Her Majesty the Queen v. Krymowski et al.

[Indexed as: R. v. Krymowski]

65 O.R. (3d) 75

[2003] O.J. No. 1920

Docket No. C38595

Court of Appeal for Ontario

O'Connor A.C.J.O., Carthy and MacPherson JJ.A.

May 20, 2003

*Application for leave to appeal to the Supreme Court of Canada granted January 22, 2004 (McLachlin C.J.C., Major and Fish JJ.).

Criminal law -- Promoting hatred -- Accused charged with promoting hatred towards Roma -- Evidence showing that accused targeted gypsies -- Trial judge refusing to permit Crown to amend information to read "Roma a.k.a. gypsies" to take judicial notice of dictionary definition of Roma or to reopen trial to permit Crown to call evidence that gypsies and Roma are identical -- Charges dismissed -- Summary conviction appeal court judge finding that evidence did not indicate that gypsies and Roma are interchangeable and dismissing Crown's appeal -- That conclusion turning on assessment of evidence -- Crown's appeal to Court of Appeal not raising question of law alone -- Appeal dismissed.

The accused were charged with wilfully promoting hatred against an identifiable group, Roma, by communicating statements targeting gypsies. During argument at the conclusion of the trial and after the accused had elected not to call evidence, defence counsel submitted that, although there was an admission that Roma are an identifiable group, there was no evidence that the accused had directed hatred at Roma. The trial judge refused to permit the Crown to amend the information to read "Roma a.k.a. gypsies". He also refused to take judicial [page76] notice of the dictionary definitions of Roma or to reopen the trial to permit the Crown to call evidence that gypsies and Roma are the same. The charges were dismissed. The summary conviction appeal court dismissed the Crown's appeal. The Crown appealed.

Held, the appeal should be dismissed.

Given that the Crown asked nothing more than that the trial judge take judicial notice of definitions found in standard dictionaries and given that those definitions were relatively consistent, the trial judge probably should have taken judicial notice of those definitions. However, that error, if there was one, was not dispositive of the appeal. The summary conviction appeal court judge found that even if Roma are a subset of gypsies that would not have been sufficient to found convictions, as not all people who are referred to as gypsies are, in fact, Roma. That conclusion turned on an assessment of the evidence. An appeal from the summary conviction appeal court's decision lay on a question of law alone. The Crown's appellate challenge did not raise a question of law. Moreover, the trial judge's decision not to take any of the three steps requested by the Crown was an exercise of discretion. Noting the very late stage of the trial at which the Crown made those applications, the summary conviction appeal court judge declined to interfere with the trial judge's exercise of discretion. There was no basis upon which to interfere with that decision.

APPEAL by the Crown from a judgment dismissing an appeal from a dismissal of charges of wilfully promoting hatred.

Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 839(1)

Authorities referred to Lederman, S.N., and A.W. Bryant, Sopinka's Law of Evidence, 2nd ed. (Toronto: Butterworths, 1999)

Jamie Klukach, for appellant. Peter Lindsay, for respondents McFarlane, Schultz, A.M.V. and J.J.V. David Gomes, for respondents Krymowski and Marshall.

[1] BY THE COURT: -- The respondents were charged on an information reading:

On or about the 26th day of August, 1997, in the City of Scarborough, in the Toronto Region, and elsewhere in the Province of Ontario, did wilfully promote hatred against an identifiable group, to wit Roma, by communicating statements, including the written statements: "Honk if you hate Gypsies", "Canada is not a Trash Can", and "Your [sic] a cancer to Canada", contrary to the Criminal Code of Canada.

[2] The respondents conceded that Roma was an identifiable group but said nothing as to gypsies.

[3] The Crown appeals from the order of Ewaschuk J., sitting as a Summary Conviction Appeals Court judge, dismissing an [page77] appeal from an order of Otter J. dismissing the above information against the respondents. During argument at the conclusion of the trial and after the respondents had elected not to call evidence, their counsel submitted that, although there was an admission that Roma is an identifiable group, there was no evidence that the respondents had directed hatred at Roma. The evidence showed only that the chants and signs promoting hatred targeted gypsies, not Roma, and that as a result, it was argued the respondents should be discharged.

[4] In response to the argument of the defence, the Crown sought to amend the information to read "Roma a.k.a. gypsies". The trial judge refused. The Crown then asked the trial judge to take judicial notice of the dictionary definitions of Roma. Again, the trial judge declined. Finally, the Crown asked the trial judge to reopen the trial to permit the Crown to call evidence that gypsies are the same as Roma. The trial judge refused this application as well and as a result he dismissed the charges.

[5] The Crown appealed, challenging each of the three rulings referred to in the previous paragraph. Ewaschuk J. dismissed the appeal. The Crown's application for leave to appeal to this court challenges the same three rulings that were considered by the summary conviction appeal court.

[6] As to judicial notice, at trial the Crown asked that the court take judicial notice of the dictionary definitions of Roma (singular -- Rom) in order to establish that Roma are gypsies or are known as gypsies. In support of its application, the Crown referred to five dictionaries. Although the language in each is not exactly the same, all of the dictionaries referred to Rom as a gypsy. In some instances, the definitions were limited to a man or boy gypsy.

[7] There are two bases on which a court may take judicial notice of a fact. The one that is relevant to this case covers facts which are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy: Sidney W. Lederman and Alan W. Bryant, Sopinka's The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths Canada Ltd., 1999) at para. 19.13.

[8] Given that the Crown asked nothing more than that the trial judge take judicial notice of definitions found in standard dictionaries and given that those definitions were relatively consistent, the trial judge should probably have acceded to the Crown's request and taken notice of those definitions. However, the trial judge's error, if there was one, is not dispositive of the application before this court.

[9] In dismissing the summary conviction appeal, Ewaschuk J. found that there was no evidence that the respondents had [page78] targeted Roma. He reasoned that even if one accepted that Roma are a subset of gypsies (as the dictionary definitions would have shown), that would not have been sufficient to found convictions; rather, it would be necessary to show that the words Roma and gypsies are interchangeable (according to the dictionaries they are not). Only then would it be established that the hatred targeted at gypsies was targeted at Roma. Put another way, Ewaschuk J. concluded that even if the trial judge had taken judicial notice of the fact that gypsies include Roma, the result of the trial would have been the same. That conclusion turned on an assessment of the evidence.

[10] It was suggested in argument before us that the reason that the Crown specified Roma rather than gypsies as the identifiable group in the information was in order to be sensitive to the Roma people. The term gypsy in its broadest sense is often used to refer to people who lead a nomadic life, and for many Roma, the term gypsy conjures up unflattering or stereotypical images. For example, one dictionary definition of a gypsy is "a cunning rogue": Oxford English Dictionary, 2nd ed. We understand the Crown's concern for sensitivity; however, what seems to be common ground is that not all people who are referred to as gypsies are in fact Roma.

[11] Pursuant to s. 839(1) of the Criminal Code, R.S.C. 1985, c. C-46 an appeal lies to this court with leave on a question of law alone. The Crown's challenge in this court is to the decision of the summary conviction appeal court. The decision of the summary conviction appeal court relating to the judicial notice ground was based on an assessment of the evidence. The Crown's challenge in this court does not raise a question of law. Therefore, we would not give effect to this ground of appeal.

[12] Moreover, the trial judge's decision not to take judicial notice was an exercise of discretion. Likewise, the trial judge's refusals to amend the information or to allow the Crown to reopen its case were discretionary rulings. Noting the very late stage of the trial at which the Crown made the applications in issue, Ewaschuk J. declined to interfere with the trial judge's exercises of discretion. We see no basis upon which to interfere with his decision.

[13] There was a further ground of appeal presupposing a new trial. It is now redundant.

[14] Leave to appeal is granted and the appeal is dismissed.

Appeal dismissed.

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