April 10th, 2014
Dear Free Speech Advocates and Radical Press Supporters,
The previous Legal Update (March 14th, 2014) covering The Radical Press’s battle with Canada’s unjust “Hate Propaganda” legislation, as contained in Sec. 319(2) of the Canadian Criminal Code, concluded on March 13th, 2014. It was then that Judge Morgan saw fit to commit me to trial by judge and jury in the B.C. Supreme Court.
Immediately following his decision, Crown requested that a bail hearing be held that very same day. This new bail hearing was a result of Crown having re-charged me in January of 2014 with the same Sec. 319(2) offence that had originally been laid against me back on May 16th, 2012. By laying new charges this gave the Crown an opportunity to file a new application which, in turn, would allow them another chance to vary the current conditions that were set in place back on January 3rd, 2013 by Judge Church.
Det. Terry Wilson and his BC Hate Crime Team down in Surrey, B.C. were not happy with Judge Church’s decision as it allowed me (as per my Charter rights) to continue publishing on RadicalPress.com. The RCMP would rather have had its position taken; one that presumes I’m already guilty of the alleged crime and therefore should be be prevented from publishing anything further until my trial is over.
The precise wording of the Crown’s proposed new conditions was as follows:(March 14th, 2014) on RadicalPress.com’s battle with Canada’s unjust Sec. 319 “Hate Propaganda” legislation as contained in Sec. 319(2) of the Criminal Code concluded on March 13th, 2014. It was at that point when Judge Morgan saw fit to commit me to trial by judge and jury in the B.C. Supreme Court.
Immediately, following his decision, Crown requested that a bail hearing be held that very same day. This new bail hearing was a result of Crown having re-charged me in January of 2014 with the very same Sec. 319(2) offence. By laying new charges this gave the Crown the opportunity to file a new application which, in turn, would allow them another opportunity to vary the conditions that were set in place back on January 3rd, 2013 by Judge Church.
Det. Terry Wilson and his BC Hate Crime Team down in Surrey, B.C. were not happy with those bail conditions as they allowed me (as per my Charter rights) to continue publishing on RadicalPress.com rather than taking the RCMP’s position that I’m already guilty of the alleged crime and therefore should be be prevented from publishing anything further until my trial is over.
The precise wording of the Crown’s proposed new conditions was as follows:
1) You shall not post any information on any internet site that can be read by members of the general public.
2) You shall not operate, post to, manage or allow anyone to operate, post to or manage any internet site owned by you that can be accessed by the general public.
3) You shall make RadicalPress.com unavailable to the general public. You shall not be in breach of this condition if you place a default page on RadicalPress.com, if the wording of the default page has been previously approved by this Court.
Also, as reported in the March 14th update, Judge Morgan declined to immediately grant Crown their bail hearing on that day and advised Crown and myself that I was to return on March 18, 2014 at 1:30 to fix a date. I came back on the 18th and the date of April 9th, 2014 was then set; one that would allow me time to prepare my arguments against this latest attempt on the part of Det. Terry Wilson and the BC Hate Crime Team to shut down RadicalPress.com prior to any determination of guilt.
There was a tremendous amount of work required to prepare for the hearing; an effort that never abated until the late evening of April 8th just prior to the hearing when, having assumed I had all of my documents prepared, I suddenly found myself having to deal with yet another bit of legal chicanery in the form of an email from Crown Counsel Jennifer Johnston which suddenly arrived in my inbox at 4:29:06 p.m. that very same day. This type of behaviour on the part of the Crown has been an ongoing source of frustration from the time that my former counsel Doug Christie passed away in March of 2013. Crown, rather than furnishing me with essential documents in advance of any court appearance, apparently prefers to wait until I walk into the courtroom and then hand me whatever document(s) that she plans to use that day. To my way of thinking this is a highly unfair, unprofessional practise and I eventually brought it to the attention of Judge Morgan during the hearing.
The last minute email from Crown contained a newly revised set of bail conditions which read as follows [emphasis is mine. Ed.]:
Crown is requesting the following terms on an Undertaking to a Justice:
1) You shall keep the peace and be of good behaviour.
2) You shall have no contact or communication, directly or indirectly, with Ricardo Warmouse or Agent Z except as follows:
(a) while in attendance at court; or
(b) through legal counsel.
3) You shall not possess any weapon as defined in Section 2 of the Criminal Code expect[sic] for purposes directly related to your employment including, but not limited to, your mining operations.
4) You shall not distribute, circulate or share all or any part of the Crown disclosure material with any person or organization save and except for legal counsel who is assisting you in your defence.
5) You shall not publish or post all or any part of the Crown disclosure material on any internet site that can be read by the general public.
6) Except as set out in Conditions 8 and 9, you shall not post any information on any internet site that can be read by members of the general public.
7) Except as is set out in Conditions 8 and 9, you shall not operate, post to, manage or allow anyone to operate, post to or manage any internet site owned by you that can be accessed by the general public.
8) You shall make RadicalPress.com unavailable to the general public. You shall not be in breach of this condition if you place a default page on RadicalPress.com, if the wording of the default page has been previously approved by the Court or by your bail Supervisor and/or if you continue to pay your website provider for the RadicalPress.com site.
9) You shall be permitted to operate, post to and manage the following two websites:
a) Cariboominingassociation.com and
On the following conditions:
i) That none of the posts or links on RadicalPress.com be placed on either website and
ii) That you do not post anything about Ricardo Warmouse, Agent Z or Jewish religion and/or origin in any matter whatsoever.
There weren’t any delays in getting started this session and Crown, as per usual, again presented me with another packet of papers marked “Memorandum of Disclosure” just prior to commencing speaking to her application. I quickly perused the document and discovered that it contained photocopies of screen shots recently taken off RadicalPress.com by Det. Terry Wilson who monitors the site on a daily basis as he has little else to do with his time.
The first screen shot was my post, “A Dieudonne Salute to Zionism and the Forces of Darkness and Evil”. The second was John Kaminski’s latest article, The elderly are the lucky ones, and the third shot was of my post titled “Support the Radical Press Legal Defence Fund” .
Crown immediately launched into her argument that “Mr. Topham” was still committing the same offence that he’d already been charged with on three separate occasions and then proceeded to cited the example of my Dieudonne “la quenelle” gesture as proof positive. Crown’s argument was that I had given the salute/gesture to the “Zionists” and that meant, by association, the “Jewish people” and so it must be considered a further example of promoting “hatred” toward this ethnic group. Following that Counsel then went on to speaking about John Kaminski’s article and asked Judge Morgan to read specific paragraphs where Kaminski was making direct references to the Jews in America. This article, according to Crown, was further “proof” of my continuing disregard for the law.
The manner of Crown’s presentation to Judge Morgan, regarding these posts, might best be conveyed to readers if they were to imagine someone arguing that my posting every day on RadicalPress.com was synonymous with a bank robber who, while on bail, was going out every day and robbing another bank and nothing was being done to stop him.
Finally, after what for all intents of purpose was a thinly veiled tirade against my Charter right to freedom of expression, Crown then switched from bad prosecutor to good prosecutor and proceeded to tell Judge Morgan that Crown wasn’t trying to suggest to His Honour that everything published on RadicalPress.com was “hatred toward people of the Jewish faith or ethnicity”. Here is where she made reference to my appeal to RadicalPress.com readers in the post “Support the Radical Press Legal Defence Fund”. Posts such as these, in Crown’s opinion, were just fine but, of course, the problem was that RadicalPress.com was such a “huge” site and permeated throughout with so much “hatred” toward Jews and “Zionism” that it was virtually impossible for Crown to determine how to prevent “Mr. Topham” from publishing his “hate” posts along with all the other materials that didn’t fit into the Sec. 319(2) prohibitions and so the only logical choice must be to stop Mr. Topham from publishing anything on his website until the trial was over.
Judge Morgan listened to Crown’s arguments and then began to ask questions about Crown’s proposed conditions. Foremost in Judge Morgan’s mind was the notion of shutting down the whole website because of postings which Crown was alleging were contrary to Sec. 319(2) of the Criminal Code. The judge openly stated that he had never gone on RadicalPress.com to ascertain what was or wasn’t on the site but he suggested to Crown (again) that in all likelihood not all of the content on the website was probably about Jews and Zionism and that it was a concern for him shutting down the whole site because of these alleged infractions which, for the most part, amounted to a relatively small number of disputed posts given that the site was as “huge” as Crown was inferring.
Judge Morgan also had concerns about condition No. 9 and questioned Crown about the relevancy of trying to control other websites that I might own. At this point I notified the judge that Crown had erred in stating that I was operating the website http://www.cariboominingassociation.com. Back on March 13th when Crown first presented me with the initial conditions I informed her that my mining website was http://www.caribooplacers.ca but that she had mistakenly denoted another site which I am no longer operating. Crown quickly responded by telling the judge that she would change it but first would have to get her secretary contact Det. Wilson and have him check out the website and verify if there were any “hate” posts about Jews on the site or links to “hate” sites. If there weren’t then Crown would be willing to allow me to post mining business on it.
Crown, having made its pitch to Judge Morgan, I was now asked by the judge if I had anything to offer up in my own defence.
I explained to the judge that I had both a Defence Memorandum of Argument Regarding Crown Application to Vary Bail as well as an Oral Submission. The Defence Memorandum of Argument had been prepared by a very astute and competent law student and the Oral Submission was in the form of a written document which was basically a summary of my own thoughts on why I felt Crown’s application was a draconian attempt to circumvent my Charter rights. I told Judge Morgan that I wasn’t an orator and would prefer just to read it into the court record and he was fine with that. Both these two documents were then presented to Crown and Judge Morgan. Along with the Defence Memorandum of Argument I also submitted a binder to each of them with my List of Authorities which I had referenced in my Memorandum of Argument. It contained nine cases plus a copy of Judge Church’s bail decision from January 3rd, 2013. Each binder amounted to a total of 411 pages so they were a rather formidable contribution.
A total of 1233 pages had to be printed off in order to complete the Memorandum of Argument
Judge Morgan proceeded to read through the Memorandum of Argument and appeared immediately satisfied with the calibre of the presentation and how it was laid out. I was basically arguing two different positions; the first being the jurisdiction of Judge Morgan to actually preside over the bail hearing now that the case had shifted to the Supreme Court and an Indictment had been handed down on March 27th, 2014. The second argument revolved around a number of Charter issues dealing first with presumption of innocence, then prior restraint to my right to freedom of expression contrary to Section 2(b) of the Charter of Rights and Freedoms. That was followed by the argument the conditions sought by Crown were not rationally connected to any pressing and substantive objective. The final arguments stated that the conditions sought by Crown didn’t minimally impair my right to freedom of expression and that the deleterious effects of the conditions sought outweighed any salutary effects that might be achieved.
Following some commentary by Judge Morgan I then read out my Oral Submission to the court and the judge thanked me. I will present one excerpt from the Oral Submission that pertains to the oft argued issue about the meaning of the word “hate” and its relation to Truth.
“The Truth, no matter how mortifying; how revealing; how awkward; how embarrassing; how shameful; how humiliating; how disconcerting; how ignominious; how upsetting; how distressing; how mortifying or how painful, can never be construed as being concomitant with the word “hate” no matter how much sophistry or contortions of meaning are applied to it. The Truth, simply IS, and no amount of pretence or subterfuge can ever negate that fundamental fact, even though during periods of history it has become temporarily amenable to usurpation by cold, calculating logic or other surreptitious means. Otherwise, taken to its logical conclusion, if Truth, in any context, were to be equated or aligned with the emotive term “hate” then by the same reasoning Falsehood or Lies would, in turn, become “love” and all rational discourse and communication would ultimately become moot and meaningless.”
Judge Morgan then decided around 11:00 a.m. to take a recess and said we would resume again at 1:30 in the afternoon. This would give both himself and Crown an opportunity over the lunch break to read through the materials that I had presented them with and also allow Crown some time to respond to the arguments.
We then left the courthouse and went for lunch.. Once again I was pleased that my friend and associate Paul Fromm, Director of the Canadian Association for Freedom of Expression (CAFE), had traveled to Quesnel from Ontario to attend the hearing and offer support to myself and my wife. Paul and I had lunch and discussed a number of issues related to the case as well as other matters of a general nature and then returned for the afternoon session.
Crown, I believe, wasn’t expecting the argument which I brought forth during the morning session and had obviously scrambled during the time we recessed to recoup her position. She returned to the courtroom at 1:30 p.m. with a number of case law files which she then used to argue that the judge did in fact have jurisdiction to hear Crown’s application even though Judge Morgan was a provincial court judge and the case was now in Supreme Court. That was the main thrust of her argument and when she was through Judge Morgan then told Crown and myself that he was going to reserve his decision until April 15th, 2014 at 1:30 p.m. Court was then adjourned.