Regina v Radical Press Legal Update #26
Dear Free Speech Defenders and Radical Press Supporters,
On February 17th, 2017 the long-awaited decision in the Regina v. Roy Arthur Topham constitutional Charter challenge to Sec. 319(2) of the Canadian Criminal Code was handed down by The Honourable Mr. Justice Butler in the Supreme Court of British Columbia. I will append below the first 7 paragraphs of Justice Butler’s decision as an introduction to the whole document which consists of a total of 82 paragraphs. The complete decision can be found at the following url for anyone wishing to study the document in full: https://www.canlii.org/en/bc/bcsc/doc/2017/2017bcsc259/2017bcsc259.html
It should be born in mind that this decision focused on a Ruling involving a legal issue known as the Bedford Threshold. It was not a ruling on the actual Charter challenge to Sec. 319(2). In order to challenge any Supreme Court of Canada ruling one must first gain entrance to those hallowed chambers by meeting the threshold established in the Bedford case wherein this test initially arose.
As I had explained in my previous Legal Update for November 19th, 2016 constitutional notice was first served to the Crown on March 23rd, 2015 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.
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.
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 that the “Bedford Threshold” 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 wherein I stated 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.
The Honourable Justice Butler ruled in favour of the Crown’s argument and in Paragraph 6 states: “This is my decision on the threshold issue. For the reasons that follow, I conclude that this case does not meet the threshold necessary to reconsider Keegstra and Mr. Topham’s application challenging the constitutionality of s. 319(2) is dismissed.”
The actual date set for Justice Butler to hand down his decision has been set for March 10th, 2017 in the B.C. Supreme Court in Quesnel, B.C. The mainstream media has already been publishing fake news stories stating that I will be sentenced on that date. Such is not the case. Once the decision is read out in court on March 10th a new date will then be set for sentencing to occur. That date is yet to be determined.
As things currently stand I will be faced with having to decide what my options will be once I know what Crown is asking for during the actual sentencing when the time arrives.
I will then attempt to inform readers in another Legal Update.
IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: R. v. Topham,
2017 BCSC 259
Roy Arthur Topham
Before: The Honourable Mr. Justice Butler
Ruling on Bedford Threshold Issue
|Counsel for the Crown:||Rodney G. Garson|
|Counsel for the Accused:||Barclay W. Johnson|
|Place and Date of Trial/Hearing:||Quesnel, B.C. October 3-6, 2016
Vancouver, B.C. October 19, 2016
Victoria, B.C. November 8 and 9, 2016
|Place and Date of Judgment:||Quesnel, B.C. February 17, 2017|
 On November 12, 2015, following a 14-day trial, Arthur Topham was convicted by a jury of one count of willfully promoting hatred against an identifiable group, people of the Jewish religion or ethnic origin, contrary to s. 319(2) of the Criminal Code. Prior to the trial, he brought an application pursuant to the Constitutional Question Act, R.S.B.C. 1996, c. 68, challenging the constitutionality of s. 319(2). I heard that application and in reasons indexed as R. v. Topham, 2015 BCSC 1185 (CanLII), ruled that the hearing of the application should take place following the trial, in the event of a conviction. Part of the rationale for that decision was that if Mr. Topham was convicted, there would be a factual foundation for the constitutional challenge. He has now renewed the application.
 In R. v. Keegstra, 1990 CanLII 24 (SCC),  3 S.C.R. 697, the Supreme Court of Canada considered the constitutional validity of s. 319(2) of the Criminal Code. The Court found that the section infringed the right to freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.), 1982 c. 11 (the “Charter”). However, the majority also concluded that the Criminal Code provision was saved by s. 1 of the Charter as a reasonable limit that was demonstrably justified in a free and democratic society.
 Given the doctrine that lower courts must follow the decisions of higher courts, Keegstra is binding on this Court. However, as the Supreme Court of Canada explained in Canada (Attorney General) v. Bedford, 2013 SCC 72 (CanLII), at para. 42, there are circumstances in which a lower court can depart from a binding statement of law. That can be done in only two situations: 1) where a new legal issue is raised; and 2) where there “is a change in circumstances or evidence that fundamentally shifts the parameters of the debate”.
 The defence says that this Court does not have to follow Keegstra, as both situations which allow for departure from a binding precedent exist in this case. Further, the defence says that the s. 1 determination in Keegstra is not binding on this Court. The Crown takes the position that Keegstra is binding and that neither situation which would allow for reconsideration of that ruling is present.
 In light of Bedford, and in order to resolve the dispute over the application of Keegstra, the parties agreed that Mr. Topham’s application should be considered in two stages. At the first stage, the Court would consider whether the Bedford threshold for reconsidering the Keegstra ruling has been met. In a hearing which lasted seven days, Mr. Topham presented evidence which he says is relevant to reconsideration of the ruling and the parties advanced argument on the threshold issue.
 This is my decision on the threshold issue. For the reasons that follow, I conclude that this case does not meet the threshold necessary to reconsider Keegstra and Mr. Topham’s application challenging the constitutionality of s. 319(2) is dismissed. Accordingly, there is no need for the second stage of the application. For clarity, and in the event this decision is overturned on appeal, I note that the parties contemplated and I agreed that at the second stage, the Crown would be permitted to present evidence relevant to the s. 1 issue: whether s. 319(2) of the Criminal Code is a reasonable limitation on s. 2(b) of the Charter. Of course, at the second stage the parties would also have the opportunity to present argument on the constitutional issues, including on the question of an appropriate remedy under s. 52 of the Constitution Act, 1982.
The Bedford Threshold
 The threshold that must be met before a lower court can reconsider a binding authority is set out in Bedford. In that case, lower courts were asked to reconsider the decision in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC),  1 S.C.R. 1123. The Court agreed that lower courts may, in limited circumstances, revisit conclusions reached in binding decisions of the Supreme Court of Canada. That is the case even though, “[c]ertainty in the law requires that courts follow and apply authoritative precedents” and that is “the foundational principle upon which the common law relies.”
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