Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— And —
John David Popescu
Before: Justice Heather-Ann Mendes
Heard on: November 4, 7, 8, 2019 and January 17, 2020
Reasons for Judgment released on: September 23, 2020
Counsel
Leonard Kim — counsel for the Crown
The accused John David Popescu — on his own behalf
Decision
1: OVERVIEW
1Mr. Popescu is charged that between the 4th day of June 2018 and the 7th day of June 2018, in the City of Greater Sudbury, he communicated statements, other than in private conversation, willfully promoting hatred against an identifiable group, namely homosexuals, contrary to Section 319(2) of the Criminal Code of Canada.
2The charge of incite hate requires the consent of the Attorney General of Ontario (AG). Consent of the Attorney General was obtained on November 29, 2018.
3The trial in this matter was heard over four days on November 4, 2019, November 7, 2019, November 8, 2019 and January 17, 2020. At the commencement of this trial on November 4, 2019, the Crown elected to proceed summarily.
4The video statement made by Mr. Popescu on November 12, 2018 was admitted to be voluntary by Mr. Popescu. Further, the distribution of the DVD jacket covers and DVDs by Mr. Popescu, subject to this charge, was also admitted to being prepared by Mr. Popescu.
5As such, the issue for the Court to determine is whether Mr. Popescu willfully promoted hatred against homosexuals by distributing DVD discs with accompanying cover jackets claiming that "God hates the wicked and will destroy them with war; famine and death; the wicked includes sex-perverts; Christ has cursed Ontario for turning a blind eye to sexual perversion; God's wrath is on all who show compassion to her kind [in reference to the former Premier of Ontario and her sexual orientation] and commands good government to put her to death".
2: FACTUAL BACKGROUND
6The Crown called two witnesses at trial, Nadean Erickson, a local resident of Sudbury and Detective David Dewar of the Greater Sudbury Police Service (hereinafter referred to as "GSPS"). Mr. Popescu testified in his defence and did not call any other witnesses.
Nadean Erikson
7Between June 4th and June 7th, 2018, Ms. Nadean Erikson located in the entrance of her apartment lobby multiple DVDs with accompanying jacket covers, which she believed to be homophobic material, as they referenced the sex-ed curriculum that was changed by the then Premier of Ontario.
8Believing the DVDs and cover jackets to be hateful towards homosexuals, Ms. Erikson gathered the DVDs in her building and went to the other apartment buildings in her area and collected fourteen (14) DVDs in total which she turned over to the GSPS.
Detective David Dewar & Popescu November 12, 2018 Interview
9Mr. Popescu met with Detective Dewar on November 12, 2018 at the GSPS police station. Detective Dewar at the time had formed reasonable grounds to lay the charge of incite hate towards an identifiable group against Mr. Popescu but was awaiting the consent of the Attorney General of Ontario to formally lay the charge.
10Prior to taking a statement from Mr. Popescu, Detective Dewar confirmed to Mr. Popescu that he would be formally charged once consent was received from the Attorney General's office and he read Mr. Popescu his rights to counsel. Mr. Popescu stated that he understood and gave his statement voluntarily; the door to the interview room was not locked and at no time did Mr. Popescu ask to leave the interview.
11Mr. Popescu confirmed that there are a number of DVDs circulated with two distinct cover jackets that he designed. Mr. Popescu classifies the distributed DVDs as containing biblical analysis discussing those who God considers wicked, depraved and abominable and God condemns them to be put to death.
12Mr. Popescu stated that his materials refer to "Godly" or "Biblical" hatred and same should not be criminalized. Mr. Popescu states that his condemnation of homosexuals in his election materials is from a biblical stance.
13Previously, Mr. Popescu was charged with similar offences in 2015 when DVDs with different cover jackets were distributed in the 2015 Sudbury provincial by-election. The Manitoba Crown Attorney's Office had carriage of the case to avoid any perceived conflict as the charge required consent of the Attorney General of Ontario and the charge was in relation to the then Premier of Ontario. [This information is only relevant to the issue of officially induced error as set out below].
14In December 2015 the charges were withdrawn by the Manitoba Crown against Mr. Popescu as containing no reasonable prospect of conviction. Mr. Popescu's recollection of the matter is that the charges were dismissed and the Manitoba Crown, Mr. Bryan Sharpe, claimed that the charges should have never been laid. The transcript of the withdrawal of the charges on December 10, 2015 was entered as an exhibit at this trial and the record clearly stated that the charges were withdrawn by the Crown.
15Mr. Popescu confirmed in his evidence that in the case before me, the message that Mr. Popescu was trying to convey in his election material was to establish a precedent against the first publicly declared lesbian Premier as he saw this as "a new milestone of perversion".
16In reply to questions as to whether someone who read the DVD jacket covers could be influenced by them to feel hate or hatred towards someone who identifies as lesbian or gay, Mr. Popescu stated that "people are warned in the bible to be each other's keepers of God's standards of what is right and wrong". That is why it states on the DVD jacket covers that "God's wrath is on all who show compassion to her kind" in reference to the then Premier of Ontario and her sexual orientation.
17It is Mr. Popescu's belief, and he claims, that the bible states that "homosexuals are worthy of death, under God's death penalty".
Popescu Evidence
18It was Mr. Popescu's evidence that he believed that because the previous charges against him were withdrawn, he could continue legally distributing the DVDs with accompanying cover jackets in his election campaigns directed against homosexuals.
19Mr. Popescu in his evidence referred to a memorandum that was prepared by the Manitoba Crown Attorney's Office in relation to the 2015 charges prior to the charges being withdrawn for no reasonable prospect of conviction. Mr. Popescu, however confirmed in his evidence that he did not read the memorandum, nor did he receive a copy from the Manitoba Crown Attorney's Office. He did not even request a copy of whatever memorandum was prepared in relation to the withdrawal of the 2015 charges.
20Mr. Popescu confirmed that he did not speak to the police or anyone in either the Manitoba or Ontario Crown Attorneys' Offices before distributing his materials in the 2018 election, nor did he seek any independent legal advice about the legality of the materials he was distributing.
21Mr. Popescu testified that regardless of whether he was convicted on the previous charges in 2015, he would still spread the same message against homosexuals because "the government has wandered away from God's word" and Mr. Popescu believes that he is ultimately responsible to spread the word of God.
22Mr. Popescu confirmed during his evidence that he has a criminal record with three convictions, one of which was for willful promotion of hatred in 2009. This information was not considered by the Court with respect to propensity but was only relevant to the issue of "Officially Induced Error" as set out below. To be clear, Mr. Popescu is not more likely to commit an offence because of his previous conviction.
DVD Content
23The fourteen (14) DVDs turned over to GSPS were entered as exhibits at the trial. There were seven (7) different videos. Three (3) of the videos entitled "Guidelines Thru Judgment" were Mr. Popescu discussing the Bible and interpreting same. In these videos, Mr. Popescu talks about sinners that have turned away from God but focuses throughout on homosexuals or sexual perverts and talks about God's hatred and destruction of these people because of their sin, claiming that "God says they should be executed".
24The video entitled "From Evolution to Creation" first had a video of another individual, Dr. Gary Parker, speaking about the theory of evolution versus creation for about an hour and then the video moves to Mr. Popescu discussing creation and his views of the evolution theory. The discussion by Mr. Popescu then transitions to why homosexual perversion is vile and later that God will destroy governments that try and legislate sexual perversions.
25The other three (3) videos were copies and video segments from various other Christianity discussions and workshops and did not contain any discussion or commentary from Mr. Popescu.
3: LAW AND ANALYSIS
3.1 W.(D.) Test
26This is a case involving credibility and the analysis found in R. v. W.(D.), [1991] 1 S.C.R. 742. As is well-known, the analysis described at paragraph 28 of W.(D.) states:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
27To address the WD test, I do not accept Mr. Popescu's evidence as I found him neither credible nor reliable and I reject his evidence for the following reasons:
(a) Mr. Popescu did not present any meaningful evidence or draw any connections in his evidence regarding the charge at hand and his DVD materials or cover jackets, but rather simply attempted to cite parts of the Bible that showed what he views as a hateful and vengeful God;
(b) Mr. Popescu's evidence was not reliable as he could not show clear statements or passages from the Bible that quoted his specific violent call to action for the death of the former Premier by the government because of her sexual orientation;
(c) Mr. Popescu in his testimony was not focused and he often went off on tangents jumping from Bible verse to Bible verse to support his claim that God is hateful towards those that He deems to be wicked, namely sex-perverts or homosexuals;
(d) Mr. Popescu did not answer questions directly put to him in cross examination but again went off on diatribes in his replies;
(e) Mr. Popescu could not provide a direct quote from scripture for the call to violent action cited on his DVD cover jackets;
(f) Mr. Popescu in his testimony tried to minimize his violent call to action calling for the death of the former Premier of Ontario because of her sexual orientation.
28As such, based on the foregoing I do not find that parts 1 or 2 of the WD test apply. I reject Mr. Popescu's evidence as it was self-serving; he did not answer questions put to him; he minimized his behaviours and he deflected in his testimony. Moreover, I was not left with a reasonable doubt by Mr. Popescu's testimony. I shall address part 3 of the WD test below.
3.2 Elements of the Offence
29Section 319(2)(b) of the Canadian Criminal Code sets out that everyone who, by communicating statements, other than in private conversation, willfully promotes hatred against an identifiable group is guilty of an offence punishable on summary conviction.
30An identifiable group is defined in section 318(4) of the Code as any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.
3.3 Identifiable Group
31Mr. Popescu agreed that he has singled out the homosexual community but stated that it is his belief that he is speaking and communicating to the public the word of God about homosexuals and that God condemns them to be put to death.
32There is thus no dispute, and I find beyond a reasonable doubt, that the DVD materials, including the cover jackets, are directed towards homosexuals who are classified as an identifiable group in the Code.
3.4 Promote Hatred
33The Supreme Court of Canada addressed the issue of Freedom of Expression with respect to hate propaganda and the willful promotion of hatred against an identifiable group in the case R. v Keegstra [1990] S.C.R. No. 131.
34Justice Dickson set out at paragraph 116 that the definition of hatred as contemplated in section 319 of the Code:
"is predicated on destruction, and hatred against identifiable groups therefore thrives on insensitivity, bigotry and destruction of both the target group and of the values of our society. Hatred in this sense is a most extreme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation".
35The Supreme Court of Canada also defined hate speech in the case Whatcott v. Saskatchewan Human Rights Tribunal 2013 SCC 11, [2013] 1 S.C.R. 467. In that decision Justice Rothstein considered the definition of hate speech and stated that:
"'detestation' and 'vilification' aptly describe the harmful effect that the Code seeks to eliminate. Representations that expose a target group to detestation tend to inspire enmity and extreme ill-will against them, which goes beyond mere disdain or dislike. Repetitions vilifying a person or a group will seek to abuse, denigrate or delegitimize them, to render them lawless, dangerous, unworthy or unacceptable in the eyes of the audience. Expression exposing vulnerable groups to detestation and vilification goes far beyond merely discrediting, humiliating or offending victims".
36Mr. Popescu in his material clearly states that "Jesus destroys the wicked"; "God hates the wicked"; "He [in reference to God] makes the land vomit out the inhabitants"; "God has proven our depravity for electing a Premier he calls abominable". The Merriam-Webster dictionary defines "abominable" as "worthy of or causing disgust or hatred".
37Of note, Mr. Popescu's materials states that "God's wrath is on all who show compassion to her kind and commands good government to put her to death". Mr. Popescu attempts to minimize the impact of his statements by indicating that it is God who hates homosexuals and he is simply repeating the word of God regarding homosexuals as it is "his obligation to warn his fellow brother if he is going down a sinful path".
38I reject this characterization of the materials distributed by Mr. Popescu. I find that this material specifically invites the reader to take aggressive and violent action against homosexuals by calling for the death of the former Premier due to her sexual orientation. Further, I find that the clear conclusion from anyone who reads these statements is that homosexuals are worthy of death and should be put to death because of their sexuality.
39In both his interview with Detective Dewar and his evidence at trial, Mr. Popescu confirmed that it is his belief that it is a fundamental necessity of government to teach and engrain Mr. Popescu's interpretation of the word of God in Society.
40Mr. Popescu's evidence was that he runs in each election so that he can bring the focus of government back to God. However, Mr. Popescu faces charges as a result of the manner in which he attempts to disguise his personal interpretation of the Bible regarding the supposed need to kill homosexuals.
41In considering if the statements made by Mr. Popescu in his materials meet the definition of hate speech, it is Mr. Popescu's position that the statements are "Godly" or "Biblical" hatred and therefore should not be criminalized. By Mr. Popescu's own evidence, he agrees that the statements are in fact hateful, but he justifies the repetition and distribution claiming that this is God's message in the Bible.
42I note that Mr. Popescu has not quoted directly from the Bible. Instead, Mr. Popescu has promoted his hateful world view in the guise of a religious decree. Put another way, Mr. Popescu used the Bible as a cover for his hateful beliefs. Therefore, I find that Mr. Popescu has taken passages from the Bible and added his hateful motives to sensationalize his distributed materials to grab people's attention and spread his violent and cruel messages under the guise of religion during election times.
43Further, the DVDs do not contain any actual political platform or views other than a few lines amidst hours of biblical discussion focused on a hateful God who despises homosexuals and sex perverts. Reference is made by Mr. Popescu to other "wicked groups" such as idolaters, pornographers; agnostics; atheists; drunkards; Satanists; murders but he does not focus on them in his materials; he focuses mainly on "sex perverts" or homosexuals and calls specifically for their death.
44If it was simply a matter of Mr. Popescu circulating and distributing materials that stated, he stands for good government and a re-education process requiring a focus on biblical teachings that would be one thing. However, Mr. Popescu's materials go far beyond such a statement. I find that his materials specifically utilize aggressive and violent verbiage intended to send messages of shock and horror, calling individuals to action against the identifiable group of homosexuals and specifically members of the LGBTQ community.
45The fourteen (14) DVDs that were entered as Exhibits at trial were hours in length and, as previously indicated, did not discuss Mr. Popescu's political platforms if he were to be elected. Nor did the materials focus on Mr. Popescu's supposed message to the public, specifically that he believes there needs to be a focus on the Bible and God in government. The materials distributed on the actual DVDs focus on a hateful and vengeful God who "exterminates" a nation of "adulterers" and "sex perverts". Mr. Popescu's materials repeatedly refer to homosexuals from the commencement of the videos.
46In hours of content, which I have reviewed, these DVDs provide only a few short lines about the government trying to legislate about issues of perceived sexual perversion and Mr. Popescu's perception about the impropriety of an elected government leader whom he believes is indulging in sexual sin. At no time does Mr. Popescu say that that these are simply his beliefs and that is why the people should elect him as their representative in provincial parliament.
47Given this context, I find beyond a reasonable doubt that Mr. Popescu's use of the line "God commands good government to put her to death" is a call to action whereby Mr. Popescu is asking government and/or those who agree with Mr. Popescu to kill the former Premier of Ontario as a result of her sexual orientation. Given the hours of spiteful material contained in the DVDs, no other interpretation of "commands good government to put her to death" is possible. Indeed, any other interpretation of this highlighted statement on the DVD cover jackets is confirmed by the nature and content of the hateful message contained in the DVDs.
48This is not a "dog whistle" message as referenced in the decision CHP v City of Hamilton 2018 ONSC 3690 at paragraphs 59 and 60:
"whereby coded messages implicit in its visual representations were a call to certain members of society to recognize hidden visual cues to act upon same. Implicit in "dog whistle" politics is the fact that the true meaning of a message may not be readily apparent to the recipient unless that recipient belongs to a specific subset of people. A message cannot, therefore, convey both an obvious meaning and constitute "dog whistle" politics at the same time".
49Again, in this case, there can be no other interpretation looking at the statements on the DVD jacket covers and the content of the DVDs that this is a blatant call to arms to kill the former Premier of Ontario because of her sexual orientation as precisely contemplated in section 319 of the Code again as referenced by Justice Dickson in Keegstra cited previously above. Once again, Keegstra states: Section 319 of the Code "is predicated on destruction, and hatred against identifiable groups therefore thrives on insensitivity, bigotry and destruction of both the target group and of the values of our society."
50Mr. Popescu testified that he usually states in his materials "go get a bible and find out for yourself" but agreed in cross examination that this statement is not found anywhere on the DVD jacket covers entered into evidence as exhibits in the trial. As such, I find that his words were deliberately and specifically chosen by Mr. Popescu not to bring God or the Bible back to politics but rather to spread his violent call to action because the former Premier of Ontario identifies as a member of the LGBTQ community.
51I am convinced beyond a reasonable doubt that the homemade election materials compiled of DVDs and cover jackets are designed to promote hatred.
3.5 Other than in Private Communication
52Mr. Popescu confirmed that he made about 450 DVDs and accompanying cover jackets to distribute to the public in the 2018 election. Mr. Popescu also confirmed that the fourteen (14) DVDs and two (2) styles of accompanying cover jackets to the DVDs which were admitted in to evidence at the trial were made by him and distributed in the apartment complex lobby by him during his campaign.
53Consequently, I find beyond a reasonable doubt, that the message Mr. Popescu intended to communicate was to the population at large and not intended as private communication.
3.6 Wilfulness
Knowingly
54With respect to the essential element of "willful promotion" and the mens rea of the act, I return to the Supreme Court of Canada decision in Keegstra. Justice Dickson writing for the majority of the court, made the following comments on the meaning of "willful" and the requisite mens rea:
i) "…it is reasonable to infer a subjective mens rea requirement regarding the type of conversation covered by s.319(2) ..." (p.56)
ii) "willfully" means the mental state is satisfied "only where an accused subjectively desires the promotion of hatred or foresees such a consequence as certain or substantially certain to result from an act done in order to achieve some other purpose." (p.57)
iii) "This mental element requiring more than merely negligence or recklessness as to result, significantly restricts the reach of the provision, and thereby reduces the scope of the targeted expression." (p.58)
iv) this stringent standard of mens rea is an invaluable means of limiting the incursion of s.319(2) into the realm of acceptable (though perhaps offensive and controversial) expression." (p.58)
(v) "It is clear that the word "willfully" imports a difficult burden for the Crown to meet and, in so doing, serves to minimize the impairment of freedom of expression." (p.58)
(vi) "Given the purpose of the provision to criminalize the spreading of hatred in society, ... the word 'promotes' indicates active support or instigation." (p.59)
(vii) "Promotes" indicates "more than simple encouragement or advancement. The hate-monger must intend or foresee as substantially certain a direct and active stimulation of hatred against an identifiable group." (p.59)
(viii) "hatred: connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation." (p.59)
(ix) Quoting with approval the judgment of Cory J.A. in R. v. Andrews (1988), 43 C.C.C. (3d) 193 (Ont. C.A.)"Hatred is not a word of casual connotation. To promote hatred is to instill detestation, enmity, ill-will and malevolence in another. Clearly an expression must go a long way before it qualifies within the definition in s.319(2)." (p.59)
(x) "Hatred is predicated on destruction, and hatred against identifiable groups therefore thrives on insensitivity, bigotry and destruction of both the targeted group and of the values of our society. Hatred in this sense is a most extreme emotion that belies reason; an emotion that, is exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation." (p.59)
(xi) Proof of actual hatred is not required for the prosecution to obtain a conviction. However, it is equally clear that the fact that a statement is distasteful is an insufficient basis upon which to find a conviction. (p.59 and p.60)
55I find that the statements made in the DVDs and the accompanying cover jackets can only be viewed as trying to inspire ill-will, disdain and violent hatred towards members of the LGBTQ community. I further find that these statements could be extremely dangerous, inviting people to action against an identifiable group of people in our society.
56Again, I do not accept Mr. Popescu's evidence. It is neither credible nor reliable when considering his actions and intention with the specifically eye-catchingly designed DVD cover jackets to target the former Premier of Ontario because of her sexual orientation. I further find that the choice of words used by Mr. Popescu in his DVD cover jacket design are obviously violent, aggressive and vile and are specifically chosen to provoke the public and incite hatred towards an identifiable group, specifically members of the LGBTQ community.
57Furthermore, I find that these statements were not an opinion on a religious subject or based on a belief in a religious text as Mr. Popescu's views are his extrapolations of Biblical verse rather than direct quotes from the Bible.
58Therefore, I have no doubt that Mr. Popescu's statements were made with the clear intention of targeting an identifiable group in an attempt to promote hatred against members of the LGBTQ community under the guise of politics and religion.
Willful Blindness
59In turning to the issue of willful blindness, The Supreme Court of Canada set out in Keegstra and as adopted in the case R v. Jorgensen (1995), 102 C.C.C. (3d) 97 (S.C.C.), that willful blindness occurs when "a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge." Alternatively put"a finding of willful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge".
60The Court has also considered the Supreme Court of Canada Decision of R. v. Sansregret (1985), 18 C.C.C. (3d) 223 (S.C.C.). Justice McIntyre stated at paragraph 30 the difference between recklessness and willful blindness in the criminal context as follows:
The definition of willful blindness makes it clear that this form of intent is purely subjective and indeed is the equivalent of knowledge. To be willfully blind, a accused must suspect a fact, realize its probability and refrain from obtaining the final confirmation, wanting to be able to deny knowledge.
A finding of willful blindness as to the very facts about which the honest belief is now asserted would leave no room for the application of the defence of "mistake of fact" because where willful blindness is shown, the law presumes knowledge on the part of the accused. Willful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth.
A court can properly find willful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. In willful blindness is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry.
61Given my previous finding that Mr. Popescu's statements were made with the clear intention of targeting an identifiable group in an attempt to promote hatred against members of the LGBTQ community under the guise of politics and religion, it cannot be that Mr. Popescu was willfully blind.
3.7 Defence – Statement Made in Good Faith to Establish by an Argument and Opinion on a Religious Subject or an Opinion Based on a Belief in a Religious Text
62As the Crown has proven all essential elements of the offence beyond a reasonable doubt, a secondary issue then arises as to whether any of the defences set out in s. 319(3) apply.
63In turning to the defences available to Mr. Popescu, Chief Justice Dickson noted in the Keegstra decision at paragraph 61:
The three defences which include elements of good faith or honest belief — namely, s.319(3)(b), (c) and (d) — would seem to operate to negate directly the mens rea in the offence, for only rarely will one who intends to promote hatred be acting in good faith or upon honest belief. These defences are hence intended to aid in making the scope of the willful promotion of hatred more explicit; individuals engaging in the type of expression described are thus given a strong signal that their activity will not be swept into the ambit of the offence.
64The Court is well aware that Mr. Popescu is entitled to his opinions on religious subjects and he is entitled to publicly attempt to convince others of the correctness of his belief and make statements relevant to any subject of public interest, such as the provincial election or the new sexual-education curriculum. However, I find that Mr. Popescu does not limit his materials to those opinions and he specifically calls people to action through violence.
65As indicated above, Mr. Popescu has not quoted direct passages from the Bible in his materials, but rather I find that he has interpreted the Bible and a compilation of passages, specifically assembled to try and strengthen his violent and hateful messages.
66In the case R v. Harding 1998 CarswellOnt 2521, it was stated by Justice Linden at paragraph 25"Although expression of religious opinion is strongly protected, this protection cannot be extended to shield this type of communication simply because they are contained in the same message and the one is used to bolster the other. If that were the case, religious opinion could be used with impunity as a Trojan Horse to carry the intended message of hate forbidden by s.319".
67Consequently, after considering the evidence as a whole, the Court does not find that Mr. Popescu has a defence available to him through section 319(3) of the Code.
3.8 Charter: Freedom of Expression
68Section 2 of the Charter of Rights sets out each person's Fundamental Freedoms specifically with section 2b stating: Every person has fundamental freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
69Justice Dickson writing for the majority of the court in Keegstra set out:
"When an activity conveys or attempts to convey a meaning, through a non-violent form of expression, it has expressive content and thus falls within the scope of the word 'expression' as found within the guaranteed fundamental freedoms under section 2 of the Charter.
However, communications which are intended to promote hatred against identifiable groups do not fall within the ambit of a possible section 2b exception if the concerning expression is manifested in a violent form. This exception refers only to expression communicated directly through physical harm. Hate propaganda is not analogous to violence. While it conveys a meaning that is repugnant, threats of violence are not excluded from the definition of expression envisioned by section 2b of the Charter.
Section 319(2) of the CCC constitutes a reasonable limit upon freedom of expression as it is acknowledged by Parliament under this section that substantial harm and violence can flow from hate propaganda against identifiable groups."
70A Charter Application was not brought nor argued by Mr. Popescu about any infringement of his Rights and Freedoms under the Charter. Everyone has the fundamental right of freedom of religion as well as the freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
71Although not formally before the Court, the Court did consider any Charter issue in deciding this case. The Charter is in place to protect Canadian Citizens and there has been no demonstration that the materials distributed promote the principles and values underlying the freedom of expression.
72In this case, the material created and distributed by Mr. Popescu specifically states that "God calls for good government to put her to death" in reference to the former Premier of Ontario. This is a clear call to action with violence and as such does not fall within the gambit of the freedom of expression envisioned by section 2b of the Charter.
73Again, these were simply not communications intended to express Mr. Popescu's religious beliefs and viewpoints. His representation specifically called for violence and provocation of people to put the former Premier of Ontario to death. As such, Mr. Popescu's freedom of expression is not protected when it promotes violence and calls upon others to act in a violent manner.
74As such, I find that Mr. Popescu is clear that his intention of the distributed materials was to single out the former Premier of Ontario because of her sexual orientation and his materials were designed clearly calling for her death because of her sexual orientation under the guise of Godly condemnation.
3.9 Officially Induced Error
75Also, even though not raised by Mr. Popescu, the court is obligated to consider the issue of officially induced error given that Mr. Popescu is self-represented.
76Returning back to the Supreme Court of Canada case of Jorgensen, the Court discussed the issue of officially induced error of law. This defence can only be raised after the Crown has proven all elements of the offence, which I find in this case the Crown has proven beyond a reasonable doubt. Specifically, Jorgensen states:
"Officially induced error of law is an exception to the rule that ignorance of the law does not excuse one's actions as per s. 19 of the Code. Officially induced error ensures that the morally blameless are not made criminally responsible for their actions."
77In order to prove officially induced error, the first step is to determine that the error was in fact one of law or mixed law and fact (paragraph 28). What Mr. Popescu must then show on a balance of probabilities is the following (paragraphs 29 – 38):
(a) He considered the legal consequences of his actions and sought legal advice;
(b) The legal advice must have been obtained from appropriate government officials who were involved in the administration of the law in question;
(c) The legal advice was erroneous;
(d) He relied on the advice;
(e) His reliance on the advice must have been objectively reasonable.
78The Supreme Court of Canada clearly sets out in Jorgensen that it is insufficient for an accused who wishes to benefit from this excuse to simply have assumed that his conduct was permissible.
79Further if the court does in fact find that there was an officially induced error of law, this will lead to a stay of proceedings. A stay can only be entered into in the clearest of cases.
80Mr. Popescu appears to be under the mistaken belief that the charges against him arising in 2015 were dismissed. This is clearly not the case as the transcript from the proceeding on December 9, 2015 states that the charges were withdrawn as containing no reasonable prospect of conviction.
81A comment was placed on the record by the Crown from Manitoba that after thorough review of the case by a number of Crown Attorneys, it was determined that there was no reasonable prospect of conviction and so the charges were being withdrawn.
82With respect to the case before me, it makes no difference as to whether the previous charges were withdrawn or dismissed. As previously indicated, Mr. Popescu made no effort to obtain the referenced memorandum from the Manitoba Crown Attorney's office nor did he review it. Mr. Popescu made no attempt to obtain independent legal advice nor was legal advice given to him by any government official or the Crown Attorney. As such I find that officially induced error does not apply in this case because there is no factual basis for same.
4: CONCLUSION
83As such, based on the analysis above, after considering the evidence as a whole and submissions by the Crown and Mr. Popescu, the Court is convinced, beyond a reasonable doubt that Mr. Popescu communicated statements, other than in private conversation, intending to promote hatred towards homosexuals.
84After consideration of the defences in section 319(3), the Court further finds that none of the defences are applicable to the facts of this case as set out above.
85Accordingly, the Crown has proven its case beyond a reasonable doubt, and the Court finds Mr. Popescu guilty of willfully promoting hatred of an identifiable group.
Released: September 23, 2020
Signed: Justice Heather-Ann Mendes
