you agree that they’re not supposed to be taken at face value for their truth? A. Oh, no, that’s – that – I would agree with that, yes.” Dec 4, 2018, p 2, ln 30

• “Q. Okay. So, so when you saw lone wolf gender warrior, the term social justice warrior didn’t come to mind? A. No, because it’s always abbreviated as SJW so…. Q. And you – and you just thought warrior meant, like, a call to violent action? A. Yeah, yeah. And particularly in the context of this, sort of, hyper-masculine kind of rhetoric.” Dec 4, 2018, p 13, ln 30

• Pornography is more misogynistic than YWN. Dec 4, 2018, p 28, ln 10 to p 29, ln 5

iii. Robert James Interrupts Penslar’s Testimony with Death Threat vs Appellant

• “I’m sorry, I’ve got to stop this. These two people are assholes. Get [Mossad] to take them out.” Embry explains he’s breaching bail by being there. Transcript, Nov 29, 2018, p. 48, line 5

iv. Evidence of Detective Bisla

• “We received complaints from seven police services, including Toronto, and there were 175 complaints.” Apr 26, 2019, p 10, ln 5

B. DEFENCE EVIDENCE (NO CASE CALLED)

C. SUBMISSIONS BY CROWN COUNSEL

• “Of course, the Crown is going to allege that Your Ward News constitutes hatred, but this is a legal determination and at trial, the Crown is going to rely on expert evidence to assist in providing background and context for evaluating that issue” Transcript, Aug 29, 2018, p 14 ln 10
• “And I would ask that Your Honour qualify Dr. Penslar as an expert in Anti-Semitism, its history, common features, and themes.” Transcript, Nov 28, 2018, p 15 ln 30
• “Professor Benedet is legal scholar, expert in the area of sexual violence against women and its relationship to misogynistic belief systems.” Transcript, Dec 3, 2018, p 2, ln 25

       D. SUBMISSIONS BY DEFENCE COUNSEL

• “MR. EMBRY: And, sort of, the, the shorter version of it is the, the Crown’s submissions were a good deal more voluminous than I had expected to receive and I feel that I’m – I need to respond, not exactly in kind, but I wasn’t prepared to respond to that volume of submissions. So I’m asking for an adjournment today.” Dec 12, 2018, p 1, ln 15

E. TRIAL JUDGE’S COMMENTS

• Justice Blouin made multiple comments indicating he was in a rush to dispose of the case:
• “And again, in my view, written submissions don’t have to be in great volume. And, in fact, often the most effective written submissions are a few pages just outlining the, the areas and – that, that you’re supporting your position within the evidence.” Dec 4, 2018, p 79, ln 10
• “And just in terms of the, the written submissions – obviously I’m not going to direct anything about the written submissions, but the shorter the better. Five pages or less I find the, the most effective.” Dec 4, 2018, p 83, ln 5
• “Sure. As I say I’m not going to limit it to a page number, but I always find that to be the most effective as opposed to volumes and volumes. And then, then the other side feels they have to, you know, put volumes and volumes in and not all of it is all that necessary.” Dec 4, 2018, p 83, ln 15

• “Yeah. I don’t want to get going into this back and forth so … you got to be very brief … That’s not necessary … I’ve read – spent a lot of time with this material … All right. I want to make a decision quickly … I’ve had a chance to go over the material and put together the best majority of my judgment. I’d like to … give you a decision very quickly, within a week.” Jan 16, 2019, p 59, ln 20 to page 61, ln 5

• “MR. EMBRY: I do have a message from Mr. McQuaig saying, “On my way.” That was about 15 minutes ago. THE COURT: Okay. Well, this is really – is, is – his role is done at this point. This is [indiscernible]. I’ll give the judgment now.” Jan 24, 2019, p 2, ln 5
• “THE COURT: I’m trying to, to render a judgment on this matter as quickly as, as is possible.” Apr 26, 2019, p 97, ln 25
•  “I’d like to deal with this before the end of August” Jul 15, 2019, p 1, ln 20
• “MR. FLUMERFELT: … I mean, if we’re thinking about an August timeline, putting it over now for two weeks for another discussion, I think we can forget about August really. Realistically. THE COURT: I’m not sure, I’m not sure about that, but obviously I would like to move this on as…as quickly as possible.” Jul 15, 2019, p 3, ln 30

1. “THE COURT: It’s an irritant, without question, in scheduling. But, yeah, I’m retiring from fulltime work at the end of August but I’ll, I’ll continue to do per diem work …for as long as I, I feel I should. But so, obviously the scheduling becomes a little more complicated when I’m not here fulltime …” Jul 15, 2019, p 4, ln 30

• “MR. FLUMERFELT: …what the remainder of your August schedule will look like and whether there are even any holes in it. THE COURT: … Obviously, you’re right. The cross-examination on the affidavits would be, would be complicated and, and have the matters extend further, but I guess we’ll, we’ll get to that.” Jul 15, 2019, p 5, ln 25

• Justice Blouin made reference to the exculpatory videos as follows:
  • “There was a copy given to me and I obviously read it and viewed the videos” Transcript, Aug 29, 2018, p 6, ln 25
  • In response to the videos not being on a disc “We’re going to need those then” Transcript, Aug 29, 2018, p 7, ln 10
  • “I’m not sure whether they were made exhibits or not but there’s also another item which was a compilation of interviews that was on a DVD that was agreed upon as being – I don’t think there was any issue taken with that as being part of discreditable conduct … It certainly wasn’t in the – I wondered if it was just a mistake but it wasn’t in the documents. You took out…” Jan 16, 2019, p 34, ln 15

• A seething Justice Blouin confronts Mr. Embry on supposed condoning of spousal rape:

“What about the comment that you can’t rape your wife because she’s chattel? …  he’s talking about the absence of rape in situations where the – and your wife – in all situations because in all situations your wife is a piece of property? … Women are not human, they’re chattel? … It’s not hate?” Jan 16, 2019, p 54, ln 15 to p55, ln 10

• His Honour denies The Appellant full allocution, Apr 26, 2019, p 80, ln 30 to p 83, ln 20

• Justice Blouin flip-flops on Mr. Embry submitting The Appellant’s sentencing materials:

1. “JAMES SEARS: I would like to supply the court with a brief after to speak towards sentencing, if I can. THE COURT: Well, that’s usually what the lawyer does, and I’ll, I’ll rely on Mr. Embry to do that. JAMES SEARS: On my behalf, okay. THE COURT: On your behalf, yeah.” Apr 26, 2019, p 83, ln 10

• “JAMES SEARS: And I will give my lawyer the 62 pages, and he can decide whether or not further submissions should be before the Court.” Apr 26, 2019, p 96, ln 20
  • “THE COURT: Now, Mr. Embry, you’re going to have to help me here just in terms of generally at the end of hearing from the defendant, we’re not talking about further submissions, but did you need some time to speak to your client about what else I should… MR. EMBRY: Umm. THE COURT: … I should receive? Or… MR. EMBRY: Yeah. I think it’s very, very unlikely that I would make any further submissions, or submit any further brief having heard the allocution. So I…. Apr 26, 2019, p 98, ln 5

• “JAMES SEARS: And what about additional sentencing submissions? You didn’t mention that specifically. Are you going to allow me to perfect sentencing submissions? THE COURT: We’ll talk about that in two weeks. I am not, at this stage. I don’t think any further sentencing submissions, as the case stands now, would make any difference. So, or make such little difference that it would make no difference.” Jul 15, 2019, p 2, ln 10

• Regarding The Appellant’s inquiry about the “fresh evidence” motion “THE COURT: I want to deal with the issue of ineffective assistance of counsel, because that’s the key part of this. That is the part that, unless you get past that ridge or that fence, then the other, the, the rest of it doesn’t matter.” Aug 22, p 10, ln 10

• An animated Justice Blouin delivers 3 screeds on his personal experience with the miracle of “mediation”, the third after the Co-Appellant’s unrepentant allocution, claiming with a “skilled facilitator” there was even hope for him. Jul 15, 2019, p 48, ln 30 and p 49, ln 30 and p 55, ln 5
•  Upon learning Co-Appellant refuses to apologize via mediation, Justice Blouin says “full contrition” not required & offers to find mediator himself. Aug 1, 2019, p 18, ln 25 & p 20, ln 25
• The Appellant repeatedly demanded to cross-examine Mr. Embry on his affidavit:
  • “JAMES SEARS: Your Honour, but do I have the right to cross-examine Mr. Embry on his affidavit? THE COURT: You may or you may not, depending upon what I rule. So I need to see your affidavit first, I need to see Embry’s first. Then I’ll open it up on the 22nd, if that’s the date we choose, and I’ll let you say some things; I’ll let you make submissions; I’ll let you make an application to cross-examine Mr. Embry if that’s what you choose to do. But let’s — it’s hard to do this in the abstract.” Aug 1, 2019, p 15, ln 10

• “JAMES SEARS: Well, what I said in writing is that I am not accepting – okay, I can rely on, on Mr. Embry’s affidavit to support my motion. However, I am – I made it very clear in my 15-page final submission that I, that is not to say that everything in Mr. Embry’s affidavit is accurate, and I should have the right to crossexamine him on it and, and I reserve that right.” Aug 22, 2019, p 5, ln 5

• “JAMES SEARS: Well then, I am going to have to cross-examine Mr. Embry and his affidavit because I had private conversations with him and those private conversations are relevant to the case, so….” Aug 22, 2019, p 13, ln 15

F. TRIAL JUDGE’S DECISION (reiterated in written decision)

• “I agree with your counsel in this matter that it’s important to read all of the issues of Your Ward News, and not just pick out certain quotes and certain parts, passages, that are in the newspaper. When one does that, and I have done that, there is an overarching and unrelenting message of hate. The breadth and depth of this message made it clear to me, beyond any doubt, that you both fully intended to promote hate. While both experts in this trial were excellent, and they assisted this Court in understanding a wider historical context regarding both anti-Semitism and misogyny, the 22 issues of this newspaper provided all the evidence necessary to concluded that you both willfully promoted hate. If this material does not rise above distasteful expression to qualify as hate, then I can’t imagine what will.” Transcript, Jan 24, 2019, p 2, ln 20

PART III – ISSUES AND THE LAW

A. THE LAW

i. Promotion of Hatred

• This case has no similarity to any Section 319(2) cases cited by Justice Blouin, requiring this Honourable Court to review past cases as referenced in The Appellant’s “Schedule A”. 
• The Supreme Court of Canada reiterated the Keegstra decisionin Mugesera:

“Promotes” means actively supports or instigates. More than mere encouragement is required: R. v. Keegstra 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697. Within the meaning of s. 319, “hatred” connotes “emotion of an intense and extreme nature that is clearly associated with vilification and detestation”: Keegstra, atp. 777. 

Only the most intense forms of dislike fall within the ambit of s. 319 … The trier of fact must consider the speech objectively but with regard for the circumstances in which the speech was given, the manner and tone used, and the persons to whom the message was addressed …  the use of the word “wilfully” in subs. (2) suggests that the offence is made out only if the accused had as a conscious purpose the promotion of hatred against the identifiable group, or if he or she foresaw that the promotion of hatred against that group was certain to result and nevertheless communicated the statements. Although the causal connection need not be proven, the speaker must desire that the message stir up hatred.

ii. Unreasonable Verdict

• By operation of sections 686(1)(a)(i) and 822(1) of the Criminal Code, this Honourable Court may allow an appeal where it is of the opinion that a verdict should be set aside as unreasonable. Criminal Code of Canada, R.S.C. 1985, c. C-46, ss.686, 822.
• An unreasonable verdict is one that a properly instructed jury acting judicially could not have rendered; and, “[a]pplying this standard requires the appellate court to re-examine and to some extent reweigh and consider the effect of the evidence”.

R. v. R.P., [2012] S.C.J. No. 22 (S.C.C.) at para. 9

R. v. Villaroman, [2016] S.C.J. No. 33 at para. 55

R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3

iii. Insufficient Reasons

• It is well-established that courts have a duty to give reasons to “explain the court’s disposition of the case and facilitate appellate review of findings made at trial.”  As explained by the Supreme Court in R. v. Dinardo, infra:

24     In R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, this Court confirmed that courts have a duty to give reasons. Reasons serve many purposes; in particular, they explain the court’s disposition of the case and facilitate appellate review of findings made at trial. The content of the duty will, of course, depend upon the exigencies of the case. As this Court has noted, “the requirement of reasons is tied to their purpose and the purpose varies with the context” (Sheppard, at para. 24).

25     Sheppard instructs appeal courts to adopt a functional approach to reviewing the sufficiency of reasons (para. 55). The inquiry should not be conducted in the abstract, but should be directed at whether the reasons respond to the case’s live issues, having regard to the evidence as a whole and the submissions of counsel (R. v. D. (J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 32). An appeal based on insufficient reasons will only be allowed where the trial judge’s reasons are so deficient that they foreclose meaningful appellate review: Sheppard, at para. 25.

27     Reasons “acquire particular importance” where the trial judge must “resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge’s conclusion is apparent from the record” (Sheppard, at para. 55).

R. v. Dinardo, [2008] S.C.J. No. 24 (S.C.C.) at paras. 24-25, 27

R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869

R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3

iv. Misapprehension of Evidence

• One or more failures on the part of the trial judge in a judge-alone trial:
  • “failure to consider evidence relevant to a material issue”;
  • a “mistake as to the substance of the evidence”; or
  • a “failure to give proper effect to the evidence”.
• The reversible error must result in an unreasonable verdict, an incurable error in law or a miscarriage of justice:
  • “go to the substance” of the case and cannot simply be a “detail”;
  • It must be “material” and not “peripheral” to the reasoning of the case;
  • “play an essential part in the reasoning process”, and not simply be narrative.

R. v. Morrissey, 1995 CanLII 3498 (ON CA)

• Movchan provides an excellent summary of the case law:

 [20] The standard of review on findings of fact is palpable and overriding error. The trial judge is entitled to deference on findings of fact and factual inferences. The appeal court is not to interfere unless the trial judge was clearly wrong, unreasonable, or the fact findings were unsupported by the evidence: R v Clark, 2005 SCC 2 at para 9. The Court further noted:

The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result.

[21] The standard of review on questions of law is correctness. Housen v Nikolaisen, 2002 SCC 33 (at para 8).

[22] Failing to consider the totality of the evidence is an error of law. R v Lohrer, 2004 SCC 80. The error must play an essential part, not just in the narrative of the judgment, but in the reasoning process resulting in the conviction: Lohrer, at para 2

[23] The standard of review for whether a verdict is unreasonable or unsupported by the evidence, is whether a properly instructed jury, acting judiciously, could reasonably have rendered the verdict. R v Biniaris, 2000 SCC 15 (at para 36); relied on in R v Lee, 2010 ABCA 1, at para 7; aff’d 2010 SCC 52, at para 4. In Lee, the Supreme Court of Canada described the Biniaris test as the test for an unreasonable verdict, while it described the Lohrer test as the test for the misapprehension of the evidence.

[24] In Lee, (at para 9), the Alberta Court of Appeal set out the essential distinction between the Biniaris and the Lohrer tests:

a) the Lohrer test applies when the attack is on a discrete finding of fact and it appears the conclusion of the trial judge on that fact is unsupported by any evidence, or perhaps that it is against the overwhelming weight of the evidence on that point,

b) the Biniaris test (unreasonable verdict) applies when the attack is on the overall strength of the case, and not any discrete finding of fact that is said to be plainly inconsistent with the uncontradicted evidence.

[25] In Phipps, 2010 ABQB 661 (at paras 8 and 9) Moreau, J says that the issue of whether the learned trial judge properly admitted into evidence the officer’s observations after the accused was stopped involved a question of mixed fact and law – namely application of a legal standard to a set of facts. Moreau J went on to find that the standard of review of the trial judge’s conclusion that the accused ability to drive a motor vehicle was impaired by alcohol is whether a properly instructed jury acting judicially could reasonably have rendered the verdict (Biniaris).

R v Movchan, 2016 ABQB 317 (CanLII)

B. ANALYSIS

• Justice Blouin displayed tunnel vision, ignoring the fact that this case lacks every single mens rea hallmark for “wilful promotion of hatred” pervasive in case law he relied upon, including but not limited to: 1. Clandestine or anonymous dissemination of message 2. Messenger avoids dialogue with recipients 3. History of messenger’s involvement with a “hate group” or hate-related fiasco or crime 4. Intense emotional overlay contemporaneous with message, ranging from zealous fervor to intense rage 5. Message disseminated such that dissenting voices are shut out, drowned out or simply ignored 6. Inability of messenger to be dispassionate or display restraint when discussing target group 7. Hate so intense that messages are often spontaneous and uncontrollable 8. Recipient not given choice of escaping the message, i.e. spray-painted on property, disseminated to captive audience of students or transit riders, etc.
• Justice Blouin displayed tunnel vision, ignoring the fact that this case lacks every single actus reus hallmark for “wilful promotion of hatred” pervasive in case law he relied upon, including but not limited to: 1. Universal vilification of target group 2. Lack of exculpatory, contradictory or conflicting messages within or adjacent to subject message 3. Message about target group framed as PSA-style warning 4. Fear-based prose/imagery, i.e. “THEY ARE HERE AND BREEDING” 5. Clear, unequivocal message of vilification 6. No hope for target group to ever assimilate in society i.e. all group members must be killed, sterilized, deported, to save Canada 7. Laser focus of message on target group(s) with total lack of extraneous messages 8. Humour employed in dark, deadpan way to elicit rage or fear rather than being zany, baffling, satirical vehicle meant to open discussion 9. Message seeks to elicit blind rage instead of public discourse 10. Blatantly fraudulent misrepresentations rather than merely eccentric interpretations of target group, i.e. re-publishing newspaper articles with words substituted in order to vilify target group, mis-ascribing scriptural quotes to elicit rage towards or fear of target group, etc. 11. Messenger ensures he is always taken seriously and never mocked within the message 12. A clear “us versus them” analogy with battle lines drawn and no hope of peaceful resolution or dialogue with target group, i.e. they can never be saved or redeemed or become “one of us” or be “like us”.
• His Honour grossly misapprehended evidence firstly by erroneously substituting biased experts’ contradictory, subjective, catch-all hallmarks of “anti-Semitism” & “misogyny” for the objective legal criteria for “promotion of hatred” meticulously assembled above from case law by The Appellant (“Sears Criteria For Promotion of Hatred”, NOT to be confused with subjective, catch-all “Hallmarks of Hatred” that are NOT necessarily criminal); and secondly by erroneously drawing a TWO-WAY inference from a one-way correlation between hallmarks of misogyny & anti-Semitism and those for Criminal Code hatred, ignoring that 100% of people promoting hatred against Jews or women harbour anti-Semitic & misogynistic views, whereas 99.999% of people with anti-Semitic or misogynistic views NEVER promote hatred against Jews or women.
• Justice Blouin’s reasons for judgement para. 3 state “One argument contends that the need to employ experts by the Crown, in and of itself, recognizes the obscurity of the material.” Then to neutralize this argument, in para. 4 he states:

“I had no trouble accepting either expert’s evidence. As helpful and impressive as they turned out to be, in my view, they were not necessary. The agreed statement of facts (Exhibit 1), Mr. St. Germaine’s police statement (Exhibit 18), and Exhibit 2 (the 22 issues of YWN) provide a complete factual foundation for my analysis.”

Yet within his subsequent analysis, he contradicts himself by citing Professor Penslar in para. 21, para. 23, and multiple times throughout the appendices; and evokes wording from both experts’ reports to draw inferences into what he thinks the passages he cherry-picked from YWN mean!

• His Honour’s highly-declarative finding of guilt relied upon viewing YWN as an omnibus body of work because not a single excerpt or string of excerpts in YWN, orphaned from over 400 pages entered into evidence, met the actus reus. However, he did not apply the same standard in determining “reasonable doubt”, ignoring or glossing over hundreds of exculpatory, equivocal, unclear, contradictory and conflicting messages throughout the body of work, which provide reasonable doubt as to both the mens rea and actus reus. The BARE MINIMUM STANDARD was for him to provide a brief analysis adjacent to each cherry-picked excerpt, AT LEAST explaining why countless exculpatory and conflicting messages, often within the same article, did not create “reasonable doubt” as to the intended meaning of the out-of-context passage.
• Many of His Honour’s cherry-picked passages are not critical of or even directed at Jews or women, and merely attempt to portray The Appellant as having bad character or unsavoury political/historical views. Nonetheless, dividing the number of cherry-picked passages critical of one or some Jews or women by 22 editions spread over 3.5 years, most of which were published quarterly, garners a few excerpts every 3 months buried amongst 20 pages of newsprint–the lowest utterances per timeframe in all the case law, contradicting His Honour’s deeply-biased narrative of an “unrelenting” promotion of hatred (the only thing “unrelenting” was His Honour’s obsessive, out-of-context chronicling of every single unflattering remark about Jews or women).
• This case is purely circumstantial for the mens rea, as there is no direct evidence of “wilfulness”; and for the actus reus, as there is no direct evidence of what messages are meant to convey. Justice Blouin merely inferred meaning. And since the content was eccentric and clearly satirical, he drew wild inferences to “fill in the blanks” and create a sinister modus operandi.
• Even if this Honourable Court finds that a few utterances clearly met the actus reus for “promotion of hatred”, because over 400 pages of often highly provocative, outrageous and inflammatory anti-Marxist material were published over a 3.5 year span, such utterances were obviously inadvertent, like an overzealous street preacher spewing “fire and brimstone” bible verses and accidently spitting on a passerby, and therefore do not meet the mens rea requirement.
• Including two editions published after the information date, 4.4 million physical copies of YWN distributed over 4 years and read by at least 10 million people, garnered a paltry 175 complaints (1 per 57,000 readers), most of them solicited by the Kinsellas and various special interest groups. But police did not document even one criminal incident encouraged by YWN. And those numbers do not include electronic downloads and pdf sharing!
• The Crown’s experts had a stake in the outcome of the trial and displayed gross bias, causing Justice Blouin to misapprehend evidence by them repeatedly forcibly bestowing the most sinister meaning upon passages which on a balance of probabilities were meant to be interpreted otherwise. Benedet’s voice broke to near tears as she read passages from YWN. Penslar became extremely uneasy & testy when merely asked if questioning “Jewish Holocaust” details was OK.
• Penslar declares a front cover of the Winter 2018 Edition clearly critical of Trudeau supporting Israel’s bombing of Palestinian children, to be Jews ritually murdering children and drinking their blood,  ignoring that in a previous article the Trudeaus were mocked for blood-drinking (February 2016 Edition, p 8), the Rothschilds own a winery and they funded Israel’s creation; declares The Bank of Canada changing monetary policy in 1974 “a complete fabrication”, yet YWN’s article cited a class action lawsuit by Rocco Galati for “COMER” that CBC also reported on; equates “parasite” to “Jew” even though YWN only uses “Marxist Parasite”, never “Jew” or “Zio” adjacent to it, then he flip-flops on cross-examination; admits HIS definition of “Anti-Semitism” is so much broader than the classic definition that it can actually exist WITHOUT “hatred”; admits YWN only criticizes 10-15% of Jews, not Jews as a group; repeatedly admits (throughout the transcripts) that disputed passages in YWN are based on some truth or on information from known sources (such as Turkish state television) but that he personally disagrees with the narrative; admits to just assuming puppetry in YWN was “anti-Semitic”; repeatedly displays confusion, admitting images in YWN can be interpreted in opposite ways, such as the swastika used both positively and negatively (a common satirical technique); admits he misrepresented a clearly anti-Semitic German manuscript as being similar to YWN.
• Benedet admits feminism is a social movement, theory, school of thought; admits YWN’s beliefs have “deep roots” in our society; admits YWN’s beliefs may have “traction” and affect political change, chiefly in “law and policy”; claims the belief a man is “head of the household” could be part of a “misogynistic belief system”; admits men who disagree with YWN are mocked equally to women; admits YWN does not use “feminist” to mean all women; admits “Dimitri The Lover” and wrestling personas are not to be taken seriously; admits she misattributed sinister meaning to “Lone Wolf Gender Warrior” (because she got emotionally caught up in YWN’s rhetoric); admits pornography that is LEGAL in Canada is MORE misogynistic than YWN!
• An incensed Justice Blouin, grinding his teeth and clenching his fists, sternly confronted Mr. Embry on what he claimed was condoning of spousal rape in an absurd article “How To Use ‘Jury Nullification’ To Quash Laws That Discriminate Against Heterosexual Men” (Fall 2015, p 10). It was the only time he became animated during submissions. The article was clearly meant to open a discussion on how “innocent until proven guilty” is now “always believe the victim”, by satirically condoning the extreme opposite: “always believe the rapist/abuser”. The transcript does not reflect it but Embry was a discombobulated mess for almost a minute before responding. His Honour clearly contradicted his own statements that YWN must be viewed as a whole, because in a NON-SATIRICAL article on Lisa Kinsella and Children’s Aid (Summer 2017, p 6), The Appellant wrote about the nullification article “What Kinsella refers to is a SATIRICAL ARTICLE in the Fall 2016 Edition of Your Ward News, written by performance artist “Dimitri The Lover”’ (emphases in original). Also, Dimitri The Lover’s satirical article on Valentine’s Day (February 2016, p 10) states “… he must feel that his woman is higher echelon chattel meant to be protected from theft or damage, and worshipped like a fine automobile.” And clearly even Professor Benedet agrees “Dimitri The lover” should not be taken seriously!
• The Crown’s decision to fractionate the charge runs counter to Crown protocol and long-established jurisprudence evident in all previous Section 319 case law where hatred directed at multiple protected groups arising out of one body of work resulted in one charge, making our case tantamount to a selective and bad faith prosecution, and therefore a wanton and high-handed abuse of process meant to selectively double The Appellant’s potential penalty for the offence whilst denying The Appellant the benefit of a jury trial for which a potential sentence over 6 months entitled him to under Section 319(2).
• The Crown’s decision to elect to proceed summarily in direct contradiction to their narrative that the offense was of broad scope and heinous breadth, runs counter to long-established jurisprudence and Crown protocol evident in all previous Section 319(2) case law, making it tantamount to a selective and bad faith prosecution, and therefore a wanton and high-handed abuse of process meant to ignore the special relevance of this particular case to the community and its highly-politicized nature. The Crown elected to proceed summarily in order to circumvent community oversight and deny The Appellant the benefit of a jury trial, instead trying him for his “Thought Crime” court martial-style in a de facto “Star Chamber”. The Crown knew finding a judge dispassionate about every offensive subject broached in YWN was improbable.
• By relying upon the view that YWN was one body of work and therefore one continuous transaction, notwithstanding that it was an abuse of process for the Crown to fractionate the charge, the penalties should have run concurrently.
• YWN cannot be considered one continuous transaction from March 2015 to Fall 2017 in that each edition features different contributors of articles & graphics, a different theme, and since the Canada Post ban, each new edition was randomly delivered by private companies and volunteers to different towns across Ontario. Therefore, the transaction chain is broken in the weeks between quarterly editions, before a new edition is created from scratch. Furthermore, YWN’s purpose is not criminal in nature. Justice Blouin admitted in his written verdict that YWN’s raison d’être was “Anti-Marxist” (and so he did not ban YWN): “The defendants took the position that YWN is primarily anti-Marxist. I agree with that assessment. That is a unifying theme, especially in the earlier editions where the focus seems to be on attacking left wing politicians.” Therefore, YWN cannot be viewed as a criminal enterprise involved in one continuous transaction. Subject utterances were clearly random byproducts of anti-Marxist rhetoric with narrow purpose in time & place; there is no proof they were part of a planned campaign targeting Jews or women. In the alternative, if even ONE edition of YWN lacked a passage that met the threshold for hate for a respective protected group, then it should represent a break in the chain of transaction, because The Crown included it in the prosecution in bad faith.
• The Appellant’s counsel was ineffective in not disputing the inclusion of YWN editions pre-dating the 6 month window. And if he was successful in only including the last two editions of YWN on the information, The Appellant clearly would never have consented to adding the 3 newest editions, as the ability for a biased judge to cherry-pick enough offensive, out-of-context excerpts to meet his fantasy mens rea and actus reus would have been severely handicapped.
• Multiple abuses of process, considered in totality, clearly prejudiced The Appellant’s right to a fair trial. The Crown gaming the election process, fractionating the charge, withdrawing exculpatory evidence at the 11^th hour, blocking evidentiary emails; Justice Blouin violating The Appellant’s right to full answer & defence multiple times whilst exhibiting frustration arising out of a looming retirement date, and ignoring a potentially inappropriate relationship between key complainants and the lead detective; all bring the integrity of the justice system into disrepute. When the court balances the interests in favour of granting a stay against that society has in having a final decision on the merits of the case, this Honourable Court must consider the highly political nature of this prosecution and the highly subjective nature of determining “hate speech”. Only a stay of the charges can remedy the violation, in that in the community’s eyes, a new trial by judge alone that results in anything other than an acquittal would represent the government appointing yet another cooperative judge, but this time one who will ensure the predetermined outcome whilst covering all his legal bases with more robust yet still declarative reasons.
•  A handful of “victim” & “community” impact statements conveniently appeared one day before a sentencing hearing scheduled months earlier, some of them anonymous. 10 million readers and that is all Detective Bisla could garner. And on cross-examination she was evasive on how the statements were obtained. It speaks volumes. The “community” statements are merely attempts by Johnny-Come-Lately political lobby and special interest groups to jump into the debate and promote their agendas. The “victim” statements are nothing but glorified letters to the editor expressing moral outrage at The Appellant’s eccentric views. Mr. Kinsella even boasted in his deleted podcast that one of the authors is his neighbor, so clearly these letters were solicited. On behalf of millions of REAL victims across Canada, and having survived horrific childhood abuse himself, The Appellant expresses HIS moral outrage at the framing of these complaint letters. The Charter protects his right to offend, NOT a recipient’s right not to be offended.

C. SUMMARY

1. It is submitted that in convicting The Appellant, the trial judge committed serious errors which require review, and that after review the conviction should be set aside.

PART IV – ORDER REQUESTED

1. The Appellant respectfully requests that this Honourable Court allow the Appeal, and either stay the convictions, or set aside the convictions and enter an acquittal, or in the alternative order a new trial.
2. In the event that this Honourable Court does not allow the Appeal of the convictions, The Appellant respectfully requests that it allow the Appeal of the sentences.
3. In the event that this Honourable Court does not allow the Appeal of the convictions, The Appellant respectfully requests that it conduct a de novo hearing into his “Ineffective Representation” motion, “Fresh Evidence” motion, and constitutional challenges against the legality of Section 319(2) and the violation of his 11(f) rights.

PART V – TIME ESTIMATES

1. The time estimated for oral argument of The Appellant and The Respondent is as follows:
   i.  120 minutes for The Appellant;
   ii. 120 minutes for The Respondent;

            iii. 30 minutes for The Appellant to buttress his arguments;

DATED at Toronto, this 26th of January, 2020.

                                                                                    ____________________________

Dr. James N. Sears

SCHEDULE A: AUTHORITIES CITED (“promotion of hatred” cases from Mugesera down)

1. R. v. Dinardo, [2008] 1 SCR 788
2. R. v. R.P., [2012] S.C.J. No. 22 (S.C.C.)
3. R. v. Villaroman, [2016] S.C.J. No. 33
4. R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3
5. R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869
6. R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3
7. R. v. Morrissey, 1995 CanLII 3498 (ON CA)
8. R v Movchan, 2016 ABQB 317 (CanLII)
9. Mugesera v. Canada, 2005 SCC 40 (CanLII), [2005] 2 SCR 100
10. R. v. Keegstra, 1996 ABCA 308
11. R. v. Keegstra, [1990] 3 S.C.R. 697 (contains complete details of the offence)
12. R. v. Zundel, [1988] O.J. No. 4 657 (law for “Spreading False News” struck down)
13. R. v Mahr, 2010 ONCJ 216
14. R. v Noble, 2008 BCSC 215 (contains complete details of the offence)
15. R. v. Noble, 2008 BCSC 216
16. R. v. Presseault, 2007 QCCQ 384
17. R. v. Mackenzie, 2016 ABPC 173
18. R. v. Brazau, [2014] O.J. No. 1117 (contains complete details of the offence)
19. R. v Brazau, [2014] O.J. No. 2080
20. R. v. Topham, 2017 BCSC 551
21. R. v. Andrews, 65 O.R. (2d) 161 (C.
22. R. v. Harding, [2001] O.J. No. 32 5 (Ont. S.C.)
23. R. v. Lelas, [1990] O.J. No. 1587 (C.A.)[1990] O.J. No. 1587 (C.A.)
24. R. v. Brazau, 2016 ONSC 14842016 ONSC 1484
25. R. c. Castonguay, 2013 QCCQ 42852013 QCCQ 4285
26. R. v. Reinhard Gustav Mueller, (2006) No. 040910531Q2, Alberta, Edmonton Registry

SCHEDULE B: LEGISLATION CITED

All references are to the Criminal Code.

SUPERIOR COURT OF JUSTICE Central East Region     BETWEEN     HER MAJESTY THE QUEEN   Respondent   – and –   JAMES SEARS   Appellant       FACTUM OF THE APPELLANT           DR. JAMES N. SEARS   6 Kew Beach Avenue Upper Floor Toronto. Ontario M4L 1B7   Self-Represented