{"id":2630,"date":"2018-12-13T10:42:17","date_gmt":"2018-12-13T15:42:17","guid":{"rendered":"http:\/\/cafe.nfshost.com\/?p=2630"},"modified":"2018-12-13T10:42:17","modified_gmt":"2018-12-13T15:42:17","slug":"judge-moores-decision-acquitting-dr-james-sears-in-the-kinsellas-uttering-threats-vanity-prosecution","status":"publish","type":"post","link":"https:\/\/cafe.nfshost.com\/?p=2630","title":{"rendered":"Judge Moore’s Decision Acquitting Dr. James Sears in the Kinsella’s “Uttering Threats” Vanity Prosecution"},"content":{"rendered":"

Judge Moore’s Decision Acquitting Dr. James Sears in the Kinsella’s “Uttering Threats” Vanity Prosecution<\/strong><\/span><\/p>\n

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ONTARIO COURT OF JUSTICE<\/strong><\/p>\n

CITATION:\u00a0\u00a0R. v. Sears<\/em>, 2018 ONCJ 866<\/p>\n

DATE:\u00a0 2018 12 10<\/p>\n

COURT FILE No.:\u00a0 Toronto 4811 998 17 10000304 01<\/p>\n

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BETWEEN:<\/strong><\/p>\n

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HER MAJESTY THE QUEEN<\/strong><\/p>\n

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\u2014 AND \u2014<\/strong><\/p>\n

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JAMES SEARS<\/strong><\/p>\n

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Before Justice D. Moore<\/p>\n

Heard on October 23-25, 30, and November 6, 2018<\/p>\n

Reasons for Judgment released on December 10, 2018<\/p>\n

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  1. Giovinazzo………………………………………………………………………….. counsel for the Crown<\/strong><\/li>\n
  2. Murphy……………………………. \u00a0s. 486 counsel for the defendant Leroy St. Germaine[1]<\/a><\/strong><\/li>\n
  3. Gray \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026…\u2026\u2026. s. 486 counsel for the defendant James Sears<\/strong><\/li>\n<\/ol>\n

    The defendant James Sears…………………………………………………………. on his own behalf<\/strong><\/p>\n

     <\/p>\n

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    1. MOORE J.:<\/strong><\/li>\n<\/ol>\n

      [1]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Mr. Sears is charged with \u201cThreatening Death\u201d contrary to\u00a0s. 264.1<\/a>\u00a0of the\u00a0Criminal Code<\/a><\/em>.\u00a0\u00a0 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 \u201cYour Ward News\u201d a publication which lists him as the \u201cEditor in Chief\u201d.<\/p>\n

      [2]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The alleged threat is contained in an article[2]<\/a>\u00a0about an investigation of Mr. Sears by the Children\u2019s Aid Society wherein he is extremely critical of the Society, to put it mildly.\u00a0 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]<\/a>\u00a0 The alleged threat is the following passage:<\/p>\n

      I have not told our story to anyone until now.\u00a0 My close friends will first learn of it in this article and wonder why I kept it from them.\u00a0 No offence, but Colette and I remained silent because we have more morals than Lisa and Warren Kinsella.\u00a0 You see, if I told my friends, thousands of people on my mailing list, and hundreds of thousands of readers of\u00a0Your Ward News<\/strong>\u00a0[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\u2019s to death.\u00a0 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]<\/a><\/p>\n

      [3]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Is the above passage a threat to kill Warren and Lisa Kinsella?\u00a0 This is the central issue for me to determine.\u00a0 In\u00a0R. v. McRae<\/em>[5]<\/a>\u00a0the Supreme Court of Canada set out the law as follows:<\/p>\n

      10\u00a0<\/strong>\u00a0\u00a0 \u00a0… The question of whether words constitute a threat is a question of law to be decided on an objective standard\u2026<\/p>\n

      11\u00a0<\/strong>\u00a0\u00a0 \u00a0The 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<\/em>) (see e.g.\u00a0O’Brien<\/em>, 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<\/em>\u00a0(2002),\u00a02002 CanLII 14251 (ON CA)<\/a>,\u00a0166 O.A.C. 121, where the words uttered were “You’re next”).<\/p>\n

      \u2026.<\/strong><\/p>\n

      15\u00a0<\/strong>\u00a0\u00a0 \u00a0Thus, 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\u00a0Batista<\/em>, 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).<\/p>\n

      16\u00a0<\/strong>\u00a0\u00a0 \u00a0To 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.<\/p>\n

      [4]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0I find that the plain and ordinary meaning of the words in the impugned passage do not constitute a threat to kill the Kinsellas.\u00a0 In\u00a0R. v. Clemente<\/em>[6]<\/a>\u00a0the Supreme Court of Canada cited the Oxford English Dictionary definition of a threat, \u201cA denunciation to a person of ill to befall him<\/strong>; 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.\u201d [emphasis in original]\u00a0 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.\u00a0 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.<\/p>\n

      [5]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0That does not end the matter, of course.\u00a0 I must now consider whether contextual factors give the passage a threatening meaning not apparent on a plain reading.<\/p>\n

      [6]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Warren and Lisa Kinsella gave evidence over the course of three days.\u00a0 To say that their \u201crelationship\u201d[7]<\/a>\u00a0with Mr. Sears is an extremely hostile one would be a vast understatement.\u00a0 The \u201crelationship\u201d 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.\u00a0 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]<\/a>\u00a0 In addition to the personal attacks the content of Your Ward News generally is deeply offensive to both Warren and Lisa Kinsella.\u00a0 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.\u00a0 They wrote articles, held press conferences, lobbied politicians, and commenced this proceeding by laying a private information, amongst other things.<\/p>\n

      [7]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0I completely accept their evidence that they perceived the reference to \u201cbludgeon the Kinsella\u2019s to death\u201d as a call to action and a real threat to their personal safety that they took seriously.\u00a0 I also find that their negative views of Your Ward News and Mr. Sears are completely understandable, justified, and sincerely held.\u00a0 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.\u00a0 They perceive everything in the worst possible light.[9]<\/a><\/p>\n

      [8]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0The 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.\u00a0 These editions of Your Ward News essentially make up the entirety of the Crown\u2019s case other than the testimony of Lisa and Warren Kinsella.<\/p>\n

      [9]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0I certainly agree that due to:<\/p>\n