Her Majesty the Queen - v. -, 2011 SKPC 47

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 047 Date: March 11, 2011 Information: 40391709 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Terrance Tremaine Appearing: J.J.M. Stoesser For the Crown D.H. Christie For the Accused Decision following Preliminary Hearing B.D.

Henning , J [ 1 ] Terrance Tremaine is charged ‘that between the 1 st day of January, A.D. 2006 and the 23 rd day of January A.D. 2008 at or near Regina, Saskatchewan did communicate statements wilfully promoting hatred against an identifiable group contrary to section 319(2) of the Criminal Code ’. [ 2 ] The Criminal Code of Canada provides: 319.

(1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace 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.

(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.

(3) No person shall be convicted of an offence under subsection (2) (

a) if he establishes that the statements communicated were true; (

b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text; (

c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or (

d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

(4) Where a person is convicted of an offence under

section 318 or subsection (1) or (2) of this section, anything by means of or in relation to which the offence was committed, on such conviction, may, in addition to any other punishment imposed, be ordered by the presiding magistrate or judge to be forfeited to Her Majesty in right of the province in which that person is convicted, for disposal as the Attorney General may direct. (5) Subsections 199(6) and (7) apply with such modifications as the circumstances require to

section 318 or subsection (1) or (2) of this section.

(6) No proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General.

(7) In this section, "communicating" "communicating" includes communicating by telephone, broadcasting or other audible or visible means; "identifiable group" "identifiable group" has the same meaning as in

section 318; [In this section, "identifiable group" means any

section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.] "public place" "public place" includes any place to which the public have access as of right or by invitation, express or implied; "statements" "statements" includes words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or other visible representations.

This legislation is in contrast to provisions of the Canadian Human Rights Act (R.S., 1985, c. H-6) which is more specific as to whatconstitutes ‘communication’. 13.

(1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to beso communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislativeauthority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that personor those persons are identifiable on the basis of a prohibited ground of discrimination.

(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group ofinterconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of amatter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

(3) For the purposes of this section, no owner or operator of a telecommunication undertaking communicates or causes to becommunicated any matter described in subsection (1) by reason only that the facilities of a telecommunication undertaking owned oroperated by that person are used by other persons for the transmission of that matter. [3] This case has proceeded by indictment and a preliminary hearing was conducted. This decision is a ruling on the question ofcommittal following that hearing. The Crown’s case is based on the activities of Mr.

Tremaine in posting material on two internetwebsites which are located on computer servers in the United States of America, but which are accessible virtually anywhere through theinternet. These are called ‘Stormfront.org’ and ‘The National Socialist Party of Canada’ website and are referred to as ‘stormfront’ and‘NSPC’ in the evidence. [4] Mr.

Tremaine made a video recorded statement, and an audio recorded statement, the latter of which was reduced to atranscript (after careful and repeated listening with numerous corrections by counsel and the Court) which was accepted in evidence asExhibits P-1 (videotape), P-2 (audiotape) and P-3 (transcript), but will be referred to as P-1. In this statement, Mr. Tremaine admitted tobeing the person referred to as ‘mathdoktor99’ who posted numerous written statements in the discussion area of stormfront. He alsoadmitted that he was the webmaster of the NSPC website, and his name appears on that website.

Postings were captured from theinternet from these websites by investigators for the Canadian Human Rights Commission who provided their material to the ReginaCity Police who conducted their own investigation which resulted in the laying of these charges following a prosecution under theCanadian Human Rights Act. The Defence did not raise issues at the preliminary hearing with Mr. Tremaine’s connection to thesewebsites, his authoring of certain posts to the stormfront website, or the uploading of material to the NSPC website which originatedfrom numerous other undisclosed sources.

Copious amounts of material were exhibited that were taken from these websites. [5] At a preliminary hearing the Court must determine whether there is some evidence which a jury, properly instructed, mightaccept on each element of the charge. The test has been set out in The United States of America v. Sheppard, (SCC),[1977] 2 S.C.R. 1067, and further elaborated upon with respect to circumstantial evidence in R. v.

Acuri, 2001 SCC 54 , [2001]2 S.C.R. 828. [6] There is much on each of these two websites that, in the Court’s opinion, is capable of promoting hatred toward anidentifiable group, namely persons of Jewish ethnic or religious origin. Many negative characteristics are imputed toward this group. Anexample may be taken from a posting by ‘mathdoktor99’ (Mr. Tremaine) on the stormfront discussion ‘2007, 07-31’, exhibited as part ofP-6: Nature has produced a race of human parasites through the evolutionary process. How it originally happened we probably can neverknow for sure.

Perhaps around 5,000 years ago they were simply a small band of itinerant extortionists. They discovered that extortionand fraud could be very profitable and relieved them of the necessity of doing actual work. We catch a few glimpses of that parasitic behavior in the Bible. One of Abraham’s sons was to pimp his wife saying she was his sisterand then later reveal truth that she was, in fact, his wife. He would then go on to extort money from the victim. That particular con musthave been in the family so to speak, for while because it was repeated by his son.

We also see Abraham’s great grandson set up a grain extortion racket in Egypt that allowed the Jews to plunder what most of the wealthof the Egyptians by selling their own grain back to them at inflated prices. The life cycle of the Jew parasite is described with scientific precision I Mein Kampf by Adolf Hitler and quoted (link) and (link). Here is a condensed version of the parasitic life cycle of the Jew:

1. The Jew arrives usually as a merchant but sometimes as a pathetic refugee. 2. He becomes actively involved in the economic life of the host population, not as a producer but exclusively as a middleman. 3. He settles into special sections of towns and cities and begins to constitute a state within a state. He regards commerce andall financial transactions as his own special sphere and ruthlessly promotes his own interests in that area. 4. Finance and commerce become almost a Jew monopoly. He reduces land and industry to the level of mere speculativecommodities.

Aversion to the Jew among the host population becomes open hatred. 5. Now the Jew begins to reveal his true qualities. He begins to corrupt politician with the power of his money. 6. Being beholden to the support of the Jew in the form of; campaign contributions, media endorsement, and other favors,politicians become increasingly at odds with the public they supposedly represent. 7. The Jew now takes the lead in striving for ‘social justice’ and various liberal causes. He promotes the advancement ofcolored peoples in order to destroy the host population. He becomes the ‘benefactor’ of mankind.

He ‘grieves’ for the ‘suffering of themasses’. 8. He takes control of the news and entertainment media and makes the host population see the world through the Jews’ eyes. 9. In order to mask his activity and lull his victims, he talks more and more of the equality of all men without regard to raceand color. The fools begin to believe him. 10. His ultimate goal is ‘democracy’, which is most compatible with his requirements for it excludes the powerful personalityand puts in its place mass stupidity, incompetence and cowardice. 11. The host population eventually rises up and throws the Jew out.

He then arrives somewhere else as a merchant or patheticrefugee. The cycle begins again. [7] It is apparent from examining the material on the website that other persons are involved with it who post and readcommentary. This is an evidentiary issue that will be discussed further. However, evidence was led with respect to the operation andfunctioning of websites, and these postings were traced back to Mr. Tremaine’s computer. However, given his statements, evidence ofactivities by Mr. Tremaine on these websites through technical analysis is not necessary for consideration.

However, this evidence hasbeen given before the Court as well. [8] The issue raised by the Defence on the preliminary hearing does not concern the sufficiency of evidence in any respect otherthan the requirement that that material allegedly in transgression of the Criminal Code prohibition against wilfully promoting hatredtoward an identifiable group, must be ‘communicated’ within the definition of the Code, which provides certain exceptions for privatecommunication. [9] There are a few cases in Canada that have considered whether posting material on the internet constitutes communication tothe public within the meaning of

section 319 of the Criminal Code. It is noteworthy that the Canadian Human Rights Act does definecommunication in such a way that includes internet communication. This issue has been considered indirectly in cases concerning thesharing or dissemination of copyrighted materials. See: Canadian Wireless Telecommunications Assn. v. Society of Composers, Authorsand Music Publishers of Canada, 2008 FCA 6 , [2008] F.C.J. No. 21, 290 D.L.R. (4th) 753 and Society of Composers, Authorsand Music Publishers of Canada v.

Canadian Assn. of Internet Providers, 2004 SCC 45 , [2004] 2 S.C.R. 427. [10] Cases factually similar to the present case are R. v. Noble, [2008] B.C.J. No. 294 (BCSC) and R. v. Bahr, [2006] A.J. No.1776 (Alta. Prov. Ct). R. v. Noble resulted in a conviction with acceptance of communication through the internet as a means ofcommitting an offence under

section 319 of the Criminal Code. R. v. Bahr was a case such as this following a preliminary hearing wherea committal under the same

section was made on the basis of communicating via the internet. Bahr reviewed the law extensively in thearea, and noted that there was not a definitive case on this question, at that time. [11] Another similar case is Citron v. Zundel, [2002] C.H.R.D.

No. 1, but it is a decision by the Canadian Human Rights Tribunaldealing with an offence under the legislation noted above which differs significantly from the Criminal Code, and is therefore not ofassistance in this case. [12] At the close of evidence, there was extensive argument from the Defence that communication must be with a specific personor persons, and the posting of material that may or may not be read by other persons does not, in law, constitute communication withinthe meaning of the

section in question.

[ 13 ] An examination of the stormfront website shows that other persons than Mr. Tremaine participated in the discussion, and although they were not brought to testify in Court, given an understanding of the operation of the internet and discussion forums on websites, it may be possible for a trier of fact to infer that material posted by Mr. Tremaine was, in fact, received by specific individuals. Certainly there is evidence that it was received by various investigators concerned with transgressions of the laws of Canada.

However, in my opinion, it is not necessary for me to make a ruling on this specific part of the issue of communication for the purposes of a preliminary inquiry. [ 14 ] The question of whether there is sufficient evidence on the issue of communication under

section 319 of the Criminal Code is one of fact or mixed fact and law. There is no binding case precedent in this Province on this issue. The case of Noble , above, is authority, however, for accepting that the posting of material on the internet, without further action, constitutes communication within the meaning of the

section in question. In that case, Mr. Justice Parrett noted: 37 It is possible within the present state of technology and software to create levels of protection and security that restrict access to certain areas of computers and/or websites. It is not difficult to conceive of precautions being taken which restrict access and bring an individual within a level of security which would potentially allow a person to consider his communications to be private. 38 In the present case, no such precautions were taken and no issue of accident or negligence arises.

The communications and postings in this case were wide open and accessible to anyone who had the technology and chose to look. In my view, the content and circumstances here do not bring these communications within the private conversation exception. [13] In the context of a preliminary hearing, on a question of fact or mixed fact and law, it is not for the presiding justice to determine the factual issues, but only to determine if there is some evidence capable of meeting the tests discussed above on each element of the charge. In this case, the only issue argued was the one of communication under

section 319 . I have already dealt with the evidence of actions by Mr. Tremaine in originating these postings, which was not contested, and further, the inference that may be drawn by a trier of fact from them, that they were wilfully, within the meaning of the law, intended to promote hatred toward an identifiable group. It is my conclusion that the posting of material on the internet to an open website may be evidence that if accepted by a jury may be found to constitute communication within the meaning of this

section of the Criminal Code of Canada. [14] I therefore commit Mr. Tremaine for trial on the charge as framed. Dated at the City of Regina, this 11 th day of March 2011. __________________________________ B. D. Henning, J