Court File and Parties

COURT FILE NO.: CR-16-10000720-0000 DATE: 20170516 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ERIC BRAZAU

Counsel: Stefania Fericean, for the Crown Eric Brazau on his own behalf

HEARD: February 17, March 17, and April 13, 2017

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON APPLICATION TO STRIKE GUILTY PLEAS

BACKGROUND

[1] On November 30, 2015 there was a serious terrorist attack in Paris. Terrorists murdered over 100 people in various locations throughout that city, including, most infamously, the Bataclan Theatre where an alternative rock band, The Eagles of Death Metal, were giving a concert.

[2] When Eric Brazau heard about the terrorist attack he was, to use his words “disturbed”. Mr. Brazau has clearly been disturbed, again to use his word, about what he perceives to be the dangers posed by radical Islamic terrorists. He went to Yonge-Dundas Square in downtown Toronto. He loudly vocalized his views and his concerns.

[3] The police were called to Yonge-Dundas Square. They were responding to reports of a disturbance. Unfortunately for Mr. Brazau he was on both probation and recognizance at the time. The police arrested Mr. Brazau and charged him with several offences, including breach of probation, breach of recognizance, causing a disturbance, wilful promotion of hatred and advocating genocide.

[4] Mr. Brazau has a long criminal record, mostly for offences involving public order such as mischief, causing a disturbance, breaches of recognizance, and breaches of probation. He has also been convicted of assault multiple times and assault with a weapon, as well as criminal harassment. In 2014 he was convicted of wilful promotion of hatred.

[5] The probation arose out of an incident related to the manner in which he has disseminated his political views. My colleague B. O’Marra J. heard a summary conviction appeal from convictions for mischief to property, causing a disturbance, and breach of probation. O’Marra J. described the incident this way (I excerpt the key parts):

At mid-afternoon on Tuesday, July 29, 2014, the appellant boarded the Bloor subway in Toronto. He was accompanied by two friends. One friend wore clothing that depicted the Israeli flag. The second friend had a video recording device. While on the subway, the appellant and the man in the Israeli flag clothing discussed Islam and the Quran. The second friend recorded the conversation. The appellant viewed this process as a "social experiment" and wanted to record other people's views on those topics.

Another passenger joined the conversation. When that conversation ended, the passenger told the appellant that he respectfully disagreed with him. As the passenger left the train, the appellant stated "it wasn't that nice to meet you. I hate Muslims." A number of other passengers appeared to be shocked by that comment.

Ms. D. was in that subway car with her two young children when the above conversation took place. The appellant engaged her in conversation. He did so in a loud voice and came close to her. She felt intimidated. She tried to remain calm and to shield her children from the situation. A friend of the appellant continued to film this interaction despite her request not to film her or her children. Ms. D. noticed that other passengers appeared to be disturbed by this incident. Three young Muslim girls wearing hijabs kept their heads down and avoided eye contact. An unidentified passenger pressed the alarm button which stopped the train just before it reached Islington station.

[6] See: R. v. Brazau, 2016 ONSC 1484 at paras. 3-7.

[7] Mr. Brazau’s actions caused several TTC trains to slow down or be put out of service. The TTC endured a ripple effect of delays. Thousands of commuters were delayed for long periods of time during the busy weekday rush hour.

[8] The trial judge in that case sentenced Mr. Brazau to twenty months in jail (less credit for pre-trial custody) and two years of probation. Mr. Brazau appealed. He received bail pending appeal. He was on that bail when he decided that the people in Yonge-Dundas Square needed to hear what he had to say about the Bataclan terrorist attack. O’Marra J. later upheld the convictions and sentence.

[9] In August 2013 Mr. Brazau was convicted of failing to comply with a recognizance. He was placed on probation. He appealed, and the probation order was stayed. That appeal was dismissed in June 2015, which meant that the probation order was also in effect on that day when he decided to exercise what he perceived to be his free speech rights.

[10] Mr. Brazau spent time in custody after he was arrested. He eventually obtained bail at the end of the preliminary inquiry. The Crown brought a bail review but held off when it appeared that there might be a resolution of the charges.

THE GUILTY PLEA

[11] On February 17, 2017 Mr. Brazau entered a guilty plea before me to one count of causing a disturbance, one count of breach of probation, and one count of breach of recognizance. Sentencing was adjourned to March 17, 2017.

[12] The guilty plea followed a series of judicial pre-trials involving Crown counsel, Mr. Brauzau’s counsel, and me. Crown and defence counsel eventually agreed that there would be a joint submission for the Court’s consideration.

THE APPLICATION

[13] On March 16, 2017 Mr. Brazau’s counsel, Mr. Rieger, filed a notice application to strike the guilty plea. Mr. Rieger sensibly took the position that he only filed the application in order to assist Mr. Brazau, but that he could not act for him on the application to strike. Mr. Brazau asked for a short adjournment so he could retain counsel.

[14] When we returned on April 13, 2017 Mr. Brazau indicated that he would not be retaining new counsel. He wished to act for himself. I heard submissions and dismissed the application. I indicated that written reasons would follow. These are those reasons.

ISSUES AND ANALYSIS

[15] Mr. Brazau’s argument was somewhat difficult to follow. He appeared to make the following points:

• The Crown over-charged him with inciting hatred, exposed him to a lengthy jail sentence, and used the spectre of revoking bail in order to extract a guilty plea to lesser offences. This tactic constituted undue oppression.
• The Crown’s case on inciting hatred has collapsed because he has new evidence that speaks directly to whether he committed a hate crime. Section 319(2) of the Criminal Code, the section prohibiting the wilful promotion of hatred, was not meant to apply to warnings against attempts to subvert Canadian values. The Crown, therefore, cannot rely on his comments in Yonge-Dundas square that night as aggravating factors.
• The Crown’s case on causing a disturbance has also collapsed because the facts as read in do not make out the elements of the offence and he did not have the mens rea to cause a disturbance.

[16] In my view none of these arguments has merit.

(a) Did the Crown over-charge Mr. Brazau in order to extract a guilty plea?

[17] Mr. Brazau made submissions that he felt pressured. Mr. Brazau essentially argues a form of abuse of process by the Crown. He was concerned about re-incarceration in light of the outstanding Crown bail review. In essence, he argues a form of abuse of process by the Crown.

[18] I disagree. Crown counsel did not extract a guilty plea by the use of undue oppression. There is no actual sworn evidence that Mr. Brazau felt pressured or oppressed. In his affidavit he simply states that the Crown charged him with serious offences in order to extract a guilty plea to lesser offences. His affidavit consists of a conclusion with no actual facts to back it up.

[19] As Durno J. put it in R. v. Musoni, 243 C.C.C. (3d) 17, [2009] O.J. No. 1161, everyone charged with a crime experiences inherent and external pressures. Mr. Brazau is no different. Furthermore, based on the facts that he agreed to Crown counsel certainly did not over-charge Mr. Brazau. A judge of the Ontario Court of Justice was satisfied that there was sufficient evidence to order him to stand trial. Based on his criminal record there was a basis for the Crown to seek bail revocation.

[20] In order to be valid, a plea must be voluntary and unequivocal. The accused person must be aware of the nature of the allegations, the effect of his plea, and the consequences of his plea: R. v. T.(R.) (1992), 10 O.R. (3d) 514, [1992] O.J. No. 1914 (C.A.).

[21] Mr. Brazau’s counsel, Mr. Reiger, indicated that he had discussed the plea at length with Mr. Brazau. He stated:

MR. RIEGER: Just or the purposes of the record, Your Honour, I’ve conducted a plea inquiry with Mr. Brazau. He is making the pleas voluntarily. He’s admitting the essential elements of the offences in question, the breaches, both that he was on the recognizance and on the probation order, and that he caused a disturbance on the evening in question. He understands the nature and consequence of the plea, including that he’s giving up the right to a trial in these matters and he understands that, although this is a joint submission…

THE COURT: All right.

MR. RIEGER: … it has been judicially pre-tried, the final say both on sentence and probation conditions is up to Your Honour.

[22] I then conducted my own plea inquiry:

THE COURT: Okay. Mr. Rieger, I appreciate that and I have no doubt that you would have gone through that with Mr. Brazau. But I think I’m required under the Criminal Code to make the inquiry as well, but I appreciate the assistance. So Mr. Brazau, I understand that you do wish to enter a plea of guilty today?

ERIC BRAZAU: I will enter a plea of guilty, yes.

THE COURT: All right. And you understand that you’re giving up your right to trial on these charges?

ERIC BRAZAU: That is correct, yes.

THE COURT: Okay. And you understand that there may be some agreement between the lawyers as to what the penalty should be but it’s up to me, at the end of the day, to decide?

ERIC BRAZAU: That’s correct, yes.

THE COURT: Okay. All right. And do you also understand that what you’re saying is that on the particular counts that you’re pleading guilty to the Crown could prove those charges beyond a reasonable doubt? Do you understand that – if you went to a trial? Do you want me to explain that a little more?

ERIC BRAZAU: You’re saying – if I – if I understand…

THE COURT: Right.

ERIC BRAZAU: … I’m agreeing to certain counts because I’m under the – I’m under the impression that the Crown would have no difficulty proving those counts at a trial.

THE COURT: Exactly. You understand that?

ERIC BRAZAU: Yes.

THE COURT: Okay. All right. And I know you’ve received legal advice?

ERIC BRAZAU: Yes, I have.

THE COURT: Okay. So after we’ve had this little discussion, do you still wish to enter a plea of guilty, sir? Are you still going to enter a plea of guilty?

ERIC BRAZAU: I – I will enter a plea of guilty.

THE COURT: All right.

ERIC BRAZAU: I don’t wish to, but I will.

THE COURT: Well, no one ever wishes to. That’s – that’s fair, but are you – you understand that you have a choice to make and you’re making this choice. Maybe I’ll…

ERIC BRAZAU: Yes, I do understand that. Yes.

[23] Mr. Brazau is an intelligent man who has some familiarity with the criminal justice system. He clearly demonstrated that he understood that he was under no compulsion to plead guilty. His plea was voluntary. When he appeared to equivocate, I pressed him and he indicated that he had a choice and was making a voluntary choice. He was represented throughout an extensive pre-trial process. Mr. Brauzau’s lawyer indicated on the record that they had discussed the nature and consequences of the plea. Mr. Brauzau’s lawyer further indicated on the record that they had discussed the elements of the various offences. Mr. Brazau’s guilty plea was valid. This application is simply buyer’s remorse.

(b) Can the Crown rely on Mr. Brazau’s comments as aggravating factors?

[24] Mr. Brazau also argued that he had new evidence that “crushes” the Crown’s case on inciting hatred. He presented what he called new evidence that Muslims in Canada are the ones inciting hatred. He said, in effect, that Muslims in Canada now present (and I paraphrase) a clear and present danger. I leave aside whether the so-called “evidence” is properly admissible.

[25] In a further convoluted argument that I did not quite understand, Mr. Brazau argued that while s. 319 of the Criminal Code criminalizes, for example, anti-semetic speech, it should not apply to anti-Islamic speech. That, he appeared to argue, is because he is communicating a warning. He asks, rhetorically, whether he was causing a disturbance or being a “soldier for Canadian values” – as he puts it.

[26] This argument cannot succeed. Mr. Brazau was not arraigned on any offences related to the wilful promotion of hatred. He did not plead guilty to any offences related to the wilful promotion of hatred. Mr. Brazau will not be sentenced on any offences related to the wilful promotion of hatred.

[27] The Crown does rely on some of the facts read in as aggravating factors. Aggravating factors must be proven beyond a reasonable doubt. Proving an aggravating factor under s. 718.2(a)(i) is not the same thing as proving the elements of a particular offence under s. 319 of the Criminal Code. Section 718.2 (a)(i) of the Criminal Code states:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor…

[28] There is a community impact statement from the National Council of Canadian Muslims. Members of the Canadian Muslim community have a real fear that they will be victims of hate crimes and violence. The community impact statement noted the increase in hate crimes against Muslims reported by the Toronto Police, the firebombing of a Peterborough mosque after the Paris terrorist attacks in 2015, and the horrific shooting at a Quebec City Mosque in February, 2017.

[29] Mr. Brazau argued that he needed to be able to contest the facts as read in. I permitted Mr. Brazau to file, as lettered exhibits, material that he says show that the National Council of Canadian Muslims has links to violent radicals. I permitted the filings not as evidence that the Court should rely on. Rather, I permitted the filings in order to have a proper record. In my view, these materials are simply irrelevant. That is because the purpose of the material is not to suggest he never uttered the words at issue. Mr. Brazau has never denied uttering those words. Indeed, he recorded them. The purpose of admitting the material was also not to suggest that his comments (or some of them) were not hate speech. The purpose of the material was to justify the comments he made in Yonge-Dundas Square that night.

[30] The justification (or lack of justification) for his words is beside the point. The point is whether those words are aggravating pursuant to s. 718.2(a)(i). Some of his comments:

• “500 westerners, not little Africans, die in a soccer game, theatre, by the Muslims yet the show must go on”
• “Islam is the problem, it is the cancer”
• “Sometimes I think that Islam is a real problem of immense magnitude like when the Nazis, fascists were coming”
• “here we go, nice Muslim guys walking by, maybe ISIS, al-Qaeda, who knows, right?” and then “The Muslim guy is back. You’re a Muslim. I support Islam, kill the infidel. You know the words of the Quran… a real Muslim has to kill you”

[31] Suggesting that Western lives are inherently more valuable than African lives is an inherently racist statement. Conflating Muslims and Nazis or suggesting that all Muslims are associated with ISIS or al-Qaeda are racist statements as well. These comments were the actus reus of the offence. The comments obviously link to his motive.

[32] I therefore find that the Crown can rely on Mr. Brazau’s comments as aggravating factors. Mr. Brazau’s attempts to justify his comments cannot succeed in rendering an otherwise valid plea invalid.

(c) Do the facts make out the offence of causing a disturbance?

[33] Causing a disturbance contrary to s. 175(1)(a) is a straight summary conviction offence. I raised that issue with counsel prior to sentencing Mr. Brazau. I am satisfied that as a Superior Court judge I have jurisdiction to hear a guilty plea on consent to a summary offence: R. v. D.M.E., 2014 ONCA 496 at paras. 58-60.

[34] Mr. Brazau argues that he did not have the mens rea to cause a disturbance. The facts as read in by the Crown were not made out. He did not turn his mind to the issue at the time but he says that he was disturbed. He was reacting to the disturbances in Paris. He reacted not by trying to cause a disturbance but rather by trying to raise awareness of the dangers of radical Islam (and I paraphrase here).

[35] I disagree. Mr. Brazau is confusing motive and intention. He wanted to communicate a point of view. He intended to do it by screaming, shouting, or using insulting or obscene language. He admits himself to being a provocateur. His motive, he says, is nothing less than saving Canada.

[36] In R. v. Lohnes, [1992] 1 S.C.R. 167 McLachlin J. (as she then was) described the ambit of s. 175(1) (a) of the Criminal Code at paras. 18, 30:

… before an offence can arise under s. 175(1) of the Criminal Code, the enumerated conduct must cause an overtly manifested disturbance which constitutes an interference with the ordinary and customary use by the public of the place in question… It is not necessary that there be a separate disturbance secondary to the disturbing act; the act itself may in some cases amount to a disturbance and "cause" it in this sense…

… 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… 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.

[37] The mens rea required is not the intention to cause the disturbance itself. The intent required is to do one of the things set out in the Code: for example, one must possess the intention to fight, scream, shout, or use insulting language. The disturbance is the by-product. The disturbance must cause interference with the ordinary and customary use of the public place. In other words, the offence catches those who intend to do the things that cause a disturbance. That is exactly what Mr. Brazau intended: he meant to convey his opinion by screaming, shouting, or the use of insulting or obscene language. His reason for the acts - his motive – was irrelevant.

[38] Mr. Brazau should understand that this ruling is ultimately not about his right to freedom of speech. It is about maintaining public order and promoting respect for the rule of law. Without public order and the rule of law there can be no true freedom of speech.

DISPOSITION

[39] The Application is to strike the guilty pleas is dismissed.

R.F. Goldstein J. Released: May 16, 2017