R. v. Topham, 2017 BCSC 551

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Topham, 2017 BCSC 551 Date: 20170313 Docket: 25166 Registry: Quesnel Regina v. Roy Arthur Topham Before: The Honourable Mr. Justice Butler Oral Reasons for Sentence Counsel for the Crown: Jennifer Johnston Counsel for the Accused: Barclay W. Johnson Place and Date of Trial/Hearing: Quesnel, B.C. March 13, 2017 Place and Date of Judgment: Quesnel, B.C. March 13, 2017 [ 1 ] THE COURT: These are my reasons for sentence.

As always, when the reasons are transcribed, I reserve the right to amend the transcript as to form but not as to substance. [ 2 ] On November 12, 2015, following a 14-day trial, Arthur Topham was convicted by a jury of one count of wilfully promoting hatred against an identifiable group, people of the Jewish religion or ethnic origin, contrary to s. 319(2) of the Criminal Code . Following his conviction, he brought a constitutional challenge to that

section of the Criminal Code . On February 17, 2017, in reasons indexed as R. v. Topham , 2017 BCSC 259 , I dismissed that application. [ 3 ] I have now heard submissions on sentencing and this is my ruling and reasons for sentence. [ 4 ] The background can be stated simply. Mr. Topham operated a website called Radicalpress.com which has, for many years, contained material that he regards as political commentary. The content of the website has a strong anti-Semitic focus.

He was charged with two counts under s. 319(2) of the Criminal Code : the first covered the time period from April 28, 2011 to May 24, 2012; the second covered the time period between January 29, 2013 and December 11, 2013. [ 5 ] The material before the jury covering the two time periods was different: the jury was given binders containing screenshots of Mr. Topham’s commentaries, editorial notes, as well as copies of the material that was linked to or published on Radicalpress.com. The jury convicted him of the charge covering the earlier time period, but not the later time period.

Circumstances of the Offence [ 6 ] The screenshots from his website included a number of anti-Semitic works of longstanding notoriety. These included The Protocols of the Learned Elders of Zion ; The Biological Jew ; and The Jewish Religion: Its Influence Today . The Protocols is more than 100 years old and the other two works were written more than 50 years ago. I need not quote from those works; they contain vile and degrading anti-Semitic statements and purport to provide information on the Jews’ plan for global domination. [ 7 ] In addition to providing links to or republishing this material, Mr.

Topham provided his own, generally complimentary, commentary introducing the material. He also wrote Israel Must Perish , which is highly critical of Jews and Zionists and calls for the castration of all Jews. It is modelled on a treatise titled Germany Must Perish . Mr. Topham changed the words and introduced it by stating: The striking thing about the vileness of the text is how today it seems to roll off the mind’s tongue as if it were as truthful and factual as the rising sun.

As such, I firmly believe that all of what the Zionist Jews write about others is actually but a reflection of their own inner perverse dislocated self. [ 8 ] I need not summarize the material further, except to say that the question before the jury was whether the jury could find that Mr. Topham intended, by the communication of the statements on the website, to wilfully promote hatred against people of Jewish ethnic origin or religion. The material including his commentary and “ Israel Must Perish ” may be characterized as hateful. The verdict was certainly available on the basis of the content of the website.

Circumstances of the Offender

[ 9 ] Mr. Topham moved to the Cariboo in 1970. He is now 70 years old and has lived in the Quesnel area for most of his adult life. For many years he lived with his wife on a large rural acreage outside of Quesnel. He has four children. In addition to maintaining the website, he works as a placer miner. He maintains the property and some farm animals with his wife. However, she is unable to look after the property by herself, as she has degenerative disc disease, which is very painful in her lower back. She requires the use of a walker. She relies on Mr.

Topham to provide assistance and he takes her to Quesnel frequently for medical care and assessment. [ 10 ] After Mr. Topham came to this area, he taught elementary school for five years. He worked for the Parks Branch for eight years. He then returned to teaching in 1989 and taught at an alternative school until 1997. He retired at that time from teaching. He was, according to counsel, well-liked and respected as a teacher. [ 11 ] He then went into the newspaper business, publishing and distributing The Radical as a hard copy newspaper for five years.

It was circulated throughout B.C., but in 2002, he decided to go online and published it as Radicalpress.com. The material he wrote and published was always controversial and Mr. Topham takes full responsibility for the site and its content. Indeed, he has done so since the charges were laid. [ 12 ] Mr. Topham does not have a criminal record. I am told that he has contributed to his community in many ways. He is a board member of a number of co-operative associations. He has worked with youth and run for political office, both at the municipal and provincial level.

He has no association with white supremacist or other racist groups. I was advised that he shut down Radicalpress.com last week and has agreed not to operate it. [ 13 ] I gave Mr. Topham an opportunity to address the Court. He took that opportunity to thank the Court for allowing him to bring his concerns into the public record. He said he felt he had a duty to alert the Canadian public to the threat that he sees: the influence of Jewish lobbies on business and government, their involvement in the judicial system, and their indirect control of the media.

He said he wanted to bring these issues forward and feels he was successful in doing so. However, he is honouring the Court’s decision by shutting down Radicalpress.com. He would, however, like to continue to operate his other website, which is concerned with placer mining called CaribooPlacers.ca. Parameters of the Legislation [ 14 ] The maximum punishment for a conviction under s. 319(2) of the Criminal Code is two years in prison. There is no minimum sentence. Relevant Sentencing Principles [ 15 ] Sections 718 and 718.2 of the Criminal Code set out the objectives of sentencing.

The objectives that have particular relevance when considering an appropriate sentence for this offence include s. 718 (

a) to denounce the unlawful conduct in question; (

b) to deter the offender and others from committing similar offences; (

c) to separate offenders from society where necessary; and (

f) to promote a sense of responsibility in offenders. [ 16 ]

Section 718.2 provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances. [ 17 ]

Section 718.2(

a) deems specific circumstances to be aggravating circumstances, including in subsection (

i) where an offence was motivated by bias, prejudice, or hate based on race, national or ethnic origin, or religion. [ 18 ] In my view, there is little doubt that denunciation is the most important sentencing principle here and I will comment on this later in these reasons. Position of the Parties Position of the Crown [ 19 ] The Crown seeks a one-year conditional sentence order (“CSO”) for Mr. Topham, followed by three years’ probation. It also seeks an order that Radicalpress.com be taken offline. Further, as a condition of the CSO and of the probation, it asks for a term that Mr.

Topham not be permitted to publish or post on any internet site or other medium where such postings or publications can be read by the general public. [ 20 ] Alternatively, the Crown seeks an order that he not publish or post any information about persons of Jewish religion or ethnic origin on any site that can be read by the general public. Position of the Defence [ 21 ] The defence says that the two verdicts in the case were inconsistent, as a result of which the Court should find that this is an appropriate case to order an absolute discharge on Count 1.

In the alternative, the defence says that a conditional discharge or fine with a period of probation is appropriate. The defence says that, in lieu of a fine, Mr. Topham is willing to perform 100 hours of community service at the Salvation Army in Quesnel.

Case Law [22] The Crown’s submission included a number of sentencing decisions involving charges under s. 319(2) or mischief charges thatincluded hate crimes. The cases included the following. [23] In R. v. Keegstra (1996), 1996 ABCA 308 , 44 Alta. L.R. (3d) 16 (C.A.), the Alberta Court of Appeal heard a Crownappeal and substituted a sentence of one year’s probation in place of the trial court’s $3,000 fine. The sentence included 200 hours ofcommunity service. The court specified that, but for the 12 years this matter had been before the court, it would have sentencedMr.

Keegstra to one year in jail. [24] In R. v. Noble, 2008 BCSC 216, the accused used the Internet and a website he had developed to promote hatred against Jews,Blacks, and homosexuals. The court sentenced Mr. Noble to six months in jail and three years’ probation, and terms that forbade himfrom accessing the Internet. [25] In R. v. Presseault, 2007 QCCQ 384, the offender operated a website that promoted hatred against Black and Jewish people.The website contained direct incitements to violence. Mr. Presseault also had a recent and relatively lengthy criminal record for otheroffences.

He was sentenced to six months’ detention and three years’ probation, including terms not to have contact with people whoexpress racism or hatred and a term preventing him from accessing the Internet. [26] In R. v. Mackenzie, 2016 ABPC 173, the accused spray-painted on public transit property and on private vehicles, statementsthat called for the killing and bodily harming of Syrians. Mr. Mackenzie had a recent and relatively lengthy criminal record. He receiveda five-month sentence for inciting hatred, less time served and two years’ probation. [27] In R. v. Lelas, (ON CA), [1990] O.J.

No. 1587 (C.A.), the accused spray-painted anti-Semitic graffiti on asynagogue, a school, and an automobile. He had ongoing associations with white supremacist organizations. The Court of Appealincreased his sentence to one year and upheld the two years’ probation. [28] In R. v. Mahr, 2010 ONCJ 216, the accused, over a period of eight to nine months and on 19 separate occasions, wrote graffiti inpublic locations urging other people to kill all members of the Jewish race. The offender was 83 with no prior convictions.

He wassentenced to six months’ imprisonment and two years’ probation with 40 hours of community service. [29] In R. v. Nicholson, 2002 CarswellBC 3592 (P.C.), the offender promoted hatred against Jews, Asians, Blacks, non-whites, andpersons of mixed race or ethnic origin via bulletin boards and web pages he controlled and the written materials that he mailed out. Hehad a previous criminal record and was a member of white supremacist organizations. He received a one-year conditional sentence andtwo years’ probation.

The probation terms included having no contact with members of white supremacist organizations and aprohibition on using the Internet. [30] The defence did not refer to any sentencing decisions for this offence. However, the defence did refer to a number of casesregarding inconsistent verdicts and the requirement that a court must, when sentencing an offender, have regard to counts on which thejury rendered an acquittal. These included: R. v. Brown, (SCC), [1991] 2 S.C.R. 518; R. v. Campo Alegre, 2010 BCSC1047; R. v. Mahalingan, 2008 SCC 63 , [2008] 3 S.C.R. 316; R. v.

J.F., 2008 SCC 60 , [2008] 3 S.C.R. 215; and R. v.McShannock (1980), (ON CA), 55 C.C.C. (2d) 53 (Ont. C.A.). I need not examine those cases closely as they are notrelevant to this sentencing. The defence asserts that the jury’s verdicts convicting Mr. Topham on Count 1 and acquitting him on Count 2were inconsistent. That submission is based on the defence argument that it was not possible for the jury to reach different verdicts onthe two counts. I disagree. The jury was instructed that the statements communicated by Mr.

Topham which formed the basis for the firstcount were different from those relating to the second count. The statements contained in the screenshots from Mr. Topham’s website forthe two counts were not the same. In other words, the facts relevant to the actus reus for the two counts were different. This wasconveyed to the jury in instructions contained at paragraphs 73, 81, 83 and 90 of the charge.

Mitigating and Aggravating Factors [31] I will preface my analysis of these factors by referring to Presseault at para. 47, where the court summarized the different formsthat expressions of hate may take: [47] Thus, by definition, the expression is always one that is wilful and hateful and that targets identifiable groups with the consciouspurpose of promoting hatred.

According to case law, however, without drawing up an exhaustive list, the expression of hate may: 47.1. be spontaneous, as in a sudden gathering, or a premeditated and deliberate expression of hate, even organized for the widestpossible dissemination, 47.2. be the work of an isolated individual who has a poor grasp of social reality or the work of a member of a racist group, 47.3. be the work of a disturbed individual at a particular time in his or her life or the work of an individual with deeply rooted racistvalues, 47.4. be the work of a first offender in this type of offence or the work of a re-offender, 47.5. be publicly disseminated to a limited audience or in contrast, target a large audience, 47.6. be hateful, but with more or less subtle overtones of violence,

47.7. target a single or several identifiable groups, 47.8. be built on sincere albeit mistaken beliefs, more akin to religious or political opinions than the brutal expression of violencetoward an identifiable group. [32] The differences in the many forms that hate speech can take have an impact on whether the circumstances are aggravating ormitigating. Here, I take the following as aggravating factors: • Mr. Topham’s communications were not spontaneous; they were considered and deliberate.

As he advised the Court, he still holdsthe underlying views and wants to educate the public. • He used the Internet to disseminate his views. It provides the potential for a wide audience. [33] The mitigating factors include: • Mr. Topham is 70 years old and a first offender. He has contributed positively to his community over his time in the Cariboo. • He operated alone. He is not part of a white supremacist or racist group. • He expresses his views as a political statement, not as a call to arms. I accept that he does not call for violence in any direct way.None of his statements advocate violence.

Unfortunately, he fails to recognize that his communications may, by promoting hatred,indirectly promote violence. However, I accept that it is not his intent in making those statements. Analysis [34] As the Crown has noted, and many of the cases acknowledge, Mr. Topham is being sentenced for the promotion of hatred, notfor his opinions. As noted by Galligan J.A. in dissent (but not on this point), in Lelas at paras. 34 and 35: 34 Repugnant as the respondent's opinions and beliefs are, he cannot be punished for them.

I think, therefore, that a court mustensure that a sentence could not be taken as imposing punishment for beliefs or opinions. 35 It is not easy to decide upon a sentence which will express society's abhorrence of this kind of conduct and yet not impose, or givethe appearance of imposing, punishment for the respondent's beliefs and opinions. Arriving at a fair balance between those twocompeting principles, each of which has latent emotional impact, is a delicate exercise. [35] I begin my analysis by referring to the nature of the harm caused by hate speech.

Chief Justice Dickson carefully considered thenature of the harm in R. v. Keegstra, (SCC), [1990] 3 S.C.R. 697 [Keegstra (S.C.C.)]. He found that the harm caused byhate propaganda, “is deeply offensive, hurtful and damaging to target group members, misleading to his listeners, and antithetical to thefurtherance of tolerance and understanding in society.” (at 761-62). [36] As I noted in R. v. Topham, 2017 BCSC 259 at para. 23, in Keegstra (S.C.C.), Chief Justice Dickson found that hate speechcauses two kinds of harm: … First, “there is harm done to members of the target group.

It is indisputable that the emotional damage caused by words may be ofgrave psychological and social consequence.” (at 746). A second, “harmful effect of hate propaganda which is of pressing and substantialconcern is its influence upon society at large…. It is thus not inconceivable that the active dissemination of hate propaganda can attractindividuals to its cause, and in the process create serious discord between various cultural groups in society.” (at 747). [37] In Saskatchewan (Human Rights Commission) v.

Whatcott, 2013 SCC 11 at para. 72, Justice Rothstein writing for the Courtreminded us that the problem of hate speech has not diminished since the 1960s when the Cohen Committee report was published. Hestated: … The Cohen Committee wrote at a time when the experiences of fascism in Italy and National Socialism in Germany were in recentmemory. Almost 50 years later, I cannot say that those examples have proven to be isolated and unrepeated at our current point inhistory.

One need only look to the former Yugoslavia, Cambodia, Rwanda, Darfur, or Uganda to see more recent examples of attemptedcleansing or genocide on the basis of religion, ethnicity or sexual orientation.

In terms of the effects of disseminating hateful messages,there is today the added impact of the Internet. [38] The nature of the harm and the recognition that the risks associated with hate speech are always present brings home theobservation that denunciation is the most important sentencing principle in cases involving communication for the promotion of hatred.Communications which cross the line into promotion of hatred must be denounced.

The sentence must reflect the danger posed by hatespeech and society’s abhorrence of such communications. [39] In the present case, it is evident to me that rehabilitation is not an issue. Mr. Topham is 70 years old and has entrenched views.His statement to the Court makes it clear that he has no remorse for what he did. Indeed, he felt it was his civic duty to publish thismaterial. He does not seem to recognize that his communications went beyond the expression of a political viewpoint.

His statement tothe Court raises a concern that he may publish such material again, even though he has now shut down the website. [40] While I note that Mr. Topham has been respectful to the Court throughout this proceeding and has been involved in a positiveway in his community, it is clear to me that he wants his views “to be part of the public record” and regards the case as a justifiable wayto spread his views. This gives me some concern. [41] This case is difficult, given the aggravating and mitigating factors and the rights which are at stake. Mr. Topham’s actions,

which have been found to be criminal, were intentional, with a view to reaching a wide audience. However, Mr. Topham has been a law-abiding citizen and it is his first offence. However, when I consider the need for denunciation, the lack of any remorse, and Mr. Topham’s continuing desire to have his viewpoint heard, the sentence I impose must be sufficient to let Mr. Topham and others know that the promotion of hatred against a recognizable group is not permitted in this society.

Accordingly, I am of the view that I must impose a custodial sentence. [ 42 ] The next question is whether this is an appropriate case for the sentence to be served conditionally in the community. In other words, I must consider the provisions of s. 742.1 of the Criminal Code and determine whether the safety of the community would be endangered by a conditional sentence and whether a CSO would be consistent with the fundamental purpose and principles of sentencing. [ 43 ] The only issue that arises in relation to the safety of the community is with regard to the possibility that Mr.

Topham would attempt to communicate statements to promote hatred in the future. I am satisfied that a conditional sentence can be crafted with conditions that will ensure the safety of the community. I am also satisfied that the imposition of a conditional sentence, which is a custodial sentence, is sufficient to express society’s condemnation of Mr. Topham’s actions. [ 44 ] I also agree with the defence submission that a conditional sentence of 12 months is unnecessarily long. Mr.

Topham’s actions, while wrongful, do not involve the level of violence or, indeed, the call to violence that courts have been concerned about in some of the other cases referred to by the Crown. [ 45 ] Now, Mr. Topham, I am going to ask you to stand. The sentence that I impose on you is six months in custody. However, that will be served in the community by way of a CSO. Following the conditional sentence, I also impose an additional two years of probation. [ 46 ] Now, I will ask you to sit down. I am going to go through the conditions for the CSO, as well as the conditions for the probation.

I want to start off by saying that I am not going to impose any house arrest portion as part of the conditional sentence. [ 47 ] First of all, the conditional sentence will include the mandatory conditional sentence conditions. You shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court.

You shall report in person to a conditional sentence supervisor no later than 4:00 p.m. on March 14 at the probation office at 208, 350 Barlow Avenue, Quesnel, and you shall thereafter report as and when directed by the supervisor and in the manner directed by the supervisor.

You shall remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the supervisor, and you shall notify the court or the supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change of employment or occupation. [ 48 ] The telephone reporting option is also included.

After your first reporting to the conditional sentence supervisor, further reporting to the conditional sentence supervisor and to the probation officer may include reporting by telephone at the discretion of that officer. [ 49 ] As I have said, there is no house arrest portion to the CSO. However, the first half of the CSO includes a more restrictive curfew. The first half of the CSO includes a curfew from 7:00 p.m. to 6:00 a.m.; the second half is 11:00 p.m. to 6:00 a.m. So in other words, Mr.

Topham, you shall obey a curfew by being inside of your residence or on your property between the hours of 7:00 p.m. and 6:00 a.m. each day for the first three months of the CSO, and between the hours of 11:00 p.m. and 6:00 a.m. each day for the second three months of the CSO, except as follows: (1) with the written consent of the conditional sentence supervisor obtained in advance. Such consent is to be given only for personal, family, or employment reasons.

Without limiting the general nature of this condition, such consent may be given for overnight trips in the course of settling your brother's affairs and/or to facilitate your wife’s medical appointments; (2) when travelling directly to or returning directly from your place of employment or while in the course of your employment. You shall provide the bail supervisor or probation officer or supervisor with proof of employment.

Place of employment shall include your mining claim and such overnight stays at your mining claim as are necessitated by such employment; (3) when travelling directly to or returning directly from an educational institution at which you are enrolled or while in the course of classes or extracurricular activities approved by the bail supervisor/probation officer/supervisor at such educational institute.

You shall provide that person with written proof of your educational enrollment, your attendance at classes, and your involvement in extracurricular activities; (4) in the event of a medical emergency, and then only when travelling directly to or returning directly from a hospital or emergency ward; and (5) to attend or be with your wife in the course of her medical appointments or hospital stays. You shall provide your supervisor with written proof of such appointments or hospital stays. [ 50 ] Terms for the curfew checks in person and by telephone are included.

You shall present yourself at the door to your residence when any peace officer or bail supervisor, probation officer, or supervisor attends there for the purpose of determining your compliance with the curfew conditions of this order.

You shall respond personally and immediately to the telephone when a peace officer/probation officer/supervisor makes a telephone call to your residence for the purpose of determining your compliance with the curfew conditions of this order. [ 51 ] You shall have no contact or communication, indirectly or directly, with Richard Warman or Harry Abrams. [ 52 ] You shall not possess or consume any alcohol or any controlled substances within the meaning of s. 2 of the Controlled Drugs and Substances Act , S.C. 1996, c. 19, except as prescribed for you by a physician.

[ 53 ] You shall not enter any liquor store, beer and wine store, bar, pub, lounge, or other business premises from which minors are excluded by the terms of their licences. [ 54 ] I am also imposing the no-weapon provision. You shall not possess any weapon as defined in s. 2 of the Criminal Code , except for purposes directly related to your employment. [ 55 ] I am not going to impose a community work portion for the probation. I am satisfied that, from what I have heard, Mr.

Topham does community work and there is no need to impose that as a term of the probation. [ 56 ] I am also imposing the order that you shall remove Radicalpress.com from the Internet and obviously it cannot be restarted. [ 57 ] I am also imposing, for the six months of the CSO, the condition that you shall not publish or post, directly or indirectly, any material to any internet site where your writings can be read by members of the public.

That is only for the conditional sentence portion of this sentence. [ 58 ] I turn now to the probation terms which include, first of all, the standard mandatory probation conditions. You shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court.

You shall notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 59 ] I also impose the no-contact order: you shall have no contact or communication, directly or indirectly, with Richard Warman or Harry Abrams.

In addition, you shall not possess any weapon as defined by s. 2 of the Criminal Code , except for purposes directly related to your employment. [ 60 ] With regard to the probation term, that is the two years, the alternative provision sought by the Crown will apply, which is that Mr.

Topham is not to publish or post on any internet site or any other social media site or platform, where such postings or publications can be read by the general public, any information about persons of Jewish religion or ethnic origin. [ 61 ] That concludes the terms of the probation part of the order and the conditional sentence order, and that concludes my reasons. “Butler J.”