Dear Free Speech Defenders and Radical Press Supporters,First, allow me to extend my sincere apologies to all of those who have been waiting so long for this legal update. It has been delayed for over a year now primarily due to the snail’s pace at which the R v Roy Arthur Topham Charter challenge has been crawling through the BC Supreme Court legal system. Delay after delay meant postponement of an overview that might provide a useful picture of all the salient events. As a result coverage of all that’s gone down demands a somewhat lengthy update.
To recap the issue for readers – Constitutional notice was first served to the Crown on March 23rd, 2015 and and the process, such as it was, did not conclude until November 8th and 9th, 2016 in Victoria, B.C. where the final two days of argument took place. That amounts to a little over 19 months this aspect of the case has been ongoing.
From the onset it was Crown’s position that they wanted the Constitutional Charter challenge put off until after the end of the trial. Following the pre-trial hearing on the matter that began in Vancouver, BC’s SC on June 22nd, 2015 – in his Reasons for Judgment handed down July 8, 2015 – SC Justice Butler, citing case law, ruled that it would be better to hold off on the Charter argument until after the trial so as to not “fragment” the criminal proceedings. He also decided that in the case of constitutional challenges it’s better to wait until after the trial to adjudicate such issues because by then a “factual foundation” would be in place.
Arthur and the Three Hookers
As well, prior to Justice Butler’s decision of July 8th, during a June 10th, 2015 appearance, he ruled that in order for the Constitutional Charter challenge to proceed it would first be necessary for the Defence to provide sound reasons which would satisfy the Justice the “Bedford Test” had been met in order for the proceedings to move to the stage where the actual challenge to the legislation would take place.
In a nutshell the Bedford “Test” or “Threshold”, as it’s often called, is a decision of the Supreme Court of Canada in Canada (Attorney General) v Bedford handed down on December 20, 2013, wherein the Supreme Court ruled that some of Canada’s prostitution laws were unconstitutional. Bedford was the surname of one of the three prostitutes who challenged the legislation.
One of the principal issues that the S.C. of Canada deliberated in that case was whether a trial judge could consider Charter arguments not raised in a previous case about the same law. Legal tradition has always held that a lower court (in my case the BC S.C.) is ‘bound’ by decisions made by the SC of Canada. It’s this particular principle and precedent (in Latin called stare decisis) which Crown has been arguing over-rides my arguments as presented in my Memorandum of Argument Regarding the Threshold Issue where I state that the decision in Keegstra is no longer binding upon my case due to similarities with the Bedford case where the Supreme Court of Canada found that lower courts may revisit binding authorities from higher courts in cases where new legal issues are raised, or where a change in the evidence or circumstances fundamentally shifts the parameters of the debate.
As a result of Justice Butler’s ruling my challenge was therefore postponed until the trial was completed. The trial ran from October 26, 2015 to November 12, 2015 (a period of 14 days) and when it concluded I was found guilty on Count 1 of the charge of “willfully promoting hatred against an identifiable group, contrary to s. 319(2) of the Criminal Code”. At the same time the jury also acquitted me on Count 2 which was the same identical charge.***
Fixing a date with the Queen of England no easy task
After the trial ended I appeared again in Quesnel SC on December 7th, 2015 to “fix a date” for the Charter hearing to take place. During this appearance Rodney G. Garson, a special Crown Prosecutor out of the Prosecution Support Unit within the Crown Law Division of the Ministry of Justice filed a requisition with the court to appear on behalf of the Crown to argue the Charter matter.
It was also then that a new date of January 25th, 2016 was set to fix another date to argue the question of who it was, Crown or Defence, that bears the onus of having to prove that Sec. 2(b) of the Charter is infringed upon by s. 319(2) of the Criminal Code of Canada and is therefore open to challenge, regardless of the former landmark Keegstra decision.
The January 25th, 2016 appearance came and went. During court my legal counsel Barclay Johnson informed the Justice and Crown that the Defence would be calling Expert Witnesses to testify during the Charter hearing. In that instance Dr. Michael Persinger’s name was given to the court. Once again we didn’t get to “fixing a date” and the issue was put over to March 29th, 2016.
On March 29th, 2016 we met again to “fix a date” but, alas, it didn’t happen. My counsel, Barclay Johnson did notify the court at that time that we would also be calling Dr. Timothy Jay as an Expert Witness. He also brought up the issue of the double verdicts, i.e. one Guilty count and one Not Guilty count for the same identical charge. A new date was set for April 4th, 2016 to “fix a date” for the Charter hearing.
Like all the others dates April 4th, 2016 came and went and still no date was fixed. A new date of May 2nd, 2016 was set.
On May 2nd, 2016 I again attended court. Murphy’s Law still being in effect this time there were computer problems in the court room and so Quesnel Crown counsel Jennifer Johnston appeared on behalf of Crown Prosecutor Rodney Garson and a new date of June 6th, 2016 was set to “fix a date” for the Charter hearing.
On June 6th, 2016 the “fix a date” phenomenon was getting so bad that my own counsel’s computer went on the blink and we had to set another date! This time it was for July 11th, 2016.
When July 11th, 2016 rolled around and a miracle occurred. We finally were able to “fix a date” for the commencement of the Charter hearing. The week of October 3rd, 2016 to October 7th, 2016 was SET! During this time Crown chose the date of October 31st, 2016 for “sentencing” in the event that I lost my Charter argument.
The Hearing (Part 1)
One day prior to the commencement of the hearing on October 3rd I was informed by my legal counsel that the scheduled week would not see the completion of the Charter argument. Crown Prosecutor Rodney Garson informed the court that he would require additional time in order to cross-examine the two Expert Witnesses that Defence was planning to call and he didn’t feel there would be enough time to also argue the issue of the Bedford Threshold.
Along with Dr. Persinger and Dr. Jay there was a third witness present in court on October 3rd. Jeremy Maddock, who was my former lawyer Doug Christie’s legal assistant and is currently assisting my counsel Barclay Johnson, appeared in order to testify to the various websites online where the materials that were posted on RadicalPress.com could also be found. This was one of our principal arguments – that all of the online books that I have posted on my website are also readily available on numerous other websites around the world as well as being openly sold on major book-selling sites like Amazon.com and Amazon.ca. Jeremy Maddock presented to the court 22 screenshots of other websites that he had researched which clearly showed that the impugned books and articles were freely available elsewhere on the net.
In cross-examination Crown Prosecutor Garson attempted to dismiss the screen shots of the various websites that Mr. Maddock presented suggesting that they weren’t reliable and also that the numbers shown in the Google searches were also irrelevant. Defence lawyer Barclay Johnson responded by referring to the hundreds of pages of screen shots that Crown had introduced into evidence during the trial and suggesting that if they weren’t relevant then Crown should not have presented them to the jury. Justice Butler, having sat through the trial, was well aware of this fact and didn’t buy into Crown’s argument and accepted Maddock’s testimony as both relevant and admissible.
The Defence’s first Expert Witness was Dr. Timothy Jay. (It should be noted here, prior to discussing Dr. Jay’s testimony, that throughout the trial Crown consistently made reference to my satire Israel Must Perish! , an article created by me in order to show the glaring hypocrisy of Jewish lobbyists like B’nai Brith Canada – one of the two complainants who had filed the Sec. 319(2) charge against me and my website – who were accusing me of spreading “hate” when one of their own kind, Theodore N. Kaufman, had unquestionably written one of the most vile, hate-filled books titled Germany Must Perish! back in 1941 that basically called for the absolute genocide of the German nation and all of its people.)
Dr. Jay, a full professor with the Massachusetts College of Liberal Arts, is considered to be an expert in the field of cognitive and linguistic psychology and has extensive experience interpreting allegedly obscene speech in the context of U.S. radio and television regulation. He’s also written numerous books and articles dealing with the issue of controversial language and for purposes of the Charter hearing had written a paper in my defence called “Opinion Regarding Arthur Topham’s Israel Must Perish” the gist of which was:
“It is my opinion as a cognitive psychologist that a satirical reading of Israel Must Perish! by an average adult reader would not result in the satire being considered hate speech. There are several mitigating factors which must be taken into account regarding how people read and comprehend literature, for example, what frame of mind the reader brings to the literature, what the reader thinks the literature is “about” or “means”, what impact a satirical reading might have on a reader, and what a reader would ultimately remember about the literature. I also consider the context in which the reader encounters the literature.”
My legal counsel Barclay Johnson presented Dr. Jay’s curriculum vitae [a fancy Latin term for a resume. A.T.] to the court and Dr. Jay appeared via telephone to answer any questions that the Defence or Crown or Justice Butler might have.
From the onset Crown Prosecutor Rodney Garson was quick to respond to Defence’s introduction of Dr. Jay and began citing a number of case law examples regarding “expert opinion” in order to challenge Dr. Jay’s qualifications. He went on about how an expert witness should be “impartial”, “independent”, “unbiased”, “fair”, “objective” and “non-partisan”, all the while overlooking the fact that during the trial itself the Crown’s own “Expert Witness”, former Canadian Jewish Congress CEO Len Rudner, had outright proven to the court that he was anything but impartial and independent and unbiased and objective and, to top it all off, had unabashedly committed perjury during his testimony, a fact which SC Justice Butler was made aware of but chose to ignore. Garson of course wasn’t present during the trial but given these facts all his feigned and overtly aggressive protestations against Dr. Jay’s credentials and his ability to offer expert opinion appeared rather disingenuous, especially when he exclaimed to the court that he had a “realistic concern” about Dr. Jay’s qualifications.
The thrust of the Crown’s argument was that Dr. Jay’s opinions on my satire Israel Must Perish! was biased and would “undermine” the decision of the jury and “the administration of justice” and put SC Justice Butler in an “invidious” position. Going further, Crown Prosecutor Garson told the court that the jurors’ decision cannot be questioned or “further evidence” be added by an expert witness. It was clearly evident that the Crown didn’t want any expert opinion on my satire to be considered or even an acknowledgment that it was a satire and not a “book” as the Crown consistently referred to it as during the trial.
On Tuesday, October 8th at 2 p.m. SC Justice Butler gave his oral decision regarding Dr. Timothy Jay’s qualifications and ruled that Dr. Jay’s evidence impinged upon the question of my guilt or innocence and was therefore a “collateral attack” on the jury’s “guilty” verdict and wasn’t permissible.
In a recent article published in the Friends of Freedom newsletter (A private newsletter for the supporters of the Canadian Free Speech League, dealing in cases of the censorship and persecution of political, religious, and historical opinion.) titled “Topham Embarks on Long-Awaited Challenge of Hate Speech Law” by Jeremy Maddock he has the following to say about Justice Butler’s decision to disallow Dr. Jay’s evidence:
“Justice Butler’s decision leaves the defence in a very difficult position. On one hand, the Supreme Court of Canada’s Whatcott decision provides that hate speech laws must be narrowly construed, and are only constitutional to the extent that they ‘prohibit expression that is likely to cause … discrimination and the other societal harms of hate speech.’
At trial, defence counsel was told in no uncertain terms that he was not permitted to call evidence on the constitutional question, which is an issue for the judge alone to decide, and cannot be put to the jury. By limiting the trial evidence in this way, then subsequently ruling that evidence about the effects of the impugned material is inadmissible on the constitutional application, the Court has made it exceedingly difficult for the defence to meet the test in Whatcott.”
A Bloody Disgrace
What ought to be of immediate concern to readers and especially supporters of this Charter hearing is the fact that I had worked hard to raise funds via my GoGetFunding site to hire Dr. Jay to write his report. It was an endeavour which cost the Defence $2,000.00 in US funds the money ultimately coming from numerous supporters around the world who donated their hard-earned cash to make it happen. Justice Butler’s decision to not allow Dr. Jay to testify meant all that money had been wasted yet in the case of Crown’s “Expert Witness” Len Rudner during trial, hardly a second thought was given to granting him the same official status. Then, on top of that, I recently received, via my legal counsel, another invoice from Dr. Jay requesting an additional $1,700.00 US funds for his time spent in court on the 3rd and 4th of October, an amount which still must be raised in order to fulfill Defence’s commitments. In total that amounts to $3,700.00 US which translates into $5,112.29 Canadian dollars all raised in vain. The matter is blithely brushed aside as being just a part of the process of doing the legal dance but from my perspective it’s nothing short of being a bloody disgrace and an insult to all who have given their financial support to this ongoing “hate speech” trial.
Dr. Persinger takes the stand Day 3 of the hearing began on Wednesday, October 5th with Defence counsel Barclay Johnson introducing our second Expert Witness Dr. Michael Persinger who also was able to appear via telephone.
Dr. Michael A. Persinger is a Full Professor in the Departments of Psychology and Biology Behavioural Neuroscience, Biomolecular Sciences and Human Studies Programs at Laurentian University in Sudbury, Ontario and his curriculum vitae is, like Dr. Jay’s, also long and distinguished.
Dr. Persinger had written a paper titled, The Anachronism of Policies and Laws for Hate Speech in Modern Canada: The Current Negative Cultural Impact of Legal Punishment upon Extreme Verbal Behaviour, the focus of which was a review of an earlier related document published back in 1966 titled Report to the Minister of Justice of theSpecial Committee on Hate Propaganda in Canada [Also referred to as the Cohen Committee Report. A.T.]. It was this paper which the Defence introduced as part of the reasons for having Dr. Persinger testify.
The report had been commissioned by The Honourable Lucien Cardin, Minister of Justice and Attorney-General of Canada in 1965 during the time when the Cohen Committee was laying the groundwork for the implementation of Canada’s current Hate Propaganda legislation. (Background information on that period is contained in an article I published on RadicalPress.com in March of 2014 titled, Bad Moon Rising: How the Jewish Lobbies Created Canada’s “Hate Propaganda” Laws).
As Dr. Persinger states in his paper, “Although the document (the Cohen Committee Report) was primarily a legal text, it contained a review of social psychological analysis of hate propaganda by Dr. Harry Kaufmann, an Associate Professor of Psychology at the University of Toronto. The mass of this literature was not empirical but based upon theories that are now almost fifty or more years old. There were almost no experimental data, not surprisingly because social psychology was in its infancy and neurocognitive psychology with the powerful tools of brain imaging, did not exist.”
Further, Dr. Persinger also stated that, “The policies upon which contemporary laws for hate propaganda and hate speech have been based in Canada appear to be primarily derived from” Dr. Harry Kaufmann’s Report to the Minister of Justice of theSpecial Committee on Hate Propaganda in Canada. He then goes on to say that, “Today’s environment is dominated by the Internet, the multiple variants of cell phone media, and the requirement for the average person to be more evaluative with respect to what is read and what is said within chat rooms, bulletin boards, and other electronic forms of information exchange. The world of Google and of search engines has shaped a generation with premature sagacity for challenge and resistance to gullibility that did not exist in the population of the 1950s and 1960s. Those individuals would have constituted the focus of concern at the time the document was published.”
One additional statement in Dr. Persinger’s paper claimed that “The assertion by the Cohen Committee that ‘individuals subjected to racial or religious hatred may suffer substantial psychological stress, the damaging consequences including a loss of self-esteem, feelings of anger, and outrage’ is confounded by archaic concepts of psychological processes.” Basically put Persinger’s position was that the psychological methods used back in the mid-1960’s to determine whether or not “hate propaganda” was dangerous and in need of criminal protection are now completely out of date and irrelevant.
Having stated his position Crown then responded by going on the same attack used in cross-examining Dr. Jay. Prosecutor Rodney Garson did all he could to down play and dismiss Dr. Persinger’s expertise, focussing primarily on the fact that Dr. Persinger had not, in his estimation, read or written scholarly articles on “hate speech”. Garson then quoted a number of reviews written in legal journals that focussed on the subject of “hate speech”. As he referenced them it became quite apparent to myself that all of the authors of the articles were Jewish and their arguments were specifically designed to buttress the whole concept of “hate speech” in order to lend a fabricated sense of authenticity to it.
Earlier in his presentation Dr. Persinger had already stated that he doesn’t use the term “hate speech” in his work for the simple reason that it’s too vague, unscientific and open to multiply shades of interpretation. He didn’t go so far as to state that the term itself is actually a cognitive construct coined by the Jews for their own propaganda purposes but it was evident that the whole notion of “Hate Propaganda” is one that was created by Jewish lobbyists in order to justify their implementation of “Hate Propaganda” laws into Canada’s Criminal Code. Dr. Persinger also made a point of stating at the start of his testimony that he doesn’t read legal documents as they are generally out of his sphere of expertise yet Crown kept on doggedly asking Dr. Persinger if he’d read this book or that book or any of the plethora of materials on “hate speech” (the vast majority written by Jews) and eventually the good Dr. responded to Garson’s incessant questioning by stating, “No, I’m not familiar with that book. I usually read detective books.”
By Thursday, October 6th the arguments still continued back and forth as to whether or not Dr. Persinger was qualified to give expert testimony related to the issues surrounding the Charter challenge. Prior to the morning recess S.C. Justice Butler told the court that after the break he would give his oral ruling on the matter. He returned at 11:59 a.m. and ruled that Dr. Persinger was qualified to testify.
Court did not resume until 2:35 that afternoon. Dr. Persinger’s health was such that he could only speak for certain lengths of time and then it was necessary for him to take a break. By 3:30 p.m. during Crown’s cross-examination Dr. Persinger’s energy was waining and Justice Butler decided that it would be better stop and set another date when Crown might be able to complete their portion of the cross-examination. A new date of October 19th, 2016 was set with the proceedings to take place in the Vancouver Supreme Court and following that the week of November 7th, 8th and 9th, 2016 was set for the completion of arguments on the Bedford Threshold.
The Hearing (Part 2)
The Vancouver SC portion of Crown’s final cross-examination of Dr. Persinger was over within a couple of hours in the afternoon. Due to the fact that I was already down on the coast on other personal matters I was able to attend in person.
The Hearing (Part 3)
In attendance for the final two days of arguments were SC Justice Bruce Butler, my lawyer Barclay Johnson, Crown Prosecutor Rodney G. Garson and Barclay’s legal assistant Jeremy Maddock. Due to a critical issue with Legal Aid over funding my counsel, Barclay Johnson, was unable to fly up to Quesnel and so the hearing was rescheduled to resume in Victoria, BC SC where Justice Butler was already scheduled to appear for those three days. The sudden change of venue meant I couldn’t attend in person but was able to listen in from my home in Cottonwood, BC via a telephone link.
Final arguments were exchanged and when the hearing concluded SC Justice Bruce Butler announced to both Defence and Crown and myself that he would not be handing down his decision on the Charter argument until March 11th, 2017. When that date arrives either a new sentencing date will be set if we lose the argument or Justice Butler will make a positive pronouncement on the defence’s argument that Section 319(2) of the Criminal Code constitutes an infringement of Section 2(b) of Canada’s Charter of Rights and Freedoms.
The R v Roy Arthur Topham “hate speech” case essentially began February 14th, 2007 when I first was attacked by the foreign lobby organization B’nai Brith Canada and accused of posting anti-Semitic, hate articles on my website. This coming February 14th, 2017 will mark the 10 year anniversary of this assault upon my constitutional right to freedom of expression. Given that my next court appearance is not until March 11th, 2017 it’s basically a done deal that the trials and tribulations surrounding this decade long travesty of justice will have surpassed the 10 year mark.
When SC Justice Butler hands down his decision on March 11th, 2017 we will know what my options are for the future. Should Justice Butler see fit to find the circumstances surrounding this case do in fact warrant a constitutional challenge to Sec. 319(2) of the Criminal Code then the immediate result will be a stay of the charge against me but that, in all probability, will only continue until the BC Crown in all likelihood appeals the decision of Justice Butler and the whole proceeding then shifts from the BC Supreme Court level to the federal Supreme Court for further adjudication.
On the other hand, should Justice Butler find my argument doesn’t pass the Bedford Threshold test then I will be faced with Sentencing on the guilty verdict in Count 1 soon after his decision. At that time I will have to decide whether or not to appeal the verdict in Count 1 and begin all over again with a new trial or else accept the verdict and whatever legal repercussions it entails.
Barclay Johnson, my legal counsel throughout the trial and the Charter hearing, has informed me that should the case go to the Supreme Court of Canada on appeal that it would entail a very costly and lengthy process of litigation running into hundreds of thousands of dollars and possibly a number of year of more court appearances which would occur not here in my home town of Quesnel but require my travelling to Ottawa, Ontario. Given the fact that I don’t fly this would be an additionally onerous undertaking that I’m not excited about. Therefore, speaking frankly, at this point in time I don’t find the prospect of years of more litigation a very attractive option for either myself or my wife who is dealing with serious medical issues that require urgent attention. This coming February I will turn 70 years old. That is also another factor which will affect whether or not I decide to enter into a further protracted legal battle which I can hardly afford to undertake considering the reasons given above. If wishes were horses then beggars would ride and I might be able to hand the reins over to a younger free speech warrior who could take up the torch and carry on to Ottawa with it but, unfortunately, wishes are not our four-footed friends.
The only thing that appears relatively certain at this point in time is that I and my wife will have close to four months off and a chance to rest up and consider our options for the future.
In final closing I would like to quote once again from Jeremy Maddock’s article in the Friends of Freedom newsletter with respect to funding. He writes, “As this complex process unfolds, Mr. Topham depends on donations to fund various expenses, including expert witnesses, transcripts, and ongoing legal research support. This is the first time since Keegstra (in 1990) that the Courts have entertained a constitutional challenge of the Criminal Code hate speech provision, and it could be the best opportunity in a generation to support internet free speech.”
There are still bills to pay and costs involved so if there is any chance supporters can afford to contribute toward these expenses I would be sincerely appreciative of any assistance. Please go the following website to making a donation or else send a donation to the mailing address shown below:
The Radical Press
Canada’s Radical News Network
“Digging to the root of the issues since 1998”