{"id":366,"date":"2013-08-17T17:08:36","date_gmt":"2013-08-17T21:08:36","guid":{"rendered":"http:\/\/cafe.nfshost.com\/?p=366"},"modified":"2013-08-17T17:08:42","modified_gmt":"2013-08-17T21:08:42","slug":"appeal-factum-of-political-prisoner-terry-tremaine-sentenced-to-6-months-for-contempt-of-court","status":"publish","type":"post","link":"https:\/\/cafe.nfshost.com\/?p=366","title":{"rendered":"APPEAL FACTUM OF POLITICAL PRISONER TERRY TREMAINE &#8212; SENTENCED TO 6 MONTHS FOR CONTEMPT OF COURT"},"content":{"rendered":"<div><strong><span style=\"color: #ff0000; font-size: xx-large;\">APPEAL FACTUM OF POLITICAL PRISONER TERRY TREMAINE &#8212; SENTENCED TO 6 MONTHS FOR CONTEMPT OF COURT<\/span><\/strong><\/div>\n<div><\/div>\n<div><\/div>\n<div><span style=\"color: #000000; font-size: large;\"><span style=\"color: #000000; font-size: large;\">Last fall Terry Tremaine was hammered with a six month prison term for &#8220;contempt of court&#8221;, the third such complaint\u00a0by his tormenter Richard Warman, who had, in addition, filed a Sec. 13 (Internet censorship) Canadian Human Rights complaint, a complaint to his employer which cost Mr. Tremaine his teaching position at the University of Saskatchewan, and a Sec. 319 (&#8220;hate law&#8221;) complaint under the Criminal Code, which was thrown out by a Regina judge last fall for undue delay but the bail conditions it imposed had kept Mr. Tremaine silenced politically for nearly four years.<\/span><\/span><\/p>\n<div><img loading=\"lazy\" decoding=\"async\" alt=\"Photo: APPEAL FACTUM OF POLITICAL PRISONER TERRY TREMAINE -- SENTENCED TO 6 MONTHS FOR CONTEMPT OF COURT\n\nLast fall Terry Tremaine was hammered with a six month prison term for &quot;contempt of court&quot;, the third such complaint by his tormenter Richard Warman, who had, in addition, filed a Sec. 13 (Internet censorship) Canadian Human Rights complaint, a complaint to his employer which cost Mr. Tremaine his teaching position at the University of Saskatchewan, and a Sec. 319 (&quot;hate law&quot;) complaint under the Criminal Code, which was thrown out by a Regina judge last fall for undue delay but the bail conditions it imposed had kept Mr. Tremaine silenced politically for nearly four years.\n\nOriginally, Federal Court Judge Found Mr. Tremaine not guilty as the February, 2008  Canadian Human Rightds Tribunal &quot;cease and desist order&quot; had not been served on Mr. Tremaine until August, 2009. Apparently, his postings from February, 2008 until later that year were not sufficiently toned down in terms of privileged minorities for Mr.Warman's sensibilities.. Also, he had not removed a long list of offending passages -- although the poorly written order didn't instruct him to do so. In 2011, the Federal Court of Appeal on a 2-1 vote instated a finding of guilt and overturned the acquittal. It was back to Judge Harrington for sentencing in Vancouver in October, 2012. Earlier last year, the Supreme Court denied leave to appeal.\n\nRemember, Sec. 13 had already been repealed by the House of Commons in June, 2012. So, Mr. Warman was being punished for contempt of a vague order imposed under a law that was so foul it had been repealed. The Senate repealed the law in June, 2013 and repeal was granted immediate Royal Assent. This makes the prospect of Mr. Tremaine heading for prison for &quot;contempt of court&quot; for failing to obey a vague order under a law that has been repealed even more ludicrous\n\nDon't let them tell you Canada is a free country. Next time some earnest do gooder reminds you of the fate of dissidents in Red China or Burma or Cuba, be sympathetic but remind him or her that Canada has no reason to be self righteous.\n\n Our courts are quite happy to jail dissidents and gag opinion on the Internet, especially where the dissident has criticized powerful privileged groups.\n\n In China, if you criticize the powerful Communist Party, they send your impertinent butt to jail. In Canada, if you criticize privileged minorities, as has scholar and dissident Terry Tremaine, they fling your dissident self in prison.\n\n To all the naive folks listening to those tv ads about the 30th Anniversary of the Charter: Do you still think your rights are\n protected? Not if you cross politically powerful and privileged minorities.\n\nPaul Fromm,\n\nDirector\n\nCANADIAN ASSOCIATION FOR FREE EXPRESSION\n\nOVERVIEW 1\n\ni. Standard of Review 2\n\nPART I \u2013 STATEMENT OF FACTS 4\n\nPART II \u2013 ISSUES 9\n\nPART III - ARGUMENT 10\n\nA. Did the learned sentencing Judge err in law and principle by failing to consider and apply the principle of restraint? 10\n\nB. Did the learned sentencing Judge err by overemphasizing the principle of deterrence while paying insufficient attention to the individual circumstances of the Appellant? 13\n\nC. Did the learned sentencing Judge err in law by, in effect, sentencing the Appellant for criminal contempt, notwithstanding that this Court has convicted him of civil contempt, and the Commission proceeded on that basis at the Sentencing Hearing? 14\n\ni. Parity Principle 16\n\nD. Did the learned sentencing Judge err in law by declining to consider the mitigating factor that the Appellant had been in prison for 22 days as a result of criminal charges involving the same complainant and substantially the same evidence? 18\n\nPART IV \u2013 CONCLUSION AND NATURE OF RELIEF REQUESTED 26\n\nPART V \u2013 LIST OF AUTHORITIES 28\n\nCourt File No.:  A-493-12\n\nFEDERAL COURT OF APPEAL\n\nBETWEEN:\n\ntERRy TREMAINE\n\nAPPELLANT\n\nand \n\nCanadian human rights commission\n\nand\n\nrichard warman\n\nRESPONDENTS\n\nMEMORANDUM OF FACT AND LAW OF THE APPELLANT\n\nOVERVIEW\n\n1.The evidence disclosed throughout this litigation establishes that the Appellant\u2019s political message is, doubtless, deeply offensive to the overwhelming majority of Canadian citizens.  This Honourable Court has convicted the Appellant of civil contempt of the Canadian Human Rights Tribunal, which had previously ordered the Appellant to \u201ccease and desist\u201d from communications of the type that resulted in the finding that he exposed protected groups of his fellow citizens to hatred or contempt.  This is an undeniable fact.\n\n2.It is readily acknowledged that a conviction for civil contempt is a serious matter.  Nevertheless, the fundamental principles of sentencing mandated by Parliament - and consistently applied by Canadian courts sentencing citizens for contempt - must be properly applied to every citizen found guilty of an offence.  The specific facts of a rare case such as this also call for the consideration of broader legal principles. It is the role of the Appellate Courts to endeavor to ensure this is accomplished.\n\n3.At the heart of this appeal is the Appellant\u2019s assertion that these principles were not applied appropriately.  It is readily admitted that this case involves communications that are hateful, and that was clearly a concern to the learned sentencing Judge.  Mr. Justice Harrington was entitled to consider this as an aggravating factor.  However, the learned sentencing Judge was still required to balance this with other factors and correctly apply the appropriate principles.  This case called for the Court to sentence a citizen for a civil contempt as a first offender.  The learned sentencing Judge had a legal duty to give adequate consideration to the fundamental principle of restraint and the important mitigating factors that arose from the Appellant\u2019s personal circumstances, as well as the surrounding social and legal context within which the offence occurred.  The Appellant will respectfully submit that adequate consideration of these principles and factors was not given in the case at bar, therefore causing the learned sentencing Judge to commit a reversible error.  These errors in law and principle led to a further error: that the sentence is manifestly excessive, and more appropriate for a criminal contempt.\n\n4.Though the Appellant will advance two further arguments, it is primarily because of these three errors that the learned sentencing Judge imposed a sentence which is, in all the circumstances of this case, demonstrably unfit.\n\ni.Standard of Review\n\n5.Before discussing the law concerning the governing standard of review to be applied in this case, it should first be acknowledged that the grounds of appeal argued in this Memorandum will differ from the grounds asserted by previous counsel in the Notice of Appeal.  Nevertheless, all of the Appellant\u2019s submissions concern issues that were before the learned sentencing Judge and are properly before this Court.  The Appellant respectfully submits that this Court has jurisdiction to hear this appeal as is framed in this Memorandum.\n\n6.In Canada (Attorney General) v. de l\u2019Isle1 this Court held that, with respect to a sentence for contempt, an appellate court may intervene only if the sentence imposed is \u201cexcessive or inappropriate having regard to the circumstance, or if that judge erred in law in passing sentence.\u201d2  Though this appeal concerns a sentence for civil contempt, the Appellant\u2019s liberty interests are directly engaged and, as a result, contempt is to be treated as quasi-criminal in nature.  For this reason, it is submitted that the deferential approach adopted in de l\u2019Isle can be expanded upon by applying the principles outlined by appellate level sentencing cases in Canadian criminal law.\n\n7.The standard of review to be employed by Appellate Courts when adjudicating sentence appeals is outlined by the Supreme Court of Canada in R. v. Shropshire3.  The standard was considered further in R. v. M. (C.A.)4.  At paragraph 90, the court stated:\n\nPut simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. \n\n8.While recognizing the important role appellate courts play in minimizing disparity of sentencing for similar offenders and similar offences, the Supreme Court recognized that sentencing is an individualized process.  It accepted that Parliament has given specialized discretion to individual sentencing judges.   As a result, the court stated at paragraph 92:\n\n\u2026 I believe that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes.\n\n9.The Saskatchewan Court of Appeal has recognized and applied this standard of review on numerous occasions.  In R. v. Campeau5, the Court re-affirmed the standard.  Further, it discussed what constitutes \u201cunreasonableness\u201d and \u201cdemonstrable unfitness\u201d at paragraph 5:\n\nThis Court considers what constitutes &quot;unreasonable&quot; in R. v. Berntson and &quot;demonstrably unfit&quot; in R. v. Pankewich. In Pankewich, Jackson J.A., for the Court, described demonstrable unfitness as follows:\n\n[31] ...&quot;Demonstrably unfit&quot; has been equated with unreasonableness (see Shropshire at para. 46); &quot;sentences which are clearly or manifestly excessive&quot; (see Shropshire at para. 47 quoting the Nova Scotia Court of Appeal in R. v. Pepin (1990), 98 N.S.R. (2d) 238 (N.S.C.A.) at 251); &quot;falling outside the 'acceptable range&quot;' (see Shropshire at para. 50); sentences where there is a &quot;substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes&quot; (see M. (C.A.) at para. 92) ... McDonnell [[1997] 1 S.C.R. 948] also states that a wide deviation from the accepted &quot;starting-point&quot; of sentencing for an offence will not, in and of itself, render a sentence demonstrably unfit, but rather is a factor in determining demonstrable unfitness\u2026\n\n10.In R. v. Rezale6, the Ontario Court of Appeal defined an error in principle as follows:\n\nError in principle is a familiar basis for reviewing the exercise of judicial discretion.  It connotes, at least, failing to take into account a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to relevant factors, overemphasizing relevant factors and, more generally, it includes an error of law.\n\nPART I \u2013 STATEMENT OF FACTS\n\n11.The Canadian Human Rights Tribunal (\u201cCHRT\u201d) held that the Appellant, Mr. Terry Tremaine, was engaging in discriminatory practice contrary to s. 13 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (\u201cCHRA\u201d) on February 2, 2007.  The Tribunal held that Mr. Tremaine\u2019s messages violated s. 13(1) of the CHRA and issued a cease and desist order and a fine in the amount on $4,000.  Mr. Tremaine was not represented by counsel at the CHRT hearing.7 \n\n12.Still unrepresented, he applied for judicial review of the Tribunal\u2019s decision.  On September 18, 2008, the Federal Court found that the Tribunal\u2019s decision was not unreasonable.  The Court held that neither the cease and desist order, nor the $4,000 fine were unreasonable.  Notwithstanding that the Appellant was not represented by counsel, the Federal Court declined to consider his application with respect to the constitutionality of s. 13(1) of the CHRA because he did not provide the requisite notice as required by the Federal Courts Act, RSC 1985, c. F-7. The Court further declined a request to have the judicial review adjourned pending the outcome of the constitutional application made in CHRC and Warman v. Lemire, 2012 FC 1162 (F.C.T.D.).\n\n13.The facts underlying both the Tribunal decision and the judicial review concern Mr. Tremaine\u2019s postings on 2 internet sites.  First, Mr. Tremaine is the Webmaster of the National Socialist Party of Canada website.  Second, he is a member of an American website known as \u201cStormfront\u201d.  Stormfront provides forums where people can exchange ideas and messages in the form of postings.  The website is clearly geared towards white supremacy and neo-Nazi ideology, and is basically a cyber-meeting place for like-minded individuals.  Though you need to be a member to post on the website, any member of the public can download the content.  The slogan \u201cWhite Power World Wide\u201d appears on the Home Page of Stormfront, so the nature of the website is very clear to all visitors.  The Appellant posted on the website under the pseudonym \u201cMathDoktor99\u201d.  The majority of the postings attributed to the Appellant are repugnant and deeply offensive to the vast majority of Canadians.8 \n\n14.The Appellant did not appeal the decision of the Federal Court.\n\n15.In 2009, the Canadian Human Rights Commission (the \u201cCommission\u201d) filed a motion in Federal Court for an order that the Appellant be found in contempt of the order of the Tribunal.  The motion was heard by Justice Harrington of the Trial Division of the Federal Court.\n\n16.Justice Harrington held that though the Commission had established beyond a reasonable doubt that the Appellant had knowledge of the order of the Tribunal, it could not establish that he had knowledge that the order had been registered with the Federal Court until March, 2009.  He dismissed the charges for contempt, finding that the Commission had to register the Tribunal\u2019s order with the Federal Court and serve the Appellant before it could be enforced.  The learned Trial Justice also dismissed the Appellant\u2019s argument that he had not \u201ccommunicated\u201d within the meaning of s. 13(1) of the CHRA.\n\n17.The Commission successfully appealed this decision to this Court.  The majority of the Federal Court of Appeal found that there was no legal principle that restricted the use of contempt powers to orders issued by superior courts.  It concluded that the CHRT\u2019s decisions were no less enforceable by superior courts than the decisions of the superior courts themselves.  This Honourable Court declined to order a new hearing and instead substituted a conviction for civil contempt.  It directed that the matter be returned to the Federal Court for sentencing.\n\n18.Counsel for the Appellant unsuccessfully applied for leave to appeal this Honourable Court\u2019s decision to the Supreme Court of Canada.  The matter was thus remitted back to the Federal Court Trial Division for sentencing.  It proceeded on the basis that the Appellant had been convicted of civil contempt.9 \n\n19.As it was a civil contempt, the Commission submitted that the Appellant ought to be detained until his contempt was purged.  The Commission further submitted that as the matter was a civil contempt, the Appellant had the right to purge the contempt and therefore avoid imprisonment.  The Commission submitted that if the Appellant did not purge his contempt, that he ought to be imprisoned until he do so.10 \n\n20.The Commission also sought that the Appellant remove the offending material from the National Socialist Party of Canada website and request that Stormfront remove his previous posts that were the subject of the contempt.\n\n21.The complainant, Mr. Richard Warman, sought a period of unconditional imprisonment of 3 to 6 months.11The complainant further submitted that rather than ordering the Appellant to remove the infringing posts from the National Socialist website, the court ought to order the site shut down in its entirety.12 \n\n22.The Appellant\u2019s counsel unsuccessfully tried to argue that the Appellant did not have the requisite mens rea.  The Appellant further argued that for a period of time wherein the Appellant was found to be in contempt, s. 13(1) of the CHRA was found to be not constitutionally valid.  The Appellant argued that he was under an honest mistake of law and did not believe that the Tribunal\u2019s decision was enforceable.  He further argued that the order of the Tribunal was ambiguous in that it prohibited \u201ctelephonic\u201d communication rather than internet communication.  The Appellant submitted that there should be an order for compliance, and in default of compliance, 60 to 80 days imprisonment.  In effect, he asked for a sentence of imprisonment to be suspended to allow him time to purge his civil contempt.13 \n\n23.The Trial Division of the Federal Court sentenced the Appellant to 30 days imprisonment.  It further ordered him to cease communicating or causing to communicate material of the type or substantially similar type to that found by the Tribunal and Federal Court to be likely to expose a person or persons to hatred or contempt on the basis of a prohibited ground of discrimination in violation of s. 13(1) of the CHRA.  It held that the Appellant would be imprisoned for a further 6 months or until he complies with the Court\u2019s order, and directed the Appellant to approach Stormfront.org with a request to remove postings from their website and to remove specified postings from the National Socialist Party of Canada website.\n\n24.In the decision under appeal, the learned Trial Justice began his decision by declaring that \u201cthe time [had] come at last to penalize Mr. Tremaine for acting in contempt of an order of the Canadian Human Rights Tribunal.\u201d  The Court further noted the offensive nature of Mr. Tremaine\u2019s messages.  It dismissed the Notice of Constitutional Question filed by the Appellant at the Sentencing Hearing, echoing its oral ruling at the sentencing hearing, in which it dismissed the motion without hearing evidence.  The court held that it was \u201cmost disturbing\u201d that the Appellant had testified at the Sentencing Hearing that he had sold control of the National Socialist Party of Canada website to an American through Mr. Bernard Klatt.  The learned Trial Judge added that it was \u201cobvious that Mr. Tremaine was attempting to put his website out of this Court\u2019s reach\u201d.  The learned Justice also saw fit to admonish the Appellant\u2019s previous counsel in relation to submissions he made with respect to the Complainant.\n\n25.It should be noted that the materials that were the subject matter of the previous hearings were also the subject matters of criminal proceedings in the Province of Saskatchewan.  The Appellant was charged with breaching s. 319 of the Criminal Code.  The Regina Police Service executed a search warrant and invaded his home and seized his computer.  As a result of an alleged breach of bail conditions, the Appellant served 22 days at the Regina Provincial Correctional Centre on remand.  The substantive s. 319 charge was eventually judicially stayed by the Saskatchewan Court of Queen\u2019s Bench due to unreasonable delay.  The breach allegation was also stayed.14 \n\n26.On December 3, 2012, previous counsel for the Appellant sent a letter to the Registrar of the Federal Court of Canada outlining the steps the Appellant had taken to comply with the order.15 \n\n27.The Appellant, Terry Tremaine, is a 64 year old Canadian citizen residing in Regina, Saskatchewan.  He has a Master of Science in Mathematics, and has completed some doctoral studies at Queen\u2019s University.  As a result of this litigation, his 20 year academic career has been completely destroyed.  Though there was no suggestion his personal political views ever affected his teaching career, the University of Saskatchewan dismissed him when the Complainant contacted them about Mr. Tremaine and threatened to go to the media if the institution did not take disciplinary action.  Subsequent to the loss of his profession, Mr. Tremaine suffered from depression that was so severe he required hospitalization.  He has been unable to find lasting, meaningful employment since his termination and is now indigent, and a qualified applicant for representation by Legal Aid Saskatchewan.16 \n\nPART II \u2013 ISSUES\n\n28.It is respectfully submitted that this appeal raises the following issues:\n\nA.Did the learned sentencing Judge err in law and principle by failing to consider and apply the principle of restraint?\n\nB.Did the learned sentencing Judge err by overemphasizing the principle of deterrence while paying insufficient attention to the individual circumstances of the Appellant?\n\nC.Did the learned sentencing Judge err in law by, in effect, sentencing the Appellant for criminal contempt, notwithstanding that this Court has convicted him of civil contempt, and the Commission proceeded on that basis at the Sentencing Hearing?\n\ni.Does the Sentence conform with the Parity Principle?\n\nD.Did the learned sentencing Judge err in law by declining to consider the mitigating factor that the Appellant had been in prison for 22 days as a result of criminal charges involving the same complainant and substantially the same evidence?\n\nE.While considering the hateful nature of the Appellant\u2019s comments, did the learned sentencing Judge err by declining to also consider the broad social and legal factors that were relevant to the analysis of a just and proper sanction?\n\nPART III - ARGUMENT\n\nA.Did the learned sentencing Judge err in law and principle by failing to consider and apply the principle of restraint?\n\n29.Though the law concerning both civil and criminal contempt is rooted in the common law rather than statute, the potential implications for a loss of liberty arising from a finding of contempt has led the courts to consistently apply the criminal standard of proof beyond a reasonable doubt.17  The criminal nature of contempt proceedings, even in a civil context, has led the established jurisprudence to accept that the principles of sentencing outlined in the Criminal Code, R.S.C. 1985, c. C-46 (\u201cCode\u201d) are instructive and should be followed.\n\n30.In International Forest Products Ltd. v. Kern18, the British Columbia Court of Appeal reviewed the sentence for criminal contempt imposed on a protestor disobeying an injunction obtained by the plaintiff logging company.  The court considered its function as a reviewing court on appeal, and held that \u201c[s]entencing for criminal contempt must be guided by principle and no better guide exists than those Criminal Code provisions which largely codified the judge-made rules on sentencing\u201d.19  It went on to assess whether the original sentence was demonstrably unfit.\n\n31.The Newfoundland Court of Appeal has also applied this reasoning.  In Puddester v. Newfoundland (Attorney General)20 the court held that both the principles and the sentencing options outlined in the Criminal Code can be adopted and employed in contempt proceedings.21  In Ontario, the Superior Court of Justice has even considered sentencing an offender to a conditional sentence of imprisonment, relying on a procedural rule giving a trial judge broad discretion in contempt sentencing.22 \n\n32.With respect to the principle of restraint, this Honourable Court has affirmed its applicability in sentencing for contempt in Federal Court.  Relying in part on the seminal case of R. v. Gladue23, this court has held that a sentencing court must consider all other sanctions that may be appropriate before considering imprisonment, especially in cases involving citizens with no prior criminal record.  In Canadian Human Rights Commission v. Winnicki,24 this court stated at para. 20 (emphasis added):\n\nThe authorities are clear that a Court should take special care in imposing a sentence of imprisonment upon a first offender. The trial judge should have either a pre-sentence report or some very clear statement with respect to the accused's background and circumstances. This is particularly true of youthful offenders such as the appellant. Further it has been recognized that except for very serious offences and offences involving violence, the primary objective of individual deterrence can be best achieved by either a suspended sentence or probation or a very short term of imprisonment followed by a term of probation. (see R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688). In R. v. Priest, [1996] O.J. No. 3369, at paragraphs 20 and 23 the Ontario Court of Appeal stated:\n\nThe duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence. It should be clear from the record of the proceedings, preferably in the trial judge's reasons, why the circumstances of this particular case require that this first offender must receive a sentence of imprisonment. The trial judge had no material before him from which he could possibly have made this determination. His reasons are barren of any lawful justification for such a radical departure from this well-established principle especially in the case of a youthful first offender.\n\nEven if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence. \u2026\n\nLikewise, in R. v. Curran (1973), 57 Cr. App. R. 945 it was noted that,\n\nAs a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offence, and imposed as this sentence was, for reasons of general deterrence, that is as a warning to others. The length of a first sentence is more reasonably determined by considerations of individual deterrence; and what sentence is needed to teach this particular offender a lesson which he has not learnt from the lighter sentences which he has previously received.\n\n33.The common law principle of restraint required that if imprisonment must be imposed for an offence, the shortest amount of time possible in the circumstances should be given.  Parliament codified and expanded this principle in ss. 718.2 (d) and (e) of the Code, which require sentencing judges to consider all available sanctions other than imprisonment that are reasonable in the circumstances.  It is respectfully submitted that this reflects an intention that imprisonment be considered a punishment of last resort.\n\n34.As was the case in Winnicki25, the learned sentencing Judge did not consider the impact of the fact that the Appellant was a first offender in his reasons.  Moreover, he did not direct his mind to the accepted principle that in arriving at a just sanction, serious consideration must be given to dispositions other than imprisonment.  It is obvious that he did not consider suspending the prison sentence to allow the Appellant to purge his contempt to be sufficient.  However, it is apparent from the reasons that he did not consider alternative dispositions, such as probation with a community service order, which would have been more appropriate in the circumstances.  Even though the Rules don\u2019t specifically provide for this type of disposition, it is submitted that the Federal Court has an inherent jurisdiction to control its own process.  This jurisdiction includes a wide discretion in imposing sanctions for civil contempt.  In Canadian Copyright Licensing Agency v. U-Compute,26 the Federal Court imposed probation with community service hours on an offender with two prior convictions for contempt of court.  \n\n35.It is respectfully submitted that by not analyzing and applying the principle of restraint, the learned sentencing Judge erred in law.\n\nB.Did the learned sentencing Judge err by overemphasizing the principle of deterrence while paying insufficient attention to the individual circumstances of the Appellant?\n\n36.This court affirmed in Winnicki that it is an error for a sentencing Judge in contempt proceedings to neglect to consider the background of the citizen found in contempt.27  The rationale for the rule is that just sanctions require an assessment of both the circumstances of the offence and the offender.  A balancing of these circumstances is essential because sentencing is an individualized process.\n\n37.The evidence at the sentencing hearing indicated that sometime after the complaint was filed with the Commission, the Complainant contacted the Appellant\u2019s employer, the University of Saskatchewan.  He advised the University that the complaint had been filed, and requested that they take disciplinary action against the Appellant.  The Complainant advised that if the University did not take action, local and national media would be advised of the situation.  Mr. Tremaine, whose views were now exposed, was fired.  His twenty year academic career is in ruins, and he has been unable to maintain regular employment since. He is now on social assistance in Saskatchewan.  After being fired by the University, he fell into a deep depression, and was admitted to the psychiatric ward at the Regina General Hospital.28 \n\n38.Neither this evidence, nor the fact that Mr. Tremaine was a first offender, was mentioned in the decision under appeal.  While it is recognized that the learned sentencing Judge considered several factors in this case to be aggravating, he had a legal duty to at least factor the mitigating circumstances into the final analysis.  This Honourable Court gave a clear direction in Winnicki that he must do so.\n\n39.Every citizen, no matter how distasteful the court may view their conduct, is entitled to have a sentencing court consider the impact that the proceedings has had on his\/her personal circumstances.  Justice demands nothing less.  It is submitted that the learned sentencing Judge made a very clear error in this respect. \n\nC.Did the learned sentencing Judge err in law by, in effect, sentencing the Appellant for criminal contempt, notwithstanding that this Court has convicted him of civil contempt, and the Commission proceeded on that basis at the Sentencing Hearing?\n\n40.At one time, the practical difference between civil and criminal contempt was difficult to discern.  In UNA v. Alberta (Attorney-General),29 the Supreme Court of Canada considered this distinction.  Speaking for the Court, McLachlin J. (as she then was) stated at para. 20-21:\n\nBoth civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependant on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.\n\nThese same courts found it necessary to distinguish between civil and criminal contempt. A person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt. However, when the element of public defiance of the court's process in a way calculated to lessen societal respect for the courts is added to the breach, it becomes criminal. This distinction emerges from Poje v. British Columbia (Attorney General), [1953] 1 S.C.R. 516, 17 C.R. 176, 105 C.C.C. 311, [1953] 2 D.L.R. 785, at p. 527 [S.C.R.], per Kellock J.:\n\nThe context in which these incidents occurred, the large numbers of men involved and the public nature of the defiance of the order of the court transfer the conduct here in question from the realm of a mere civil contempt, such as an ordinary breach of injunction with respect to private rights in a patent or trade-mark, for example, into the realm of a public depreciation of the authority of the court tending to bring the administration of justice into scorn.\n\n41.As outlined by the court, criminal contempt requires proof of a requisite mens rea, including full knowledge that the public defiance will depreciate the authority of the court.30  In civil contempt, mens rea is not a factor until the sentencing stage.31 \n\n42.The Appellant was convicted of civil contempt.  The Sentencing Hearing proceeded on this basis.  Counsel for the Commission was clear on this point, and very fairly pointed out to the Court that in civil contempt, it is generally accepted that the offender ought to be given the opportunity to purge their contempt.32  It is submitted that this comment is consistent with much of the jurisprudence.  After reviewing numerous cases involving both civil and criminal contempt, the B.C. Supreme Court in Telus Communications Inc. v. T. W. U.33 stated (emphasis added):\n\nIn reviewing the decisions where criminal and civil contempt have been found, it is apparent that most contempt proceedings involving labour\/management disputes or civil &quot;protest&quot; disobedience have proceeded as criminal contempt, there is a wide variation in the punishment thought to be appropriate for any particular &quot;type&quot; of contempt, there appears to be little difference between the punishment imposed for criminal contempt and the punishment imposed for civil contempt, but incarceration is usually reserved for situations where criminal contempt has been found.\n\n43.Though imprisonment is certainly possible in cases of civil contempt, it is submitted that it should not be commonly given, especially to a citizen without a prior record.  It is submitted that the learned sentencing Judge erred by failing to consider the distinction between civil and criminal contempt.  Effectively, the court imposed a sentence for criminal contempt notwithstanding that the Appellant had only been convicted of civil contempt.\n\n44.This error, either alone or in combination with the errors of failing to consider both the principle of restraint and the personal circumstances of the Appellant,  led to the imposition of a sentence that was demonstrably unfit. With respect, it is manifestly excessive and not appropriate for a first offender convicted of civil contempt.\n\ni.Parity Principle\n\n45.As this court is well aware, another important principle of sentencing is that the sentence imposed be consistent with sentences imposed on similar offenders in similar situations.  For the purposes of assessing whether the sentence conforms to the parity principle, it is useful to consider sentences imposed in other contempt cases.\n\n46.In MacMillan Bloedel Ltd. v. Simpson34 the court considered sentences for criminal contempt, which included jail sentences imposed on several citizens, including first offenders.  However the court pointed out that earlier in the litigation, several other individuals involved in the same protest were given fines, or prison sentences that were suspended to allow for an opportunity for the order to be followed.35  It was only when it was clear that previous lenient sentences were not effecting the Court\u2019s purpose that the sanction of unsuspended imprisonment was employed.\n\n47.In Regina (City) v. Cunnigham,36 the plaintiff municipality obtained an injunction enjoining the defendant from continuing to operate a strip club in a manner than contravened the city Zoning Bylaw.  Mr. Cuningham did not appeal the injunction.  After being convicted of criminal contempt, Cunningham was sentenced to a $2000 fine and 6 months imprisonment, suspended if he obeyed the injunction.  He did not purge his contempt and instead publicly declared that the club would stay open.  He was eventually committed to prison.  However, it is significant that even though Cunningham was convicted of criminal contempt, he was initially given a chance to purge the contempt before imprisonment was imposed.\n\n48.In Winnicki,37 this court reduced a 9 month sentence for contempt of the Federal Court to time served, which was 83 days.  This case is factually similar to the case at bar, but it is not clear whether the finding was of civil or criminal contempt.  Mr. Winnicki had violated an injunction issued by the Federal Court Trial Division.\n\n49.The B.C. Supreme Court sentenced several individuals for civil contempt in Telus Communications v. T.W.U.38  The sentences included orders compelling donations to charity, orders compelling community service, along with various fines and costs awards.\n\n50.Other cases include:\ni.Canadian Copyright Licensing Agency v. U-Compute39 \u2013 Civil Contempt, offender had two prior convictions.  He was sentenced to imprisonment, but it was suspended and included an order for community service work.\n\nii.Salt River First Nation 195 v. Marie40 \u2013 Civil Contempt, fines with default imprisonment for one defendant\n\niii.Telewizja Polsat SA v. Radiopol Inc41 \u2013 Civil Contempt, offender shows no remorse.  6 months imprisonment, suspended to allow for compliance.\n\niv.Canada (Minister of National Revenue) v. Money Stop Ltd.42 \u2013 Offender given 30 days to comply after contempt hearing and did not do so.  Eventual sentence included imprisonment, but it was suspended to allow for compliance.\n\nD.Did the learned sentencing Judge err in law by declining to consider the mitigating factor that the Appellant had been in prison for 22 days as a result of criminal charges involving the same complainant and substantially the same evidence?\n\n51.As this court is aware, it is a common practice for criminal courts to factor pre-trial custody in to the analysis of an appropriate sentence.  It is submitted that this practice is rooted, fundamentally, in fairness and equity.  The most common legal regime employed to give effect to this principle of fairness is s. 719 of the Criminal Code.  However, it is not the only means by which the courts achieve similar ends.\n\n52.There is nothing in the language of s. 719 of the Code to suggest that a citizen should be given credit for time spent on strict bail conditions while he\/she awaits a disposition.  Nevertheless, strict release conditions are a deprivation of liberty.  The appellate courts have responded by requiring sentencing courts to factor these conditions into the analysis as mitigating factors.  In R. v. Downes43, the Ontario Court of Appeal reviewed Canadian jurisprudence and concluded that stringent bail conditions must be taken into account by sentencing Judges as a mitigating circumstance.44  The court did not mandate that a specific quantum of credit be given, as it recognized that different circumstances will require judges to vary its final impact on sentence.  While there is no strict formula, there is no doubt that pre-trial deprivations of liberty must at least be considered.  Though in a later case the court declined to hold that this principle could reduce a statutorily mandated minimum sentence, the basic principle remains law in Ontario.45 \n\n53.Rather than through a specific statutory provision, the source of this rule is the courts\u2019 desire to fulfill its role in delivering a just sanction on a citizen convicted of an offence.  In considering this principle and its underlying values, it is submitted that it should be applied in the case at bar.  Though the criminal proceedings were eventually stayed, Mr. Tremaine was detained at the Regina Provincial Correctional Centre for 22 days as a result of what appears to be the same evidence and witnesses that were before the CHRT.  He has thus incurred a serious deprivation of liberty as a result of what is substantially the same conduct.  The Appellant admits that there is no specific statutory compulsion to consider his previous imprisonment.  However it is respectfully submitted that the court\u2019s duty to consider all relevant circumstances in arriving at a just sanction mandates that it should have at least factored into the learned sentencing Judge\u2019s analysis.  The Appellant respectfully submits that by declining to even consider his pre-trial detention, the learned sentencing Judge erred in principle.\n\nE.While considering the hateful nature of the Appellant\u2019s comments, did the learned sentencing Judge err by declining to also consider the broad social and legal factors that were relevant to the analysis of a just and proper sanction?\n\n54.At paragraph 26 of the Judgment under appeal, the learned sentencing Judge asserts that \u201cthis case is about law and order\u201d.46  On its face, it may seem to be a correct proposition.  The law of contempt is concerned with the rule of law.  However, it is beyond doubt that the facts and the underlying legal and social context are always part of the sentencing process.  It is precisely because every sentence occurs within a larger social context that principles such as general deterrence and denunciation are considered and weighed against the individual needs of the citizens \u2013 both victim and offender - before the court.  Broad considerations are a necessary part of the task of arriving at a fit and just sanction.\n\n55.The learned sentencing Judge understood this general proposition.  This can be deduced from the obvious concern he had about the conduct of both the Appellant and his previous counsel.  For example, he inferred from the evidence of the Appellant\u2019s sale of the National Socialist Party of Canada website that it was \u201cobvious that [he] was attempting to put his website out of the court\u2019s reach\u201d (para. 20).  He referred to Mr. Tremaine as \u201cthe villain\u201d (para. 24).  He remarked that the Appellant\u2019s previous counsel \u201cused the courtroom as a bully pulpit to attack Mr. Warman\u201d (para. 22).  He made special mention that, in this case, the court was no longer concerned about \u201cfree speech\u201d.47  It should also be noted that in his submissions, the complainant urged the court that it \u201cweighs upon the judgment of this court that the material is vicious hate propaganda\u201d.48 \n\n56.The Appellant does not quarrel with the learned sentencing Judge\u2019s right and duty to consider other relevant factors beyond the simple fact of the contempt in imposing sentence.  Indeed, the central message of the argument in this Memorandum is that he ought to have considered more factors and principles than he did.  It would be less than honest to suggest that this case is merely about the fact of the civil contempt, as the very facts upon which the conviction is founded concern expression, albeit expression that has been determined to be hateful.   A sentencing court must balance many factors in relatively rare situations like the one presented in the case before this Honourable Court.\n\n57.In R. v. Nasogaluak49, the Supreme Court of Canada considered the extent to which the Charter of Rights and Freedoms affects the sentencing process.  Though the case concerned the impact of a specific egregious breach of Nasogaluak\u2019s rights on the sentencing process where a mandatory minimum was concerned, the court outlined some important general principles.  The Supreme Court of Canada affirmed that a sentencing judge always had the authority to consider the impact of an infringement of a citizen\u2019s Charter rights in arriving at a just sanction, and there is no requirement for a formal application for a remedy.  The reason for this is that the court understood that a \u201cfit\u201d sentence is one that respects and considers the fundamental values enshrined in the Charter.  At paragraph 48-49 (emphasis added):\n\nIndeed, the sentencing regime under Canadian law must be implemented within, and not apart from, the framework of the Charter.  Sentencing decisions are always subject to constitutional scrutiny.  A sentence cannot be \u201cfit\u201d if it does not respect the fundamental values enshrined in the Charter.  Thus, incidents alleged to constitute a Charter violation can be considered in sentencing, provided that they bear the necessary connection to the sentencing exercise.  As mitigating factors, the circumstances of the breach would have to align with the circumstances of the offence or the offender, as required by s. 718.2 of the Code.  Naturally, the more egregious the breach, the more attention the court will likely pay to it in determining a fit sentence.\n\nThis is consistent with the communicative function of sentencing. A proportionate sentence is one that expresses, to some extent, society\u2019s legitimate shared values and concerns.\n\n58.This case does not concern a specific breach of the Appellant\u2019s Charter rights.  However, that does not mean that the Charter is divorced from the analysis.  Our constitution remains present, and its values must be considered if the court is to arrive at a just and fit sentence.  This is precisely why the hateful nature of the Appellant\u2019s conduct is an aggravating factor.  However, the Charter also speaks to mitigating factors in this case.  Fairness requires that these be considered as well.\n\n59.For civil libertarians who believe that hateful speech should be confronted and challenged, rather than censored by state agents, the constitutional battle is lost.  This is fully and respectfully acknowledged by the Appellant.  Nevertheless, it is vital to recognize the context within which this court is operating.  State infringement on freedom of speech was found to be demonstrably justified in a free and democratic society in the human rights legislative context in Canada (H.R.C.) v. Taylor50 and Saskatchewan (H.R.C.) v. Whatcott.51  However, the process by which the infringement was justified speaks to the fact that the Supreme Court and civil society still recognize that free expression is integral to both democracy and the rule of law - a bedrock right, upon which all other civil rights are built.  Indeed, it is a right integral to our modern conception of the rule of law itself.  The Appellant very respectfully submits that this Honourable Court should approach the issues in this sentencing with humility, fully cognizant of the nature of the s. 1 justification that provides the legal authority to take the liberty of a citizen who, while admittedly is guilty of contempt, is nonetheless on the facts of the case being punished for expressing his political views \u2013 however distasteful and repugnant they might be.  This same humility will also allow future courts to be vigilant in ensuring that the definition of \u201chatred and contempt\u201d is not unduly expanded.\n\n60.This does not mean that the conviction was improper, or that the CHRT and the court are not entitled to ensure its orders are respected and followed.  But, taking the liberty of a citizen is the state\u2019s ultimate weapon, and it is the Appellant\u2019s respectful submission that no court should lightly undertake this task.  This is especially true when the factual nature of the crime involves political speech.52  Justice must be tempered, especially when the legal regime\u2019s constitutional justification rests on the proportional limitation of a fundamental right that resulted from a delicate balance of competing values that are all entrenched in Canada\u2019s supreme law.\n61.Again, the legal analysis by which the constitution allows state power to restrict a fundamental civil right under s. 1 of the Charter is itself a delicate balancing exercise that involves limiting freedoms that are part of the supreme law of Canada.   The seminal case on s. 1 is R. v. Oakes.53  At paragraph 66 of the decision, Chief Justice Dickson stated (emphasis added):\n\nIt is important to observe at the outset that s. 1 has two functions: first, it constitutionally guarantees the rights and freedoms set out in the provisions which follow; and second, it states explicitly the exclusive justificatory criteria (outside of s. 33 of the Constitution Act, 1982) against which limitations on those rights and freedoms must be measured. Accordingly, any s. 1 inquiry must be premised on an understanding that the impugned limit violates constitutional rights and freedoms \u2014 rights and freedoms which are part of the supreme law of Canada. As Wilson J. stated in Singh v. Min. of Employment &amp; Immigration, supra, at p. 218:\n\n... it is important to remember that the courts are conducting this inquiry in light of a commitment to uphold the rights and freedoms set out in the other sections of the Charter.\n\n62.The s. 1 analysis requires the state to prove that the infringement of a constitutional right constitutes a minimal impairment of that right.  Further, the effect of the state infringement must be proportional to its objective.  At paragraph 74-75 (emphasis added):\n\nSecond, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves &quot;a form of proportionality test&quot;: R. v. Big M Drug Mart Ltd., supra, at p. 352. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair &quot;as little as possible&quot; the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom and the objective which has been identified as of &quot;sufficient importance&quot;.\n\nWith respect to the third component, it is clear that the general effect of any measure impugned under s. 1 will be the infringement of a right or freedom guaranteed by the Charter; this is the reason why resort to s. 1 is necessary. The inquiry into effects must, however, go further. A wide range of rights and freedoms are guaranteed by the Charter, and an almost infinite number of factual situations may arise in respect of these. Some limits on rights and freedoms protected by the Charter will be more serious than others in terms of the nature of the right or freedom violated, the extent of the violation, and the degree to which the measures which impose the limit trench upon the integral principles of a free and democratic society. Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.\n\n63.The fact that the type of expression uttered in this case has been found to be legally limited pursuant to s. 1 of the Charter does not mean that the underlying importance of free speech is divorced from the sentencing process.  The Charter right does not vanish from existence simply because legislation has been found to legitimately restrict it.  The values underlying the right must remain and factor into the sentencing analysis, because the court\u2019s action in sentencing a citizen is a further infringement that must also be reasonable in the circumstances.  As the Appellant\u2019s right to free speech has been limited, not removed, it is incumbent on any sentencing court to recognize that any action it takes must also be considered a further \u201ceffect\u201d of the state\u2019s power to limit the right.  Even if this consideration is difficult or uncomfortable when dealing with actions such as the Appellant\u2019s hateful speech, it is respectfully submitted that a sentencing court must nevertheless measure its response with the underlying values of freedom of expression in mind.\n\n64.Of course, this does not mean that the state cannot restrict the Appellant\u2019s speech.  The Supreme Court of Canada has confirmed that it can.  Equality and the right to be free from discrimination are also integral rights.  The Appellant is not submitting that the court does not have the jurisdiction to take the liberty of a citizen for hateful speech.  What is submitted is that a fit and proper sentence is one in which the court recognizes that the delicate nature of the constitutional balance upon which this jurisdiction rests requires that justice be tempered and measured.  It is submitted that the sentence imposed in this case is also demonstrably unfit because it does not give sufficient weight to the solemn reality that the entire legal regime upon which this Appellant is before the courts rests on a delicate balance that allows for censorship and a limitation of a right of incredible importance to every citizen.  Surely in a situation such as that presented in the case at bar, the principle of restraint takes on special significance.\n\n65.This is so even though the charge is contempt, because the underlying facts of the contempt relate to expression.  Those underlying facts were considered to be aggravating by the learned sentencing Judge.  It is significant to the sentencing process that part of the facts underlying the contempt include the Appellant\u2019s dissemination of electronic books such as The Poisonous Mushroom, The Turner Diaries, and The Protocols of the Learned Elders of Zion,54 especially when this court can take judicial notice of the notorious fact that these very same books are widely available on the internet, and some of them are even sold by online booksellers profiting off of Canadian customers.  This court can further take note that though Adolf Hitler\u2019s Mein Kampf remains available in most major public libraries in Canada, the learned sentencing Judge nevertheless found that the Appellant\u2019s decision to post a large quote from this widely available book was illegal and ordered it removed.55  It is submitted that an action by a court of law to prohibit the distribution of books has no place in a 21st century liberal democracy.  The Appellant respectfully asks the court to consider the implications of imprisoning a citizen in part because he disseminated books.\n66.Also included in the broad social context is the fact that Parliament has now repealed the legislative provision on which this entire litigation is based.56  The Appellant understands that does not excuse him from his duty to follow the order of the CHRT.  Nor does it invalidate or question the conviction that this Honourable Court entered upon him.  However, the Appellant submits that Parliament\u2019s action signals an intention to remove the jurisdiction of the CHRT to try these types of cases.  As part of the ongoing dialogue between Parliament and the Courts, it is submitted that it is incumbent on a sentencing Court to factor in Parliament\u2019s message in arriving at a just and fit sentence.\n\n67.With respect, the learned sentencing Judge did not consider the impact of either the underlying constitutional issue or Parliament\u2019s decision to repeal the very legislative provision that formed the basis for the litigation.  As he did not do so, the Appellant respectfully submits that he erred.  The Appellant respectfully asks this court to consider that as the aggravating nature of the facts underlying the contempt must be considered in arriving at a fit sentence, so must the broader social and legal context be considered.  This court is humbly asked to reflect on the implications of taking the liberty of a citizen based on facts such those presented in the case at bar, even if that citizen\u2019s views are repugnant.  It is respectfully submitted that is within the proper function of this court to send a clear instruction to trial-level courts that in sentencing a citizen in cases such as this, the delicate balance of Charter values must be given due consideration and respect.\n\nPART IV \u2013 CONCLUSION AND NATURE OF RELIEF REQUESTED\n\n68.The Appellant respectfully submits that the learned sentencing judge erred in law and principle for the reasons outlined in this Memorandum of Law.  The Appellant further submits that the sentence is manifestly harsh, excessive, and demonstrably unfit, especially considering that he is a first offender.\n\n69.The Appellant requests that the 30 days imprisonment portion of the sentence be set aside, with the conditional\/suspended portion of the sentence reduced to 60 days.  It further requests that portions of the prohibited material relating to books be severed, specifically \u201cExhibit H\u201d, \u201cM\u201d, \u201cAA\u201d, \u201cBB\u201d, \u201cCC\u201d, and \u201cDD\u201d.\n\n70.The Appellant asks for costs of the within appeal.\n\nALL OF WHICH IS RESPECTFULLY SUBMITTED, this ________ day of July, 2013\n\nLegal Aid Saskatchewan\n\nRegina City Area Office\n\nPer:      \n\nAndrew L. Hitchcock\n\nSolicitor for the Appellant, Terry Tremaine\n\nPART V \u2013 LIST OF AUTHORITIES\n\nLegislation and Rules of Court\n\nCanada Act 1982 (UK), 1982, c. 11\n\nCanadian Criminal Code, R.S.C 1985, c. C-46\n\nCanadian Human Rights Act, R.S.C. 1985, c. H-6\n\nCharter of Rights and Freedoms, as part of The Constitution Act, 1982,  Schedule B to the\n\nFederal Court Rules, 1998, SOR\/98-106\n\nJurisprudence\n\nCanada (Attorney General) v. de l\u2019Isle (1994), 56 C.P.R. (3d) 371 (Fed.C.A.)\n\nCanada (H.R.C.) v. Taylor [1990] 3 S.C.R. 892 (S.C.C.)\n\nCanada (Minister of National Revenue) v. Money Stop Ltd. 2013 FC 133\n\nCanadian Copyright Licensing Agency v. U-Compute (2005), 284 F.T.R. 116\n\nCanadian Human Rights Commission v. Winnicki, 2007 FCA 52\n\nInternational Forest Products Ltd. v. Kern, 2001 BCCA 48\n\nMacMillan Bloedel Ltd. v. Simpson (1994), 88 C.C.C. (3d) 148 (B.C. C.A.)\n\nPenthouse International Ltd. v. 163564 Canada Inc., (1995), 63 C.P.R. (3d) 328 (Fed. T.D.)\n\nPuddester v. Newfoundland (Attorney General), 2001 NFCA 25\n\nR. v. Campeau 2009 SKCA 3\n\nR. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.)\n\nR. v. Gladue [1999] 1 S.C.R. 688 (S.C.C.)\n\nR. v. Keegstra [1990] 3 S.C.R. 697 (S.C.C.)\n\nR. v. M. (C.A.) [1996] 1 S.C.R. 500 (S.C.C.)\n\nR. v. Nasogaluak [2010] 1 S.C.R. 206 (S.C.C.)\n\nR. v. Oakes [1986] 1 S.C.R. 103 (S.C.C.)\n\nR. v. Shopshire [1995] 4 S.C.R. 227 (S.C.C.)\n\nR. v. Yue (2007), 226 C.C.C. (3d) 349 (Ont. C.A.); leave to appeal to S.C.C. refused; (2008), 253 O.A.C. 397 (S.C.C.)\n\nRegina (City) v. Cunningham, [1994] 8 W.W.R. 457 (Sask. C.A.)\n\nSalt River First Nation 195 v. Marie, 2006 FC 1420\n\nTelewizja Polsat SA v. Radiopol Inc. 2006 FC 137\n\nTelus Communications Ltd. v. T.W.U. 2006 BCSC 397; reversed in part on the issue of costs; 2008 BCCA 144\n\nU.N.A. v. Alberta (Attorney General) [1992] 1 S.C.R. 901 (S.C.C.)\n\nSaskatchewan (H.R.C.) v. Whatcott 2013 SCC 11\n\n1 (1994), 56 C.P.R. (3d) 371 (Fed.C.A.)\n\n2 Ibid  at para. 6\n\n3 [1995] 4 S.C.R. 227\n\n4 [1996] 1 S.C.R. 500\n\n5 2009 SKCA 3\n\n6 (1996), 112 CCC (3rd 97) Ont. C.A.\n\n7 Warman and CHRC v. Terry Tremaine, 2007 CHRT 2 (Appeal Book filed in Court File A-468-10)\n\n8 Appeal Book filed in A-468-10, Vol. 1, Tab 4\n\n9 Appeal Book at p. 239\n\n10 Appeal Book at p. 240 - 244\n\n11 Appeal Book, at p. 252\n\n12 Appeal Book, at p. 261\n\n13 Appeal Book, at p. 266 \u2013 268, 270\n\n14 Appeal Book, p. 384-385\n\n15 Appeal Book, p. 370-371\n\n16 Appeal Book, p. 112-122\n\n17 See: Rule 469, Federal Courts Rules, SOR\/98-106 (\u201cRules\u201d); and Brilliant Trading Inc. v. Wong, 2005 FC 1214 at para. 15.\n\n18 2001 BCCA 48\n\n19 Ibid at para. 20\n\n20 2001 NFCA 25\n\n21 See especially Ibid at para 32, 54-55\n\n22 Sussex Group Ltd. v. 3933938 Canada Inc., 2003 CanLII 27188 (ON SC)\n\n23 [1999] 1 S.C.R. 688 (S.C.C.)\n\n24 2007 FCA 52\n\n25 Ibid at para 21\n\n26 (2005) 284 FTR 116 \n\n27 Winnicki, supra note 24 at para. 21\n\n28 Appeal Book, at 118-120\n\n29 [1992] 1 S.C.R. 901 (S.C.C.)\n\n30 Ibid. at para. 24-25\n\n31 See: Penthouse International Ltd. v. 163564 Canada Inc. (1995), 63 C.P.R. (3d) 328 (F.C.T.D.)\n\n32 Appeal Book at 240\n\n33 2006 BCSC 397; reversed in part on the issue of costs; 2008 BCCA 144\n\n34 (1994), 88 C.C.C. (3d) 148 (B.C. C.A.)\n\n35 See Ibid, at para 15-21, 58\n\n36 [1994] 8 W.W.R. 457 (Sask. C.A.)\n\n37 Winnicki, supra note 27\n\n38 Telus Communications supra, note 33\n\n39 2005 FC 1644\n\n40 2006 FC 1420\n\n41 2006 FC 137\n\n42 2013 FC 133\n\n43 (2006), 205 C.C.C. (3d) 488 (Ont. C.A.)\n\n44 Ibid, see especially: para 30-33\n\n45 See: R. v. Yue (2007), 226 C.C.C. (3d) 349 (Ont. C.A.); leave to appeal to the Supreme Court of Canada refused; (2008), 253 O.A.C. 397 (S.C.C.)\n\n46 Appeal Book at p. 12\n\n47 Judgment under appeal at para. 25, Appeal Book at p. 12\n\n48 Appeal Book at 251.\n\n49 [2010] 1 S.C.R. 206\n\n50 [1990] 3 S.C.R. 892 (S.C.C.)\n\n51 2013 SCC 11\n\n52 in R. v. Keegstra [1990] 3 S.C.R. 697, the Supreme Court of Canada was clear that even hate propaganda constitutes \u201cpolitical expression\u201d at para. 95\n\n53 [1986] 1 S.C.R. 103 (S.C.C.)\n\n54 Appeal Book filed in Court file A-468-10, Affidavit of Richard Warman, p. 140\n\n55 Appeal Book, at p. 17\n\n56 Bill C-304 An Act to Amend the Canadian Human Rights Act (Protecting Freedom), Royal Assent Statutes of Canada: 2013, c. 37]\" src=\"https:\/\/fbcdn-sphotos-b-a.akamaihd.net\/hphotos-ak-prn2\/p480x480\/1173706_213920662107515_1909914188_n.jpg\" width=\"504\" height=\"380\" \/><\/div>\n<div>\n<form action=\"http:\/\/ajax\/ufi\/modify.php\" method=\"post\" target=\"_blank\"><input type=\"hidden\" name=\"clp\" value=\"{&quot;cl_impid&quot;:&quot;74b62a48&quot;,&quot;clearcounter&quot;:0,&quot;elementid&quot;:&quot;js_360&quot;,&quot;version&quot;:&quot;x&quot;,&quot;parent_fbid&quot;:213920662107515}\" \/><input type=\"hidden\" name=\"charset_test\" value=\"\u20ac,\u00b4,\u20ac,\u00b4,\u6c34,\u0414,\u0404\" \/><input type=\"hidden\" name=\"fb_dtsg\" value=\"AQAwuXru\" \/><input type=\"hidden\" name=\"feedback_params\" value=\"{&quot;actor&quot;:&quot;100004687473766&quot;,&quot;target_fbid&quot;:&quot;213920662107515&quot;,&quot;target_profile_id&quot;:&quot;100004687473766&quot;,&quot;type_id&quot;:&quot;7&quot;,&quot;assoc_obj_id&quot;:&quot;&quot;,&quot;source_app_id&quot;:&quot;0&quot;,&quot;extra_story_params&quot;:[],&quot;content_timestamp&quot;:&quot;1376772294&quot;,&quot;check_hash&quot;:&quot;AQBSldzmganRLMsg&quot;,&quot;source&quot;:&quot;13&quot;}\" \/><input type=\"hidden\" name=\"data_only_response\" value=\"1\" \/><input type=\"hidden\" name=\"timeline_ufi\" value=\"1\" \/><input type=\"hidden\" name=\"timeline_log_data\" value=\"AQCusUNMOeKmxQFoLhD2LC0cBJhpIelF4SBP6j3IX1lNV9--Z4xrt3Cd83fqq2sQvMQabayPVWY_c772U50I1K-oGGTI21vbnouVvvo78SOxXlM03rZqKmG9Je5q71cY7sUzUJbGJTO6HrR7cTgNyxsn1dftlsUEeTCpXVvhW2ik-W9xRoJa44n9IEW8rTIFx6V5_hac3g_qf9SdNd54R-WZ40c4tQSN6uBci-ygVyXOKE377CHxfJocV_pme1qsRm1dYnkmBoYeS_2FPjyu5k6hV2JilbdYaxJ6S1KqQgyT2d2m7ALQBHD3T20HYR1bzm1RgjxUeDk7-YYcnmTTvRjubNI_7MhaWvvojRqINytVtTMIqoaX57MgC_gLxLE92xSXlaN3-OSABFXwW-w6k2pZPDDLNJogj5KC2PHPjQkuNw\" \/><\/p>\n<div><\/div>\n<\/form>\n<\/div>\n<\/div>\n<div><\/div>\n<div><span style=\"color: #000000; font-size: large;\">Originally, Federal Court Judge Found Mr. Tremaine not guilty as the February, 2008\u00a0 Canadian Human Rightds Tribunal &#8220;cease and desist order&#8221; had not been served on Mr. Tremaine until August, 2009. Apparently, his postings from February, 2008 until later that year were not sufficiently toned down in terms of privileged minorities for Mr.Warman&#8217;s sensibilities.. Also, he had not removed a long list of offending passages &#8212; although the poorly written order didn&#8217;t instruct him to do so. In 2011, the Federal Court of Appeal on a 2-1 vote instated a finding of guilt and overturned the acquittal. It was back to Judge Harrington for sentencing in Vancouver in October, 2012. Earlier last year, the Supreme Court denied leave to appeal.<\/span><\/div>\n<div><\/div>\n<div><span style=\"font-size: large;\"><span style=\"color: #000000;\">Remember, Sec. 13 had already been repealed by the House of Commons in June, 2012. So, Mr. Warman was being punished for contempt of a vague order imposed under a law that was so foul it had been repealed. The Senate repealed the law in June, 2013 and repeal was granted immediate Royal Assent. This makes the prospect of Mr.\u00a0Tremaine heading for prison for &#8220;contempt of court&#8221; for failing to obey a vague order\u00a0under a law that has been repealed even more ludicrous<\/span> <\/span><\/div>\n<div><span style=\"font-size: large;\">Don&#8217;t let them tell you Canada is a free country. Next time some earnest do gooder reminds you of the fate of dissidents in Red China or Burma or Cuba, be sympathetic but remind him or her that Canada has no reason to be self righteous.<br \/>\nOur courts are quite happy to jail dissidents and gag opinion on the Internet, especially where the dissident has criticized powerful privileged groups.<br \/>\nIn China, if you criticize the powerful Communist Party, they send your impertinent butt to jail. In Canada, if you criticize privileged minorities, as has scholar and dissident Terry Tremaine, they fling your dissident self in prison.<br \/>\nTo all the naive folks listening to those tv ads about the 30th Anniversary of the Charter: Do you still think your rights are protected? Not if you cross politically powerful and privileged minorities.<\/span><\/div>\n<div><\/div>\n<div><strong><span style=\"color: #3333ff; font-size: xx-large;\">Paul Fromm,<\/span><\/strong><\/div>\n<div><strong><span style=\"color: #3333ff; font-size: xx-large;\">Director<\/span><\/strong><\/div>\n<div><strong><span style=\"color: #3333ff; font-size: xx-large;\">CANADIAN ASSOCIATION FOR FREE EXPRESSION<\/span><\/strong><\/div>\n<div><\/div>\n<div><\/div>\n<div><\/div>\n<div><strong><span style=\"font-size: xx-large;\">OVERVIEW\u00a0<\/span><\/strong><a title=\"_Toc361393424\" href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1__Toc361393424\" target=\"_blank\"><strong><span style=\"font-size: xx-large;\">1<\/span><\/strong><\/a><\/div>\n<p><strong><span style=\"font-size: xx-large;\">i.\u00a0Standard of Review\u00a0<\/span><\/strong><a title=\"_Toc361393425\" href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1__Toc361393425\" target=\"_blank\"><strong><span style=\"font-size: xx-large;\">2<\/span><\/strong><\/a><\/p>\n<p><strong><span style=\"font-size: xx-large;\">PART I \u2013\u00a0STATEMENT OF FACTS\u00a0<\/span><\/strong><a title=\"_Toc361393426\" href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1__Toc361393426\" target=\"_blank\"><strong><span style=\"font-size: xx-large;\">4<\/span><\/strong><\/a><\/p>\n<p><strong><span style=\"font-size: xx-large;\">PART II \u2013\u00a0ISSUES\u00a0<\/span><\/strong><a title=\"_Toc361393427\" href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1__Toc361393427\" target=\"_blank\"><strong><span style=\"font-size: xx-large;\">9<\/span><\/strong><\/a><\/p>\n<p><strong><span style=\"font-size: xx-large;\">PART III &#8211; ARGUMENT\u00a0<\/span><\/strong><a title=\"_Toc361393428\" href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1__Toc361393428\" target=\"_blank\"><strong><span style=\"font-size: xx-large;\">10<\/span><\/strong><\/a><\/p>\n<p><span style=\"font-size: large;\">A.\u00a0Did the learned sentencing Judge err in law and\u00a0 principle by failing to consider and apply the principle of restraint?\u00a0<\/span><a title=\"_Toc361393429\" href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1__Toc361393429\" target=\"_blank\"><span style=\"font-size: large;\">10<\/span><\/a><\/p>\n<p><span style=\"font-size: large;\">B.\u00a0Did the learned sentencing Judge err by overemphasizing\u00a0 the principle of deterrence while paying insufficient attention to the\u00a0 individual circumstances of the Appellant?\u00a0<\/span><a title=\"_Toc361393430\" href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1__Toc361393430\" target=\"_blank\"><span style=\"font-size: large;\">13<\/span><\/a><\/p>\n<p><span style=\"font-size: large;\">C.\u00a0Did the learned sentencing Judge err in law by,\u00a0 in effect, sentencing the Appellant for criminal contempt, notwithstanding\u00a0 that this Court has convicted him of civil contempt, and the Commission\u00a0 proceeded on that basis at the Sentencing Hearing?\u00a0<\/span><a title=\"_Toc361393431\" href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1__Toc361393431\" target=\"_blank\"><span style=\"font-size: large;\">14<\/span><\/a><\/p>\n<p><span style=\"font-size: large;\">i.\u00a0Parity Principle\u00a0<\/span><a title=\"_Toc361393432\" href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1__Toc361393432\" target=\"_blank\"><span style=\"font-size: large;\">16<\/span><\/a><\/p>\n<p><span style=\"font-size: large;\">D.\u00a0Did the learned sentencing Judge err in law by declining to\u00a0 consider the mitigating factor that the Appellant had been in prison\u00a0 for 22 days as a result of criminal charges involving the same complainant\u00a0 and substantially the same evidence?\u00a0<\/span><a title=\"_Toc361393433\" href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1__Toc361393433\" target=\"_blank\"><span style=\"font-size: large;\">18<\/span><\/a><\/p>\n<p><span style=\"font-size: large;\">PART IV \u2013\u00a0CONCLUSION AND NATURE OF RELIEF\u00a0 REQUESTED\u00a0<\/span><a title=\"_Toc361393434\" href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1__Toc361393434\" target=\"_blank\"><span style=\"font-size: large;\">26<\/span><\/a><\/p>\n<p><span style=\"font-size: large;\">PART V \u2013\u00a0LIST OF AUTHORITIES\u00a0<\/span><a title=\"_Toc361393435\" href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1__Toc361393435\" target=\"_blank\"><span style=\"font-size: large;\">28<\/span><\/a><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0 <\/span><\/p>\n<p>&nbsp;<\/p>\n<p><span style=\"font-size: large;\">Court File\u00a0 No.:\u00a0 A-493-12<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">FEDERAL COURT OF APPEAL<\/span><\/p>\n<p><span style=\"font-size: large;\">BETWEEN:<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: xx-large;\"><strong>tERRy TREMAINE<\/strong><\/span><\/p>\n<p><span style=\"font-size: xx-large;\"><strong>APPELLANT<\/strong><\/span><\/p>\n<p><span style=\"font-size: xx-large;\"><strong>and <\/strong><\/span><\/p>\n<p><span style=\"font-size: xx-large;\"><strong>\u00a0<\/strong><\/span><\/p>\n<p><span style=\"font-size: xx-large;\"><strong>Canadian human rights\u00a0 commission<\/strong><\/span><\/p>\n<p><span style=\"font-size: xx-large;\"><strong>and<\/strong><\/span><\/p>\n<p><span style=\"font-size: xx-large;\"><strong>richard warman<\/strong><\/span><\/p>\n<p><span style=\"font-size: large;\">RESPONDENTS<\/span><\/p>\n<div>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<\/div>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<div>\n<p><span style=\"font-size: large;\">MEMORANDUM OF FACT AND LAW OF\u00a0 THE APPELLANT<\/span><\/p>\n<\/div>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1__Toc361393424\"><\/a><span style=\"font-size: large;\"><strong>OVERVIEW<\/strong><\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol>\n<li><span style=\"font-size: large;\">The evidence disclosed throughout this litigation establishes\u00a0\u00a0 that the Appellant\u2019s political message is, doubtless, deeply offensive\u00a0\u00a0 to the overwhelming majority of Canadian citizens.\u00a0 This Honourable\u00a0\u00a0 Court has convicted the Appellant of civil contempt of the Canadian Human Rights Tribunal, which had previously ordered the Appellant to \u201ccease and desist\u201d from communications of the type that resulted in the\u00a0\u00a0 finding that he exposed protected groups of his fellow citizens to hatred\u00a0\u00a0 or contempt.\u00a0 This is an undeniable fact.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"2\">\n<li><span style=\"font-size: large;\">It is readily acknowledged that a conviction for\u00a0\u00a0 civil contempt is a serious matter.\u00a0 Nevertheless, the fundamental\u00a0\u00a0 principles of sentencing mandated by Parliament &#8211; and consistently applied by Canadian courts sentencing\u00a0\u00a0 citizens for contempt &#8211; must be properly applied to every citizen found\u00a0\u00a0 guilty of an offence.\u00a0 The specific facts of a rare case such as this also\u00a0\u00a0 call for the consideration of broader legal principles. It is the role of the Appellate Courts to endeavor to ensure this is accomplished.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"3\">\n<li><span style=\"font-size: large;\">At the heart of this appeal is the Appellant\u2019s assertion that these principles were not applied\u00a0\u00a0 appropriately.\u00a0 It is readily admitted that this case involves\u00a0\u00a0 communications that are hateful, and that was clearly a concern to the\u00a0\u00a0 learned sentencing Judge.\u00a0 Mr. Justice Harrington was entitled\u00a0\u00a0 to consider this as an aggravating factor.\u00a0 However, the learned sentencing Judge was still required to balance this with other\u00a0\u00a0 factors and correctly apply the appropriate principles.\u00a0 This case\u00a0\u00a0 called for the Court to sentence a citizen for a civil contempt as a first offender.\u00a0 The learned sentencing Judge had a legal duty to give adequate consideration to the\u00a0\u00a0 fundamental principle of restraint and the important mitigating factors\u00a0\u00a0 that arose from the Appellant\u2019s personal circumstances, as well as the surrounding\u00a0\u00a0 social and legal context within which the offence occurred.\u00a0 The Appellant will respectfully submit that adequate consideration of these principles and factors was not given in the case at bar, therefore causing\u00a0\u00a0 the learned sentencing Judge to commit a reversible error.\u00a0 These errors in law and principle led to\u00a0\u00a0 a further error: that the sentence is manifestly excessive, and more\u00a0\u00a0 appropriate for a criminal contempt.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"4\">\n<li><span style=\"font-size: large;\">Though the Appellant will advance two further arguments, it\u00a0\u00a0 is primarily because of these three errors that the learned sentencing Judge imposed a sentence which is, in all the circumstances\u00a0\u00a0 of this case, demonstrably unfit.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ul>\n<ol>\n<li><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1__Toc361393425\"><\/a><span style=\"font-size: large;\"><strong>Standard of Review<\/strong><\/span><\/li>\n<\/ol>\n<\/ul>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"5\">\n<li><span style=\"font-size: large;\">Before discussing the law concerning the governing\u00a0\u00a0 standard of review to be applied in this case, it should first be acknowledged\u00a0\u00a0 that the grounds of appeal argued in this Memorandum will differ from\u00a0\u00a0 the grounds asserted by previous counsel in the Notice of Appeal.\u00a0\u00a0\u00a0 Nevertheless, all of the Appellant\u2019s submissions concern issues that were before the\u00a0\u00a0 learned sentencing Judge and are properly before this Court.\u00a0\u00a0\u00a0 The Appellant respectfully submits that this Court has jurisdiction\u00a0\u00a0 to hear this appeal as is framed in this Memorandum.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"6\">\n<li><span style=\"font-size: large;\">In Canada (Attorney General) v.\u00a0\u00a0 de l\u2019Isle<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote1\" target=\"_blank\"><sup><span style=\"font-size: large;\">1<\/span><\/sup><\/a><span style=\"font-size: large;\"> this Court held that, with respect to a sentence\u00a0\u00a0 for contempt, an appellate court may intervene only if the sentence\u00a0\u00a0 imposed is \u201cexcessive or inappropriate having regard to the circumstance,\u00a0\u00a0 or if that judge erred in law in passing sentence.\u201d<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote2\" target=\"_blank\"><sup><span style=\"font-size: large;\">2<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0 Though this appeal concerns a sentence for\u00a0\u00a0 civil contempt, the Appellant\u2019s liberty interests are directly engaged and, as a\u00a0\u00a0 result, contempt is to be treated as quasi-criminal in nature.\u00a0\u00a0\u00a0 For this reason, it is submitted that the deferential approach adopted\u00a0\u00a0 in de l\u2019Isle can be expanded upon by applying the principles\u00a0\u00a0 outlined by appellate level sentencing cases in Canadian criminal law.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"7\">\n<li><span style=\"font-size: large;\">The standard of review to be employed by Appellate\u00a0\u00a0 Courts when adjudicating sentence appeals is outlined by the Supreme\u00a0\u00a0 Court of Canada in R. v. Shropshire<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote3\" target=\"_blank\"><sup><span style=\"font-size: large;\">3<\/span><\/sup><\/a><span style=\"font-size: large;\">.\u00a0 The standard was considered further in R. v. M. (C.A.)<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote4\" target=\"_blank\"><sup><span style=\"font-size: large;\">4<\/span><\/sup><\/a><span style=\"font-size: large;\">.\u00a0 At paragraph 90, the court stated:<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">Put simply, absent an error in principle, failure\u00a0 to consider a relevant factor, or an overemphasis of the appropriate\u00a0 factors, a court of appeal should only intervene to vary a sentence\u00a0 imposed at trial if the sentence is demonstrably unfit. <\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"8\">\n<li><span style=\"font-size: large;\">While recognizing the important role appellate courts\u00a0\u00a0 play in minimizing disparity of sentencing for similar offenders and\u00a0\u00a0 similar offences, the Supreme Court recognized that sentencing is an\u00a0\u00a0 individualized process.\u00a0 It accepted that Parliament has given\u00a0\u00a0 specialized discretion to individual sentencing judges.\u00a0\u00a0\u00a0\u00a0 As a result, the court stated at paragraph 92:<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">\u2026 I believe that a court of appeal should only\u00a0 intervene to minimize the disparity of sentences where the sentence\u00a0 imposed by the trial judge is in substantial and marked departure from\u00a0 the sentences customarily imposed for similar offenders committing similar\u00a0 crimes.<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0 <\/span><\/p>\n<p>&nbsp;<\/p>\n<ol start=\"9\">\n<li><span style=\"font-size: large;\">The Saskatchewan Court of Appeal has recognized and applied this standard of review\u00a0\u00a0 on numerous occasions.\u00a0 In R. v. Campeau<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote5\" target=\"_blank\"><sup><span style=\"font-size: large;\">5<\/span><\/sup><\/a><span style=\"font-size: large;\">, the Court re-affirmed the standard.\u00a0 Further,\u00a0\u00a0 it discussed what constitutes \u201cunreasonableness\u201d and \u201cdemonstrable unfitness\u201d at paragraph 5:<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">This Court considers what constitutes &#8220;unreasonable&#8221;\u00a0 in R. v. Berntson and &#8220;demonstrably\u00a0 unfit&#8221; in R. v. Pankewich. In Pankewich, Jackson J.A.,\u00a0 for the Court, described demonstrable unfitness as follows:<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">[31] &#8230;&#8221;Demonstrably unfit&#8221; has been equated\u00a0 with unreasonableness (see Shropshire at para. 46);\u00a0 &#8220;sentences which are clearly or manifestly excessive&#8221; (see Shropshire at para. 47\u00a0 quoting the Nova Scotia Court of Appeal in R. v. Pepin (1990), 98\u00a0 N.S.R. (2d) 238 (N.S.C.A.) at 251); &#8220;falling outside the &#8216;acceptable\u00a0 range&#8221;&#8216; (see Shropshire at para. 50);\u00a0 sentences where there is a &#8220;substantial and marked departure from\u00a0 the sentences customarily imposed for similar offenders committing similar\u00a0 crimes&#8221; (see M. (C.A.) at para. 92)\u00a0 &#8230; McDonnell [[1997] 1 S.C.R.\u00a0 948] also states that a wide deviation from the accepted &#8220;starting-point&#8221;\u00a0 of sentencing for an offence will not, in and of itself, render a sentence\u00a0 demonstrably unfit, but rather is a factor in determining demonstrable\u00a0 unfitness\u2026<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"10\">\n<li><span style=\"font-size: large;\">In R. v. Rezale<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote6\" target=\"_blank\"><sup><span style=\"font-size: large;\">6<\/span><\/sup><\/a><span style=\"font-size: large;\">, the Ontario Court of Appeal defined an error in\u00a0\u00a0 principle as follows:<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">Error in principle is a familiar basis for reviewing\u00a0 the exercise of judicial discretion.\u00a0 It connotes, at least, failing\u00a0 to take into account a relevant factor, taking into account an irrelevant\u00a0 factor, failing to give sufficient weight to relevant factors, overemphasizing\u00a0 relevant factors and, more generally, it includes an error of law.<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1__Toc361393426\"><\/a><span style=\"font-size: large;\">PART I \u2013 STATEMENT OF FACTS<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"11\">\n<li><span style=\"font-size: large;\">The Canadian Human Rights Tribunal (\u201cCHRT\u201d) held that the Appellant, Mr. Terry Tremaine, was\u00a0\u00a0 engaging in discriminatory practice contrary to s. 13 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (\u201cCHRA\u201d) on February 2, 2007.\u00a0 The Tribunal held that\u00a0\u00a0 Mr. Tremaine\u2019s messages violated s. 13(1) of the CHRA and issued a cease and desist order and a fine in\u00a0\u00a0 the amount on $4,000.\u00a0 Mr. Tremaine was not represented by counsel\u00a0\u00a0 at the CHRT hearing.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote7\" target=\"_blank\"><sup><span style=\"font-size: large;\">7<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0\u00a0 <\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"12\">\n<li><span style=\"font-size: large;\">Still unrepresented, he applied for judicial review\u00a0\u00a0 of the Tribunal\u2019s decision.\u00a0 On September 18, 2008, the Federal\u00a0\u00a0 Court found that the Tribunal\u2019s decision was not unreasonable.\u00a0 The Court held\u00a0\u00a0 that neither the cease and desist order, nor the $4,000 fine were unreasonable.\u00a0 Notwithstanding\u00a0\u00a0 that the Appellant was not represented by counsel, the Federal Court\u00a0\u00a0 declined to consider his application with respect to the constitutionality\u00a0\u00a0 of s. 13(1) of the CHRA because he did not provide the requisite notice\u00a0\u00a0 as required by the Federal Courts Act, RSC 1985, c. F-7. The Court further declined a request to have the\u00a0\u00a0 judicial review adjourned pending the outcome of the constitutional\u00a0\u00a0 application made in CHRC and Warman v. Lemire, 2012 FC 1162 (F.C.T.D.).<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"13\">\n<li><span style=\"font-size: large;\">The facts underlying both the Tribunal decision and the\u00a0\u00a0 judicial review concern Mr. Tremaine\u2019s postings on 2 internet sites.\u00a0 First, Mr. Tremaine is the Webmaster of the National Socialist Party\u00a0\u00a0 of Canada website.\u00a0 Second, he is a member of an American website\u00a0\u00a0 known as \u201cStormfront\u201d.\u00a0 Stormfront provides forums where people can exchange ideas\u00a0\u00a0 and messages in the form of postings.\u00a0 The website is clearly geared towards white\u00a0\u00a0 supremacy and neo-Nazi ideology, and is basically a cyber-meeting place for like-minded individuals.\u00a0 Though you need to be a member to post on\u00a0\u00a0 the website, any member of the public can download the content.\u00a0\u00a0\u00a0 The slogan \u201cWhite Power World Wide\u201d appears on the Home Page of Stormfront, so the nature of the website is very clear to all visitors.\u00a0 The Appellant posted on the website under\u00a0\u00a0 the pseudonym \u201cMathDoktor99\u201d.\u00a0 The majority of the postings attributed to\u00a0\u00a0 the Appellant are repugnant and deeply offensive to the vast majority\u00a0\u00a0 of Canadians.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote8\" target=\"_blank\"><sup><span style=\"font-size: large;\">8<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0\u00a0 <\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"14\">\n<li><span style=\"font-size: large;\">The Appellant did not appeal the decision of the\u00a0\u00a0 Federal Court.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"15\">\n<li><span style=\"font-size: large;\">In 2009, the Canadian Human Rights Commission (the \u201cCommission\u201d) filed a motion in Federal Court for an order that\u00a0\u00a0 the Appellant be found in contempt of the order of the Tribunal.\u00a0\u00a0\u00a0 The motion was heard by Justice Harrington of the Trial Division of\u00a0\u00a0 the Federal Court.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"16\">\n<li><span style=\"font-size: large;\">Justice Harrington held that though the Commission\u00a0\u00a0 had established beyond a reasonable doubt that the Appellant had knowledge\u00a0\u00a0 of the order of the Tribunal, it could not establish that he had knowledge\u00a0\u00a0 that the order had been registered with the Federal Court until March,\u00a0\u00a0 2009.\u00a0 He dismissed the charges for contempt, finding that the Commission had to register the Tribunal\u2019s order with the Federal Court and serve the Appellant\u00a0\u00a0 before it could be enforced.\u00a0 The learned Trial Justice also dismissed\u00a0\u00a0 the Appellant\u2019s argument that he had not \u201ccommunicated\u201d within the meaning of s. 13(1) of the CHRA.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"17\">\n<li><span style=\"font-size: large;\">The Commission successfully appealed this decision\u00a0\u00a0 to this Court.\u00a0 The majority of the Federal Court of Appeal found\u00a0\u00a0 that there was no legal principle that restricted the use of contempt\u00a0\u00a0 powers to orders issued by superior courts.\u00a0 It concluded that\u00a0\u00a0 the CHRT\u2019s decisions were no less enforceable by superior courts\u00a0\u00a0 than the decisions of the superior courts themselves.\u00a0 This Honourable Court declined to order a new hearing\u00a0\u00a0 and instead substituted a conviction for civil contempt.\u00a0 It directed\u00a0\u00a0 that the matter be returned to the Federal Court for sentencing.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"18\">\n<li><span style=\"font-size: large;\">Counsel for the Appellant unsuccessfully applied for leave to appeal this\u00a0\u00a0 Honourable Court\u2019s decision to the Supreme Court of Canada.\u00a0 The\u00a0\u00a0 matter was thus remitted back to the Federal Court Trial Division for sentencing.\u00a0 It proceeded on the basis that the Appellant had been\u00a0\u00a0 convicted of civil contempt.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote9\" target=\"_blank\"><sup><span style=\"font-size: large;\">9<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0\u00a0 <\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"19\">\n<li><span style=\"font-size: large;\">As it was a civil contempt, the Commission submitted\u00a0\u00a0 that the Appellant ought to be detained until his contempt was purged.\u00a0\u00a0\u00a0 The Commission further submitted that as the matter was a civil contempt,\u00a0\u00a0 the Appellant had the right to purge the contempt and therefore avoid\u00a0\u00a0 imprisonment.\u00a0 The Commission submitted that if the Appellant did\u00a0\u00a0 not purge his contempt, that he ought to be imprisoned until he do so.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote10\" target=\"_blank\"><sup><span style=\"font-size: large;\">10<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0\u00a0 <\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"20\">\n<li><span style=\"font-size: large;\">The Commission also sought that the Appellant remove\u00a0\u00a0 the offending material from the National Socialist Party of Canada website\u00a0\u00a0 and request that Stormfront remove his previous posts that were the\u00a0\u00a0 subject of the contempt.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"21\">\n<li><span style=\"font-size: large;\">The complainant, Mr. Richard Warman, sought a period\u00a0\u00a0 of unconditional imprisonment of 3 to 6 months.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote11\" target=\"_blank\"><sup><span style=\"font-size: large;\">11<\/span><\/sup><\/a><span style=\"font-size: large;\">The complainant further submitted that rather than\u00a0\u00a0 ordering the Appellant to remove the infringing posts from the National\u00a0\u00a0 Socialist website, the court ought to order the site shut down in its\u00a0\u00a0 entirety.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote12\" target=\"_blank\"><sup><span style=\"font-size: large;\">12<\/span><\/sup><\/a><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"22\">\n<li><span style=\"font-size: large;\">The Appellant\u2019s counsel unsuccessfully tried to argue that the Appellant\u00a0\u00a0 did not have the requisite mens rea.\u00a0 The Appellant further argued that for a period of time wherein the Appellant was found to be in contempt, s. 13(1) of the CHRA was found to be not constitutionally valid.\u00a0\u00a0\u00a0 The Appellant argued that he was under an honest mistake of law and\u00a0\u00a0 did not believe that the Tribunal\u2019s decision was enforceable.\u00a0 He further argued\u00a0\u00a0 that the order of the Tribunal was ambiguous in that it prohibited \u201ctelephonic\u201d communication rather than internet communication. The Appellant submitted that there should be an\u00a0\u00a0 order for compliance, and in default of compliance, 60 to 80 days imprisonment.\u00a0\u00a0\u00a0 In effect, he asked for a sentence of imprisonment to be suspended to allow\u00a0\u00a0 him time to purge his civil contempt.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote13\" target=\"_blank\"><sup><span style=\"font-size: large;\">13<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0\u00a0 <\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"23\">\n<li><span style=\"font-size: large;\">The Trial Division of the Federal Court sentenced the Appellant to 30 days imprisonment.\u00a0 It further ordered him to cease communicating or causing\u00a0\u00a0 to communicate material of the type or substantially similar type to\u00a0\u00a0 that found by the Tribunal and Federal Court to be likely to expose\u00a0\u00a0 a person or persons to hatred or contempt on the basis of a prohibited\u00a0\u00a0 ground of discrimination in violation of s. 13(1) of the CHRA.\u00a0 It held that the Appellant would be imprisoned for\u00a0\u00a0 a further 6 months or until he complies with the Court\u2019s order, and directed the Appellant to approach Stormfront.org with a\u00a0\u00a0 request to remove postings from their website and to remove specified\u00a0\u00a0 postings from the National Socialist Party of Canada website.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"24\">\n<li><span style=\"font-size: large;\">In the decision under appeal, the learned Trial Justice\u00a0\u00a0 began his decision by declaring that \u201cthe time [had] come at last to penalize Mr. Tremaine\u00a0\u00a0 for acting in contempt of an order of the Canadian Human Rights Tribunal.\u201d\u00a0 The Court further noted the offensive nature of\u00a0\u00a0 Mr. Tremaine\u2019s messages.\u00a0 It dismissed the Notice of Constitutional Question\u00a0\u00a0 filed by the Appellant at the Sentencing Hearing, echoing its oral ruling at the sentencing hearing,\u00a0\u00a0 in which it dismissed the motion without hearing evidence. The court held that it was \u201cmost disturbing\u201d that the Appellant had testified at the Sentencing\u00a0\u00a0 Hearing that he had sold control of the National Socialist Party of\u00a0\u00a0 Canada website to an American through Mr. Bernard Klatt.\u00a0 The learned Trial Judge added that it was \u201cobvious that Mr. Tremaine was attempting to put his website out of this Court\u2019s reach\u201d.\u00a0 The learned Justice also saw fit to admonish the Appellant\u2019s previous counsel in relation to submissions he made\u00a0\u00a0 with respect to the Complainant.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"25\">\n<li><span style=\"font-size: large;\">It should be noted that the materials that were the\u00a0\u00a0 subject matter of the previous hearings were also the subject matters\u00a0\u00a0 of criminal proceedings in the Province of Saskatchewan.\u00a0 The Appellant\u00a0\u00a0 was charged with breaching s. 319 of the Criminal Code.\u00a0 The Regina Police Service executed a search\u00a0\u00a0 warrant and invaded his home and seized his computer.\u00a0 As a result\u00a0\u00a0 of an alleged breach of bail conditions, the Appellant served 22 days\u00a0\u00a0 at the Regina Provincial Correctional Centre on remand.\u00a0 The substantive s. 319 charge was eventually judicially stayed by the Saskatchewan Court of Queen\u2019s Bench due to unreasonable delay.\u00a0 The breach allegation was also stayed.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote14\" target=\"_blank\"><sup><span style=\"font-size: large;\">14<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0\u00a0 <\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"26\">\n<li><span style=\"font-size: large;\">On December 3, 2012, previous counsel for the Appellant\u00a0\u00a0 sent a letter to the Registrar of the Federal Court of Canada outlining\u00a0\u00a0 the steps the Appellant had taken to comply with the order.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote15\" target=\"_blank\"><sup><span style=\"font-size: large;\">15<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0\u00a0 <\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"27\">\n<li><span style=\"font-size: large;\">The Appellant, Terry Tremaine, is a 64 year old Canadian\u00a0\u00a0 citizen residing in Regina, Saskatchewan.\u00a0 He has a Master of Science\u00a0\u00a0 in Mathematics, and has completed some doctoral studies at Queen\u2019s University.\u00a0 As a result of this litigation, his 20 year academic\u00a0\u00a0 career has been completely destroyed.\u00a0 Though there was no suggestion\u00a0\u00a0 his personal political views ever affected his teaching career, the\u00a0\u00a0 University of Saskatchewan dismissed him when the Complainant contacted\u00a0\u00a0 them about Mr. Tremaine and threatened to go to the media if the institution\u00a0\u00a0 did not take disciplinary action.\u00a0 Subsequent to the loss of his\u00a0\u00a0 profession, Mr. Tremaine suffered from depression that was so severe\u00a0\u00a0 he required hospitalization.\u00a0 He has been unable to find lasting,\u00a0\u00a0 meaningful employment since his termination and is now indigent, and a qualified applicant for representation\u00a0\u00a0 by Legal Aid Saskatchewan.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote16\" target=\"_blank\"><sup><span style=\"font-size: large;\">16<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0\u00a0 <\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1__Toc361393427\"><\/a><span style=\"font-size: large;\"><strong>PART II \u2013\u00a0ISSUES<\/strong><\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"28\">\n<li><span style=\"font-size: large;\">It is respectfully submitted that this appeal raises\u00a0\u00a0 the following issues:<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ul>\n<ol>\n<li><span style=\"font-size: large;\">Did the learned sentencing Judge err in law and principle\u00a0\u00a0 by failing to consider and apply the principle of restraint?<\/span><\/li>\n<\/ol>\n<\/ul>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ul>\n<ol start=\"2\">\n<li><span style=\"font-size: large;\">Did the learned sentencing Judge err by overemphasizing\u00a0\u00a0 the principle of deterrence while paying insufficient attention to the\u00a0\u00a0 individual circumstances of the Appellant?<\/span><\/li>\n<\/ol>\n<\/ul>\n<p><span style=\"font-size: large;\">\u00a0 <\/span><\/p>\n<p>&nbsp;<\/p>\n<ul>\n<ol start=\"3\">\n<li><span style=\"font-size: large;\">Did the learned sentencing Judge err in law by, in\u00a0\u00a0 effect, sentencing the Appellant for criminal contempt, notwithstanding\u00a0\u00a0 that this Court has convicted him of civil contempt, and the Commission\u00a0\u00a0 proceeded on that basis at the Sentencing Hearing?<\/span><\/li>\n<\/ol>\n<\/ul>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ul>\n<ul>\n<ol>\n<li><span style=\"font-size: large;\">Does the Sentence conform with the Parity Principle?<\/span><\/li>\n<\/ol>\n<\/ul>\n<\/ul>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ul>\n<ol start=\"4\">\n<li><span style=\"font-size: large;\">Did the learned sentencing Judge err in law by declining\u00a0\u00a0 to consider the mitigating factor that the Appellant had been in prison\u00a0\u00a0 for 22 days as a result of criminal charges involving the same complainant\u00a0\u00a0 and substantially the same evidence?<\/span><\/li>\n<\/ol>\n<\/ul>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ul>\n<ol start=\"5\">\n<li><span style=\"font-size: large;\">While considering the hateful nature of the Appellant\u2019s comments, did the learned sentencing Judge err by\u00a0\u00a0 declining to also consider the broad social and legal factors that were\u00a0\u00a0 relevant to the analysis of a just and proper sanction?<\/span><\/li>\n<\/ol>\n<\/ul>\n<p><span style=\"font-size: large;\"><strong>\u00a0<\/strong><\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1__Toc361393428\"><\/a><span style=\"font-size: large;\"><strong>PART III &#8211; ARGUMENT<\/strong><\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol>\n<li><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1__Toc361393429\"><\/a><span style=\"font-size: large;\">Did the learned sentencing Judge err in law and principle by failing\u00a0\u00a0 to consider and apply the principle of restraint?<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"29\">\n<li><span style=\"font-size: large;\">Though the law concerning both civil and criminal\u00a0\u00a0 contempt is rooted in the common law rather than statute, the potential\u00a0\u00a0 implications for a loss of liberty arising from a finding of contempt\u00a0\u00a0 has led the courts to consistently apply the criminal standard of proof\u00a0\u00a0 beyond a reasonable doubt.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote17\" target=\"_blank\"><sup><span style=\"font-size: large;\">17<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0 The criminal nature of contempt proceedings,\u00a0\u00a0 even in a civil context, has led the established jurisprudence to accept\u00a0\u00a0 that the principles of sentencing outlined in the Criminal Code, R.S.C. 1985, c. C-46 (\u201cCode\u201d) are instructive and should be followed.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"30\">\n<li><span style=\"font-size: large;\">In International Forest Products\u00a0\u00a0 Ltd. v. Kern<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote18\" target=\"_blank\"><sup><span style=\"font-size: large;\">18<\/span><\/sup><\/a><span style=\"font-size: large;\">, the British Columbia Court of Appeal reviewed the\u00a0\u00a0 sentence for criminal contempt imposed on a protestor disobeying an injunction obtained by the plaintiff logging company.\u00a0 The court considered its function as a reviewing\u00a0\u00a0 court on appeal, and held that \u201c[s]entencing for criminal contempt must be guided by\u00a0\u00a0 principle and no better guide exists than those Criminal Code provisions which largely codified the judge-made\u00a0\u00a0 rules on sentencing\u201d.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote19\" target=\"_blank\"><sup><span style=\"font-size: large;\">19<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0 It went on to assess whether the original\u00a0\u00a0 sentence was demonstrably unfit.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"31\">\n<li><span style=\"font-size: large;\">The Newfoundland Court of Appeal has also applied\u00a0\u00a0 this reasoning.\u00a0 In Puddester v. Newfoundland (Attorney General)<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote20\" target=\"_blank\"><sup><span style=\"font-size: large;\">20<\/span><\/sup><\/a><span style=\"font-size: large;\"> the court held that both the principles and the\u00a0\u00a0 sentencing options outlined in the Criminal Code can be adopted and employed in contempt proceedings.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote21\" target=\"_blank\"><sup><span style=\"font-size: large;\">21<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0 In Ontario, the Superior Court of Justice\u00a0\u00a0 has even considered sentencing an offender to a conditional sentence\u00a0\u00a0 of imprisonment, relying on a procedural rule giving a trial judge broad\u00a0\u00a0 discretion in contempt sentencing.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote22\" target=\"_blank\"><sup><span style=\"font-size: large;\">22<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0\u00a0 <\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"32\">\n<li><span style=\"font-size: large;\">With respect to the principle of restraint, this\u00a0\u00a0 Honourable Court has affirmed its applicability in sentencing for contempt\u00a0\u00a0 in Federal Court.\u00a0 Relying in part on the seminal case of R. v. Gladue<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote23\" target=\"_blank\"><sup><span style=\"font-size: large;\">23<\/span><\/sup><\/a><span style=\"font-size: large;\">, this court has held that a sentencing court must consider all\u00a0\u00a0 other sanctions that may be appropriate before considering imprisonment,\u00a0\u00a0 especially in cases involving citizens with no prior criminal record.\u00a0\u00a0\u00a0 In Canadian Human Rights Commission v. Winnicki,<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote24\" target=\"_blank\"><sup><span style=\"font-size: large;\">24<\/span><\/sup><\/a><span style=\"font-size: large;\"> this court stated at para. 20 (emphasis added):<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">The authorities are clear that\u00a0 a Court should take special care in imposing a sentence of imprisonment\u00a0 upon a first offender. The trial judge should have either a pre-sentence\u00a0 report or some very clear statement with respect to the accused&#8217;s background\u00a0 and circumstances. This is particularly true of youthful offenders such\u00a0 as the appellant. Further it has been recognized that except for very\u00a0 serious offences and offences involving violence, the primary objective\u00a0 of individual deterrence can be best achieved by either a suspended\u00a0 sentence or probation or a very short term of imprisonment followed\u00a0 by a term of probation. (see R. v. Gladue, <\/span><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_reflex-caselaw-92114131\"><\/a><a href=\"http:\/\/www.canlii.org\/en\/ca\/scc\/doc\/1999\/1999canlii679\/1999canlii679.html\" target=\"_blank\"><span style=\"font-size: large;\">1999 CanLII 679 (SCC)<\/span><\/a><span style=\"font-size: large;\">, [1999] 1 S.C.R. 688). In R. v. Priest, [1996] O.J.\u00a0 No. 3369, at paragraphs 20 and 23 the Ontario Court of Appeal stated:<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">The duty to explore other\u00a0 dispositions for a first offender before imposing a custodial sentence\u00a0 is not an empty formalism which can be avoided merely by invoking the\u00a0 objective of general deterrence. It should be clear from the record\u00a0 of the proceedings, preferably in the trial judge&#8217;s reasons, why the\u00a0 circumstances of this particular case require that this first offender\u00a0 must receive a sentence of imprisonment. The trial judge had no material before him from\u00a0 which he could possibly have made this determination. His reasons are\u00a0 barren of any lawful justification for such a radical departure from\u00a0 this well-established principle especially in the case of a youthful\u00a0 first offender.<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">Even if a custodial sentence was appropriate\u00a0 in this case, it is a well-established principle of sentencing laid\u00a0 down by this court that a first sentence of imprisonment should be as\u00a0 short as possible and tailored to the individual circumstances of the\u00a0 accused rather than solely for the purpose of general deterrence. \u2026<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">Likewise, in R. v. Curran (1973), 57\u00a0 Cr. App. R. 945 it was noted that,<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">As a general rule it is undesirable that a first\u00a0 sentence of immediate imprisonment should be very long, disproportionate\u00a0 to the gravity of the offence, and imposed as this sentence was, for\u00a0 reasons of general deterrence, that is as a warning to others. The length\u00a0 of a first sentence is more reasonably determined by considerations\u00a0 of individual deterrence; and what sentence is needed to teach this\u00a0 particular offender a lesson which he has not learnt from the lighter\u00a0 sentences which he has previously received.<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"33\">\n<li><span style=\"font-size: large;\">The common law principle of restraint required that\u00a0\u00a0 if imprisonment must be imposed for an offence, the shortest amount\u00a0\u00a0 of time possible in the circumstances should be given.\u00a0 Parliament\u00a0\u00a0 codified and expanded this principle in ss. 718.2 (d) and (e) of the Code, which require sentencing judges to consider all available\u00a0\u00a0 sanctions other than imprisonment that are reasonable in the circumstances.\u00a0 It is respectfully submitted that this reflects\u00a0\u00a0 an intention that imprisonment be considered a punishment of last resort.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"34\">\n<li><span style=\"font-size: large;\">As was the case in Winnicki<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote25\" target=\"_blank\"><sup><span style=\"font-size: large;\">25<\/span><\/sup><\/a><span style=\"font-size: large;\">, the learned sentencing Judge did not consider the\u00a0\u00a0 impact of the fact that the Appellant was a first offender in his reasons.\u00a0\u00a0\u00a0 Moreover, he did not direct his mind to the accepted principle that\u00a0\u00a0 in arriving at a just sanction, serious consideration must be given\u00a0\u00a0 to dispositions other than imprisonment.\u00a0 It is obvious that he did not consider suspending\u00a0\u00a0 the prison sentence to allow the Appellant to purge his contempt to\u00a0\u00a0 be sufficient.\u00a0 However, it is apparent from the reasons that he\u00a0\u00a0 did not consider alternative dispositions, such as probation with a\u00a0\u00a0 community service order, which would have been more appropriate in the\u00a0\u00a0 circumstances.\u00a0 Even though the Rules don\u2019t specifically provide for this type of disposition,\u00a0\u00a0 it is submitted that the Federal Court has an inherent jurisdiction\u00a0\u00a0 to control its own process.\u00a0 This jurisdiction includes a wide\u00a0\u00a0 discretion in imposing sanctions for civil contempt.\u00a0 In Canadian Copyright Licensing\u00a0\u00a0 Agency v. U-Compute,<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote26\" target=\"_blank\"><sup><span style=\"font-size: large;\">26<\/span><\/sup><\/a><span style=\"font-size: large;\"> the Federal Court imposed probation with community\u00a0\u00a0 service hours on an offender with two prior convictions for contempt\u00a0\u00a0 of court.\u00a0 <\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"35\">\n<li><span style=\"font-size: large;\">It is respectfully submitted that by not analyzing and applying the principle of restraint, the learned sentencing Judge erred in law.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"2\">\n<li><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1__Toc361393430\"><\/a><span style=\"font-size: large;\">Did the learned sentencing Judge err by overemphasizing the principle\u00a0\u00a0 of deterrence while paying insufficient attention to the individual\u00a0\u00a0 circumstances of the Appellant?<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"36\">\n<li><span style=\"font-size: large;\">This court affirmed in Winnicki that it is an error for a sentencing Judge in contempt proceedings to neglect\u00a0\u00a0 to consider the background of the citizen found in contempt.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote27\" target=\"_blank\"><sup><span style=\"font-size: large;\">27<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0 The rationale for the rule is that just sanctions\u00a0\u00a0 require an assessment of both the circumstances of the offence and the\u00a0\u00a0 offender.\u00a0 A balancing of these circumstances is essential because\u00a0\u00a0 sentencing is an individualized process.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0 <\/span><\/p>\n<p>&nbsp;<\/p>\n<ol start=\"37\">\n<li><span style=\"font-size: large;\">The evidence at the sentencing hearing indicated\u00a0\u00a0 that sometime after the complaint was filed with the Commission, the\u00a0\u00a0 Complainant contacted the Appellant\u2019s employer, the University of Saskatchewan.\u00a0\u00a0\u00a0 He advised the University that the complaint had been filed, and requested\u00a0\u00a0 that they take disciplinary action against the Appellant.\u00a0 The\u00a0\u00a0 Complainant advised that if the University did not take action, local\u00a0\u00a0 and national media would be advised of the situation.\u00a0 Mr. Tremaine, whose views were now exposed, was fired.\u00a0\u00a0\u00a0 His twenty year academic career is in ruins, and he has been unable\u00a0\u00a0 to maintain regular employment since. He is now on social assistance\u00a0\u00a0 in Saskatchewan.\u00a0 After being fired by the University, he fell into a deep depression, and was admitted to\u00a0\u00a0 the psychiatric ward at the Regina General Hospital.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote28\" target=\"_blank\"><sup><span style=\"font-size: large;\">28<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0\u00a0 <\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"38\">\n<li><span style=\"font-size: large;\">Neither this evidence, nor the fact that Mr. Tremaine\u00a0\u00a0 was a first offender, was mentioned in the decision under appeal.\u00a0 While it is recognized that the learned sentencing Judge considered several factors in this case to\u00a0\u00a0 be aggravating, he had a legal duty to at least factor the mitigating\u00a0\u00a0 circumstances into the final analysis.\u00a0 This Honourable Court gave a clear direction in Winnicki that he must do so.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"39\">\n<li><span style=\"font-size: large;\">Every citizen, no matter how distasteful the court\u00a0\u00a0 may view their conduct, is entitled to have a sentencing\u00a0\u00a0 court consider the impact that the proceedings has had on his\/her personal\u00a0\u00a0 circumstances.\u00a0 Justice demands nothing less.\u00a0 It is submitted\u00a0\u00a0 that the learned sentencing Judge made a very clear error in this respect. <\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"3\">\n<li><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1__Toc361393431\"><\/a><span style=\"font-size: large;\">Did the learned sentencing Judge err in law by, in effect, sentencing\u00a0\u00a0 the Appellant for criminal contempt, notwithstanding that this Court\u00a0\u00a0 has convicted him of civil contempt, and the Commission proceeded on\u00a0\u00a0 that basis at the Sentencing Hearing?<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"40\">\n<li><span style=\"font-size: large;\">At one time, the practical difference between civil\u00a0\u00a0 and criminal contempt was difficult to discern.\u00a0 In UNA v. Alberta (Attorney-General),<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote29\" target=\"_blank\"><sup><span style=\"font-size: large;\">29<\/span><\/sup><\/a><span style=\"font-size: large;\"> the Supreme Court of Canada considered this distinction.\u00a0\u00a0\u00a0 Speaking for the Court, McLachlin J. (as she then was) stated at para. 20-21:<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">Both civil and criminal contempt of court rest on\u00a0 the power of the court to uphold its dignity and process. The rule of\u00a0 law is at the heart of our society; without it there can be neither\u00a0 peace, nor order nor good government. The rule of law is directly dependant\u00a0 on the ability of the courts to enforce their process and maintain their\u00a0 dignity and respect. To maintain their process and respect, courts since\u00a0 the 12th century have exercised the power to punish for contempt of\u00a0 court.<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">These same courts found it necessary to distinguish\u00a0 between civil and criminal contempt. A person who simply breaches a\u00a0 court order, for example by failing to abide by visiting hours stipulated\u00a0 in a child custody order, is viewed as having committed civil contempt.\u00a0 However, when the element of public defiance of the court&#8217;s process\u00a0 in a way calculated to lessen societal respect for the courts is added\u00a0 to the breach, it becomes criminal. This distinction emerges from Poje v. British Columbia (Attorney General), [1953] 1 S.C.R. 516, 17 C.R. 176, 105 C.C.C. 311,\u00a0 [1953] 2 D.L.R. 785, at p. 527 [S.C.R.], per Kellock J.:<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">The context in which these incidents occurred, the large numbers of\u00a0 men involved and the public nature of the defiance of the order of the\u00a0 court transfer the conduct here in question from the realm of a mere\u00a0 civil contempt, such as an ordinary breach of injunction with respect\u00a0 to private rights in a patent or trade-mark, for example, into the realm\u00a0 of a public depreciation of the authority of the court tending to bring\u00a0 the administration of justice into scorn.<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"41\">\n<li><span style=\"font-size: large;\">As outlined by the court, criminal contempt requires proof of a requisite mens rea, including full knowledge that the public defiance\u00a0\u00a0 will depreciate the authority of the court.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote30\" target=\"_blank\"><sup><span style=\"font-size: large;\">30<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0 In civil contempt, mens rea is not a factor until the sentencing stage.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote31\" target=\"_blank\"><sup><span style=\"font-size: large;\">31<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0\u00a0 <\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"42\">\n<li><span style=\"font-size: large;\">The Appellant was convicted of civil contempt.\u00a0\u00a0\u00a0 The Sentencing Hearing proceeded on this basis.\u00a0 Counsel for\u00a0\u00a0 the Commission was clear on this point, and very fairly pointed out\u00a0\u00a0 to the Court that in civil contempt, it is generally accepted that the\u00a0\u00a0 offender ought to be given the opportunity to purge their contempt.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote32\" target=\"_blank\"><sup><span style=\"font-size: large;\">32<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0 It is submitted that this comment is consistent\u00a0\u00a0 with much of the jurisprudence.\u00a0 After reviewing numerous cases\u00a0\u00a0 involving both civil and criminal contempt, the B.C. Supreme Court in Telus Communications Inc. v.\u00a0\u00a0 T. W. U.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote33\" target=\"_blank\"><sup><span style=\"font-size: large;\">33<\/span><\/sup><\/a><span style=\"font-size: large;\"> stated (emphasis added):<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">In reviewing the decisions where criminal and civil\u00a0 contempt have been found, it is apparent that most contempt proceedings\u00a0 involving labour\/management disputes or civil &#8220;protest&#8221; disobedience\u00a0 have proceeded as criminal contempt, there is a wide variation in the\u00a0 punishment thought to be appropriate for any particular &#8220;type&#8221;\u00a0 of contempt, there appears to be little difference between the punishment\u00a0 imposed for criminal contempt and the punishment imposed for civil contempt, but incarceration is usually\u00a0 reserved for situations where criminal contempt has been found.<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"43\">\n<li><span style=\"font-size: large;\">Though imprisonment is certainly possible in cases\u00a0\u00a0 of civil contempt, it is submitted that it should not be commonly given,\u00a0\u00a0 especially to a citizen without a prior record.\u00a0 It is submitted\u00a0\u00a0 that the learned sentencing Judge erred by failing to consider the distinction\u00a0\u00a0 between civil and criminal contempt.\u00a0 Effectively, the court imposed\u00a0\u00a0 a sentence for criminal contempt notwithstanding that the Appellant\u00a0\u00a0 had only been convicted of civil contempt.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"44\">\n<li><span style=\"font-size: large;\">This error, either alone or in combination with the errors\u00a0\u00a0 of failing to consider both the principle of restraint and the personal\u00a0\u00a0 circumstances of the Appellant, led to the imposition of a sentence that was demonstrably unfit. With respect, it is manifestly excessive and not appropriate for a first offender convicted of civil contempt.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ul>\n<ol>\n<li><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1__Toc361393432\"><\/a><span style=\"font-size: large;\"><strong>Parity Principle<\/strong><\/span><\/li>\n<\/ol>\n<\/ul>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"45\">\n<li><span style=\"font-size: large;\">As this court is well aware, another important principle\u00a0\u00a0 of sentencing is that the sentence imposed be consistent with sentences\u00a0\u00a0 imposed on similar offenders in similar situations.\u00a0 For the purposes of assessing whether the sentence conforms to the parity principle, it is useful to consider sentences\u00a0\u00a0 imposed in other contempt cases.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"46\">\n<li><span style=\"font-size: large;\">In MacMillan Bloedel Ltd. v. Simpson<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote34\" target=\"_blank\"><sup><span style=\"font-size: large;\">34<\/span><\/sup><\/a><span style=\"font-size: large;\"> the court considered sentences for criminal contempt,\u00a0\u00a0 which included jail sentences imposed on several citizens, including\u00a0\u00a0 first offenders.\u00a0 However the court pointed out that earlier in\u00a0\u00a0 the litigation, several other individuals involved in the same protest\u00a0\u00a0 were given fines, or prison sentences that were suspended to allow for\u00a0\u00a0 an opportunity for the order to be followed.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote35\" target=\"_blank\"><sup><span style=\"font-size: large;\">35<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0 It was only when it was clear that previous\u00a0\u00a0 lenient sentences were not effecting the Court\u2019s purpose that the sanction of unsuspended imprisonment\u00a0\u00a0 was employed.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"47\">\n<li><span style=\"font-size: large;\">In Regina (City) v. Cunnigham,<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote36\" target=\"_blank\"><sup><span style=\"font-size: large;\">36<\/span><\/sup><\/a><span style=\"font-size: large;\"> the plaintiff municipality obtained an injunction\u00a0\u00a0 enjoining the defendant from continuing to operate a strip club in a\u00a0\u00a0 manner than contravened the city Zoning Bylaw.\u00a0 Mr. Cuningham did\u00a0\u00a0 not appeal the injunction.\u00a0 After being convicted of criminal contempt,\u00a0\u00a0 Cunningham was sentenced to a $2000 fine and 6 months imprisonment,\u00a0\u00a0 suspended if he obeyed the injunction.\u00a0 He did not purge his contempt\u00a0\u00a0 and instead publicly declared that the club would stay open.\u00a0 He was eventually committed to prison.\u00a0 However,\u00a0\u00a0 it is significant that even though Cunningham was convicted of criminal\u00a0\u00a0 contempt, he was initially given a chance to purge the contempt before imprisonment was imposed.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"48\">\n<li><span style=\"font-size: large;\">In Winnicki,<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote37\" target=\"_blank\"><sup><span style=\"font-size: large;\">37<\/span><\/sup><\/a><span style=\"font-size: large;\"> this court reduced a 9 month sentence for contempt\u00a0\u00a0 of the Federal Court to time served, which was 83 days.\u00a0 This case\u00a0\u00a0 is factually similar to the case at bar, but it is not clear whether the finding\u00a0\u00a0 was of civil or criminal contempt.\u00a0 Mr. Winnicki had violated an injunction issued by the Federal Court Trial Division.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"49\">\n<li><span style=\"font-size: large;\">The B.C. Supreme Court sentenced several individuals\u00a0\u00a0 for civil contempt in Telus Communications v. T.W.U.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote38\" target=\"_blank\"><sup><span style=\"font-size: large;\">38<\/span><\/sup><\/a><span style=\"font-size: large;\"> The sentences included orders compelling donations\u00a0\u00a0 to charity, orders compelling community service, along with various fines and costs awards.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0 <\/span><\/p>\n<p>&nbsp;<\/p>\n<ol start=\"50\">\n<li><span style=\"font-size: large;\">Other cases include:<\/span><\/li>\n<\/ol>\n<ul>\n<ol>\n<li><span style=\"font-size: large;\">Canadian Copyright Licensing\u00a0\u00a0 Agency v. U-Compute<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote39\" target=\"_blank\"><sup><span style=\"font-size: large;\">39<\/span><\/sup><\/a><span style=\"font-size: large;\"> \u2013 Civil Contempt, offender had two prior convictions.\u00a0\u00a0\u00a0 He was sentenced to imprisonment, but it was suspended and included\u00a0\u00a0 an order for community service work.<\/span><\/li>\n<\/ol>\n<\/ul>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ul>\n<ol start=\"2\">\n<li><span style=\"font-size: large;\">Salt River First Nation 195 v.\u00a0\u00a0 Marie<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote40\" target=\"_blank\"><sup><span style=\"font-size: large;\">40<\/span><\/sup><\/a><span style=\"font-size: large;\"> \u2013 Civil Contempt, fines with default imprisonment\u00a0\u00a0 for one defendant<\/span><\/li>\n<\/ol>\n<\/ul>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ul>\n<ol start=\"3\">\n<li><span style=\"font-size: large;\">Telewizja Polsat SA v. Radiopol\u00a0\u00a0 Inc<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote41\" target=\"_blank\"><sup><span style=\"font-size: large;\">41<\/span><\/sup><\/a><span style=\"font-size: large;\"> \u2013 Civil Contempt, offender shows no remorse.\u00a0 6 months imprisonment,\u00a0\u00a0 suspended to allow for compliance.<\/span><\/li>\n<\/ol>\n<\/ul>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ul>\n<ol start=\"4\">\n<li><span style=\"font-size: large;\">Canada (Minister of National\u00a0\u00a0 Revenue) v. Money Stop Ltd.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote42\" target=\"_blank\"><sup><span style=\"font-size: large;\">42<\/span><\/sup><\/a><span style=\"font-size: large;\"> \u2013 Offender given 30 days to comply after contempt\u00a0\u00a0 hearing and did not do so.\u00a0 Eventual sentence included imprisonment,\u00a0\u00a0 but it was suspended to allow for compliance.<\/span><\/li>\n<\/ol>\n<\/ul>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"4\">\n<li><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1__Toc361393433\"><\/a><span style=\"font-size: large;\">Did the learned sentencing Judge err in law by declining to consider\u00a0\u00a0 the mitigating factor that the Appellant had been in prison for 22 days\u00a0\u00a0 as a result of criminal charges involving the same complainant and substantially\u00a0\u00a0 the same evidence?<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"51\">\n<li><span style=\"font-size: large;\">As this court is aware, it is a common practice for\u00a0\u00a0 criminal courts to factor pre-trial custody in to the analysis of an\u00a0\u00a0 appropriate sentence.\u00a0 It is submitted that this practice is rooted,\u00a0\u00a0 fundamentally, in fairness and equity.\u00a0 The most common legal regime\u00a0\u00a0 employed to give effect to this principle of fairness is s. 719 of the Criminal Code.\u00a0 However, it is not the only means by which the courts\u00a0\u00a0 achieve similar ends.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"52\">\n<li><span style=\"font-size: large;\">There is nothing in the language of s. 719 of the Code to suggest that a citizen should be given credit\u00a0\u00a0 for time spent on strict bail conditions while he\/she awaits a disposition.\u00a0\u00a0\u00a0 Nevertheless, strict release conditions are a deprivation of liberty.\u00a0 The appellate courts have responded\u00a0\u00a0 by requiring sentencing courts to factor these conditions into the analysis\u00a0\u00a0 as mitigating factors.\u00a0 In R. v. Downes<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote43\" target=\"_blank\"><sup><span style=\"font-size: large;\">43<\/span><\/sup><\/a><span style=\"font-size: large;\">, the Ontario Court of Appeal reviewed Canadian jurisprudence\u00a0\u00a0 and concluded that stringent bail conditions must be taken into account\u00a0\u00a0 by sentencing Judges as a mitigating circumstance.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote44\" target=\"_blank\"><sup><span style=\"font-size: large;\">44<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0 The court did not mandate that a specific\u00a0\u00a0 quantum of credit be given, as it recognized that different circumstances\u00a0\u00a0 will require judges to vary its final impact on sentence.\u00a0 While there is no strict formula, there is no doubt\u00a0\u00a0 that pre-trial deprivations of liberty must at least be considered.\u00a0 Though\u00a0\u00a0 in a later case the court declined to hold that this principle could\u00a0\u00a0 reduce a statutorily mandated minimum sentence, the basic principle\u00a0\u00a0 remains law in Ontario.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote45\" target=\"_blank\"><sup><span style=\"font-size: large;\">45<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0\u00a0 <\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"53\">\n<li><span style=\"font-size: large;\">Rather than through a specific statutory provision,\u00a0\u00a0 the source of this rule is the courts\u2019\u00a0desire to fulfill its role in delivering a just sanction\u00a0\u00a0 on a citizen convicted of an offence.\u00a0 In considering this principle\u00a0\u00a0 and its underlying values, it is submitted that it should be applied\u00a0\u00a0 in the case at bar.\u00a0 Though the criminal proceedings were eventually\u00a0\u00a0 stayed, Mr. Tremaine was detained at the Regina Provincial Correctional\u00a0\u00a0 Centre for 22 days as a result of what appears to be the same evidence and witnesses that were before the CHRT.\u00a0 He has thus incurred a serious deprivation of liberty as a result of what is substantially\u00a0\u00a0 the same conduct.\u00a0 The Appellant admits that there is no specific statutory\u00a0\u00a0 compulsion to consider his previous imprisonment.\u00a0 However it is\u00a0\u00a0 respectfully submitted that the court\u2019s duty to consider all relevant circumstances in arriving\u00a0\u00a0 at a just sanction mandates that it should have at least factored into\u00a0\u00a0 the learned sentencing Judge\u2019s analysis.\u00a0 The Appellant respectfully submits\u00a0\u00a0 that by declining to even consider his pre-trial detention, the learned sentencing\u00a0\u00a0 Judge erred in principle.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"5\">\n<li><span style=\"font-size: large;\">While considering the hateful\u00a0\u00a0 nature of the Appellant\u2019s comments, did the learned sentencing\u00a0\u00a0 Judge err by declining to also consider the broad social and legal factors\u00a0\u00a0 that were relevant to the analysis of a just and proper sanction?<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0 <\/span><\/p>\n<p>&nbsp;<\/p>\n<ol start=\"54\">\n<li><span style=\"font-size: large;\">At paragraph 26 of the Judgment under appeal, the\u00a0\u00a0 learned sentencing Judge asserts that \u201cthis case is about law and order\u201d.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote46\" target=\"_blank\"><sup><span style=\"font-size: large;\">46<\/span><\/sup><\/a><span style=\"font-size: large;\"> On its face, it may seem to be a correct proposition.\u00a0\u00a0\u00a0 The law of contempt is concerned with the rule of law.\u00a0 However,\u00a0\u00a0 it is beyond doubt that the facts and the underlying legal and social\u00a0\u00a0 context are always part of the sentencing process.\u00a0 It is precisely\u00a0\u00a0 because every sentence occurs within a larger social context that principles\u00a0\u00a0 such as general deterrence and denunciation are considered and weighed\u00a0\u00a0 against the individual needs of the citizens \u2013 both victim and offender &#8211; before the court.\u00a0 Broad considerations are\u00a0\u00a0 a necessary part of the task of arriving at a fit and just sanction.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"55\">\n<li><span style=\"font-size: large;\">The learned sentencing Judge understood this general\u00a0\u00a0 proposition.\u00a0 This can be deduced from the obvious concern he had\u00a0\u00a0 about the conduct of both the Appellant and his previous counsel.\u00a0\u00a0\u00a0 For example, he inferred from the evidence of the Appellant\u2019s sale of the National Socialist Party of Canada website that it was \u201cobvious that [he] was attempting to put his website\u00a0\u00a0 out of the court\u2019s reach\u201d (para. 20).\u00a0 He referred to Mr. Tremaine as \u201cthe villain\u201d (para. 24).\u00a0 He remarked that the Appellant\u2019s previous counsel \u201cused the courtroom as a bully pulpit to attack Mr.\u00a0\u00a0 Warman\u201d (para. 22).\u00a0 He made special mention that, in\u00a0\u00a0 this case, the court was no longer concerned about \u201cfree speech\u201d.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote47\" target=\"_blank\"><sup><span style=\"font-size: large;\">47<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0 It should also be noted that in his submissions,\u00a0\u00a0 the complainant urged the court that it \u201cweighs upon the judgment of this court that the material is vicious hate propaganda\u201d.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote48\" target=\"_blank\"><sup><span style=\"font-size: large;\">48<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0\u00a0 <\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"56\">\n<li><span style=\"font-size: large;\">The Appellant does not quarrel with the learned sentencing Judge\u2019s right and duty to consider other relevant factors\u00a0\u00a0 beyond the simple fact of the contempt in imposing sentence.\u00a0 Indeed,\u00a0\u00a0 the central message of the argument in this Memorandum is that he ought to have considered more factors and principles than he did.\u00a0 It would be\u00a0\u00a0 less than honest to suggest that this case is merely about the fact\u00a0\u00a0 of the civil contempt, as the very facts upon which the conviction is\u00a0\u00a0 founded concern expression, albeit expression that has been determined\u00a0\u00a0 to be hateful.\u00a0 A sentencing court must balance many factors in relatively\u00a0\u00a0 rare situations like the one presented in the case before this Honourable\u00a0\u00a0 Court.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"57\">\n<li><span style=\"font-size: large;\">In R. v. Nasogaluak<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote49\" target=\"_blank\"><sup><span style=\"font-size: large;\">49<\/span><\/sup><\/a><span style=\"font-size: large;\">, the Supreme Court of Canada considered the extent\u00a0\u00a0 to which the Charter of Rights and Freedoms affects the sentencing process.\u00a0 Though the\u00a0\u00a0 case concerned the impact of a specific egregious breach of Nasogaluak\u2019s rights on the sentencing process where a mandatory\u00a0\u00a0 minimum was concerned, the court outlined some important general principles.\u00a0\u00a0\u00a0 The Supreme Court of Canada affirmed that a sentencing judge always\u00a0\u00a0 had the authority to consider the impact of an infringement of a citizen\u2019s Charter rights in arriving at a just sanction, and there is no requirement\u00a0\u00a0 for a formal application for a remedy.\u00a0 The reason for this is\u00a0\u00a0 that the court understood that a \u201cfit\u201d sentence is one that respects and considers the fundamental\u00a0\u00a0 values enshrined in the Charter.\u00a0 At paragraph 48-49 (emphasis added):<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">Indeed, the sentencing regime under Canadian law\u00a0 must be implemented within, and not apart from, the framework of the <\/span><a href=\"http:\/\/www.canlii.org\/en\/ca\/laws\/stat\/schedule-b-to-the-canada-act-1982-uk-1982-c-11\/latest\/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html\" target=\"_blank\"><span style=\"font-size: large;\">Charter<\/span><\/a><span style=\"font-size: large;\">.\u00a0 Sentencing decisions are always subject to constitutional\u00a0 scrutiny.\u00a0 A sentence cannot be \u201cfit\u201d\u00a0 if it does not respect the fundamental values enshrined in the <\/span><a href=\"http:\/\/www.canlii.org\/en\/ca\/laws\/stat\/schedule-b-to-the-canada-act-1982-uk-1982-c-11\/latest\/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html\" target=\"_blank\"><span style=\"font-size: large;\">Charter<\/span><\/a><span style=\"font-size: large;\">.\u00a0 Thus, incidents alleged to constitute a <\/span><a href=\"http:\/\/www.canlii.org\/en\/ca\/laws\/stat\/schedule-b-to-the-canada-act-1982-uk-1982-c-11\/latest\/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html\" target=\"_blank\"><span style=\"font-size: large;\">Charter<\/span><\/a><span style=\"font-size: large;\"> violation can be considered in sentencing, provided\u00a0 that they bear the necessary connection to the sentencing exercise.\u00a0\u00a0 As mitigating factors, the circumstances of the breach would have to\u00a0 align with the circumstances of the offence or the offender, as required\u00a0 by s. 718.2 of the Code.\u00a0 Naturally, the more\u00a0 egregious the breach, the more attention the court will likely pay to\u00a0 it in determining a fit sentence.<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">This is consistent with the communicative\u00a0 function of sentencing. A proportionate sentence is one that expresses,\u00a0 to some extent, society\u2019s legitimate shared values and concerns.<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"58\">\n<li><span style=\"font-size: large;\">This case does not concern a specific breach of the Appellant\u2019s Charter rights.\u00a0 However, that does not mean that the Charter is divorced from the analysis.\u00a0 Our constitution\u00a0\u00a0 remains present, and its values must be considered if the court is to\u00a0\u00a0 arrive at a just and fit sentence.\u00a0 This is precisely why the hateful nature of the Appellant\u2019s conduct is an aggravating factor.\u00a0 However,\u00a0\u00a0 the Charter also speaks to mitigating factors in this case.\u00a0 Fairness requires that these be considered as well.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"59\">\n<li><span style=\"font-size: large;\">For civil libertarians who believe that hateful speech\u00a0\u00a0 should be confronted and challenged, rather than censored by state agents, the constitutional\u00a0\u00a0 battle is lost.\u00a0 This is fully and respectfully acknowledged by\u00a0\u00a0 the Appellant.\u00a0 Nevertheless, it is vital to recognize the context within which\u00a0\u00a0 this court is operating.\u00a0 State infringement on\u00a0\u00a0 freedom of speech was found to be demonstrably justified in a free and\u00a0\u00a0 democratic society in the human rights legislative context in Canada (H.R.C.) v. Taylor<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote50\" target=\"_blank\"><sup><span style=\"font-size: large;\">50<\/span><\/sup><\/a><span style=\"font-size: large;\"> and Saskatchewan (H.R.C.) v. Whatcott.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote51\" target=\"_blank\"><sup><span style=\"font-size: large;\">51<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0 However, the process by which the infringement\u00a0\u00a0 was justified speaks to the fact that the Supreme Court and civil society still recognize that\u00a0\u00a0 free expression is integral to both democracy and the rule of law &#8211; a bedrock right, upon which all other civil rights\u00a0\u00a0 are built.\u00a0 Indeed, it is a right integral to our modern conception\u00a0\u00a0 of the rule of law itself.\u00a0 The Appellant very respectfully submits that this Honourable Court should\u00a0\u00a0 approach the issues in this sentencing with humility, fully cognizant of the nature of the s. 1 justification that provides the legal authority to\u00a0\u00a0 take the liberty of a citizen who, while admittedly is guilty of contempt,\u00a0\u00a0 is nonetheless on the facts of the case being punished for expressing his political views \u2013 however distasteful and repugnant they might be.\u00a0\u00a0\u00a0 This same humility will also allow future courts to be vigilant in ensuring\u00a0\u00a0 that the definition of \u201chatred and contempt\u201d is not unduly expanded.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"60\">\n<li><span style=\"font-size: large;\">This does not mean that the conviction was improper,\u00a0\u00a0 or that the CHRT and the court are not entitled to ensure its orders are respected\u00a0\u00a0 and followed.\u00a0 But, taking the liberty of a citizen is the state\u2019s ultimate weapon, and it is the Appellant\u2019s respectful submission that no court should lightly\u00a0\u00a0 undertake this task.\u00a0 This is especially true when the factual\u00a0\u00a0 nature of the crime involves political speech.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote52\" target=\"_blank\"><sup><span style=\"font-size: large;\">52<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0 Justice must be tempered, especially when\u00a0\u00a0 the legal regime\u2019s constitutional justification rests on the proportional limitation of a fundamental right that resulted from\u00a0\u00a0 a delicate balance of competing values that are all entrenched in Canada\u2019s supreme law.<\/span><\/li>\n<li><span style=\"font-size: large;\">Again, the legal analysis by which the constitution\u00a0\u00a0 allows state power to restrict a fundamental civil right under s. 1\u00a0\u00a0 of the Charter is itself a delicate balancing exercise that involves\u00a0\u00a0 limiting freedoms that are part of the supreme law of Canada.\u00a0\u00a0\u00a0\u00a0 The seminal case on s. 1 is R. v. Oakes.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote53\" target=\"_blank\"><sup><span style=\"font-size: large;\">53<\/span><\/sup><\/a><span style=\"font-size: large;\"> At paragraph 66 of the decision, Chief Justice Dickson\u00a0\u00a0 stated (emphasis added):<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">It is important to observe at the outset that s.\u00a0 1 has two functions: first, it constitutionally guarantees the rights\u00a0 and freedoms set out in the provisions which follow; and second, it\u00a0 states explicitly the exclusive justificatory criteria (outside of s.\u00a0 33 of the Constitution Act, 1982) against which limitations on those\u00a0 rights and freedoms must be measured. Accordingly, any s. 1 inquiry\u00a0 must be premised on an understanding that the impugned limit violates\u00a0 constitutional rights and freedoms \u2014 rights and freedoms which are\u00a0 part of the supreme law of Canada. As Wilson J. stated in Singh v. Min. of Employment &amp;\u00a0 Immigration, supra, at p. 218:<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">&#8230; it is important to remember\u00a0 that the courts are conducting this inquiry in light of a commitment\u00a0 to uphold the rights and freedoms set out in the other sections of the Charter.<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"62\">\n<li><span style=\"font-size: large;\">The s. 1 analysis requires the state to prove that the infringement of a constitutional right constitutes a minimal impairment of that right.\u00a0 Further,\u00a0\u00a0 the effect of the state infringement must be proportional to its objective. At paragraph 74-75 (emphasis added):<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">Second, once a sufficiently significant objective\u00a0 is recognized, then the party invoking s. 1 must show that the means\u00a0 chosen are reasonable and demonstrably justified. This involves &#8220;a\u00a0 form of proportionality test&#8221;: R. v. Big M Drug Mart Ltd.,\u00a0 supra, at p. 352. Although the nature of the proportionality test will\u00a0 vary depending on the circumstances, in each case courts will be required\u00a0 to balance the interests of society with those of individuals and groups.\u00a0 There are, in my view, three important components of a proportionality\u00a0 test. First, the measures adopted must be carefully designed to achieve\u00a0 the objective in question. They must not be arbitrary, unfair or based\u00a0 on irrational considerations. In short, they must be rationally connected\u00a0 to the objective. Second, the means, even if rationally\u00a0 connected to the objective in this first sense, should impair &#8220;as\u00a0 little as possible&#8221; the right or freedom in question: R. v. Big M Drug Mart Ltd.,\u00a0 supra, at p. 352. Third, there must be a proportionality between the effects of the measures\u00a0 which are responsible for limiting the Charter right or freedom and\u00a0 the objective which has been identified as of &#8220;sufficient importance&#8221;.<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">With respect to the third component, it is clear\u00a0 that the general effect of any measure impugned under s. 1 will be the\u00a0 infringement of a right or freedom guaranteed by the Charter; this is\u00a0 the reason why resort to s. 1 is necessary. The inquiry into effects\u00a0 must, however, go further. A wide range of rights and freedoms are guaranteed\u00a0 by the Charter, and an almost infinite number of factual situations\u00a0 may arise in respect of these. Some limits on rights and freedoms protected\u00a0 by the Charter will be more serious than others in terms of the nature\u00a0 of the right or freedom violated, the extent of the violation, and the\u00a0 degree to which the measures which impose the limit trench upon the\u00a0 integral principles of a free and democratic society. Even if an objective\u00a0 is of sufficient importance, and the first two elements of the proportionality\u00a0 test are satisfied, it is still possible that, because of the severity\u00a0 of the deleterious effects of a measure on individuals or groups, the\u00a0 measure will not be justified by the purposes it is intended to serve. The more severe the deleterious\u00a0 effects of a measure, the more important the objective must be if the\u00a0 measure is to be reasonable and demonstrably justified in a free and\u00a0 democratic society.<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"63\">\n<li><span style=\"font-size: large;\">The fact that the type of expression uttered in this\u00a0\u00a0 case has been found to be legally limited pursuant to s. 1 of the Charter does not mean that the underlying importance of free\u00a0\u00a0 speech is divorced from the sentencing process.\u00a0 The Charter right does not vanish from existence simply because\u00a0\u00a0 legislation has been found to legitimately restrict it.\u00a0 The values underlying the right must remain and factor\u00a0\u00a0 into the sentencing analysis, because the court\u2019s action in sentencing a citizen is a further infringement\u00a0\u00a0 that must also be reasonable in the circumstances.\u00a0 As the Appellant\u2019s right to free speech has been limited, not removed, it is incumbent on any sentencing\u00a0\u00a0 court to recognize that any action it takes must also be considered\u00a0\u00a0 a further \u201ceffect\u201d of the state\u2019s power to limit the right.\u00a0 Even if this consideration\u00a0\u00a0 is difficult or uncomfortable when dealing with actions such as the\u00a0\u00a0 Appellant\u2019s hateful speech, it is respectfully submitted that\u00a0\u00a0 a sentencing court must nevertheless measure its response with the underlying\u00a0\u00a0 values of freedom of expression in mind.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0 <\/span><\/p>\n<p>&nbsp;<\/p>\n<ol start=\"64\">\n<li><span style=\"font-size: large;\">Of course, this does not mean that the state cannot\u00a0\u00a0 restrict the Appellant\u2019s speech.\u00a0 The Supreme Court of Canada has confirmed\u00a0\u00a0 that it can.\u00a0 Equality and the right to be free from discrimination\u00a0\u00a0 are also integral rights.\u00a0 The Appellant is not submitting that\u00a0\u00a0 the court does not have the jurisdiction to take the liberty of a citizen for hateful speech.\u00a0 What is submitted\u00a0\u00a0 is that a fit and proper sentence is one in which the court recognizes\u00a0\u00a0 that the delicate nature of the constitutional balance upon which this\u00a0\u00a0 jurisdiction rests requires that justice be tempered\u00a0\u00a0 and measured.\u00a0 It is submitted that the sentence imposed in this\u00a0\u00a0 case is also demonstrably unfit because it does not give sufficient\u00a0\u00a0 weight to the solemn reality that the entire legal regime upon which this Appellant is before\u00a0\u00a0 the courts rests on a delicate balance that allows for censorship and\u00a0\u00a0 a limitation of a right of incredible importance to every citizen.\u00a0\u00a0\u00a0 Surely in a situation such as that presented in the case at bar, the\u00a0\u00a0 principle of restraint takes on special significance.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"65\">\n<li><span style=\"font-size: large;\">This is so even though the charge is contempt, because\u00a0\u00a0 the underlying facts of the contempt relate to expression.\u00a0 Those\u00a0\u00a0 underlying facts were considered to be aggravating by the learned sentencing Judge.\u00a0 It is significant to the sentencing process that\u00a0\u00a0 part of the facts underlying the contempt include the Appellant\u2019s dissemination of electronic books such as The Poisonous Mushroom, The Turner\u00a0\u00a0 Diaries, and The Protocols of the Learned Elders\u00a0\u00a0 of Zion,<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote54\" target=\"_blank\"><sup><span style=\"font-size: large;\">54<\/span><\/sup><\/a><span style=\"font-size: large;\"> especially when this court can take judicial notice\u00a0\u00a0 of the notorious fact that these very same books are widely available on the internet, and some\u00a0\u00a0 of them are even sold by online booksellers profiting off of Canadian\u00a0\u00a0 customers.\u00a0 This court can further take note that though Adolf\u00a0\u00a0 Hitler\u2019s Mein Kampf remains available in most major public libraries\u00a0\u00a0 in Canada, the learned sentencing Judge nevertheless found that the Appellant\u2019s decision to post a large quote from this widely\u00a0\u00a0 available book was illegal and ordered it removed.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote55\" target=\"_blank\"><sup><span style=\"font-size: large;\">55<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0 It is submitted that an action by a court\u00a0\u00a0 of law to prohibit the distribution of books has no place in a 21<sup>st<\/sup> century liberal democracy.\u00a0 The Appellant respectfully asks the court to consider\u00a0\u00a0 the implications of imprisoning a citizen in part because he disseminated books.<\/span><\/li>\n<li><span style=\"font-size: large;\">Also included in the broad social context is the\u00a0\u00a0 fact that Parliament has now repealed the legislative provision on which\u00a0\u00a0 this entire litigation is based.<\/span><a href=\"https:\/\/mail-attachment.googleusercontent.com\/attachment\/u\/0\/?ui=2&amp;ik=521f6a8f50&amp;view=att&amp;th=1408809dc0f74054&amp;attid=0.1&amp;disp=vah&amp;zw&amp;saduie=AG9B_P8YiQ6m4Q76etMgr6fG4iZP&amp;sadet=1376677858038&amp;sads=mHiHamMuRoT6DPSyKRoAGPQfcXQ&amp;sadssc=1#0.1_footnote56\" target=\"_blank\"><sup><span style=\"font-size: large;\">56<\/span><\/sup><\/a><span style=\"font-size: large;\">\u00a0 The Appellant understands that does not excuse\u00a0\u00a0 him from his duty to follow the order of the CHRT.\u00a0\u00a0\u00a0 Nor does it invalidate or question the conviction that this Honourable\u00a0\u00a0 Court entered upon him.\u00a0 However, the Appellant submits that Parliament\u2019s action signals an intention to remove the jurisdiction of the CHRT to try these\u00a0\u00a0 types of cases.\u00a0 As part of the ongoing dialogue between Parliament\u00a0\u00a0 and the Courts, it is submitted that it is incumbent on a sentencing\u00a0\u00a0 Court to factor in Parliament\u2019s message in arriving at a just and fit sentence.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"67\">\n<li><span style=\"font-size: large;\">With respect, the learned sentencing Judge did not\u00a0\u00a0 consider the impact of either the underlying constitutional issue or\u00a0\u00a0 Parliament\u2019s decision to repeal the very legislative provision\u00a0\u00a0 that formed the basis for the litigation.\u00a0 As he did not do so,\u00a0\u00a0 the Appellant respectfully submits that he erred.\u00a0 The Appellant\u00a0\u00a0 respectfully asks this court to consider that as the aggravating nature\u00a0\u00a0 of the facts underlying the contempt must be considered in arriving\u00a0\u00a0 at a fit sentence, so must the broader social and legal context be considered.\u00a0\u00a0\u00a0 This court is humbly asked to reflect on the implications of taking the liberty\u00a0\u00a0 of a citizen based on facts such those presented in the case at bar,\u00a0\u00a0 even if that citizen\u2019s views are repugnant.\u00a0 It is respectfully submitted that is within\u00a0\u00a0 the proper function of this court to send a clear instruction to trial-level\u00a0\u00a0 courts that in sentencing a citizen in cases such as this, the delicate\u00a0\u00a0 balance of Charter values must be given due consideration and respect.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\"><strong>\u00a0<\/strong><\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1__Toc361393434\"><\/a><span style=\"font-size: large;\"><strong>PART IV \u2013\u00a0CONCLUSION AND NATURE\u00a0 OF RELIEF REQUESTED<\/strong><\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"68\">\n<li><span style=\"font-size: large;\">The Appellant respectfully submits that the learned\u00a0\u00a0 sentencing judge erred in law and principle for the reasons outlined\u00a0\u00a0 in this Memorandum of Law.\u00a0 The Appellant further submits that\u00a0\u00a0 the sentence is manifestly harsh, excessive, and demonstrably unfit,\u00a0\u00a0 especially considering that he is a first offender.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"69\">\n<li><span style=\"font-size: large;\">The Appellant requests that the 30 days imprisonment\u00a0\u00a0 portion of the sentence be set aside, with the conditional\/suspended portion of the sentence reduced\u00a0\u00a0 to 60 days.\u00a0 It further requests that portions of the prohibited\u00a0\u00a0 material relating to books be severed, specifically \u201cExhibit H\u201d, \u201cM\u201d, \u201cAA\u201d, \u201cBB\u201d, \u201cCC\u201d, and \u201cDD\u201d.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<ol start=\"70\">\n<li><span style=\"font-size: large;\">The Appellant asks for costs of the within appeal.<\/span><\/li>\n<\/ol>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">ALL OF WHICH IS RESPECTFULLY SUBMITTED, this ________\u00a0 day of July, 2013<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p><span style=\"font-size: large;\">Legal Aid Saskatchewan<\/span><\/p>\n<p><span style=\"font-size: large;\">Regina City Area Office<\/span><\/p>\n<p><span style=\"font-size: large;\">\u00a0<\/span><\/p>\n<p>&nbsp;<\/p>\n<p>Per:<\/p>\n<p>Andrew L. Hitchcock<\/p>\n<p>Solicitor for the Appellant, Terry Tremaine<\/p>\n<p>&nbsp;<\/p>\n<p>&nbsp;<\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1__Toc361393435\"><\/a><span style=\"font-size: xx-large;\">PART V \u2013\u00a0LIST OF AUTHORITIES<\/span><\/p>\n<p>&nbsp;<\/p>\n<p>Legislation and Rules\u00a0 of Court<\/p>\n<p>Canada Act 1982 (UK), 1982, c.\u00a0 11<\/p>\n<p>Canadian Criminal Code, R.S.C 1985, c. C-46<\/p>\n<p>Canadian Human Rights Act, R.S.C. 1985, c. H-6<\/p>\n<p>Charter of Rights and Freedoms, as part of The Constitution Act, 1982, Schedule B to the<\/p>\n<p>Federal Court Rules, 1998, SOR\/98-106<\/p>\n<p>&nbsp;<\/p>\n<p>Jurisprudence<\/p>\n<p>&nbsp;<\/p>\n<p>Canada (Attorney General) v.\u00a0 de l\u2019Isle (1994), 56 C.P.R. (3d) 371 (Fed.C.A.)<\/p>\n<p>Canada (H.R.C.) v. Taylor [1990] 3 S.C.R. 892 (S.C.C.)<\/p>\n<p>Canada (Minister of National\u00a0 Revenue) v. Money Stop Ltd. 2013 FC 133<\/p>\n<p>Canadian Copyright Licensing\u00a0 Agency v. U-Compute (2005), 284 F.T.R. 116<\/p>\n<p>Canadian Human Rights Commission\u00a0 v. Winnicki, 2007 FCA 52<\/p>\n<p>International Forest Products\u00a0 Ltd. v. Kern, 2001 BCCA 48<\/p>\n<p>MacMillan Bloedel Ltd. v. Simpson (1994), 88 C.C.C. (3d) 148 (B.C. C.A.)<\/p>\n<p>Penthouse International Ltd.\u00a0 v. 163564 Canada Inc., (1995), 63 C.P.R. (3d) 328 (Fed. T.D.)<\/p>\n<p>Puddester v. Newfoundland (Attorney\u00a0 General), 2001 NFCA 25<\/p>\n<p>R. v. Campeau 2009 SKCA 3<\/p>\n<p>R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.)<\/p>\n<p>R. v. Gladue [1999] 1 S.C.R. 688 (S.C.C.)<\/p>\n<p>R. v. Keegstra [1990] 3 S.C.R. 697 (S.C.C.)<\/p>\n<p>R. v. M. (C.A.) [1996] 1 S.C.R. 500 (S.C.C.)<\/p>\n<p>R. v. Nasogaluak [2010] 1 S.C.R. 206 (S.C.C.)<\/p>\n<p>R. v. Oakes [1986] 1 S.C.R. 103 (S.C.C.)<\/p>\n<p>R. v. Shopshire [1995] 4 S.C.R. 227 (S.C.C.)<\/p>\n<p>R. v. Yue (2007), 226 C.C.C. (3d) 349 (Ont. C.A.); leave to appeal to S.C.C. refused;\u00a0 (2008), 253 O.A.C. 397 (S.C.C.)<\/p>\n<p>Regina (City) v. Cunningham, [1994] 8 W.W.R. 457 (Sask. C.A.)<\/p>\n<p>Salt River First Nation 195 v.\u00a0 Marie, 2006 FC 1420<\/p>\n<p>Telewizja Polsat SA v. Radiopol\u00a0 Inc. 2006 FC 137<\/p>\n<p>Telus Communications Ltd. v.\u00a0 T.W.U. 2006 BCSC 397; reversed in part on the issue\u00a0 of costs; 2008 BCCA 144<\/p>\n<p>U.N.A. v. Alberta (Attorney General) [1992] 1 S.C.R. 901 (S.C.C.)<\/p>\n<p>Saskatchewan (H.R.C.) v. Whatcott 2013 SCC 11<\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote1\"><\/a><span><sup>1<\/sup> (1994), 56 C.P.R. (3d) 371 (Fed.C.A.)<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote2\"><\/a><span><sup>2<\/sup> Ibid at para. 6<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote3\"><\/a><span><sup>3<\/sup> [1995] 4 S.C.R. 227<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote4\"><\/a><span><sup>4<\/sup> [1996] 1 S.C.R. 500<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote5\"><\/a><span><sup>5<\/sup> 2009 SKCA 3<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote6\"><\/a><span><sup>6<\/sup> (1996), 112 CCC (3<sup>rd<\/sup> 97) Ont. C.A.<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote7\"><\/a><span><sup>7<\/sup> Warman\u00a0 and CHRC v. Terry Tremaine, 2007 CHRT 2 (Appeal Book filed in\u00a0 Court File A-468-10)<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote8\"><\/a><span><sup>8<\/sup> Appeal Book filed in A-468-10, Vol. 1, Tab 4<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote9\"><\/a><span><sup>9<\/sup> Appeal Book at p. 239<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote10\"><\/a><span><sup>10<\/sup> Appeal Book at\u00a0 p. 240 &#8211; 244<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote11\"><\/a><span><sup>11<\/sup> Appeal Book, at p. 252<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote12\"><\/a><span><sup>12<\/sup> Appeal Book, at p. 261<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote13\"><\/a><span><sup>13<\/sup> Appeal Book, at p. 266 \u2013 268, 270<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote14\"><\/a><span><sup>14<\/sup> Appeal Book, p. 384-385<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote15\"><\/a><span><sup>15<\/sup> Appeal Book, p. 370-371<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote16\"><\/a><span><sup>16<\/sup> Appeal Book, p. 112-122<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote17\"><\/a><span><sup>17<\/sup> See: Rule 469, Federal Courts Rules, SOR\/98-106 (\u201cRules\u201d); and Brilliant\u00a0 Trading Inc. v. Wong, 2005 FC 1214 at para. 15.<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote18\"><\/a><span><sup>18<\/sup> 2001 BCCA 48<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote19\"><\/a><span><sup>19<\/sup> Ibid at para. 20<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote20\"><\/a><span><sup>20<\/sup> 2001 NFCA 25<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote21\"><\/a><span><sup>21<\/sup> See especially Ibid at para 32, 54-55<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote22\"><\/a><span><sup>22<\/sup> Sussex\u00a0 Group Ltd. v. 3933938 Canada Inc., 2003 CanLII 27188 (ON SC)<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote23\"><\/a><span><sup>23<\/sup> [1999] 1 S.C.R. 688 (S.C.C.)<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote24\"><\/a><span><sup>24<\/sup> 2007 FCA 52<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote25\"><\/a><span><sup>25<\/sup> Ibid at para 21<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote26\"><\/a><span><sup>26<\/sup> (2005) 284 FTR 116 <\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote27\"><\/a><span><sup>27<\/sup> Winnicki, supra note 24 at para. 21<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote28\"><\/a><span><sup>28<\/sup> Appeal Book, at 118-120<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote29\"><\/a><span><sup>29<\/sup> [1992] 1 S.C.R. 901 (S.C.C.)<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote30\"><\/a><span><sup>30<\/sup> Ibid.\u00a0 at para. 24-25<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote31\"><\/a><span><sup>31<\/sup> See: Penthouse International Ltd. v. 163564 Canada Inc. (1995),\u00a0 63 C.P.R. (3d) 328 (F.C.T.D.)<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote32\"><\/a><span><sup>32<\/sup> Appeal Book at 240<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote33\"><\/a><span><sup>33<\/sup> 2006 BCSC 397; reversed in part on the issue of costs; 2008 BCCA 144<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote34\"><\/a><span><sup>34<\/sup> (1994), 88 C.C.C. (3d) 148 (B.C. C.A.)<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote35\"><\/a><span><sup>35<\/sup> See Ibid, at para 15-21, 58<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote36\"><\/a><span><sup>36<\/sup> [1994] 8 W.W.R. 457 (Sask. C.A.)<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote37\"><\/a><span><sup>37<\/sup> Winnicki,\u00a0 supra note 27<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote38\"><\/a><span><sup>38<\/sup> Telus\u00a0 Communications supra, note 33<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote39\"><\/a><span><sup>39<\/sup> 2005 FC 1644<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote40\"><\/a><span><sup>40<\/sup> 2006 FC 1420<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote41\"><\/a><span><sup>41<\/sup> 2006 FC 137<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote42\"><\/a><span><sup>42<\/sup> 2013 FC 133<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote43\"><\/a><span><sup>43<\/sup> (2006), 205 C.C.C. (3d) 488 (Ont. C.A.)<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote44\"><\/a><span><sup>44<\/sup> Ibid,\u00a0 see especially: para 30-33<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote45\"><\/a><span><sup>45<\/sup> See: R. v. Yue (2007), 226 C.C.C. (3d) 349 (Ont. C.A.); leave to appeal\u00a0 to the Supreme Court of Canada refused; (2008), 253 O.A.C. 397 (S.C.C.)<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote46\"><\/a><span><sup>46<\/sup> Appeal Book at p. 12<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote47\"><\/a><span><sup>47<\/sup> Judgment under appeal at para. 25, Appeal Book at p. 12<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote48\"><\/a><span><sup>48<\/sup> Appeal Book at 251.<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote49\"><\/a><span><sup>49<\/sup> [2010] 1 S.C.R. 206<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote50\"><\/a><span><sup>50<\/sup> [1990] 3 S.C.R. 892 (S.C.C.)<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote51\"><\/a><span><sup>51<\/sup> 2013 SCC 11<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote52\"><\/a><span><sup>52<\/sup> in R. v. Keegstra [1990] 3 S.C.R. 697, the Supreme Court of Canada was\u00a0 clear that even hate propaganda constitutes \u201cpolitical expression\u201d\u00a0 at para. 95<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote53\"><\/a><span><sup>53<\/sup> [1986] 1 S.C.R. 103 (S.C.C.)<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote54\"><\/a><span><sup>54<\/sup> Appeal Book filed in Court file A-468-10, Affidavit of Richard Warman,\u00a0 p. 140<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote55\"><\/a><span><sup>55<\/sup> Appeal Book, at p. 17<\/span><\/p>\n<p><a name=\"1408e08feb5aa95f_1408e0174c0f34bd_1408dbc23945a3a4_14088694061e3c9d_0.1_footnote56\"><\/a><span><sup>56<\/sup> Bill C-304 An Act to Amend the Canadian Human Rights Act (Protecting Freedom),\u00a0 Royal Assent Statutes of Canada: 2013, c. 37]<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"<p>APPEAL FACTUM OF POLITICAL PRISONER TERRY TREMAINE &#8212; SENTENCED TO 6 MONTHS FOR CONTEMPT OF COURT Last fall Terry Tremaine was hammered with a six month prison term for &#8220;contempt of court&#8221;, the third such complaint\u00a0by his tormenter Richard Warman, &hellip; <a href=\"https:\/\/cafe.nfshost.com\/?p=366\">Continue reading <span class=\"meta-nav\">&rarr;<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[11,107,10],"_links":{"self":[{"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/posts\/366"}],"collection":[{"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=366"}],"version-history":[{"count":2,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/posts\/366\/revisions"}],"predecessor-version":[{"id":368,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/posts\/366\/revisions\/368"}],"wp:attachment":[{"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=366"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=366"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=366"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}<br />
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