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ONTARIO COURT OF JUSTICE CITATION: (Reserved: CJRE] DATE: 2019-01-24 COURT FILE No.: Toronto 4817 998 18-70010807-01;-02 BETWEEN: HER MAJESTY THE QUEEN — AND — JAMES SEARS and LEROY ST. GERMAINE Before Justice Richard Blouin Heard on November 28, 29, December 3, 4, and 12, 2018 Oral Submissions heard on January 16, 2019 Reasons for Judgment released on January 24, 2019 counsel for the Crown counsel for the Crown counsel for the Crown counsel for the defendant James Sears counsel for the defendant LeRoy St. Germaine Ms. Jamie Klukach .. Mr. Robin Flumerfelt Ms. Erica Whitford Mr. Dean Embry .. Mr. lan McCuaig 6. BLOUIN, J.: Introduction [1] The defendants are the editor and publisher of a community newspaper, Your Ward News (YWN). which is distributed to over 300,000 homes centred in the Beaches neighbourhood of Toronto. It also is available on-line with a readership claim exceeding one millon, They are charged under s. 319(2) of the Criminal Code with two counts of wilful promotion of hatred against an identifiable group ~ Jews and women. Both defendants admitted in an Agreed Statement of Facts (Exhibit 1) that these two groups meet the definition of “identifiable groups” under s. 319(7). It was also admitted that Mr. St. Germaine, as publisher, is aware of the publication’s content and distribution. All 22 issues of YWN published between January 2015 and —2— Summer 2018 were filed as Exhibit 2. [2] The Crown called two expert witnesses, Dr. Derek Penslar, a professor of history, and Professor Janine Benedet, a law professor. The defence conceded that both could be qualified as experts. | am grateful to counsel for their sensible concessions which greatly reduced the length of the trial. The defendants did not. testify and called no evidence. Mr. St. Germaine gave a statement to police which was conceded as voluntary. The issues were reduced to whether or not the content of YWN rose to the level of hatred, and, if it did, whether or not the defendants wilfully promoted that hatred. It was conceded that the law allows for the concept of wilful blindness to provide a foundation for criminal liability. The Crown is not required to prove that any actual harm was caused by the prohibited communication [3] Both defendants submitted that any comments expressed in YWN must be viewed contextually. When all 22 issues are examined, one is left with unfocused and absurd opinions, contradictory messages, and scattershot ramblings. Except for its stated claims of being the world’s largest anti-Marxist publication, YWN exhibits no unifying concept. The paper, they argue, uses satire and comical images to portray views that many would consider to be highly offensive, but that those views fall short of hate promotion. One argument contends that the need to employ experts by the Crown, in and of itself, recognizes the obscurity of the material. [4] Given the above submission, | think it is important to deal with the evidence of both experts at this point. | will first say that both were extremely impressive. They both provided the Court with a historical background to many issues written about in YWN. They both communicated their opinions regarding anti-Semitism and misogyny succinctly and authoritatively. More impressively, they both enhanced the strength of their opinions by responding thoughtfully to questions and challenges in cross-examination. | had no trouble accepting either expert's evidence. As helpful and impressive as they turned out to be, in my view, they were not necessary. The agreed statement of facts (Exhibit 1), Mr. St. Germaine’s police statement (Exhibit 18), and Exhibit 2 (the 22 issues of YWN) provide a complete factual foundation for my analysis 1 The defendants took the position that YWN is primarily anti-Marxist. | agree with that assessment. That is a unifying theme, especially in the earlier editions where the focus seems to be on attacking left-wing politicians. | also accept that while a listing of excerpts of alleged examples of hate, as provided by the Crown in closing submissions, is helpful, the whole body of each issue must be examined Since the excerpts were expansive, | will append them as Appendix A (with correction notes) to this judgment. Prior Discreditable Conduct [6] _In late August, the Crown made application that evidence of prior —3— discreditable conduct regarding Mr. Sears ought to be admitted in this trial. | ruled, a few weeks later, that the following evidence would be admitted into the trial record (and made Exhibit 17): * two convictions for sexual assault in 1991; * amedical licence revocation hearing before the Discipline Committee of the College of Physicians and Surgeons in 1992, wherein the defendant's licence to practice medicine was revoked; « screenshots of Dimitri the Lover's website, tweets and blog article. [7] | concluded that the probative value on the issue of intent outweighed the minimal prejudicial effect regarding the above three categories of evidence. |, however, excluded police occurrence reports regarding alleged inappropriate conduct as not relevant or probative. | can now say, at the conclusion of this trial, that none of that evidence factored into my decision, since, in my view, there was abundant evidence regarding Mr. Sears’ intent available in Exhibit 2 without referencing his prior conduct. !s this hate or simply distasteful expression? [8] In the seminal case of R. v. Keegstra [1990] S.C.J. No. 131, the constitutionality of the hate speech provisions of the Criminal Code was at issue. The Supreme Court of Canada ruled that these laws did violate freedom of expression (s. 2 of the Charter) but were saved by s. 1 as being a limitation necessary in a free and democratic society. [9] _ Inthe analysis, the Court examined the objective of s. 319(2). Only if there are pressing and substantial concems can the legislative limits on a Charter tight be permissible, In 1965, the Cohen Committee noted that hate propaganda not only denigrated and humiliated, and thereby caused harm to, the target group but, also, that it could attract adherents with the attendant result of discrimination, and perhaps violence, against minority groups in Canada. [10] In Keegstra, Chief Justice Dickson wrote at paragraph 116, “Noting the purpose of s. 319(2), in my opinion the term “hatred” connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation.” He later writes in the same paragraph that hatred “implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis, of group affiliation.” [11] _ After considering the entirety of Exhibit 2, a consistent and obvious theme that radiated from this publication was hatred. It was at times contradictory in that love was professed to Jews and some women. It was at times satirical in that humour and exaggeration were employed to make the point. But hatred of Jews and women was overwhelmingly the message. [12] Asnoted above, a contextual approach to the views expressed in YWN is