Her Majesty the Queen v. Elms [Indexed as: R. v. Elms]
82 O.R. (3d) 415
Court of Appeal for Ontario,
Feldman, Juriansz and MacFarland JJ.A.
September 14, 2006
Criminal law -- Double jeopardy -- New theory of liability advanced by Crown on appeal -- Accused manning table on which CDs containing lyrics which promoted hatred were displayed -- Accused not communicating statements in lyrics by putting CDs on display and offering them for sale to public -- Crown offering alternative theory on appeal that images and song titles on CD covers promoted hatred and that accused communicated those to others by displaying them on table -- Acceptance of Crown's new theory on appeal would offend rule against double jeopardy.
Criminal law -- Promoting hatred -- Accused manning table on which CDs containing lyrics which promoted hatred were displayed -- Accused not communicating statements in lyrics by putting CDs on display and offering them for sale to public -- Crown offering alternative theory on appeal that images and song titles on CD covers promoted hatred and that accused communicated those to others by displaying them on table -- Acceptance of Crown's new theory on appeal would offend rule against double jeopardy -- Accused's acquittal restored. [page416]
The police seized a number of audio CDs at a private function attended by skinheads. The accused was at the table on which the CDs were laid out. They were laid flat, not stacked. The accused told a police officer that sales of the CDs were slow. On the basis of the contents of the CDs, the accused was charged with wilfully promoting hatred. He conceded at trial that some of the lyrics in each of the 15 CDs on which the charges were based promoted hatred. No witness could testify that the accused or anyone else sold one of the 15 CDs in question. The trial judge acquitted the accused, stating that the evidence did not establish beyond a reasonable doubt that the accused was a skinhead or that he sold any of the 15 CDs. The Crown's appeal was allowed and a new trial was ordered. The accused appealed.
Held, the appeal should be allowed.
The summary conviction appeal court judge was correct in holding that the Crown did not have to prove that the accused was a skinhead or that the statements were communicated by way of a sale.
The evidentiary record was capable of supporting the inference that the accused had the required intention to promote hatred. That evidence included the fact that he was the owner of the CDs, he offered them for sale at a function where it was apparent entry was restricted principally to skinheads, he was behind the table for some 80 per cent of the evening, he acknowledged that sales of the CDs had been slow and the CDs were displayed on the tables laid out flat. In making the inference, the trier of fact could resort to the doctrine of documents in possession to fix the accused with knowledge of the lyrics on the CDs, or find that the accused was wilfully blind both as to the contents of the lyrics and as to the inevitable result that dissemination of the CDs would promote hatred.
The element of communication of the statements in the CDs was not made out. Contrary to the Crown's submission, by putting the CDs on display and offering them for sale, the accused had not completed the act of communicating the statements in the music and on the lyric sheets. Communication requires the transmission of information from a sender to a receiver. There was no evidence to support a finding that the accused transmitted the statements in the music and on the lyric sheets to another person.
The Crown's alternative submission was that the graphic images and the song titles on the covers of the CDs themselves promoted hatred and the accused communicated those to others by displaying them to the persons in the room. The Crown did not ask the trial judge to make the finding that the CD covers promoted hatred. The prosecution was based on the statements in the music and on the lyric sheets. It would offend the rule against double jeopardy to dismiss the appeal based on a new theory that the charges related to the contents of the covers and not the CDs and lyric sheets. The Superior Court judge allowed the Crown's appeal but mistakenly understood that the defence had conceded that the covers of the CDs promoted hatred. In view of this error, the conclusion of the summary conviction appeal court judge that there was sufficient evidence before the trial judge upon which the accused could have been convicted could not stand. The trial judge could not have convicted the accused as there was insufficient evidence to support a finding that he communicated the statements in question.
APPEAL by the accused from the judgment of Hawkins J., [2005] O.J. No. 2966, 66 W.C.B. (2d) 9 (S.C.J.), allowing a Crown appeal from the acquittal on charges of wilfully promoting hatred.
Cases referred to R. v. Buzzanga and Durocher (1979), 1979 1927 (ON CA), 25 O.R. (2d) 705, [1979] O.J. No. 4345, 101 D.L.R. (3d) 488, 49 C.C.C. (2d) 369 (C.A.), consd Other cases referred to R. v. Varga (1994), 1994 8727 (ON CA), 18 O.R. (3d) 784, [1994] O.J. No. 1111, 90 C.C.C. (3d) 484, 30 C.R. (4th) 78 (C.A.) (sub nom. R. v. V. (E.)) [page417] Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 319 [as am.]
Peter Lindsay, for appellant. Christine Bartlett-Hughes, for respondent.
The judgment of the court was delivered by
JURIANSZ J.A.: --
Introduction
1The appellant was acquitted at trial of 15 counts of wilful promotion of hatred contrary to s. 319(2) of the Criminal Code, R.S.C. 1985, c. C-46. The Crown's appeal to the Superior Court of Justice was allowed and a new trial was ordered. The appellant seeks leave to appeal to this court and an order restoring the acquittals. I would grant leave to appeal, allow the appeal and restore the acquittals.
2Section 319(2) provides:
319(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.
Background
3On the night of January 11/12, 2003, there was a party at the Fox and Fiddle, a licensed bar and restaurant in Toronto. The bar had been booked for a private function for approximately 90-100 people and two bands were to play. The persons who attended the party were skinheads. The police knew the party was to take place and set up surveillance outside because they feared a possible confrontation between the skinheads and an anti-racism group.
4After several hours of observation, two police detectives entered the Fox and Fiddle. One detective observed the appellant behind a table putting away audio CDs. When asked why he was packing up, he answered, "It doesn't matter. The CDs were selling slow tonight anyway." The CDs were laid flat, not stacked, [page418] and fully visible. They were displayed beside sweatshirts bearing symbols that the detective understood to be associated with white supremacists. The detective thought the CDs appeared to be of the kind that might afford evidence of wilful promotion of hatred or advocating genocide. The police seized the CDs.
5The appellant indicated to the detective that he owned the CDs and that the cost of each CD was $20. The detectives saw no sale or other distribution of the CDs. Employees of the bar testified that different people were behind the tables during the course of the evening, that the appellant was behind the tables for a large part of the evening and that some CDs had been sold. No witness could testify that the appellant or anyone else had sold one of the 15 specific CDs that were the subject of the charges.
6There were 84 discs seized with 67 different titles. The charges against the appellant relate to 15 of those CDs. Folded inside most of the CD jackets were sheets on which the lyrics of the music were printed. At trial, the appellant conceded that "some of the lyrics in each of the fifteen CDs promote hatred against the groups mentioned in the various counts corresponding to those fifteen CDs".
7The trial judge, in his reasons for acquitting the appellant, stated that there was no evidence beyond a reasonable doubt that he was a skinhead or that he had sold any of the specific 15 CDs.
8The Superior Court judge found that the trial judge misdirected himself as to the burden of proof beyond a reasonable doubt. He stated that not every fact of the Crown's case needed to be proved beyond a reasonable doubt, and only the totality of the evidence must establish guilt beyond a reasonable doubt. As an example, he pointed out that whether or not the appellant was a skinhead was a peripheral matter that did not need to be proved at all, let alone beyond a reasonable doubt. The Superior Court judge also observed that the Crown did not have to prove that the offensive statement was communicated by a sale.
9The Superior Court judge then went on to find that there was sufficient evidence before the trial judge upon which the trier of fact could have convicted the accused.
Issues
10The Superior Court judge was correct that the Crown did not have to prove that the appellant was a skinhead or that the statements were communicated by way of a sale. It is understandable that the trial judge focused on whether the Crown had proved that the appellant had sold the CDs because there was no suggestion in the evidence that the CDs were distributed in any other way. [page419]
11The appellant submits that the Superior Court judge erred in finding that there was sufficient evidence upon which the trier of fact could have convicted the accused. He submits that the Crown led insufficient evidence at trial to establish the following elements of the offence:
(1) that there was communication "other than in private conversation";
(2) that the appellant had the required wilfulness to promote hatred; and
(3) that the appellant communicated the statements contained in the CDs.
Analysis
1. Private party
12The appellant submitted that s. 319(2) did not apply as both the trial judge and the Superior Court judge found the gathering was a private party. The issue, however, is not whether the statement is communicated in a setting that is private, but rather whether it is made "other than in private conversation". The evidence was that the bar had been rented for a private function and the general public was not admitted. The affair, which might equally have been described as a concert, seems to have been promoted within the skinhead subculture. There was no suggestion in the evidence of any personal selection of those who entered. The evidence was that the premises had not been rented to the appellant and he had no control over who might enter.
13I am satisfied that the Superior Court judge was correct in not regarding his finding that the setting was a private party as relevant to the analysis.
2. Wilfulness to promote hatred
14The appellant argued that the Crown had failed to prove that the appellant, assuming he had communicated statements, had done so with the wilful intention of promoting hatred.
15Counsel for the appellant argued that there was no evidence that the appellant was aware of the contents of the 15 CDs among the many others that were seized and pointed out, for example, that there was no evidence that he had ever listened to them. He argued that a person who distributes such CDs without adoption of the statements in the music is akin to a clerk at a [page420] bookstore who sells a hate promoting book or a librarian who allows someone to borrow a hate promoting book from a library.
16In my view, such analogies are not helpful as the mental element of an accused is a question of inference from all the evidence in an individual case. This remains so even though s. 319(2) requires proof that the accused intended to produce the consequence of promoting hatred. This court's decision in R. v. Buzzanga and Durocher (1979), 1979 1927 (ON CA), 25 O.R. (2d) 795, [1979] O.J. No. 4345, 49 C.C.C. (2d) 369 (C.A.), upon which the appellant strongly relied, makes this clear.
17In Buzzanga a conviction under s. 319 was overturned because the Crown had not proved the requisite wilfulness to promote hatred. The two accused had testified and explained that they had distributed pamphlets to expose the existence of prejudice against French Canadians and to create a furor that would compel the government to act.
18In reversing the convictions in Buzzanga, the court held that it was not enough for the Crown to prove that the accused intended to distribute statements that promoted hatred. The Crown had to prove that the accused did so with the intent of promoting hatred.
19In Buzzanga, Martin J.A. reiterated the established principle at p. 723 O.R., p. 387 C.C.C.:
What the accused intended or foresaw must be determined on a consideration of all the circumstances, as well as from his own evidence, if he testifies, as to what his state of mind or intention was.
20Martin J.A. went on to explain at p. 723 O.R.:
The purpose of this process, however, is to determine what the particular accused intended, not to fix him with the intention that a reasonable person might be assumed to have in the circumstances, where doubt exists as to the actual intention of the accused. The accused's testimony, if he gives evidence as to what was in his mind, is important material to be weighed with the other evidence in determining whether the necessary intent has been established.
21In this case too, what the appellant intended or foresaw must be determined based on a consideration of all the circumstances as to what his state of mind or intention was. I am satisfied that the evidentiary record, as it exists, is capable of supporting the inference that the appellant had the required intention to promote hatred. That evidence included the fact that he was the owner of the CDs, he offered them for sale at a function where it was apparent entry was restricted principally to skinheads, he was behind the table for some 80 per cent of the evening, he acknowledged that sales of the CDs had been slow, and the CDs were displayed on the tables laid out flat. In making [page421] the inference the trier of fact could resort to the doctrine of documents in possession to fix the appellant with knowledge of the lyrics on the CDs, or find that the appellant was wilfully blind both as to the contents of the lyrics and as to the inevitable result that dissemination of the CDs would promote hatred.
3. Communication of statements
22The Crown submits that by putting the CDs on display and offering them for sale, the appellant had completed the act of communicating the statements in the music and on the lyric sheets because he had done all that was required from his end to impart or transmit the statements promoting hatred contained on the CDs.
23I do not agree. Communication requires the transmission of information from a sender to a receiver. There is no evidence to support a finding that the appellant transmitted the statements in the music and on the lyric sheets to another person.
24The Crown's alternative submission is that the graphic images and the song titles on the covers of the CDs themselves promote hatred and the appellant communicated these to others by displaying them to the persons in the room. Indeed, the evidence was that the CDs were laid flat, not stacked and spread across the two tables. The function was well attended and, as mentioned, some people had approached the tables to buy CDs.
25The appellant responded that the Crown could not rely upon the CD covers as the hate-promoting statements for the first time on appeal. The appellant submitted that the Crown's case against the appellant at trial was based upon the statements in the music on the CDs and the lyric sheets, not on the CD covers. It would be unfair, the appellant said, to require him to respond to a different case than the one that the Crown brought at trial and lost.
26While the Crown did elicit some evidence about the CD covers and did refer to them in submissions, the prosecution was based on the statements in the music and on the lyric sheets. The comments about the covers made by the Crown's expert on hate crimes and hate group activity went to the issue of his knowledge of the content of the CDs.
27Crown counsel's references at trial to the display of the CDs were made while advancing the argument, rejected above, that the displaying and offering for sale of the CDs should be taken to constitute communication of the statements they contained. For example, the Crown submitted to the trial judge:
The question is whether the act of putting those CDs out for display to the room, generally, is communicating the statements that are contained therein. [page422]
28Most telling is that Crown counsel, at the outset of her submissions at trial, advised the judge that it was unnecessary for her to address whether the statements promoted hatred against the identifiable groups because that had been conceded by the defence. The defence concession related only to the lyrics on the CDs. As the Crown relied on the defence concession, it is evident the defence concession reflected the basis upon which the case was prosecuted. The Crown did not ask the trial judge to make the finding that the CD covers promoted hatred. The Crown is seeking a new trial to have this issue considered by a trial judge for the first time.
29In my view, it would offend the rule against double jeopardy to dismiss the appeal based on a new theory that the charges relate to the contents of the covers and not the CDs and lyric sheets. The comments of Doherty J.A. in R. v. Varga (1994), 1994 8727 (ON CA), 18 O.R. (3d) 784, [1994] O.J. No. 1111, 90 C.C.C. (3d) 484 (C.A.), at p. 793 O.R., p. 494 C.C.C. are apposite:
A Crown appeal cannot be the means whereby the Crown puts forward a different case than the one it chose to advance at trial. It offends double jeopardy principles, even as modified by the Crown's right of appeal, to subject an accused, who has been acquitted, to a second trial based on arguments raised by the Crown for the first time on appeal.
30The Superior Court judge allowed the Crown's appeal but mistakenly understood that the defence had conceded that the covers of the CDs promoted hatred. In view of this error, his conclusion that there was sufficient evidence before the trial judge upon which the appellant could have been convicted cannot stand. The appellant was prosecuted for communicating the statements in the music of the CDs and on the lyric sheets. On the evidence before the trial judge, it could not be found beyond a reasonable doubt that the appellant communicated such statements.
Conclusion
31I conclude that the trial judge could not have convicted the appellant, as there was insufficient evidence to support a finding that he communicated the statements that were the subject of the proceedings against him.
32In view of this finding, I would grant leave to appeal, allow the appeal, and make an order restoring the acquittals of the trial judge.
Appeal allowed. [page423]