Regina v RadicalPress.com LEGAL UPDATE #20
April 16, 2014
April 16, 2014
Dear Free Speech Advocates and Radical Press Supporters,
Tuesday, April 15th, 2014 was a good day for freedom of speech in Canada. B.C. Provincial court judge, the Honourable Judge Morgan, after due consideration of the arguments put forth at my bail hearing held on April 9th, 2014, decided in my favour, thus refusing all of the main arguments of Crown which would, in effect, have shut down RadicalPress.com until after the trial and also prohibited me from publishing on any internet site available to the general public.
Judge Morgan did concede on one point in Crown’s application and added an additional condition to my Undertaking. The gist of it was that I would no longer be permitted to publish on the internet the names of the two people who were responsible for laying the initial complaints against myself and RadicalPress.com with the B.C. Hate Crime Team and that I must immediately remove their names from any website that I control. While there are possibly some problems with complying with this condition which may have to be contested via another application, in the vast scheme of things it’s minor in comparison to the overall decision which, clearly states that (in the words of Judge Morgan) a “court ordered prior restraint on a person’s s. 2(b) Charter right to freedom of thought, belief, opinion and expression, has the risk of being overbroad and should be granted only in clear cases.”
The fourteen page decision addressed the two main arguments which I brought forth during the bail hearing; first the jurisdiction of a judge to preside at a bail hearing to hear an application on varying the original bail conditions once the preliminary inquiry had ended and the case was committed to a higher court and second, the merits of my Charter rights. In responding to these arguments Judge Morgan, in Para. 4 of his decision stated, “Mr. Topham responded with well-prepared submissions by first raising the issue of whether I, as a Provincial Court Judge, continued to have jurisdiction to hear the Crown’s application. He also provides alternative arguments dealing with the merits of the application.”
One principal point which Judge Morgan brought up in his decision at Para. 33, was that of Crown’s main objective in attempting to find me guilty of promoting “hatred”; a contentious one which I have been attempting to draw the public’s attention to from the onset of not only this case but also the sec. 13(1) charge laid back in 2007. I refer here to the clear and present danger to all Canadians should Crown’s efforts prove successful and such a precedent established. In this regard Judge Morgan had the following to say:
 The primary remedy sought by the Crown if successful at trial will be to prevent Mr. Topham (and thereby perhaps others) from posting hate promoted material. [emphasis added]
I believe Judge Morgan’s decision is worthy of a close reading by anyone who has serious concerns about Canada’s current “Hate Propaganda” laws as they exist in Sec. 319 of the Criminal Code of Canada and so I am including a verbatim copy of it below. I will be posting the full decision on the website in pdf format and will link to it so interested parties can read the full contents.
This is now the second failed attempt on the part of Crown to impose harsh conditions on myself and RadicalPress.com prior to a trial. Whether or not Crown will try to make a third similar application at the Supreme Court level is an unknown at this time.
And so this decision on the part of Judge Morgan must be viewed as a precedent setting victory in the ongoing war to abolish all of Canada’s “Hate Propaganda” legislation and thus ensure our Charter rights to freedom of expression on the internet remain inalienable and sacrosanct.
Here then is the full text of Judge Morgan’s decision in R. v Topham:
 Considerations of bail in section 319(2) prosecutions (willfully promoting hatred) are somewhat different from the usual criminal prosecutions. This is because the central issue at trial will not be what occurred , but will be what effect resulted. The publicly communicated statements will have to be established by the Crown to promote ‘hatred’ as the word is defined in Canadian jurisprudence.
 The primary remedy sought by the Crown if successful at trial will be to prevent Mr. Topham (and thereby perhaps others) from posting hate promoted material. The Crown is, in effect, seeking the same remedy pre-trial through a cease and desist bail order. To be successful the court would have to be satisfied that on the test of a balance of probabilities all aspects of Crown’s case will be made out, including that the effect of the communications of concern will meet the threshold of promoting hatred. In effect, the court is being asked to decide the case on the balance of probability standard.
 On the other hand, it is an initially forceful consideration when dealing with material that is clearly repugnant and offensive, to ask what harm would result by simply shutting it down until the matter can be decided at trial. One can easily imagine situations where the material is so repugnant and offensive that even solely from the judge’s perspective and without direct evidence of harm, the likely risk of harm will be evident and outweigh a temporary curtailment of Charter rights.
 However, court ordered prior restraint on a person’s s. 2(b) Charter right to freedom of thought, belief, opinion and expression, has the risk of being overbroad and should be granted only in clear cases.
 In the case before me, the material of concern is primarily material written by others and allegedly posted by Mr. Topham on his website. The one document I was referred to that involved a minor amount of originality is entitled ‘Israel Must Perish’ and is based on a document written many years ago by someone else entitled ‘Germany Must Perish’. In ‘Israel Must Perish’ the accused is alleged to have replaced all references to ‘Germany’ with ‘Israel’ and all references to ‘Germans’ with ‘Jews’. Mr. Topham has published both versions on his website. Mr. Topham says – and is not contradicted by the Crown – that all of the material of concern is available on other internet sites not controlled by him, including notable sites such as Amazon.com and Archive.org.
 There is some evidence that Mr. Topham uses his website to publish other materials that are not alleged to foster hate, and to use it for other reasons, such as providing a voice to other fringe persons or groups. As of late, he has been using his website in an attempt to raise money to pay for a lawyer to defend him against the present charges.
 Although I give Crown credit for being open to finding ways to minimally impair Mr. Topham’s rights while at the same time addressing the concern of the publication of the offensive material, I find that in this case, ordering Mr. Topham to shut down his website may well be an over broad prior restraint and that, based on the evidence before me, the effect on reducing any harm caused may well be minimal given the material is primarily not original and is available from other internet sources.
 I agree with Ms. Johnston that ordering Mr. Topham to remove from his website any reference to people of Jewish religion or ethnic origin would be like having him pick out pepper. What I foresee from this is any effort to carve a fine balance would very possibly lead to breach related charges arising from confusion and misinterpretation.
 The Crown’s goal of stopping Mr. Topham from putting on his website offensive material will of course depend on whether Crown is successful at trial in establishing the offensive material has the effect of promoting hate. If the Crown proves its case, the sentencing judge will be in a much informed position in determining the appropriate breadth of restraint orders and other sanctions.
 Although I decline to order as a condition of bail that Mr. Topham stop operating his entire website or to order that he cease and desist from posting any materials referencing people of the Jewish religion or ethnic origin, I am satisfied that his Undertaking should be amended to include a condition that he not post on any internet site or otherwise publish the names of the two civilian complainants already referred to in condition 2. of his present Undertaking, and that he immediately remove their names from any internet site he has direct or indirect control of . I find that there may be a risk of harm or intimidation in posting the names of these civilian complainants.
My court battle has now moved on to an actual trial by judge and jury in the British Columbia Supreme Court. In doing so it now places a far greater emphasis on my having to obtain legal counsel and/or advice from legal counsellors, which ultimately requires funding.
The trial will be the first major battle in the upcoming legal war to rid Canada of all the “Hate Propaganda” legislation that has been inserted into the Canadian Criminal Code by pro-Zionist Jewish lobby organizations since the end of World War Two. The outcome of this trial will, in all likelihood, determine whether or not the rest of Canadians will retain their right to publish the truth on the Internet about any and all injustices that may befall our country.
I NEED YOUR HELP NOW MORE THAN EVER!!!
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