COURT OF APPEAL FOR ONTARIO
Fairburn A.C.J.O. (Motion Judge)
BETWEEN
His Majesty the King
Appellant
and
Leslie Bory
Respondent
Dana Achtemichuk, for the appellant
Ian McCuaig, for the respondent
Mark Sandler, for the proposed intervener, The Alliance of Canadians Combatting Antisemitism
Heard: July 20, 2026
REASONS FOR DECISION
I. overview
1The Alliance of Canadians Combatting Antisemitism (“ALCCA”) seeks leave to intervene in this appeal (COA-25-CR-0439). The Crown consents to the motion. Mr. Bory opposes the motion.
2Mr. Bory was convicted of advocating genocide, wilful promotion of hatred, and two counts of uttering threats. He was acquitted of public incitement of hatred and careless storage of ammunition. He received a three-year global sentence, reduced to time served after credit for pre-trial custody. The Crown appeals the verdict of not guilty of public incitement of hatred and also seeks leave to appeal sentence. Mr. Bory also seeks leave to appeal sentence.
3The appeals are scheduled to be heard on Friday, November 20, 2026.
4While the intervention motion commenced with a request that counsel for Mr. Bory be removed as counsel of record, following an in-court discussion, counsel agreed to continue with the matter on the terms already set out in the record. Specifically, the Crown appeal will continue as originally envisioned and Mr. Bory’s appeal will continue strictly as a sentence appeal.
5Following resolution of that issue, the motion for leave to intervene was heard. Counsel to Mr. Bory responded to the motion. While he was offered the opportunity to file written submissions following the hearing, and prior to a decision being made, counsel declined to do so, confident that all responding submissions had been made.
6These reasons address why I would grant the ALCCA leave to intervene.
II. background
7Over the course of two years, Mr. Bory posted videos online in which he used inflammatory and derogatory language. He called for his viewers to engage in acts of violence against Jews. Police found multiple firearms and over 20,000 rounds of ammunition in his residence. He was charged with advocating genocide, wilful promotion of hatred, and public incitement of hatred. He was also charged with two counts of uttering threats and careless storage of ammunition.
8Following a directed verdict application, Mr. Bory was acquitted of public incitement of hatred and careless storage of ammunition. He was convicted by a jury of the remaining counts. The Crown’s appeal from acquittal deals only with the public incitement of hatred acquittal.
9The offence of public incitement of hatred is made out where the accused communicated, in a public place, statements that incite hatred against an identifiable group, where such incitement is likely to lead to a breach of the peace: Criminal Code, R.S.C. 1985; c. C-46, s. 319(1). “Public place” is defined in s. 319(7) as including “any place to which the public have access as of right or by invitation, express or implied”. The trial judge directed a verdict of not guilty on this count because the statements were made online only and the requirement that the statements be communicated in a “public place” was not satisfied.
10The Crown argues that this was an error, and the key question for this offence is whether the public has access to the statements – which they did in this case. The Crown submits that online spaces are the new public square and the definition of “public place” in the Criminal Code should be interpreted accordingly.
III. motion for intervention
i. Applicable test on a motion for leave to intervene
11In determining motions for leave to intervene as a friend of the court pursuant to r. 30 of the Criminal Appeal Rules, the court will generally consider “the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties”: R v. Doering, 2021 ONCA 924 at para. 10; Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), , 74 O.R. (2d) 164 (C.A.), at p. 167.
ii. Submissions of the moving party
12The ALCCA seeks leave to intervene in the Crown’s appeal against acquittal only (COA-25-CR-0439). It seeks leave on its own behalf, as well as on behalf of four partner organizations whose interests it also proposes to advance in its intervention: the Centre for Israel and Jewish Affairs, the Canadian Antisemitism Education Foundation, B’nai Brith Canada, and Friends of Simon Wiesenthal Center.
13The ALCCA intends to make submissions on a single issue: whether s. 319(1) requires proof, as a matter of law, that the incitement of hatred took place through the communication of statements in a physical location. They have filed a draft factum, which I have reviewed.
14Their proposed submissions will address the following arguments and issues:
(1) R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, which analyzes the “place” where electronic communications such as text messages occur, strongly supports, if not compels, the conclusion that “public place” includes an electronic space accessible to the public.
(2) The broad definitions of “communicating” and “statements” extend beyond statements communicated at a physical place attended by the public; absurd consequences flow from a contrary interpretation.
(3) There is an absence of statutory language compelling proof of “immediate danger” or “an immediate causal relationship” between the incitement and a likely breach of the peace.
iii. Submissions of the responding party
15Mr. Bory contends that the ALCCA has nothing novel to add to this appeal. He characterizes their submissions as largely duplicative of the Crown’s submissions.
iv. Analysis and disposition
16The intervention is appropriate based on the nature of the case and the issues raised. The interpretation of “public place” for the purposes of s. 319(1) of the Criminal Code is an issue with wide-reaching impact, particularly as public discourse increasingly moves into the online sphere. It also does not appear that an appellate court has provided guidance on the essential elements of the offence of public incitement of hatred, so an intervener’s perspective is likely to assist this court.
17I am also satisfied that the ALCCA, and the groups on whose behalf it seeks leave to intervene, are well-recognized groups with expertise on these issues.
18In my view, this intervention turns on whether the proposed submissions are sufficiently distinct from those of the appellant Crown so as to be useful. They are.
19The Crown deals with the alleged “public place” error briefly, in only three paragraphs, arguing that so long as the statements are accessible by the public, the forum in which they are accessible is irrelevant. The balance of the Crown’s submissions deal with their sentence appeal and Mr. Bory’s sentence appeal, neither of which involves the “public place” interpretation issue.
20The ALCCA’s proposed submissions, by contrast, deal with this statutory interpretation issue in detail and suggest analytical frameworks from other contexts that the panel could rely on in considering this issue. They therefore do not seek to expand the issues. Nor are they proposing arguments that duplicate the arguments already made by the parties; instead, they have a different perspective on the existing issue and their contributions are likely to assist the panel in approaching the issue.
21I am satisfied that the intervention is appropriate. I order that the ALCCA be permitted to intervene on the following terms:
(1) The ALCCA is granted leave to intervene pursuant to r. 30(1) of the Criminal Appeal Rules.
(2) The ALCCA shall take the record as it is and not supplement the record by way of its factum or otherwise.
(3) The ALCCA shall serve and file the draft factum provided on this motion within one week of these reasons being released.
(4) Mr. Bory may deliver a factum not exceeding 11 pages responding to the factum filed by the ALCCA by September 30.
(5) The ALCCA shall be permitted a maximum of 20 minutes to make oral submissions at the hearing of the appeal.
(6) Mr. Bory shall be permitted an additional 20 minutes of submissions at the hearing of the appeal to respond to the ALCCA.
(7) The ALCCA shall not be entitled to, nor subject to, any costs on this motion or on the appeal.
“Fairburn A.C.J.O.”