ONTARIO COURT OF JUSTICE
2411-998-23-24100551,
2411-998-23-24100548
2411-998-22-24101001
BETWEEN:
HIS MAJESTY THE KING
— AND —
CHRYSTAL PETERS
Before Justice E.A. Carlton
Heard on January 6, 9, 10 & 13, 2025
Reasons for Judgment released on March 7, 2025
P. Hsuing counsel for the Crown
S. Goldstein counsel for the defendant Chrystal Peters
CARLTON J.:
1Chrystal Peters is charged with the offences of Inciting Hate and Cause Disturbance. These charges stem from her attending outside Trinity United Church in Gravenhurst, Ontario on October 29, 2022 to protest an “all-ages” drag show that was taking place that afternoon.
2The Crown proceeded by summary conviction and called five civilian witnesses and two police witnesses. The civilian witnesses were Rachel Clark, the vice-chair of the church, Autumn Smith, a local resident, Shawn Forth, a member of Pride Muskoka, the sponsor of the event, Christine Slavik, an observer of the event from across the street, and Diana Mitchell, then a local resident who attended the event with her children.
3Provincial Constable Stephanie Recollet and Provincial Constable Natalie Strang testified as to their observations of the event that afternoon and their arrest of Ms. Peters.
4No evidence was called by the defence. Although the matter proceeded as a combined trial and Charter application that application was abandoned near the end of the case for the Crown.
Summary of the Evidence
5Trinity United Church is located on the principal downtown street in Gravenhurst. Muskoka Pride is a local organization that, in part, puts on events for the LGBTQ+ community. One such event is an “all ages drag show”. The evidence was that these events were first put on after the pandemic and there had been two prior events held outside as well as one prior event held inside near Halloween a year earlier.
6The event was held on a Saturday afternoon. It was also a fundraiser for a local poverty action group. There appear to have been as many as seven entertainers. The event included reading stories, singing songs and carving pumpkins.
7The event was advertised in the local community and was attended by, amongst others, parents with their children. The event also attracted a protest. It began with a single protester on the sidewalk in front of the church. That protester was known to police and did not interrupt the event in any way. At its height it appears there were a maximum of approximately six protesters. This included Ms. Peters. It appears she was on or near the sidewalk in front of the main entrance to the church for as long as an hour prior to her arrest at 2:08 p.m. that afternoon.
8The evidence about the protest comes from the seven witnesses who observed portions of the protest. A portion of that was recorded on video, perhaps by Ms. Peters herself, and was played in court. I will detail the actions and words of Ms. Peters in detail later in this judgment. The charges rely on both the overall context and tone of her communications and the actual words and conduct attributed to Ms. Peters.
Legal Issues
(i) Burden of Proof
9Ms. Peters is presumed innocent. There is no obligation on her to prove anything in this case. She can only be found guilty if the Crown proves the essential elements of the charge against her beyond a reasonable doubt.
(ii) The Meaning of “Hatred” in [Section 319](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec319_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)
10Section 319 of the Criminal Code creates two separate offences. Ms. Peters is charged with the offence under s.319(1) of the Criminal Code that defines the offence as “by communicating statements in any public place, incites hatred against any identifiable group where such hatred is likely to lead to a breach of the peace”.
11There is a related offence in section 319(2) which creates an offence “by communicating statements, other than in private communication, wilfully promoting hatred against any identifiable group”.
12The meaning of “hatred” in section 319 has been addressed by the Supreme Court of Canada in R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697 and than again in R. v Mugusera, 2005 SCC 40. Keegstra addressed the section 319(2) offence and Mugusera addressed the section 319(1) offence but the discussion of the meaning of “hatred” in each applies to both offences.
13In addition, the Court has addressed the meaning of “hatred” in provincial human rights legislation in R. v. Taylor, 1990 CanLII 26 (SCC), [1990] 3 S.C.R. 892 and in Saskatchewan Human Rights Commission v. Whatcott, 2013 SCC 11. While the context of these cases is different than section 319 of the Criminal Code, in each case the Court sets out a definition of “hatred” consistent with its meaning in criminal law jurisprudence. These cases are often referred to in the criminal context and have at least some bearing in the meaning of “hatred” in section 319 of the Code.
14The key findings of these cases are the following:
“Hatred” connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation. It is predicated on destruction and hatred against identifiable groups and therefore thrives on insensitivity, bigotry, and destruction of both the target group and the values in 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 (Keegstra at para. 116).
Similar language has been used to define the meaning of “hatred” outside of the criminal context. Taylor found that “hatred” "refers to unusually strong and deep-felt emotions of detestation, calumny and vilification". While the Court found this may be a “slightly broader limit upon freedom of expression” than in the criminal law, there is little substantive differences in the two definitions. (see Taylor at para. 61). In Whatcott, the Court removed the word “calumny” from this definition but retained the words detestation and vilification, the two words used in Keegstra for use in section 319 of the Code. Again, appreciating that the comments are directed at a legislative provision and not the Criminal Code, the accompanying description of “detestation” and “vilification” assists in their interpretation under the Code:
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. Representations vilifying a person or 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 the victims. (at para. 41)
The offence does not require proof that the communication caused actual hatred by other individuals. Such an approach would give insufficient attention to the severe psychological harm suffered by members of those identifiable groups targeted by hate propaganda (Keegstra at para. 114). The intention of Parliament is to prevent not only actual harm but the risk of serious harm (Mugusera at para. 102).
In determining whether the communication expressed hatred one looks at the understanding of a reasonable person based on the entire context. The analysis must focus on the speech’s audience and on its social and historical context (Mugusera at para. 103). The court must consider whether the statements made "when considered objectively by a reasonable person aware of the relevant context and circumstances, the speech in question would be understood as exposing or tending to expose members of the target group to hatred" (Whatcott at para. 35).
There can be a distinction drawn between statements that attack conduct versus speech that directly attacks an identifiable group. This distinction, however, cannot be drawn “where the conduct that is the target of speech is a crucial aspect of the identity of the vulnerable group, attacks on this conduct stand as a proxy for attacks on the group itself” (Whatcott at para. 124).
15It is noteworthy that in Keegstra, all seven judges found that section 319(2) infringed the right to freedom of expression, one element of the rights set out in section 2(b) of the Canadian Charter of Rights and Freedoms. The Court divided 4-3 on whether section 319(2) was a reasonable limit that can be prescribed by law as demonstrably justified in a free and democratic society under section 1 of the Charter. The majority found that the law was so justified. In doing so, the majority emphasized that its restrictive definition of “hatred” allowed the section to meet the test of minimal impairment in the section 1 analysis:
To summarize the above discussion, in light of the great importance of Parliament's objective and the discounted value of the expression at issue I find that the terms of s. 319(2) create a narrowly confined offence which suffers from neither overbreadth nor vagueness. This interpretation stems largely from my view that the provision possesses a stringent mens rea requirement, necessitating either an intent to promote hatred or knowledge of the substantial certainty of such, and is also strongly supported by the conclusion that the meaning of the word "hatred" is restricted to the most severe and deeply-felt form of opprobrium (at para. 132).
16The decision and these comments are directed at section 319(2) and in particular rely on the elevated mental element for s.319(2) as compared to section 319(1). This passage, nonetheless, underscores the restrictive definition of “hatred” that applies to both section 319(1) and 319(2) offences. It is this restricted nature of the definition that allows the Court to find that the related offence in section 319(2) is a reasonable limit that can be demonstrably justified in a free and democratic society.
(iii) The Essential Elements of Section 319(1) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)
17Section 319 has a number of essential elements that must be proven to the criminal standard in order for a finding of guilt.
18First, the defendant must have committed the act of “communicating statements in any public place”.
19These words have a defined meaning. “Communicating” is defined to include “by telephone, broadcasting or other audible or visible means”. “Statements” includes words spoken or written or recorded electronically or electromagnetically or otherwise and gestures, signs or other visible representations”. “Public place” includes “any place to which the public have access as of right or by invitation, express or implied”.
20There is no issue in this case that Ms. Peters was communicating statements in a public place by her comments made on the sidewalk in front of the Trinity United Church.
21Secondly, the statements must be made against an “identifiable group”. Here the identifiable group is described as the “LGBTQ+ community”. This element is in issue and will be addressed later in this judgment.
22Thirdly, the statements must “incite hatred”. I have already set out the meaning of “hatred” in Canadian law. The word “incite” means to “urge, stir up or stimulate” (see Mugusera, at para. 63). Again, this element is in issue and will be addressed later in this judgment.
23Lastly, the statements must have “a likelihood of leading to a breach of the peace”. This is also in issue in this case.
24It is noteworthy that a number of defences in section 319(3), including defences of truth, good faith, religious expression and public benefit, apply only to the offence of promoting hatred in section 319(2) and not to the offence of inciting hatred in section 319(1) of the Code. For section the 319(1) offences, Parliament has not included defences that would otherwise excuse the conduct. Section 319(1) and 319(2) are separate offences. Section 319(1) is directed to the dangers of statements that incite hatred and are likely to lead to a breach of the peace. The immediacy of the potential harm disentitles a defendant to the more nuanced defences in section 319(3) that apply more broadly to statements that are not made in a public place while at the same time being more than a private communication. The unavailability of these defences in section 319(1) is counterbalanced by the additional requirement that the statements are likely to lead to a breach of the peace, an element not required for section 319(2).
25The mental element for the section 319(1) offence is “something less than intentional promotion of hatred” (Mugusera at para. 104). I add that the Ontario Court of Appeal has stated that what is now section 319(1) requires “either the intentional or reckless inciting of hatred” (see R. v. Buzzanga and Durocher (1979), 1979 CanLII 1927 (ON CA), 25 O.R. (2d) 705).
(iv) The Offence of Causing a Disturbance
26Ms. Peters is charged with the offence of Causing a Disturbance contrary to section 175(1)(a) of the Criminal Code. That section reads as follows:
Every one who
(a) Not being in a dwelling house, causes a disturbance in or near a public place,
i. By fighting, screaming, shouting, swearing, singing or using insulting or obscene language,
ii. By being drunk,
iii. By impeding or molesting other persons
… is guilty of an offence punishable on summary conviction.
27The elements of causing a disturbance are firstly, carrying out one of the acts set out in subsection (a) and secondly, causing a disturbance in or near a public place. This was summarized by the Supreme Court in R. v. Lohnes, 1992 CanLII 112 (SCC), [1992] 1 S.C.R. 167 at para. 30 as follows:
The weight of the authorities, the principles of statutory construction and policy considerations, taken together, lead me to the conclusion that the disturbance contemplated by s. 175(1)(a) is something more than mere emotional upset. There must be an externally manifested disturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public. There may be direct evidence of such an effect or interference, or it may be inferred from the evidence of a police officer as to the conduct of a person or persons under s. 175(2). The disturbance may consist of the impugned act itself, as in the case of a fight interfering with the peaceful use of a barroom, or it may flow as a consequence of the impugned act, as where shouting and swearing produce a scuffle. As the cases illustrate, the interference with the ordinary and customary conduct in or near the public place may consist in something as small as being distracted from one's work. But it must be present and it must be externally manifested. In accordance with the principle of legality, the disturbance must be one which may reasonably have been foreseen in the particular circumstances of time and place.
28The mental element is simply an intention to engage in one of the acts set out in section 175(1)(a) and that the disturbance is one that may reasonably have been foreseen in the particular circumstances of the time and place. There is no requirement that the defendant subjectively intended to cause a disturbance (see R. v. Hinchey, 1996 CanLII 157 (SCC), [1996] 3 S.C.R. 1128 at para. 82).
The Evidence at Trial
29As set out, the Crown called seven witnesses over three days of trial. While some of that evidence was challenged by the defence the central facts of this event are largely undisputed.
30Muskoka Pride is a local organization that represents the LGBTQ+ community in Muskoka. Muskoka Pride sponsors events for the LGBTQ+ and wider community including drag shows. Shawn Forth is one of the founding members of Muskoka Pride and one of the event organizers on October 29, 2022. The event at the Trinity United Church was held on a Saturday afternoon and was an “all ages” event. Photographs from a media story of the event were made an exhibit at trial. These photos and the evidence of Mr. Forth show that six or seven drag entertainers performed at the event. Evidence was called that these entertainers led the group in stories, songs and pumpkin carving.
31Ms. Peters was part of a protest against the event held on the sidewalk in front of the main door to the church. When police first came by at 1:00 p.m. there was a single protester, not Ms. Peters, who was not disrupting the event in any fashion. Mr. Forth described her protest as “quaint”. Police returned at 1:42 p.m. and this time police spoke to the protesters to warn them not to trespass at the Church. Ms. Peters was present by this time and part of a group of approximately six people. Police cautioned the group on the offence of Causing a Disturbance.
32The recording continued after police crossed the street to respond to an overdose. Police returned at 2:07 p.m. and then arrested Ms. Peters for the offence of Causing a Disturbance. Exhibit 1 is a video of the event that was posted online and was referred to as the “Muskoka 411” video. It appears to have been made by Ms. Peters during the event as she is seen holding a cellphone in a video created by Mr. Forth that covers a portion of the same event. The Muskoka 411 shows the initial interaction with police and a portion of the arrest. The Crown submitted that the video is consistent with Ms. Peters making a live recording of the event online. At one point Ms. Peters states, “I’ve been posting since yesterday” and, on arrest, Ms. Peters is heard to say “it’s still live on my phone”. There is no other evidence as to any broadcasting of the video. While it appears to have been made by Ms. Peters, I am not able to determine that the video is in fact a live streaming of the event. This video is eight minutes long and covers a 25-minute period. It is not obvious when each edit occurs.
33It is clear from the video and from the trial evidence, that Ms. Peters was by some measure the most vocal member of the group. One other protester engages with one of the officers. There is a male protester who at one point uses a megaphone although it must be noted that the volume of the male using the megaphone is lower than the unamplified voice of Ms. Peters.
34The organizers of the event largely chose not to engage with the protesters. Their principal concern was that attendees be able to safely enter the event. They chose to shepherd people away from the front door and in through a side door of the church.
35The first two Crown witnesses, Rachel Clark and Autumn Smith, stayed at the front door of the church to observe the protesters. Each gave extensive evidence of statements attributed to Ms. Peters. Each testified to their personal offence to the comments made by Ms. Peters. To a limited degree each testified to additional comments made by Ms. Peters that are not reproduced on the Muskoka 411 video. The reliability of these memories was challenged in cross-examination. The principal statements for both Ms. Clark and Ms. Smith were given many months after the event after each had spoken with others who had been present at the event. It was suggested that in addition to the loss of memory associated with the passage of time that this process had unconsciously affected their memory of the event including the precise words used by Ms. Peters.
36I do not intend to engage in a lengthy analysis of the viva voce evidence as compared to video evidence. The viva voce evidence is largely confirmed by the video evidence. Any additional comments attributed to Ms. Peters in the viva voce evidence of Ms. Clark and Ms. Smith not on the video do not materially change the analysis in this case. I am satisfied that the context, content and circumstances are fully captured in the video evidence and I will focus on that evidence.
37Christine Slavik is a local resident who was running errands on a Saturday afternoon including attending at the hardware store across from Trinity Church. She observed a woman, who I find to be Ms. Peters, to be the most vocal of the protesters. Ms. Peters was using a “bullhorn” or megaphone and was “teaching about the Bible using profane language”.
38The two police officers, P.C. Recollet and P.C. Strang, gave evidence consistent with what is seen on the Muskoka 411 video and a second video of the arrest sometime between 2:07 and 2:15 p.m. The two officers were part of the Provincial Liaison Team of the Ontario Provincial Police and trained to handle protests in a manner that protects the right to free expression and to maintain public peace. As set out already, the protesters were warned at 1:42 p.m. not to enter the Church and not to Cause a Disturbance. I note that there was no direct evidence that any protester attended inside the Church or disrupted the event. Ms. Peters can be heard on the Muskoka 411 video that she regretted not having first gone inside the event and that now she could not do that.
39The officers then attended across the street to deal with the medical event. Once that event was under control, P.C. Strang was approached by an employee of the hardware store who told her that the “protesters were getting crazy” and they needed help. The officer heard Ms. Peters swearing on the megaphone and then went across the street to effect the arrest.
40Diana Mitchell then resided in Muskoka and attended the event with her two children then ages 4 and 7. The three of them were joined by the six-year-old daughter of a friend on the sidewalk near the church. She encountered Ms. Peters when Ms. Peters was under arrest and being walked to a cruiser by the two officers. Ms. Mitchell testified that Ms. Peters yelled at her that she did not deserve to have children and that she was going to hell. P.C. Strang gave similar evidence of this encounter.
41The Muskoka 411 video was comprehensively and fairly summarized by the Crown in its written submissions. I reproduce that summary with some minor corrections and adding a final passage to the original seven. The first seven passages on the video occur during the first meeting with police at 1:42 p.m. and the last occurs just prior to the arrest of Ms. Peters near 2:07 p.m. On the video, Ms. Peters can be heard stating the following:
At 1:20 on the video: So the adults that are in there, provocatively dressed around minors – that’s not an offence?
At 1:43 on the video: I’m protesting grown adults, who want to dress in lingerie and dance around children. We have a whole country, a whole nation, filled with children who do not know whether they are boys or girls because of activities like this and its up to us adults to stand up and protect these children. To stand on their side in front of them is morally wrong. It is wrong. And for them to hold it in a church is wrong…You guys should be outraged.
At 2:24 on the video: I know exactly what’s going on in there. You have seven drag queens in there that are around children. Seven drag queens that are around children, carving pumpkins, having drag story time….A drag queen event.
At 3:01 on the video (also shown in Exhibit 3): Film away all you want, you should be absolutely ashamed. These are children. Children. They don’t know their favorite color or their favorite foods. But you think its ok to convince little boys that they can turn into little girls? Do you know the suicide rate among those who try to detransition back? What about that? What about the children who are being mutilized? And your sitting there reading them stories parading around in lingerie thinking its ok? There is nothing ok about this. And you’re doing it in a church? You think God condones this type of behavior? Have you even read the bible?
At 3:56: We’re breaking the laws, not the pedophiles in there with the children.
At 4:04 on the video: So guys, as I’ve been posting since yesterday, I’m in Gravenhurst, protesting these sick adults and now we have these two officers saying that we are a problem somehow. The whole five of us are a big problem, not the pedophiles inside that building.
At 4:54 on the video: Yeah, you’re going to go in and protect the child predators. Great job, great job. Protecting child predators, you’re supposed to protect the children, not feed them to sick and mentally disabled. Feeding children to child predators. Saying they’re doing their jobs. Looking at them shaking hands, yeah wear the badge of honor, disgrace… Grown men dressed as women parading around children and we don’t think that’s anything to raise eyebrows about? Don’t think we should be pulling our handcuffs out and saying “Hey we don’t allow this around children.”
At 7:40 on the video: You guys are supposed to be men. Fathers. What’s wrong with you? What’s wrong with you? Why are you not the men you’re supposed to be and standing up to protect children?
42A second video was played showing the moment of arrest. Ms. Peters can be heard shouting “you are all sick fucking disgusting pieces of fucking garbage. Fucking disgusting … you are going to hell.”
43Some evidence was called as to the nature of the show inside the Church that demonstrated that some of the assumptions made by Ms. Peters were not correct. I note that the photographs filed as an exhibit show that each of the entertainers was dressed in a modest fashion.
The Evidence about the Event
44Ms. Peters is alleged to have committed the offence by “making statements condemning drag shows”. It is important to set out the evidence on the show held on October 29, 2022 and on drag shows in general.
45Ms. Clark testified that the show was meant to have “pumpkin carving, singalong with kids … so it was really just meant to be a children’s type Halloween event with pumpkin carving and songs”. Ms. Clark believed that three or four drag entertainers performed at the show who sang songs with children and their parents, gave away candy and had pumpkin carving. The entertainers “were dressed in clothes that would be considered drag clothes” which Ms. Clark described a “theatrical expression of their gender expression”. In describing the drag performers Ms. Clark states that “to me it was very rated G, not states of undress, more states of fully dressed”.
46The event was described in a similar fashion by Autumn Smith and Shawn Forth. Ms. Smith testified that the event was “innocent” and a Halloween event catered for a younger audience. Mr. Forth testified that the costuming and the songs were appropriate for families to attend. Mr. Forth had final approval for the event and made these expectations very clear to the performers in advance and to establish “what is and is not to be done” at the show.
47As to the broader topic of drag performance, Rachel Clark testified that “drag shows are a way for people in LGBTQ+ community to express their gender in a community forum, sometimes for entertainment, sometimes to express their gender”.
48Ms. Smith described that drag dates back centuries and gets its roots in theatre and performance and is now a mainstream element of theatre. Ms. Smith agreed that drag performers may not be members of the LGBTQ+ community.
49Mr. Forth described drag as follows:
Drag is a kind of performance, typically speaking it is someone who is dressing in a gender that is other than they typically are on a day-to-day basis. It could be someone who normally identifies as female and is presenting in a masculine performance. It could be someone who identifies as male and presenting in a female performance. Also, it could be someone who is non-binary and ... could perform as male or female. Works the same way as well, I know drag performers who identify as female and they perform female.
It really is about a performance style where there is lip-synching to music and it is an overly exaggerated style of dress and caricature. Drag performances could be for an adult audience or an all-ages audience. It depends on the nature of the songs or the costumes.
Analysis of the Section 319(1) Offence
50I will address the two charges in reverse order from their appearance on the information, and first address the inciting hate charge. There are at least three issues joined in the evidence: whether the information sets out an “identifiable group, did the conduct of Ms. Peters incite hatred, and lastly, if so, was there a likelihood of the conduct leading to a breach of the peace.
(i) Identifiable Group
51The information sets out the “identifiable group” as the “LGBTQ+ community”.
52Counsel for Ms. Peters submits that there is imprecision in how this group has been identified. Counsel elicited from various witnesses that the compendium of those in a group composed of individuals identified by their sexual orientation or gender identity has been described in different ways at different times. Mr. Forth described the broader group as the “gender and sexually diverse” or GSD community.
53“Identifiable group” is defined in section 318 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”.
54The recent Supreme Court of Canada decision in R. v. Krymowski, 2005 SCC 7, makes it clear that a commonsense approach should be taken to how the identifiable group is framed in an information alleging an offence under section 319 of the Criminal Code. The information as framed in this case clearly invokes an identifiable group in law based on sexual orientation and gender identity and expression.
(ii) Inciting Hatred
55The central issue in this case is whether the comments made by Ms. Peters and the circumstances and context in which they were made amount to inciting hatred.
56I have already set out the definition of “hatred” in Canadian law. There is no question that Ms. Peters uttered words that amount to detestation and/or vilification. The more difficult question is the target of these words of vilification.
57The information alleges it is the statements made by Ms. Peters “condemning drag shows” that makes out the incitement to hatred.
58If it is the case that if the statements of Ms. Peters “condemning drag shows” are directed at the LGBTQ+ community at large they would then constitute an expression of hatred in law. That is, if the words of Ms. Peters suggest the “LGBTQ+ community” is composed of “child predators”, “pedophiles” or that they are “sick and mentally disabled” then they are words intended, as per Whatcott, “to abuse, denigrate or delegitimize them, to render them lawless, dangerous, unworthy or unacceptable in the eyes of the audience”.
59Alternatively, if these words are directed solely at the entertainers at the drag show and/or the organizers and attendees but not to the wider LGBTQ+ community, then the statements of Ms. Peters are deeply offensive and objectionable but they may not necessarily constitute statements of hatred against an identifiable group.
60The entire context and circumstances of the statements must be considered to resolve this question. These circumstances include the following:
The event was an “all ages drag show”. On the evidence of Mr. Forth, such events were relatively novel having only occurred in Muskoka post-pandemic.
On the evidence of Rachel Clark, the event appears to have attracted a number of local politicians including the Mayor of the Town and city councillors. Given the photographs filed of the event, politicians would have been a not insignificant portion of the attendees. While it is possible that some of these persons attended for their own personal reasons this at least suggests that the holding of an all ages drag show was a matter of some public interest.
The protest was directed at whether a drag show was an age-appropriate activity for children. Other protesters were holdings signs stating, “Drag is adult only entertainment. Please stop”. Ms. Smith testified that the first protester on scene had a sign saying “protect our kids, drag hurts children”.
The statements of Ms. Peters on the Muskoka 411 video appear to be primarily directed at the entertainers. To a lesser extent they were directed against the organizers and the attendees of the event including parents of children attending the event. The communications of Ms. Peters to these parents were equally spiteful. The gender and sexual identity of these parents is not known. There is no suggestion in the evidence that the attendees or parents were exclusively members of the LGBTQ+ community. There is no evidence that Ms. Peters would have assumed that these parents were members of the LGBTQ+ community but nonetheless these individuals were targeted for verbal abuse by Ms. Peters based on their conduct in bringing children to the event and not on their being members of the identifiable group, the “LGBTQ+ community”. These communications were equally objectionable including statements that such parents were “going to hell”.
On the Muskoka 411 video Ms. Peters refers to the entertainers on other occasions as “men” or “grown adults”. In these comments, some of which are more unfiltered comments directed only at her associates, Ms. Peters does not use any epithets to describe any constituent element of the LGBTQ+ community. The exceptionally harsh language used by Ms. Peters, including “pedophiles” and “child predators” impugns the character and motivations of the “grown adults” or “grown men” participating in the event and not the LGBTQ+ community at large.
61I note that when the three Crown witnesses who were present at the event described the drag show they emphasized that it was “G-rated” or that the performers were modestly dressed. I accept that evidence. It is clear that Mr. Forth and other organizers went to great lengths to put on an event that was age appropriate. This evidence of the Crown witnesses nonetheless demonstrates that drag performance has previously been considered a form of entertainment for adults and not for children.
62It must be noted that there will always be public debates as to when children should be exposed to various forms of entertainment or media including what has been described in this case as theatre. This includes, for example, the film rating system and the ongoing attempts to regulate elements of social media for children and/or to place it under parental control. Again, the evidence is that all-ages drag shows were a relatively new social artefact in 2022. It is not unexpected that there would not be social unanimity on the appropriateness of all-ages drag shows, particularly when there can be misunderstandings about the nature of these events. The presence of local politicians again suggests that civic leaders may have wished to signal their position on a matter of public debate to their constituents. In noting this fact, I appreciate that the mere fact that any communications are about a public issue does not shield them from the application of section 319 of the Code.
63The information alleges that Ms. Peters made statements “condemning drag shows”. That is only partially correct. Ms. Peters made statements condemning drag shows catered to children. Ms. Peters made no statements condemning drag shows directed at adults. She made no statements at large against the LGBTQ+ community or their right to be full participants in Canadian society.
64It is clearly the case that Ms. Peters made objectively offensive and hurtful statements impugning the motives of the entertainers and, to a lesser extent, the organizers of the event. None of these entertainers were identified in the evidence. My sole task is to determine the whether the charges against Ms. Peters have been proven to the criminal standard. I add, nonetheless, that criminal prosecution is not the only means by which the law can regulate speech. There are also a range of civil remedies available in Canadian law that can regulate speech that has harmed an individual.
65It is also the case that Ms. Clark and Ms. Smith felt personally attacked by the statement made in their presence by Ms. Peters. It is clear that Ms. Peters directed statements towards these women that were coarse and disrespectful. On the evidence, both women were a model of restraint and strength in managing the events of the day. It is nonetheless the case that hate speech “rises beyond causing emotional distress to individual group members”. It “must rise to a level beyond merely impugning individuals: it must seek to marginalize the group by affecting its social status and acceptance in the eyes of the majority”. The personal and offensive statements made to these women by Ms. Peters do not meet that test.
66I make two additional comments.
67Firstly, I well appreciate that many of the targets of the statements of Ms. Peters are likely members of the LGBTQ+ community. The Crown witnesses present at the event clearly see the statements of Ms. Peters as attacks not just on these individuals but on the LGBTQ+ community at large. I appreciate that this was an event sponsored by the LGBTQ+ community group for Muskoka and while open to all members of the community was at least in part designed to provide a safe place for individuals under the age of 18 who identify as members of the LGBTQ+ community.
68Canadian jurisprudence on the meaning of “hatred” has noted that it can take the form of “expression that equates the targeted group with groups traditionally reviled in society, such as child abusers, pedophiles or "deviant criminals who prey on children” (see Whatcott at para. 45; Warman v. Kouba, [2006] C.H.R.D. No. 50 at paras. 40, 44). The words of Ms. Peters clearly describe the entertainers at this event in these terms. In assessing claims of hate speech, Courts must consider whether the statements alleged to be hateful promote or trade on historical discriminatory and dehumanizing “tropes” or “long-held negative stereotypes” against the identified group. There was no expert evidence on the historical discrimination face by the LGBTQ+ community, but the effect of the Crown submissions is that the statements made by Ms. Peters were statements that the LGBTQ+ community poses a danger to children. The existence of these discriminatory stereotypes or tropes has been accepted in other decisions (see R. v. Whatcott, 2023 ONCA 536 at paras. 43-45).
69This real concern does not displace the clear evidence that the target of Ms. Peters’ statements was not the LGBTQ+ community at large but instead the holding of a drag event that targets children as its audience. That the statements made here may incidentally invoke a negative stereotype or trope does not change the fact that their fundamental character and the intent of Ms. Peters was directed solely to the issue of the propriety of the event and not to LGBTQ+ community as whole. This fact distinguishes these events from cases relied on by the Crown where the attack was against the whole of the identifiable group.
70Further, I respectfully disagree with the Crown submission that the communications were a “call to action” against the LGBTQ+ community (see Warman v. Kouba, at para. 81). Ms. Peters was not equating the “identifiable group” as child predators but only those directly involved in the event. I find that she made statements vilifying or detesting the conduct, namely the all-ages nature of the drag show, but not against the identifiable group.
71Secondly, while speech targeting conduct is in general not within the compass of hate speech, it can be when “target of speech is a crucial aspect of the identity of the vulnerable group, attacks on this conduct stand as a proxy for attacks on the group itself” (see again Whatcott at para. 124). The evidence on the nature of drag performance and its role in the LGBTQ+ community was sparse. I have already set out the entirety of that evidence. I have found that Ms. Peters’ statements were targeting the all-ages nature of the drag show. The signs of the protesters endorse the idea that drag shows are legitimate entertainment for adults.
72The only evidence regarding all-ages drag shows was that they are a relatively new phenomenon, at least in Muskoka. There is no evidence that drag shows catered to children are a “crucial aspect of the identity” of the LGBTQ+ community, or that attacks on all-ages drag shows are “a proxy for attacks” on that community. It may be that drag performance for adults is a crucial aspect of the LGBTQ+ community; there was no conclusive evidence on this point. Again, the communications of Ms. Peters do not attack drag shows directed to adults.
73For these reasons I do not find to the criminal standard that the statements made by Ms. Peters “condemning drag shows” amounted to hatred against the identifiable group of the LGBTQ+ community. I do not find that "when considered objectively by a reasonable person aware of the relevant context and circumstances, the speech in question would be understood as exposing or tending to expose” the LGBTQ+ community to hatred” (see Whatcott at para. 35) or that the LGBTQ+ community was “to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation” (see Keegstra at para. 116). I have a reasonable doubt on whether the statements vilified an identifiable group as opposed to vilifying conduct that has not been proven to be a crucial aspect of that identifiable group.
74In Mugusera, the mental element for this offence was defined by what it is not; “something less than intentional promotion of hatred”. Based on the foregoing analysis I do not find that Ms. Peters was recklessly intending to incite or “stir up” hatred against the LGBTQ+ community in her comments.
(iii) Likelihood of Causing a Breach of the Peace
75The last element of the offence at issue in the case was whether there was a likelihood that the statements would lead to a breach of the peace.
76The meaning of “breach of the peace” was defined by the Supreme Court in Fleming v. Ontario, 2019 SCC 45 as an act that “involves some level of violence and a risk of harm. It is only in the face of such a serious danger that the state's ability to lawfully interfere with individual liberty comes into play. Behaviour that is merely disruptive, annoying or unruly is not a breach of the peace” (at para. 59).
77It is clear that there was no actual violence or risk of harm during the protest. Neither Ms. Peters nor any other protesters made threats of violence. While Ms. Peters was verbally combative with the officers, she did comply with their direction that she not enter the Church. She can be heard on the Muskoka 411 video ruing the fact that she did not enter the Church on her arrival but then makes no attempts to do so after the police direction.
78The relevant question is whether there was a likelihood of violence or risk of harm. This is a difficult question to resolve. The fact that there was no risk of violence or harm here stems from the approach by the organizers of the show to not directly engage with the protesters including with Ms. Peters. That approach was by no means certain. Ms. Peters was making extraordinarily provocative statements to the organizers and the attendees. It is certainly possible that one of the organizers, attendees or simply passersby would have engaged more directly with Ms. Peters. There was some evidence that there was a brief exchange between the protesters and someone who was simply walking down the street. It is entirely possible, given the language used by Ms. Peters and the high level of emotion, that matters could have escalated to violence or risk of harm.
79The more difficult question is whether this is more than a mere possibility and that it amounts to a “likelihood”. Given my findings on the issue of inciting hatred, I need not resolve this question.
80For these reasons there will be a finding of not guilty on count #2.
The Offence of Cause Disturbance
81I have previously set out the elements of the offence of Cause Disturbance. Given the discussion above, I note that the test for a Cause Disturbance is separate from the test for whether there is a breach of the peace. There is no requirement that there be violence or risk of harm. Conduct that is merely “disruptive” does not amount to a breach of the peace whereas disruptive conduct is analogous to the test in Lohnes that there must be an “externally manifested disturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public”.
82The information alleges that Ms. Peters caused a disturbance by “shouting using insulting language”. The separate acts of “shouting” and “using insulting or obscene language” are two means by which the offence in section 175(1)(a)(i) can be committed. The evidence is overwhelming that Ms. Peters was in or near a public place and was shouting and using insulting and profane language. This is confirmed by the testimonial evidence and the Muskoka 411 video.
83The only issue for this count is whether the Crown has proven to the criminal standard that these acts caused a disturbance. On its face, the offence of Cause Disturbance could bring within the ambit of the criminal law conduct that is routinely experienced on public streets. In Lohnes, the Supreme Court was careful to place limits on the reach of this offence:
But it is far from self-evident that the goal of peace and order in our public places requires the criminal law to step in at the stage of foreseeability of mental annoyance. Indeed, our society has traditionally tolerated a great deal of activity in our streets and byways which can and does disturb and annoy others sharing the public space. Given the intrusion on public liberty and the uncertainty in the criminal law which such a rule would introduce, it is arguable that some external manifestation of disorder in the sense of interference with the normal use of the affected place should be required to transform lawful conduct into an unlawful criminal offence (at para. 29).
84As such, in order to make out the offence “the interference with the ordinary and customary conduct in or near the public place may consist in something as small as being distracted from one's work. But it must be present and it must be externally manifested. In accordance with the principle of legality, the disturbance must be one which may reasonably have been foreseen in the particular circumstances of time and place” (Lohnes at para. 30).
85This test has particular application when the Cause Disturbance relates to a protest. Section 2 of the Charter sets out the fundamental freedoms of freedom of expression in section 2(b) and freedom of peaceful assembly in section 2(d). The exercise of these rights may necessarily have some impact on other members of the community. The offence of Cause Disturbance does not criminalize the externalities of peaceful assembly. It may be, as one example, that an individual will avoid direct exposure to a protest by altering their route on foot or by vehicle. Others who do travel near a protest may be exposed to loud noises for a short period of time. These are not “interferences” that usually “transform lawful conduct into an unlawful criminal offence”. The impact on Christine Slavik, for example, who viewed the protest from the hardware store out of curiosity does not amount to causing a disturbance. Police, here Officers Strang and Recollet, had the difficult task of ensuring that protesters were able to exercise rights of free expression while maintaining public order. In my view, these officers exercised restraint and wisdom in their handling of this matter.
86Evidence in support of a finding of cause disturbance can be direct or inferred from the evidence of a peace officer. There is both in the case.
87I note at the outset that there is little evidence that the actions of Ms. Peters had any appreciable impact on the event itself other than introducing some tension or agitation amongst the attendees. I will focus instead on the direct evidence and in particular, on the evidence that the conduct of Ms. Peters interfered with the ability of children to attend the event. The evidence on this point is as follows:
Autumn Smith met with an eight-year-old child at a restaurant beside the Church. The child wanted to attend the event but given the words being spoken at the protest her mother was afraid for her safety. Ms. Smith ensured that an organizer was able to get the child into the Church through a side door without having to go through the front door of the Church which had been expected to be the main entry point to the event. More generally, Ms. Smith testified that the children entering the event appeared to be afraid.
Shawn Forth testified that a 12-year-old or grade 7 to 9 student entered the event on her own. The child was in tears and emotionally upset after having interacted with the protesters.
Diana Mitchell was endeavouring to walk three young children into the event on the sidewalk near the Church when she encountered Ms. Peters in the custody of the two officers. Ms. Mitchell testified that Ms. Peters told her that she did not deserve to have children and that she was going to hell. Ms. Mitchell testified that in the moment she was concerned for the children and the need to protect them. She felt the need to speak to her children about this event later that day. P.C. Strang testified that she heard Ms. Peters tells Ms. Mitchell that she was “going to fucking hell” and “you should be ashamed of yourself”. P.C. Strang testified that the children appeared to be cowering behind Ms. Mitchell and seemed very upset.
88I accept this evidence. In particular the words attributed to Ms. Peters by Ms. Mitchell and P.C. Strang are very similar in content and tone to the words uttered by Ms. Peters moments earlier at the moment of her arrest that were captured on video and played in court.
89These specific incidents are in addition to the general evidence that Ms. Peters was shouting at people entering the event such that attendees were shepherded to a side entrance to avoid being the target of the “shouting” and “insulting language”. Ms. Clark testified that Ms. Peters was telling parents that their children should be taken away from them.
90When the two officers walk across the street to deal with the medical emergency the protesters conclude that they are doing so to assist the organizers. One protester is heard to say the police are “going to help them get in” and Ms. Peters is heard saying “of course they are, they are going to sneak them in another way”. While the offence does not require the specific intent to disturb the public, this comment demonstrates that Ms. Peters had the intent to impede individuals from entering the event.
91There may be situations in which shouting or yelling insulting language does not interfere with the normal and expected use of the premises by the public (see R. v. Swinkel, 2010 ONCA 742 at paras. 18-32). This was not a situation, for example, where a protest and counter-protest had assembled and adult members of each group were heckling the opposite side. It is of note that the initial protest prior to the arrival of Ms. Peters had no impact on the event and nor did it cause a disturbance. Ms. Peters had the ability to exercise her freedom of expression on the issue of all-ages drag shows without engaging in the conduct I have described.
92Instead, Ms. Peters as an adult was shouting at children and their parents who equally had the right to attend the event without their normal use of the public sidewalk being interfered with by Ms. Peters. Those attending the event equally had the ability to exercise their right to associate and to free expression without being disturbed. The comments and actions of Ms. Peters externally manifest an interference with the ordinary and customary conduct on a public street. Her actions were designed to dissuade them from attending the event and/or seeking to make them a subject of public ridicule. The disturbance that did occur was one which may reasonably have been foreseen in the particular circumstances of time and place.
93I am therefore satisfied to the criminal standard of beyond a reasonable doubt that Ms. Peters engaged in the prohibited acts alleged and these acts caused a disturbance as that term is defined in section 175 of the Criminal Code. There will be a finding of guilty on count #1 on the information.
Released: March 7, 2025
Signed: Justice E.A. Carlton
Footnotes
- In using the term “reasonable doubt” I rely on the definition as set out in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.