Ontario Court of Justice

Date: August 29, 2019

Court File No.: Toronto 4817 998 18-70010807-01;-02

Between:

Her Majesty the Queen

— and —

James Sears and Leroy St. Germaine

Before: Justice Richard Blouin

Oral submissions on sentence heard: April 26, 2019 (James Sears); July 15, 2019 (Leroy St. Germaine)

Reasons for Sentence (James Sears) released: August 22, 2019

Reasons for Sentence (Leroy St. Germaine) released: August 29, 2019

Counsel:

• Ms. Jamie Klukach — counsel for the Crown
• Mr. Robin Flumerfelt — counsel for the Crown
• Ms. Erica Whitford — counsel for the Crown
• Mr. Dean Embry — counsel for the defendant James Sears
• Mr. Ian McCuaig — counsel for the defendant Leroy St. Germaine

BLOUIN, J.:

Introduction

[1] Both defendants were found guilty of wilful promotion of hatred, contrary to s. 319(2) of the Criminal Code, by this Court in a decision released January 24, 2019 (2019 ONCJ 104). Over a three-year period, Mr. St. Germaine published, and Mr. Sears edited, a community newspaper called Your Ward News (YWN), which promoted hate against Jews and women. To summarize, the publication glorified Nazism and Adolf Hitler, and denied the Holocaust. It consistently blamed, demonized and maligned Jews. Women were represented as inferior, immoral, and less than human. Physical and sexual violations against them were counselled and celebrated.

[2] On April 26, I heard submissions on sentence regarding both defendants. Judgment on sentence for Mr. Sears was set for May 31. On May 27, Sears brought an application, successfully, to remove counsel and adjourn his date for sentencing from May 31 to July 15. He also brought an application to re-open the trial and/or have a mistrial declared by reason of ineffective assistance of counsel. On July 15, I ruled that most of the submissions to re-open had no merit. Only the issue of ineffective assistance of counsel was subject to further review by this Court. That application was dismissed today. Full written reasons will be released shortly.

[3] On April 26, Mr. St. Germaine produced a letter from Aboriginal Legal Services (made Exhibit 26) indicating that their organization was unable to prepare a Gladue report. Mr. McCuaig requested an adjournment of the sentencing hearing regarding his client in order to gather more information exploring his indigenous identity and its effects. To that end, I ordered a pre-sentence report ("PSR" Exhibit 32(a)), and the sentencing hearing for Mr. St. Germaine was adjourned to July 15, 2019, and again until August 22 to determine if a victim/offender reconciliation was possible.

Positions of the Parties (Sears)

[4] The Crown submits that the appropriate sentence for Mr. Sears is six months in jail (the maximum) on each count served consecutively for a total sentence of one year. Also, the Crown submits that probation for three years with terms restricting publication is required.

[5] Exhibit 28 was a binder which documented seven community impact statements and the most recent issues (Fall 2018 and Winter 2019) of YWN. The Crown also tendered a screen shot from YWN (made Exhibit 27) which alerted readers to the hate conviction and the publication's decision to restrict access of the impugned 22 back issues to "private communication" by way of a user name and password.

[6] The defence submits that the appropriate sentence is four to six months of incarceration served in the community (i.e. a conditional sentence). Exhibit 30 was a CPIC print out which showed no convictions in the name of Mr. Sears. Mr. Embry argued that the sentences on each count should be served concurrently on the basis that the publication of hate speech was "one continuous transaction".

[7] Mr. Embry also takes the position that it has not been proven beyond a reasonable doubt that Mr. Sears authored either of the two most recent issues of YWN, or the privacy restriction notice on the YWN web-site. He also argues that the community impact statements do not comply with s. 722.2 of the Code in that they reflect possible harm, not actual harm. Finally, he submits that the requested probation terms would unduly curtail his client's Charter right to free expression.

Procedural Maximum Sentence

[8] Wilful promotion of hatred against an identifiable group is an offence where the Crown has the election to prosecute by indictment, or by summary conviction. The maximum sentence if the Crown elects by indictment is two years in jail. Alternatively, as the Crown elected in this prosecution, the maximum sentence for a summary conviction prosecution is six months in jail. The Crown took the position that the six-month procedural maximum is not the "maximum sentence" when the appropriate sentence is determined after all aggravating and mitigating factors are analyzed, and all sentencing principles considered.

[9] In R. v. Cheddesingh, 2004 SCC 16, the Supreme Court of Canada acknowledged the exceptional nature of a maximum sentence but rejected the argument that it must be reserved for the worst crimes committed in the circumstances of the worst offender. Section 718.1 of the Criminal Code dictates that the fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[10] In R. v. Solowan, 2008 SCC 62, the Supreme Court reiterates the principle at paragraph 15:

A fit sentence for a hybrid offence is neither a function nor a fraction of the sentence that might have been imposed had the Crown elected to proceed otherwise than it did. More particularly, the sentence for a hybrid offence prosecuted summarily should not be "scaled down" from the maximum on summary conviction simply because the defendant would likely have received less than the maximum had he or she been prosecuted by indictment.

[11] As a result, I conclude that I must first determine the appropriate sentence, then apply any procedural limitations that would truncate that sentence.

Consecutive or Concurrent

[12] The Crown submits that the sentences given for each count ought to be served consecutively. In R. v. Grummer, 1983 OJ 181, the Ontario Court of Appeal, while recognizing the general rule that offences arising out of the same transaction or incident should normally be concurrent, that rule is not applied where the offences constitute invasions of different legally-protected interests. In this case, identifiable groups, those being women and Jews, have separate, legally-protected interests. The defendant could promote hatred against one and not the other, or vice versa. He promoted hatred against both. In addition, the hate was promoted against both groups not from one incident, but many, and consistently over a period of three years.

[13] In my view, the appropriate sentence should be determined regarding the promotion of hatred against women, and then regarding the promotion of hatred against Jews. It should be served consecutively for the reasons indicated above.

Aggravating Factors

[14] Section 718(2)(a)(ii) of the Criminal Code provides that where offences are motivated by hate, the sentences ought to be increased.

The potential breadth of the promotion of hate. This was not a situation of a pamphlet distributed by hand, but a publication with a purported readership of over one million, and an on-line presence.

The Winter 2019 edition of YWN, published after the trial but before the verdict, has many of the same anti-Semitic themes, including solicitations for men to sit on the steering committee of the "Adolf Hitler Fan Club". It continued to de-humanize women. I conclude that Mr. Sears is the author of the two most recent editions of YWN, and the website notice (Exhibit 27). The context, content and format of both the recent editions and website matches up coherently with the 22 issues of YWN.

The Crown made a pre-trial application to admit at this trial certain examples of what was submitted to be prior discreditable conduct. I admitted some and not others. However, none of that evidence was necessary to my finding at trial that Mr. Sears intended to promote hate.

On October 5, 1992 Mr. Sears pleaded guilty before Justice H. Locke (1992 OJ 3059) to two counts of sexual assault regarding inappropriate and illegal contact with two female patients. He received a suspended sentence. Similarly, the Crown provided a panel decision of the College of Physicians and Surgeons dated December 1, 1992 which, as a result of the above criminal matters and other transgressions, his licence to practice medicine was revoked.

The Crown relied on the prior criminal convictions from 1992 to establish that this was not the defendant's first criminal offence. Interestingly, a CPIC criminal record (Exhibit 30) was produced which evidenced no convictions. It is unknown if a pardon was granted.

In my view, although the prior convictions were established by the Crown beyond a reasonable doubt, as an aggravating factor, I gave them very little weight. Not only does his record not reflect these convictions, but the passage of time makes them relatively insignificant.

Impact on the community – see below.

Mitigating Factors

[15] While the offending 22 back issues were still available to those with a username and password (thereby ostensibly making them private communication and not prohibited) the on-line availability to the public was restricted by YWN after the finding of guilt. (See Exhibit 27.)

Community Impact

[16] The Crown produced sentencing materials (Exhibit 28) which contained seven "impact statements". Mr. Embry objected to their admissibility, and since they had not been made available to me until the morning of sentencing, I told counsel I would rule on their admissibility and compliance with s. 722.2 (Community Impact Statements) during this judgment. The following organizations and individuals were represented:

• Women's Legal Education and Action Fund (LEAF)
• Toronto Rape Crisis Centre/Multicultural Women Against Rape
• Canadian Women's Foundation
• Friends of Simon Wiesenthal Center for Holocaust Studies
• The Centre for Israel and Jewish Affairs
• Errol Tenenbaum
• Paul Conway

[17] In my view, the community impact statements conform with s. 722.2 of the Code (and, by reference, form 34.2 regarding an established program). Mr. Embry submitted that the statements documented possible harm but not actual harm. I disagree. Promotion of hate destroys human rights and civil society (R. v. Keegstra, 1996 AJ 833, para 17). Whether any further harm occurred from this publication has not yet been determined. But make no mistake, harm has already been caused to the community.

[18] All of that having been said, and recognizing the views expressed, I need not rely on any of the individual impact statements in determining the appropriate sentence. The harm to the community is universal and obvious.

Prior Decisions

[19] Given the many variables that exist in any given criminal case, it is always a difficult task to find prior sentencing rulings that bear close similarity to the case before the Court. The following decisions have been engaged and analyzed in furtherance of this task:

1. R. v. Keegstra, 1996 ABCA 308
2. R. v. Zundel, [1988] O.J. No. 4657
3. R. v. Mahr, 2010 ONCJ 216
4. R. v. Noble, 2008 BCSC 216
5. R. v. Presseault, 2007 QCCQ 384
6. R. v. Mackenzie, 2016 ABPC 173
7. R. v. Brazau, [2014] O.J. No. 2080
8. R. v. Topham, 2017 BCSC 551
9. R. v. Andrews, 65 O.R. (2d) 161
10. R. v. Harding, [2001] O.J. No. 325
11. R. v. Lelas, [1990] O.J. No. 1587
12. R. v. Brazau, 2016 ONSC 1484
13. R. c. Castonguay, 2013 QCCQ 4285
14. R. v. Reinhard Gustav Mueller (aka Reni Sentana-Reis) (1 September 2006) No. 040910531Q2, Court of Queen's Bench of Alberta, (Edmonton Registry)

[20] In addition to analyzing the variables of each case, sentencing courts look to the Supreme Court of Canada (SCC) and provincial appellate courts for guidance as to the sentencing principles that must not only be considered, but given predominance. Although the SCC dealt with the constitutionality of the hate promotion legislation, the proper sentence in Mr. Keegstra's case was not engaged at that level.

[21] However, the Alberta Court of Appeal reviewing the propriety of the trial judge's sentence concluded that Mr. Keegstra ought to have received a one-year jail sentence (however, because of the long history of unusual litigation, and the expense and anxiety to him and his family, the non-custodial sentence was not changed). Keegstra, a high school teacher, repeatedly sought to indoctrinate his students against Jewish people by promoting anti-Semitic conspiracies, and denying the Holocaust. At paragraph 11:

We agree with the Crown that, despite the previous good record of the accused, the crime here deserves a sentence of imprisonment in order to express society's unconditional rejection of hatemongering, to emphasize the harm to society done by those who preach racial hatred, and to deter those of a like mind. We agree also that the fact that the accused promoted hatred to his students in his high school classes over several years was an aggravating factor, not a mitigating factor.

[22] The Ontario Court of Appeal in 1990 (R. v. Lelas) dealt with the sentencing of a young man who, after an evening of drinking beer and using LSD:

• spray-painted swastikas on the door of a synagogue,
• spray-painted anti-Semitic slogans on the synagogue's property,
• spray-painted a swastika on the sign of a Hebrew school and anti-Semitic slogans on the door,
• spray-painted a swastika on the hood of an automobile.

[23] Mr. Lelas was 22 at the time of sentencing. He had a criminal record involving theft under, and assault bodily harm. He pleaded guilty and apologized to the Jewish community in open court. He accepted responsibility by providing a statement to the police. The Court of Appeal increased from the six-month incarceration sentence given by the trial judge to a term of one year. Paragraph 31 reads as follows:

A sentence of six months is not, in my opinion, sufficient to meet the needs of general deterrence and to show society's abhorrence of the acts of the respondent. If it were not for the fact that Lelas has been released and must be re-incarcerated, I would have imposed a longer sentence. The message must go out loud and clear that conduct such as that engaged in by the respondent will not be tolerated in Canadian society, and if it is engaged in, it will be met with a severe penalty. Accordingly, I would allow the appeal and increase the sentence to one year concurrent on each count.

Probation

[24] The Crown submits that Mr. Sears, in addition to the mandatory probation terms, by way of reducing the likelihood of recidivism, be prohibited from all publishing activities for the three-year term of probation. Specifically, there ought to be a term that prohibits him from editing or publishing YWN since the public associates that newspaper with hate against women and Jews.

[25] Mr. Embry argues that the above prohibitions are far too broad in that they offend his Charter-protected right regarding freedom of expression. I agree. Mr. Sears should be free to publish whatever he wishes, even if unpopular and objectionable, as long as his words do not offend the Criminal Code. If he publishes hate through YWN or another vehicle, he risks being charged again, with all of the jeopardy that would entail.

[26] Accordingly, I will not impose probation.

Conclusion (Sears)

[27] If the Ontario Court of Appeal, in its pronouncement regarding sentencing for anti-Semitic hate, concluded that the appropriate sentence for Mr. Lelas was one year in jail in 1990, it is impossible, in my view, to conclude that Mr. Sears, in significantly more serious circumstances, in 2019, should receive a sentence of any less than 18 months of jail. Mr. Lelas was a young man who after drinking one evening committed distinct anti-Semitic acts of vandalism expressing hate. He pleaded guilty and apologized to the Jewish community. Mr. Sears, in his mid-fifties, promoted hate over a lengthy period of time to a vast audience in an era where on-line exposure to this material inexorably leads to extremism and the potential of mass casualties.

[28] For the same reasons, the promotion of hatred against women requires, at the very least, a similar sentence. In some ways, the hate promoted is even more aggravating because not only are women de-humanized, but criminal offences against them are trumpeted.

[29] Looking at the appropriate sentence through the lens of the fundamental principle of sentencing in s. 718.1 (that is the gravity of the offence and the degree of responsibility of the offender), my view is that both counts should attract an 18-month jail term. Obviously, as indicated above, the procedural maximum sentence I am permitted to impose is one of six months on each count (consecutive). Accordingly, Mr. Sears will be incarcerated for one year.

[30] Mr. St. Germaine's sentencing was somewhat more complicated in that a Gladue report was sought by defence and, after that was not successful, a restorative justice procedure was investigated and ultimately determined to be unhelpful.

[31] The Reasons for Sentence regarding Mr. Sears released August 22, 2019, have obvious parallels to Mr. St. Germaine's case. As a result, I will incorporate the above reasons with the exception of three areas: Position of the Parties, Aggravating and Mitigating Factors and Conclusion.

Position of the Parties (St. Germaine)

[32] The Crown submits the appropriate sentence for Mr. St. Germain is three months on each count, consecutive, for a total of six months incarceration. Following which, Mr. Germaine should be on probation for two years with terms prohibiting publication of YWN or similar content, and no contact with Mr. Sears. Mr. McCuaig submits that his client should receive a suspended sentence or, if a custodial sentence is required, a conditional sentence of two months.

Aggravating Factors

The aggravating factors noted in paragraph 14 above are obviously relevant to the sentencing of Mr. St. Germaine with the obvious exception of the prior discreditable conduct of Mr. Sears. Exhibit 33 was the criminal record of Mr. St. Germaine which, like Mr. Sears, was dated and not particularly relevant to this sentencing.

Mitigating Factors

Mr. St. Germaine is Metis and should be sentenced with the Gladue factors considered:

Section 718.2(e) of the Criminal Code states: "all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders."

Mr. St. Germaine co-operated with the police by providing a videotaped statement that provided valuable evidence in this case.

Mr. St. Germaine expressed some regrets to the author of the PSR over the direction YWN took after Mr. Sears took editorial control. He plans to sever all ties with Mr. Sears once this case has concluded. I recognize that before Mr. Sears became editor, YWN was primarily a publication focussed on holding political figures accountable to the public. In addition, many people that have had contact with Mr. St. Germaine over the years in the community expressed surprise at the content in YWN after 2014, and that the content did not reflect the views of Mr. St. Germaine.

After having difficulties with the criminal justice system, and with alcohol, as a young man, he became a productive citizen and was responsible for many positive community projects.

Mr. St. Germaine is nearly 78 years of age and in poor health. That poor health was obvious to me throughout the proceedings. The PSR outlined his health issues:

Health Issues

Mr. St. Germaine has a number of health issues that impact his day-to-day activity. He suffers from Chronic Obstructive Pulmonary Disease (COPD) with a slight build up of fluid in his pleural cavity. In addition, he also suffers from moderate to severe emphysema, congestive heart failure, coronary artery disease, hypertension and he has a pacemaker. His brother informed that the pacemaker is due to be replaced in November of this year. The information presented was supported by documentation provided by the subject (courtesy of Women's College Hospital and the East End Community Health Centre). His laboured breathing throughout the writer's interactions with him as well as supporting comments by the sources interviewed further supports that the subject is in ill health.

Although Mr. St. Germaine was aware of the content of YWN as edited by Sears, there is no evidence he created any of it.

Conclusion (St. Germaine)

[33] Given the above noted mitigating factors, but significantly the Gladue factors (paragraph 93 R. v. Gladue, [1999] 1 SCR 688) involving intergenerational trauma and institutional discrimination leading to an exploration of reasonable alternatives to imprisonment in the case of aboriginal offenders, I am of the view that a 12 month conditional sentence is the fit sentence (that is 6 months on each count to be served consecutively). More directly, the fundamental principle of sentencing in 718.1 of the Code involves weighing of the gravity of the offence and the degree of responsibility of the offender. All of the above-mentioned mitigating factors reduce the moral blameworthiness of Mr. St. Germaine, while the gravity of the offence remains high.

[34] The principle of denunciation and deterrence can be met with a conditional sentence as long as there is, contained within, a punitive aspect. I am satisfied that the defendant will not pose a danger to the community by serving this sentence in his residence under house arrest. All of the other sentencing purposes and principles (and the rest of the pre-conditions in s. 742.1) are met by the significant deprivation of liberty involved in this 12 months conditional sentence.

[35] Mr. St. Germaine shall remain in his residence for the entire sentence, except for:

• medical appointments or emergencies;
• one day a week for four hours for the purposes of shopping for necessities;
• attendance for appointments with his conditional sentence supervisor;
• any other absences from the residence if approved in writing by the conditional sentence supervisor.

The exceptions above include travelling directly to and directly from any allowed absence.

[36] As with Mr. Sears, and for the same reasons, I decline to order probation.

Released: August 29, 2019

Signed: "Justice Blouin"