Dear Free Speech Defenders and Radical Press Supporters,
It’s been close to a year since I last posted a Legal Update back on August 8th, 2015. That was prior to the actual trial which began on October 26th, 2015 and concluded fourteen days later on November 12th, 2015.
The outcome of the trial, as many will know, resulted in a Guilty charge on Count 1 and a Not Guilty charge on Count 2. What was perplexing for everyone who heard the results (including myself) was that BOTH Counts 1 and 2 were the same charge, that is, both were a Sec. 319(2) Criminal Code of Canada offence which reads:
‘(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.’
Immediately following the trial a date was set for December 7th, 2015 in order to fix a date for the Charter application hearing to be heard. The Charter issue had already began back in the spring of 2015 but was postponed pending the outcome of the trial. Had I been victorious and found Not Guilty on both counts there would not have been grounds to file the challenge to the legislation. That date came and went and Crown and Defence were unable to agree upon a date for the hearing. It was put over to January 25th, 2016. On the January date issues came up about Defence calling Expert Witnesses and so it was rescheduled to March 29th, 2016 to fix a date. March 29th came and went and more delays required the setting a new date of April 4th. The 4th of April came and went and another date of May 2nd was chosen. On May 2nd the computers in the courtroom malfunctioned causing further delays and a new date of June 6th was set. On June 6th Defence counsel’s computer went down and a new date of July 11th, 2016 was set. After eight months and seven attempts to fix a date the deed was finally accomplished on the 11th of July!
As it now stands the Charter application will be heard in Quesnel Supreme Court beginning October 3rd, 2016 and run (possibly) for the full week to October 7th, 2016.
As stated previously, I, as the Applicant will be raising the following issues; ones that are included in my Memorandum of Argument:
• Section 319(2) of the Criminal Code constitutes an infringement of Section 2(b) of the Charter of Rights and Freedoms.
• The Crown bears the onus of justifying the infringement of Charter rights on a case-by-case basis.
• The present case is distinguishable from Keegstra on its facts.
• The infringement of Section 2(b) of the Charter is not reasonably justified by Section 1 in the circumstances of this case, and specifically: The ‘pressing and substantial objective’ of legislation must be defined narrowly for the purpose of a Section 1 analysis.
• The use of Section 319(2) in this case is not rationally connected to the pressing and substantial objective of preventing harms associated with hate propaganda.
• Criminal prosecution by indictment is not a minimal impairment of the Applicant’s Charter rights.
• The infringement of the Applicant’s Charter rights is disproportionate to any possible salutary effect that Section 319(2) could have in the circumstances of this case.
• The appropriate remedy is to read into the law a constitutional exemption, to the effect that Section 319(2) is not a reasonable limit on Section 2(b) in circumstances where the allegedly hateful material is legal to possess and lawfully available from other sources.
The bottom line is that Section 319(2) of the Criminal Code constitutes an infringement of Section 2(b) of the Charter of Rights and Freedoms which states:
‘Everyone has the following fundamental freedoms: …
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication …’
The Order that I intend to pursue is based upon Section 52(1) of the Constitution Act, 1982 reads as follows:
‘52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.’
Citing R. v. Sharpe in support of Section 52(1) I will be respectfully requesting an order that would read as follows:
A declaration that Section 319(2) of the Criminal Code constitutes an infringement of Section 2(b) of the Charter, as already established in R. v. Keegstra.
A declaration, pursuant to Section 52(1) of the Constitution Act, 1982, that Section 319(2) of the Criminal Code is not reasonably justified by Section 1 of the Charter in circumstances where the allegedly hateful material is legal to possess and lawfully available from other sources.
Crown of course will be arguing that the applicant’s (my) argument is entirely without merit.
Now that the date has been set there is still the responsibility on my part to cover a number of financial costs related to the hiring of Expert Witnesses and also travel expenses and accommodations for legal assistants who I will be bringing to Quesnel for the week of the Charter hearing. These and many other miscellaneous costs that are part of this ongoing process must be raised over the next two months in order accomplish our goals. Any help that people can offer will be gratefully accepted and put to good use.
Donations can be made online via my GoGetFunding site located at http://gogetfunding.com/canadian-publisher-faces-jail-for-political-writings/ or else by sending cash, cheques or Money Orders to the following postal address. Please make sure that any cheques or Money Orders are made out to Arthur Topham and sent to:
4633 Barkerville Highway
Thank You All for your ongoing help throughout this long process!