R. v. Sears, 2018 ONCJ 866

ONTARIO COURT OF JUSTICE CITATION: R. v. Sears , 2018 ONCJ 866 DATE: 2018 12 10 COURT FILE No.: Toronto 4811 998 17 10000304 01 BETWEEN: HER MAJESTY THE QUEEN — AND — JAMES SEARS Before Justice D. Moore Heard on October 23-25, 30, and November 6, 2018 Reasons for Judgment released on December 10, 2018 M. Giovinazzo...................................................................................... counsel for the Crown C. Murphy.................................. s. 486 counsel for the defendant Leroy St. Germaine [1] G.

Gray …………………………...……. s. 486 counsel for the defendant James Sears The defendant James Sears................................................................... on his own behalf D. MOORE J.: [ 1 ] Mr. Sears is charged with “Threatening Death” contrary to s. 264.1 of the Criminal Code . Although there was no formal admission, it was not seriously contested that Mr. Sears wrote the purported threat in an

article that was published in the summer 2017 edition of “Your Ward News” a publication which lists him as the “Editor in Chief”. [ 2 ] The alleged threat is contained in an

article [2] about an investigation of Mr. Sears by the Children’s Aid Society wherein he is extremely critical of the Society, to put it mildly. In the

article Mr. Sears theorizes that the cause of the Children's Aid Society investigation was either the complainant Lisa Kinsella herself, or someone associated with her, or perhaps someone who had read an

article she published online in the Huffington Post that was critical of Mr. Sears and Your Ward News. [3] The alleged threat is the following passage: I have not told our story to anyone until now. My close friends will first learn of it in this

article and wonder why I kept it from them. No offence, but Colette and I remained silent because we have more morals than Lisa and Warren Kinsella. You see, if I told my friends, thousands of people on my mailing list, and hundreds of thousands of readers of Your Ward News [emphasis in original] about it, while a CAS investigation was active and our son could still have been kidnapped, there was the chance that some hothead who cares deeply about me and my family, would lose it and do something illegal, like bludgeon the Kinsella’s to death.

No matter how little respect I have for them, as a Christian, I chose to turn the other cheek and let enough time pass for the people who love, would give their lives for, or would go to jail for, me and my family, to react with cooler heads. [4] [ 3 ] Is the above passage a threat to kill Warren and Lisa Kinsella? This is the central issue for me to determine. In R. v. McRae [5] the Supreme Court of Canada set out the law as follows: 10 ...

The question of whether words constitute a threat is a question of law to be decided on an objective standard… 11 The starting point of the analysis should always be the plain and ordinary meaning of the words uttered. Where the words clearly

constitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete.However, in some cases, the context reveals that words that would on their face appear threatening may not constitute threats within themeaning of s. 264.1(1)(a) (see e.g. O'Brien, at paras. 10-12). In other cases, contextual factors might have the effect of elevating to thelevel of threats words that would, on their face, appear relatively innocent (see e.g. R. v.

MacDonald (2002), (ONCA), 166 O.A.C. 121, where the words uttered were "You're next"). …. 15 Thus, while testimony from persons who heard or were the object of the threat may be considered in applying this objective test,the question in relation to the prohibited act is not whether people in fact felt threatened.

As the Court of Appeal for Ontario put it inBatista, witness opinions are relevant to the application of the reasonable person standard; however, they are not determinative, giventhat they amount to personal opinions and "d[o] not necessarily satisfy the requirements of the legal test" (para. 26). 16 To conclude on this point, the prohibited act of the offence of uttering threats will be made out if a reasonable person fully aware ofthe circumstances in which the words were uttered or conveyed would have perceived them to be a threat of death or bodily harm. [4] I find that the plain and ordinary meaning of the words in the impugned passage do not constitute a threat to kill the Kinsellas.

In R. v. Clemente[6] the Supreme Court of Canada cited the Oxford English Dictionary definition of a threat, “A denunciation to aperson of ill to befall him; esp. a declaration of hostile determination or of loss, pain, punishment or damage to be inflicted in retributionfor or conditionally upon some course; a menace.” [emphasis in original] A threat must thus be forward-looking, not a comment onsomething that could have or even should have happened in the past if certain conditions had been met. For this reason, coupled with thestated desire in the passage that Mr. Sears timed the

article to avoid the risk of someone bludgeoning the Kinsellas to death I cannot findon this first step of the analysis that a threat is made out. [5] That does not end the matter, of course. I must now consider whether contextual factors give the passage a threateningmeaning not apparent on a plain reading. [6] Warren and Lisa Kinsella gave evidence over the course of three days. To say that their “relationship”[7] with Mr. Sears is anextremely hostile one would be a vast understatement. The “relationship” commenced several years ago and consisted of writings byMr.

Sears and others published in Your Ward News about initially Warren and later Lisa Kinsella with accompanying photoshoppedimages and graphics. The articles and images are derogatory, demeaning, insulting, rude, crude, and designed, according to Mr. Sears, toincite and provoke a response from Mr. Kinsella in order to bring attention to Your Ward News (as Mr. Kinsella has a significant publicprofile).[8] In addition to the personal attacks the content of Your Ward News generally is deeply offensive to both Warren and LisaKinsella.

In response they participated in, organized, and/or commenced a variety of legal and political actions aimed at exposing,opposing, and/or shutting down Your Ward News. They wrote articles, held press conferences, lobbied politicians, and commenced thisproceeding by laying a private information, amongst other things. [7] I completely accept their evidence that they perceived the reference to “bludgeon the Kinsella’s to death” as a call to action anda real threat to their personal safety that they took seriously. I also find that their negative views of Your Ward News and Mr.

Sears arecompletely understandable, justified, and sincerely held. However, I find their

interpretation of the alleged threat to be of little assistanceto me in assessing on an objective basis how a reasonable person would interpret the words written, since when it comes to Mr. Searsand Your Ward News they are the opposite of dispassionate and unbiased. They perceive everything in the worst possible light.[9] [8] The Crown submitted that my

interpretation of the alleged threat should be guided by a review of a number of other articlesand graphic depictions in Your Ward News and to that end filed Exhibits 3 and 4, containing the June, July, and November, 2015,February, Spring, Summer and Fall, 2016 editions of Your Ward News in addition to the Summer 2017 edition which contains thealleged threat. These editions of Your Ward News essentially make up the entirety of the Crown’s case other than the testimony of Lisaand Warren Kinsella. [9] I certainly agree that due to: • the history of animus in the articles by Mr.

Sears in Your Ward News directed at Warren and Lisa Kinsella, • the history of animus in the graphical depictions of Warren and Lisa Kinsella in Your Ward News (which although Mr. Sears likelydid not create them as Editor I find he must have had some control over them, particularly when the graphics accompany an

article byMr. Sears[10]) • the occasional use of “coded” or symbolic language in Your Ward News by Mr. Sears • the

article containing the alleged threat was about what Mr. Sears portrayed as a significant threat to the safety and wellbeing of hisinfant son and not a more general political issue; • the

article blaming Lisa Kinsella for directly or indirectly causing this threat to his family • Mr. Sears’ statement in an

article unrelated to Warren or Lisa Kinsella in 2015 that, “I do not believe in vigilante justice unlesssomeone is threatening the life or wellbeing of me or my family.” it is possible to reasonably interpret the impugned passage as a threat to kill. This

interpretation results from focusing in on “somehothead who cares deeply about me and my family, would lose it and do something illegal like bludgeon the Kinsella’s to death…peoplewho love, would give their lives for, or would go to jail for, me and my family” and ignoring other portions of the passage as being therefor the purpose of creating plausible deniability or as “window dressing” for “veiling” the threat. [10] While this possible reasonable

interpretation was certainly sufficient to justify the laying of the charge and the initiation ofprocess on the standard of reasonable and probable grounds,[11] the standard I must consider is proof beyond a reasonable doubt. That

latter standard requires that I must acquit Mr. Sears unless the evidence satisfies me that the only reasonable

interpretation of the passage is that it is a threat. A finding that a threat to kill is a possible, or even the most likely, reasonable

interpretation must lead to an acquittal. [12] [ 11 ] Having considered all of the evidence I am unable to find that the threat to kill

interpretation set out above is even the most likely

interpretation, let alone the only reasonable

interpretation. In my view a reasonable person looking at all the evidence would find that the most likely

interpretation is the plain and ordinary meaning of the words and the contextual evidence does not justify displacing that meaning for the more sinister one of a threat to kill. [ 12 ] Had I found that the words did indeed constitute a threat to kill I would have concluded that Mr. Sears did intend them to be so, since in my view the evidence clearly establishes beyond a reasonable doubt that Mr.

Sears chooses his words very carefully and deliberately, and there would not have been a doubt about there being a secondary, innocent meaning between these very hostile parties. [13] [ 13 ] I would like to express my sincere gratitude to Mr. Giovinazzo, Mr. Murphy, and Mr. Gray for providing tremendous assistance to me in what has been at times a very difficult, emotional case. All three conducted themselves in the finest traditions of the Bar and I commend them. [ 14 ] I find Mr. Sears not guilty of threatening to kill Warren and Lisa Kinsella and order that an acquittal be entered.

Released: December 10, 2018 Signed: Justice D. Moore