COURT FILE NOS.: CR-19-70000072-00AP

CR-19-70000077-00AP

DATE: 20210614

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

JAMES SEARS

Appellant

Michael Bernstein, for the Crown

James Sears, in person

BETWEEN:

Ian McCuaig, for Leroy St. Germaine

HER MAJESTY THE QUEEN

Respondent

– and –

LEROY ST. GERMAINE

Appellant

HEARD: November 10, 12, 16, and 17, 2020

CAVANAGH J.

REASONS FOR JUDGMENT

Introduction

[1] The appellants, Leroy (Lawrence) St. Germaine and James Sears were tried in the Ontario Court of Justice before Justice Richard Blouin. Each appellant was charged with two counts of wilfully promoting hatred against an identifiable group contrary to s. 319(2) of the Criminal Code. The identifiable group in count one was Jews. The identifiable group in count two was women.

[2] Each appellant was found guilty on each count.

[3] Mr. St. Germaine was given a conditional sentence of six months on each count to be served consecutively under house arrest.

[4] Mr. Sears was sentenced to a term of imprisonment of six months on each count to be served consecutively, a total of one year.

[5] Each appellant appeals his conviction and sentence.

[6] This appeal was heard in November 2020 by Zoom teleconference because of the COVID-19 pandemic. Because of the pandemic, the release of the decision on the appeals was deferred until June 14, 2021.

Summary of Facts

[7] The appellant’s offences were alleged to have occurred between March 1, 2015 and June 30, 2018. During this period of time, Mr. St. Germaine was the owner and publisher of Your Ward News (“YWN”). Mr. Sears started to write articles for YWN in March 2015. In May 2015 he became its editor-in-chief and thereafter exercised editorial control over its contents.

[8] All 22 issues of YWN published between January 2015 and December 2018 were filed as an exhibit at trial.

[9] At trial, the parties entered into a Statement of Agreed Facts in which the following facts, among others, were admitted:

a. Jews are an identifiable group within the meaning of section 318(4) of the Criminal Code.

b. Women are an identifiable group within the meaning of section 318 (4) of the Criminal Code.

c. The defendant, LeRoy (Lawrence) St. Germaine is the owner and publisher of Your Ward News which was registered with the Ministry of Consumer and Commercial Relations in September 2013. The business premises of Your Ward News were located in East York during the time period set out in the charges. As publisher, Mr. St. Germaine is aware of the publication’s content distribution.

d. The defendant James Sears (a.k.a. Dimitrious Sarafopouolos) started to write articles for Your World News in March 2015 and has been the editor-in-chief since May 2015, exercising editorial control over its contents since then. Mr. Sears authors articles under his own name and under the pen name “Dimitri the Lover”. Under this pen name, Mr. Sears also maintains a social media presence through a website, blog, and Twitter account.

e. Until June 6, 2016, your Work News was delivered by Canada Post. On that date, the Ministry of Public Services and Procurement issued an order prohibiting Canada Post delivery of Your World News. It is now delivered by private delivery to homes and businesses, primarily in Toronto and adjacent regions.

f. Your Ward News is delivered free of charge and without subscription to over 300,000 recipients. At the time of trial, current and past issues could be accessed online.

[10] On January 24, 2019, the trial judge released his reasons for finding that both Mr. Sears and Mr. St. Germaine guilty as charged on each count. On August 22, 2019, the trial judge released his reasons for sentence on the convictions against Mr. Sears. On August 29, 2019, the trial judge released his reasons for sentence on the convictions against Mr. St. Germaine.

Analysis

[11] I first address the issues raised by both appellants with respect to their appeals from the trial judge’s findings of guilt against each appellant on each count. Mr. Sears supported the submissions made by Mr. St. Germaine, through counsel, and Mr. St. Germaine also supported certain of the supporting submissions made by Mr. Sears on the issues of sufficiency of reasons and whether the verdicts are unreasonable.

[12] I describe the submissions made on these appeals upon which both appellants rely as having been made by “the appellants” even if the submission was made by one appellant and adopted by the other appellant.

Were the reasons given by the trial judge insufficient such that the verdicts are unreasonable?

[13] The appellants submit that the trial judge’s reasons are deficient because they do not explain the court’s disposition of the case and they have placed his decision beyond review by an appellate court.

[14] I first set out the legal principles that apply on an appeal based on alleged insufficiency of reasons.

[15] In R. v. Dinardo, 2008 SCC 24, [2008] S.C.J. No. 24, at paras. 24-25 and 27, the Supreme Court of Canada explained the need for reasons in a criminal trial:

24 In R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, this Court confirmed that courts have a duty to give reasons. Reasons serve many purposes; in particular, they explain the court’s disposition of the case and facilitate appellate review of findings made at trial. The content of the duty will, of course, depend on the exigencies of the case. As this Court has noted, “the requirement of reasons is tied to their purpose and the purpose varies with the context” (Sheppard, at para. 24).

25 Sheppard instructs appeal courts to adopt a functional approach to reviewing the sufficiency of reasons (para. 55). The inquiry should not be conducted in the abstract, but should be directed at whether the reasons respond to the case’s live issues, having regard to the evidence as a whole and the submissions of counsel (R. v. D. (J.J.R) (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 32). An appeal based on insufficient reasons will only be allowed where the trial judge’s reasons are so deficient that they foreclose meaningful appellate review: Sheppard, at para. 25.

27. Reasons “acquire particular importance” where the trial judge must “resolve confused and contradictory evidence on the key issue, unless the basis of the trial judge’s conclusion is apparent from the record” (Sheppard, at para. 55).

[16] In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, the Supreme Court of Canada noted that the authorities establish that reasons for judgment in a criminal trial serve three main functions: (i) reasons tell the parties affected by the decision why the decision was made; (ii) reasons provide public accountability of the judicial decision; and (iii) reasons permit appellate review. The Supreme Court of Canada, at paras. 15-16, noted that in Sheppard and subsequent cases, the Court has advocated a functional context-specific approach to the adequacy of reasons in a criminal case. Courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments made and the trial, and with an appreciation for the purposes or functions for which they are delivered.

[17] In R.E.M., the Supreme Court of Canada held that these purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. As the Court noted, at para. 17, “[t]he object is not to show how the judge arrived at his or her decision, in a ‘watch me think’ fashion. It is rather to show why the judge made that decision”. The Supreme Court of Canada, citing the decision of the Court of Appeal for Ontario in R. v. Morrisey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, held, at para. 17, that “what is required is a logical connection between the ‘what’ – the verdict – and the ‘why’ – the basis for the verdict. The foundations of the judge’s decision must be discernible, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.”

[18] In R.E.M., the Supreme Court of Canada made it clear that explaining the “why” and its logical link to the “what” does not require the trial judge to set out every finding or conclusion in the process of arriving at the verdict. The Court, citing Morrisey, held, at para. 18, that reasons are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict. The Court held, at para. 20, that the trial judge need not expound on evidence which is uncontroversial or detail his or her finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned.

[19] In R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, the Supreme Court of Canada explained the functional test for the sufficiency of reasons, at paras. 24-26:

In my opinion, the requirement of reasons is tied to their purpose and the purpose varies with the context. At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.

The issue before us presupposes that the decision has been appealed. In that context the purpose, in my view, is to preserve and enhance meaningful appellate review of the correctness of the decision (which embraces both errors of law and palpable overriding errors of fact). If deficiencies in the reasons do not, in a particular case, foreclose meaningful appellate review, but allow for its full exercise, the deficiency will not justify intervention under s. 686 of the Criminal Code. That provision limits the power of the appellate court to intervene to situations where it is of the opinion that (i) the verdict is unreasonable, (ii) the judgment is vitiated by an error of law and it cannot be said that no substantial wrong or miscarriage of justice has occurred, or (iii) on any ground where there has been a miscarriage of justice.

The appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself.

[20] The appellants submit that the trial judge’s reasons are contradictory and the contradictions in the reasons are unresolved. They point to paragraph 4 of the trial judge’s reasons in which he wrote that the evidence from the expert witnesses was not necessary and the agreed statement of facts, Mr. St. Germaine’s police statement, and the 22 issues of YWN provide a complete factual foundation for his analysis.

[21] The appellants submit that notwithstanding this statement, the trial judge’s reasons reveal his reliance on the very evidence he described as being unnecessary. They point to paragraphs 21 through 26 of the reasons in support of their submission that the trial judge relied on the expert analysis of Dr. Penslar, one of the experts called by the Crown to testify at trial. The appellants also submit that the specific examples of hate speech identified by the trial judge in his reasons at paragraphs 14 to 20 are examples that were cited in the expert report of Dr. Benedet. They submit this shows that, contrary to his statements in the reasons that he did not rely upon expert evidence, the trial judge did so.

[22] The appellants point to the trial judge’s statement at paragraph 3 of his reasons in which he notes the defence argument that the need to employ experts by the Crown, in and of itself, recognizes the obscurity of the material. The appellants submit that no reasonable trier of fact could find that hatred which cannot be decoded without the assistance of an expert constitutes hatred in the context of s. 319(2) of the Criminal Code because no trier of fact could assume that the general public would have access to the advice that the trial judge relied on to understand the meaning of the published statements. They argue that notwithstanding his statements to the contrary, the trial judge did rely on expert evidence for this purpose and, therefore, the trial judge’s verdict is unreasonable and cannot be sustained.

[23] The sufficiency of the trial judge’s reasons must be considered in the context of the submissions made at trial. The Crown submitted at trial that statements communicated in YWN self-evidently promoted hatred against women and Jews. This was made clear to the trial judge in the Crown’s closing submissions where Crown counsel referred to the defence submission that the statements in YWN, read in context, are obscure, and that the fact that the Crown called experts demonstrates the obscurity. Crown counsel at trial submitted that the expert evidence was not tendered for the purpose of assisting the trial judge to find that the appellants wilfully promoted hatred. Crown counsel submitted in closing submissions that “no expert is required to observe what I submit is conspicuous, repetitive vile hatred in these passages. It’s the cornerstone of Your Ward News.” The Crown’s position at trial was that “[t]he messages of hatred in Your Ward News are clear and readily comprehensible by the average reader.” Crown counsel at trial relied on the expert evidence to show that “the form this hatred took conformed with historical hate literature” and as being relevant to proof of intent. See transcript of proceedings, January 16, 2019, at pp. 22, 28, and 32.

[24] In his written reasons, at para. 3, the trial judge accepted the defendants’ submissions that any comments expressed in YWN must be viewed contextually and he identified the argument raised by the defendants that the need to employ experts by the Crown recognizes the obscurity of the material. The trial judge went on to write, at para. 4:

Given the above submission, I think it is important to deal with the evidence of both experts at this point. I will first say that both were extremely impressive. They both provided the Court with a historical background to many issues written about in YWN. They both communicated their opinions regarding anti-Semitism and misogyny succinctly and authoritatively. More impressively, they both enhanced the strength of their opinions by responding thoughtfully to questions and challenges in cross-examination. I had no trouble accepting either expert’s evidence. As helpful and the impressive as they turned out to be, in my view, they were not necessary. The agreed statement of facts (Exhibit 1), Mr. St. Germaine’s police statement (Exhibit 18), and Exhibit 2 (the 22 issues of YWN) provide a complete factual foundation for my analysis.

[25] In oral reasons given on January 24, 2019, the trial judge stated:

Okay. I agree with your counsel in this matter that it’s important to read all of the issues of Your Ward News, and not just pick out certain quotes in certain parts, passages, that are in the newspaper.

When one does that, and I have done that, there is an overarching and unrelenting message of hate. The breadth and depth of this message made it clear to me, beyond any doubt, that you both fully intended to promote hate.

While both experts in this trial were excellent, and they assisted this Court in understanding a wider historical context regarding both anti-Semitism and misogyny, the 22 issues of this newspaper provided all the evidence necessary to conclude that you both wilfully promoted hate.

If this material does not rise above distasteful expression to qualify as hate, then I can’t imagine what will. I find you both guilty on both counts.

See transcript of proceedings, oral reasons for judgment, pp. 2-3.

[26] I disagree that the passages at paras. 21-26 of the trial judge’s reasons disclose that the trial judge relied upon expert testimony to found his understanding of hatred towards women and toward Jews. These passages show that the trial judge considered the expert testimony in the way he wrote that he did: as providing the Court with historical background to issues written about in YWN. The trial judge was clear in his reasons that he accepted the Crown’s submission that the 22 issues of YWN provided the evidence needed for him to reach conclusions on whether statements in YWN promoted hatred against identifiable groups.

[27] I also disagree that the fact that the trial judge cited examples of speech in paras. 14-20 of his reasons which correspond with examples cited by Dr. Benedet shows that he did not consider these examples independently without reliance on expert testimony. It would not be surprising that the trial judge used examples that were cited by Dr. Benedet if he considered the examples to be representative and appropriate. Even if the trial judge was directed to these examples through Dr. Benedet’s report, this would not justify a reasonable inference that the trial judge did not consider these statements independently of the expert evidence, as he wrote that he did.

[28] I do not accept the appellants’ submission that the reasons reveal that the trial judge relied on expert evidence to decode the statements in YWM which are alleged to promote hatred.

[29] The appellants submit that the trial judge erred by failing to explore whether there is an alternative explanation for the statements which he found constituted wilful promotion of hatred towards identifiable groups. They submit that the trial judge erred by failing show in his reasons his analysis of the statements in the 22 editions of YWN in context, and by failing to show in his reasons that he considered an alternative view of these statements, that they are merely offensive and provocative and do not constitute prohibited hate speech. The appellants argue that these failures leave them, the public, and the Court in a position where they do not know how the trial judge reached his conclusion. They submit that this creates the situation described in Sheppard, where the trial judge’s reasons are deficient, and they have placed his decision beyond review by an appellate court.

[30] Mr. St. Germaine’s counsel accepts that the 22 editions of YWN have many statements that are highly offensive by any measure, but he contends that when they are read as a whole, there is an alternative view of the these publications that shows that Mr. Sears and Mr. St. Germaine were trying to be provocative and offend, inflame, and upset readers, without any indication that the published statements made against Jews and women should be adopted by others.

[31] In support of these submissions, Mr. St. Germaine relies on the following passages from R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697, at pp. 777-778:

The meaning of “hatred” remains to be elucidated. Just as “wilfully” must be interpreted in the setting of s. 319(2), so must the word “hatred” be defined according to the context in which it is found. A dictionary definition may be of limited aid to such an exercise, for by its nature a dictionary seeks to offer a panoply of possible usages, rather than the correct meaning of a word as contemplated by Parliament. Noting the purpose of s. 319(2), in my opinion the term “hatred” connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation. As Cory J.A. stated in R. v. Andrews, supra, at p. 179:

Hatred is not a word of casual connotation. To promote hatred is to instill detestation, enmity, ill-will and malevolence in another. Clearly an expression must go a long way before qualifies within the definition in [s. 319(2)].

Hatred is predicated on destruction, and hatred against identifiable groups therefore thrives on insensitivity, bigotry and destruction of both the target group and of the values of our society. Hatred in this sense is a most extreme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.

The danger that a trier will improperly infer hatred from statements he or she personally finds offensive cannot be dismissed lightly, yet I do not think that the subjectivity inherent in determining whether the accused intended to promote hatred, as opposed to an emotion involving a lesser degree of antipathy, represents an unbridled license to extend the scope of the offence. Recognizing the need to circumscribe the definition of “hatred” in the manner referred to above, a judge should direct the jury (or him or herself) regarding the nature of the term as it exists in s. 319(2). Such a direction should include express mention of the need to avoid finding that the accused intended to promote hatred merely because the expression is distasteful. If such a warning is given, the danger referred to above will be avoided and the freedom of expression limited no more than is necessary.

[32] The appellants submit that reasons of the trial judge show that he inferred hatred from statements that he personally found to be offensive and, by following this approach, the trial judge fell into the error identified as a danger in Keegstra.

[33] In his reasons, at p. 3, under the heading “Is this hate or simply distasteful expression?”, the trial judge cited Keegstra and, specifically, quoted the passage where Dickson C.J. explained the meaning of the term “hatred” for the purpose of s. 319(2) of the Criminal Code as one that “connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation”. The trial judge quoted another passage from Keegstra where Dickson C.J. wrote that hatred “implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation”. These passages make it clear that the trial judge was alert to the distinction raised in Keegstra between speech which the trier of fact finds personally offensive, or is merely distasteful, and hateful speech. The trial judge correctly gave himself the direction recommended by Dickson C. J. in Keegstra.

[34] In support of their submission that reasons are insufficient because the trial judge failed to show that he addressed and excluded other inferences from the 22 issues of YWN that are inconsistent with guilt, the appellants also rely on R. v. Villaroman, [2016] SCC 33. In particular, the appellants rely on the principle expressed in Villaroman, at paras. 40-41, that where a conviction is based on circumstantial evidence, the evidentiary circumstances must bear no other reasonable explanation, and that this is “a helpful way of describing the line between plausible theories and speculation”. The appellants contend that the evidence upon which the trial judge relied, the 22 issues of YWN, is circumstantial evidence and, as such, the trial judge, when assessing this evidence, was required to show in his reasons that he considered whether the evidence is reasonably capable of supporting an inference other than that the accused are guilty.

[35] In Villaroman, the accused was charged with possession of child pornography which was found on his computer when it was left with a repair shop. The computer files alleged to be child pornography did not constitute circumstantial evidence. These files were direct evidence of child pornography. The accused admitted that the computer was his and that the files found on it constituted child pornography. The issue was whether the Crown had proven that the accused knew the nature of the material, had the intention to possess it, and had the necessary control over it. The evidence upon which the Crown relied to prove these facts was circumstantial and provided by the technician who received the computer for repairs and a forensic analyst. See Villaroman, at paras. 6-11. Because the evidence of possession was circumstantial, the Court addressed the relationship between circumstantial evidence and proof beyond a reasonable doubt and, at para. 26, explained the special concern inherent in the inferential reasoning from circumstantial evidence “that the jury may unconsciously ‘fill in the blanks’ or bridge gaps in the evidence to support the inference that the Crown invites it to draw”.

[36] In this case, unlike in Villaroman, the evidence upon which the Crown relies is not circumstantial. The evidence is the 22 issues of YWN that were marked as Exhibit 2 at the trial. The statements alleged to constitute wilful promotion of hatred against an identifiable group are found in these issues and constitute direct evidence. This evidence is similar in nature to the computer files alleged to contain child pornography in Villaroman. The trial judge was not required to draw an inference that the defendants published these issues. The principles expressed in Villaroman apply only to assessment of circumstantial evidence having regard to the special concerns in relation to such evidence. These principles do not apply on these appeals.

[37] Where the evidence against the accused is direct evidence, the trial judge cannot make findings of fact based on supposition, speculation, or conjecture, but the trial judge is entitled to draw inferences and make findings of fact where there is a reasonable basis in the evidence to do so.

[38] The appellants submit that the verdict should be set aside as unreasonable on the basis that the reasons disclose that the trial judge misapprehended the evidence.

[39] In the following statement from the decision in R. v. R.P., 2012 SCC 22, [2012] S.C.J. No. 22 (S.C.C.), at para. 9, the Supreme Court of Canada articulated the inquiry to be made by the appellate court when a verdict is said to be unreasonable:

To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properly instructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is

plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge [citations omitted].

[40] Applying this standard requires the appellate court to re-examine and to some extent reweigh and consider the effect of the evidence for the purpose of determining if the evidence is reasonably capable of supporting the verdict: R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, at para. 25.

[41] In R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, the Supreme Court of Canada explained how the reviewing court must treat the verdict of the trial judge:

Of course, a jury’s guilty verdict based on the jury’s assessment of witness credibility is not immune from appellate review for reasonableness. However, the reviewing court must treat the verdict with great deference. The court must ask itself whether the jury’s verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to the evidence precludes the conclusion reached by the jury [emphasis in original].

[42] In R. v. Loher, 2004 SCC 80, Binnie J. explained that how the reviewing court should consider an appeal based on an alleged misapprehension of the evidence, citing the decision of Doherty J.A. in Morrisey:

Morrisey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.

[43] The appellants ask me to address individually what the trial judge described as “excerpts of alleged examples of hate” (which were provided by the Crown as part of the closing submissions at trial and appended to his reasons as Exhibit A with, the trial judge states “correction notes”) as part of a comprehensive review of all 22 issues of YWN and decide in respect of these excerpts, in the context of all 22 issues read as a whole, whether they properly qualify as speech which promotes hatred. They invite me to find, based on this review, that some, or many, such characterizations of the excerpts would be unfair, and conclude for this reason that the trial judge’s reasons are insufficient and that his verdict is unreasonable.

[44] The Crown submits that such an exercise would not be a proper one for an appellate court to undertake. The Crown contends that full submissions would be needed to address each of the excerpts, an exercise that would not be useful, given that the trial judge did not make specific findings with respect to individual excerpts in Appendix A. The Crown submits that any finding that a given excerpt does not qualify as speech that wilfully promotes hatred against an identifiable group would not support a conclusion that the trial judge misapprehended the evidence as a whole when he found that the overwhelming message of YWN was hatred of women and Jews.

[45] The appellants rely on Appendix A to the trial judge’s reasons as showing that the reasons are insufficient. The submit that words used in Appendix A do not correspond with words in Exhibit 2, such that, they submit, the references are misleading and unfair. The appellants submit that this was drawn to the trial judge’s attention before he released his reasons, and no corrections were made. Mr. Sears submits that this is circumstantial evidence of collusion between the Crown and the trial judge.

[46] I do not agree that the fact that the trial judge appended the references as Appendix A to his reasons without specifically addressing them shows that the reasons are insufficient. The trial judge wrote that whole body of each issue must be examined. The trial judge was clear in his reasons that he relied on the entirety of Exhibit 2 in reaching his conclusion that the appellants made statements that promoted hatred against Jews and women. Appendix A shows on its face that the references are not simply quotations from issues of YWN but contain some quotations as well as Crown counsel’s submissions. The fact that corrections were not made to Appendix A before the reasons were released does not show that the trial judge’s reasons are insufficient or that he colluded with Crown counsel.

[47] Mr. Sears submits that the reasons of the trial judge are insufficient because he fails to identify each statement alleged to be one promoting hatred and explain why each statement fulfils all of seven “criteria” for hatred that Mr. Sears takes from Keegstra and other jurisprudence. Mr. Sears submits that the trial judge was required, in respect of each statement alleged to be one promoting hatred, to express in his reasons why the statement satisfies each of these criteria. The criteria identified by Mr. Sears are that the statement is (i) one of emotion, (ii) intense, (iii) extreme, (iv) clear, (v) one involving vilification, (vi) one that conveys detestation, and (vii) wilful. Mr. Sears also submits that the trial judge was required to state in his reasons why, in respect of each statement alleged to promote hatred, it is not satirical art, and why a given statement rises to the level that it qualifies as hatred, as opposed to a lower level of criticism.

[48] Mr. Sears submits on this appeal that if, after each excerpt from YWN cited in Appendix A of the trial judge’s reasons is analyzed by reference to the seven criteria he identifies, the actus reus for the offences appears to be shown, each passage should then be individually analyzed for its context including any exculpatory passages that may qualify the meaning of the passages as written. Mr. Sears asks that I identify any problematic passages and then allow further written and oral arguments.

[49] The trial judge was not required to record in his reasons on a step-by-step basis or in a “watch me think” fashion the processes he followed in the course of considering the evidence as a whole and satisfying himself that the defendants had wilfully promoted hatred against identifiable groups. The trial judge was not required to identify in his reasons the individual statements from YWN that he reviewed as part of his consideration of the collection of issues as a whole. The trial judge was not required to record in his reasons, by reference to particular words used in Keegstra and other jurisprudence that explain the meaning of “hatred”, his assessment of whether each individual statement qualified as one promoting hatred, by reference to a set of criteria or otherwise. The trial judge was not required to record in his reasons an analysis of each individual passage from YWN that may be understood to convey conflicting or exculpatory messages.

[50] This appeal is not a new trial, and the approach requested by Mr. Sears for this appeal is not a proper one for an appellate court to follow. As explained in Dinardo, at para. 25, citing Sheppard, an appellate court should adopt a functional approach to reviewing the sufficiency of reasons. The inquiry should be directed at whether the reasons respond to the case’s live issues, having regard to the evidence as a whole and the submissions of counsel.

[51] I consider the submissions of counsel at trial as part of my review of the sufficiency of the trial judge’s reasons.

[52] At trial, the Crown made submissions that statements communicated in YWN promote hatred against women and against Jews. The Crown cited many examples taken from issues of YWN to support these submissions.

[53] In the written submissions made on behalf of Mr. Sears at trial, the argument was made that the Crown had presented, out of context, condensed quotes from YWN and that the proper approach was to consider the issues of YWN as a whole. Mr. Sears’ counsel argued that when analyzed in its entirety and understood contextually, the content of YWN does not constitute the promotion of hate. Mr. Sears counsel argued that the 22 issues of YWN, read as a whole, contain no consistent or unambiguous message of hatred towards women and Jews as much of its content is unfocused, obscure, and contradictory. Mr. Sears’ counsel argued, in the alternative, that a focused review of YWN’s treatment of Jewish people and women reveals that the messages, while highly offensive, fall short of the promotion of hatred. Mr. Sears’ counsel made submissions generally, by reference to various themes in YWN, addressing whether the 22 issues of YWN promote hatred against Jews and against women. Mr. Sears counsel argued in the alternative that even if the content of YWN has the effect of promoting hatred toward the identifiable groups, Mr. Sears did not intend to promote hate and did not see its promotion as reasonably certain.

[54] Mr. St. Germaine’s counsel, in his written submissions at trial, argued that “the amalgam of referenced statements, organized out of context, obfuscates the real issues to be decided by the Court”, and that the Crown’s compilation of references does not always accurately depict the meaning of the material referred to. Mr. St. Germaine’s counsel submitted at trial that after considering the evidence as a whole, a reasonable doubt exists that Mr. St. Germaine is guilty of wilfully promoting hatred.

[55] The authorities are clear that the trial judge’s findings of fact are entitled to deference and an appellate court should not engage in a review of the evidence for the purpose of deciding whether it agrees or disagrees with the trial judge’s findings and conclusions. The trial judge was entitled to draw inferences and make factual findings, provided that there was a reasonable basis in the evidence to do so. The evidentiary review on appeal is for a limited purpose, to determine if the evidence is reasonably capable of supporting the trial judge’s conclusions. Provided that this test is met, an appellate court should not substitute its opinion for that of the trial judge.

[56] I have reviewed the trial judge’s reasons and I have reviewed the evidence of the issues of YWN marked as Exhibit 2 at trial, a review that was facilitated by a searchable PDF file of Exhibit 2 provided by counsel for Mr. St. Germaine.

[57] My review was undertaken for the purpose of determining whether the evidence is reasonably capable of supporting the trial judge’s findings and conclusions as expressed in his reasons. I do not intend to engage in my own analysis all of the individual statements and descriptions of statements included in Appendix A to the trial judge’s reasons, or the statements cited in the Crown’s factums on these appeals, for the purpose of making my own findings as to whether the statements in YWN in reference to women and Jews, individually or collectively, read in context, qualify as statements wilfully made to promote hatred. This exercise would be an improper one for an appellate court to undertake.

[58] In his reasons, the trial judge found that “[w]hen all 22 issues are examined, one is left with unfocused and absurd opinions, contradictory messages, and scattershot ramblings. Except for its stated claims of being the world’s largest anti-Marxist publication, YWN exhibits no unifying concept.” This finding is reasonably supported by the evidence.

[59] In his reasons, the trial judge explained his findings and conclusions on the issues before him having regard to the evidence as a whole and the submissions of counsel, at paras. 11 and 12:

[11] After considering the entirety of Exhibit 2, a consistent and obvious theme that radiated from this publication was hatred. It was at times contradictory in that love was professed to Jews and some women. It was at times satirical in that humour and exaggeration were employed to make the point. But hatred of Jews and women was overwhelmingly the message.

[12] As noted above, a contextual approach to the views expressed in YWN is necessary. However, there were representative examples of vilification and detestation that leapt off the page. Women were represented as immoral, inferior, and not human. Mr. Sears celebrated sexual and physical violations towards them. Jews were consistently blamed, demonized, and maligned. In my view, YWN repeatedly and consistently dehumanized Jews and women, and I conclude both men intended to publish hate. No other intent can be inferred from a complete reading of this newspaper.

[60] In paragraphs 14 to 26 of his reasons, the trial judge supported his findings and conclusions by describing examples of statements that promote hatred against women and hatred against Jews. In paragraphs 27 to 29 of his reasons, the trial judge addressed the defendants’ submission that the writings do not attack Jews and women as a whole group. The trial judge explained in these paragraphs why he did not accept this submission. In paragraphs 28-29 of his reasons, the trial judge accepted that there are “ostensibly benign views of both Jews and women expressed at times in YWN”, and he explained why he concluded that YWN, when read as an entire body, contains statements by which the appellants wilfully promoted hatred against these groups.

[61] Based on my review of the published issues of YWN marked at trial as Exhibit 2, I am satisfied that there was ample evidence upon which the trial judge could reasonably make these findings and reach these conclusions. Statements described by the trial judge in paragraphs 11 and 12 of his reasons as communicating hatred, within the meaning of that term in Keegstra, against women and Jews are found in the issues of YWN received in evidence. The trial judge’s reasons show why he decided as he did, and they show a logical connection between why he decided as he did and the evidence that was the basis for his decision. The 22 issues of YWN received in evidence provide the basis for public accountability of the trial judge’s reasons. The trial judge’s reasons, read in the context of the evidence at trial and the submissions made by counsel, do not foreclose appellate review.

[62] The appellants also submit that the trial judge’s reasons are also insufficient because he does not sufficiently address the question of whether, if YWN includes statements that are hateful towards Jews and women, the appellants, through these statements, intended only to be provocative, offensive, and absurd, rather than promote hatred.

[63] With respect to the issue of whether the trial judge’s reasons are insufficient on the issue of intent, the reasons must be considered in the context of the submissions made by counsel at trial.

[64] Mr. St. Germaine argued at trial that the tone of the entire publication is presented as absurd and designed to cause affront, and that the necessary intent could not be inferred from the published issues of YWN. Mr. Sears’ counsel submitted that there is insufficient evidence to conclude beyond a reasonable doubt that Mr. Sears intended to promote hatred as a substantially certain result of his actions.

[65] The Crown argued at trial that the expressions of hatred toward women and Jews in YWN are extreme in nature and this furnishes powerful evidence of intent to promote hatred. The Crown submitted at trial that the determination of intent rests on a contextual assessment, having regard to the circumstances surrounding the making of the statement. The Crown cited Keegstra for the proposition that “the trier will usually make an inference as to the necessary mens rea based on the statements made”. The Crown submitted that the only reasonable inference is that both defendants were well aware of the meanings of the messages conveyed in YWN and that their purpose was to promote hatred against these two groups.

[66] In paragraph 12 of his reasons, the trial judge found that both appellants intended to publish hate, and that no other intent can be inferred. At paragraphs 30-31 of his reasons, the trial judge gave additional reasons for his conclusion that the appellants intended “to pass on to others the message of hate towards Jews and women”. The trial judge’s reasons are clear that he accepted the Crown’s submissions that he should find that the statements were wilfully made with the requisite intent. The reasons are not deficient in this respect. There was ample evidence that provided a reasonable basis for the trial judge’s finding in this respect.

[67] I am satisfied that the trial judge’s reasons responded to the issues raised by the parties having regard to the evidence as a whole and the submissions of counsel. For these reasons, I do not accept the appellants’ submissions that the trial judge’s reasons are insufficient or that the verdicts are unreasonable because the trial judge misapprehended the evidence.

[68] Mr. Sears also appeals the verdict on other grounds upon which Mr. St. Germaine does not rely. I address these grounds of appeal.

Did the trial judge commit a reversible error by failing to find that Mr. Sears had shown a defence to the charges against him pursuant to s. 319(3) of the Criminal Code?

[69] At trial, Mr. Sears counsel did not argue that defences under s. 319(3) applied to preclude a conviction on charges under s. 319(2) of the Criminal Code. Mr. St. Germaine argued that one statutory defence was relevant under s. 319(3)(c).

Subsection 319(3) of the Criminal Code provides:

No person shall be convicted of an offense under subsection (2)

(a) if he establishes that the statements communicated were true;

(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;

(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

[70] In his reasons, the trial judge addressed the application of the section 319(3)(c) in paragraphs 33 and 34 as this defence relates to the charges against Mr. St. Germaine. The trial judge did not accept the submission that Mr. St. Germaine reasonably believed the statements made regarding Jews and women were true.

[71] Mr. Sears submits that notwithstanding that his counsel did not rely upon defences under section 319 (3) at trial, the trial judge was required to address these defences in relation to the charges against him and that his failure to do so is a reversible error. Mr. Sears submits that many s. 319(3) defences relating to specific passages upon which the trial judge relied in his reasons or comments made by him were missed by the trial judge. He gives as examples, with respect to statements in YWN in reference to Jews, that it is not illegal to call for cultural conversion of a target group and, with respect to statements in YWN in reference to women, that he “has every right to satirize the notion of ‘rape culture’ and the resultant ‘consent theory’ that has arisen from it”.

[72] I do not agree that the trial judge was required to address defences under s. 319(3) on which Mr. Sears did not rely at trial. In any event, I do not agree that had the trial judge been asked to address the defences under s. 319(3) in relation to the charges against Mr. Sears, the trial judge’s conclusion would have differed from the one have reached in respect of s. 319(3) as it relates to Mr. St. Germaine.

[73] The trial judge did not commit a reversible error in this respect.

Is Mr. Sears entitled to have the trial verdict set aside on the ground that he received ineffective representation at trial?

[74] On April 26, 2019, Mr. Sears’ sentencing hearing was held and completed. The Court reserved, with reasons for sentence to be provided on May 31, 2019. Mr. Sears discharged his lawyer and that date was vacated to permit him an opportunity to bring an application to re-open his defence.

[75] The trial judge received written submissions from Mr. Sears and written responding submissions from the Crown. In written reasons released on July 15, 2019, the trial judge dismissed Mr. Sears’ application to re-open the trial on the grounds advanced with the exception of the ground relating to ineffective representation by trial counsel. The trial judge allowed Mr. Sears an opportunity to satisfy him that the trial should be re-opened on this ground, or that a mistrial should be declared, based on affidavit evidence to be provided.

[76] Mr. Sears provided an affidavit on August 8, 2019 and trial counsel, Wayne Embry, provided an affidavit on the same day. Mr. Sears provided a response to Mr. Embry’s affidavit dated August 20, 2019.

[77] On August 22, 2019, the trial judge released his decision. Before doing so, the trial judge did not find it necessary to allow cross-examination of Mr. Embry, and he refused Mr. Sears’ request to cross-examine Mr. Embry. The trial judge decided that the evidence in Mr. Sears’ affidavit, taken at its highest, does not provide a basis to grant the application. The trial judge concluded that Mr. Embry made competent, professional and tactical decisions regarding Mr. Sears’ defence. He dismissed the application.

[78] At the hearing of this appeal, both Mr. Sears and Mr. Embry gave viva voce evidence, and each was cross-examined in respect of Mr. Sears’ ground of appeal that he received ineffective assistance of counsel at trial.

[79] Mr. Sears’ complaints concerning the representation provided by Mr. Embry as explained in his August 8, 2019 affidavit are with respect to the following matters:

a. He did not make a constitutional challenge to s. 319 of the Criminal Code.

b. He did not call defence witnesses including expert witnesses.

c. He failed to call expert witnesses to support defences under s. 319(3) of the Criminal Code.

d. He failed to advance defences under s. 319(3) of the Criminal Code.

e. ‘He was ineffective on a motion at trial to introduce evidence of prior discreditable conduct by Mr. Sear.

f. He pressured Mr. Sears to agree to the Agreed Statement of Facts.

g. His cross-examinations of expert witnesses called by the Crown were ineffective.

h. Although Mr. Sears had decided not to testify, Mr. Embry failed to introduce into evidence exculpatory videos of Mr. Sears being interviewed.

i. He was ineffective in his closing submissions responding to the Crown’s submissions referencing specific statements published in issues of YWN.

j. He did not submit Mr. Sears’ allocution as written at his sentencing hearing.

[80] In his reasons released on August 22, 2019, the trial judge quoted the following passage from the decision in R. v. Archer, 2005 36444 (ON CA), 2005 O.J. 4348, at paras. 119 and 120:

An appellant seeking to quash a conviction on the basis of ineffective assistance of counsel must demonstrate three things. First, where the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities. Second, the appellant must demonstrate that counsel’s acts or omissions amounted to incompetence. Incompetence is measured against the reasonableness standard. That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonable standard must proceed upon a “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”: R. v. G.D.B. (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 at 298 (S.C.C.). As this court said in R. v. White (1997), 1997 2426 (ON CA), 114 C.C.C. (3d) 225 at 247:

An appellate court’s review of trial counsel’s performance should be deferential. … deference is called for because of the broad spectrum of professional judgment that might be considered reasonable. In most cases, even among the most skilled counsel, no two lawyers will defend an accused in the same way. Different defence counsel use different trial strategies and tactics, different approaches to the examination and cross-examination of witnesses, different styles in opening and closing argument, all of them reasonable. The art of advocacy yields few, if any, absolute rules. It is a highly individualized art. What proves effective for one counsel may be ineffective for another. Most cases, therefore, offer defence counsel a wide scope for the exercise of reasonable skill and judgment. Appellate judges, many of them advocates in their own practices, should not be too quick to conclude that a trial lawyer’s performance was deficient because they would have conducted the defence differently.

Third, the appellant must demonstrate that counsel’s ineffective representation caused a miscarriage of justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel’s ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict. A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different: G.B.D., supra, at pp. 298-299. Joanisse, supra, at pp. 62-64. The allegations of ineffective representation on this appeal did not go to the fairness of the trial process, but to the reliability of the results. The appellant says he was convicted because of the serious shortcomings in counsel’s representation of him.

[81] In his viva voce evidence, Mr. Sears testified that he had significant disagreements with Mr. Embry concerning the questions to be asked on the cross-examination of the expert witnesses called by the Crown. He testified that he had several conversations with Mr. Embry about calling expert witnesses, and told him that they “should leave nothing on the table”. Mr. Sears testified that he suggested that a motion be brought for a directed verdict and, if this was unsuccessful, expert witnesses could be called, but Mr. Embry did not take this suggestion seriously. Mr. Sears acknowledged in his evidence that he was not told that a successful defence was a sure thing, but he started to lose confidence in Mr. Embry, particularly after the unsuccessful outcome of the Crown’s application to introduce evidence of discreditable conduct.

[82] Mr. Sears affidavit sworn August 8, 2019, including exhibits was introduced into evidence on this appeal and marked as Exhibit 1. The exhibits included excerpts from email correspondence between Mr. Sears and Mr. Embry.

[83] Mr. Sears was cross-examined by Crown counsel. Mr. Sears reiterated his view that Mr. Embry was required to follow his instructions concerning the conduct of the case. Mr. Sears testified that Mr. Embry was required to make professional decisions that were in his best interests, and that the decisions taken not to call expert evidence and not to advance s. 319(3) defences were not reasonable and not in his best interests. Mr. Sears pointed to the fact that Mr. Embry asked for an adjournment to address examples of alleged hate speech in the Crown’s closing submissions as showing that Mr. Embry was taken by surprise by the Crown’s position, and as confirmation that Mr. Embry’s trial decisions were wrong. Mr. Sears’ testified that Mr. Embry’s trial decisions were unreasonable. Mr. Sears acknowledged, however, that he acquiesced in the advice given by Mr. Embry concerning the trial decisions that were taken.

[84] Mr. Sears was asked about an email to him from Mr. Embry dated December 14, 2018 in which he sent a rough draft of his closing submissions and asked for Mr. Sears thoughts. Mr. Sears accepts that he supported the draft submissions and, although he did not agree with the approach taken by Mr. Embry in his closing submissions, he acquiesced in it. Mr. Sears was shown an email to Mr. Embry dated December 14, 2018 about the draft closing submissions, in which he told Mr. Embry that he had “really done a good job”. In another email, Mr. Sears told Mr. Embry in another email on December 16, 2018, in relation to the draft closing submissions, that he is pleased with how Mr. Embry is approaching the case. Mr. Sears testified that, although he disagreed with the approach taken, he went along with Mr. Embry’s approach. In another email in December 2018 in respect of the closing submissions, Mr. Sears told Mr. Embry that he would leave the final content of the closing submissions to him, and that he trusted Mr. Embry.

[85] Mr. Sears, through his affidavit and viva voce testimony, addressed his communications with Mr. Embry about calling expert evidence. He acknowledged that in the end he acquiesced in Mr. Embry’s advice that expert evidence would not be called.

[86] Mr. Embry provided evidence at the appeal hearing through his affidavit sworn August 15, 2019 and though viva voce evidence in chief and cross-examination by Mr. Sears. Mr. Embry explains his view that defence counsel is not to be the alter ego or mouthpiece for the client, and has the responsibility to exercise professional skill and judgment in making tactical decisions. His evidence is that he fully communicated with Mr. Sears concerning tactical decisions and he accepted some suggestions from Mr. Sears but, when he firmly believed that a request would prejudice Mr. Sears’ defence, he refused to accept the request and explained his rationale. Mr. Embry’s evidence is that until he was discharged, Mr. Sears generally accepted his advice and he was generally pleased with how the case was going.

[87] With respect to the Agreed Statement of Facts, Mr. Embry denies in his affidavit that he pressured Mr. Sears to agree to it. Mr. Embry states that he was careful not to indicate any agreement or admission to the Crown without first discussing any such agreement/admissions with Mr. Sears and obtaining his instructions.

[88] With respect to the motion to introduce evidence of prior discreditable conduct, Mr. Embry admits that he told Mr. Sears that he was confident that they would win the pretrial motion and, when the motion was lost, he accepts that he expressed to Mr. Sears that, although the motion was lost, there was some upside because if Mr. Sears was successful at trial, the Crowd would not be able to use this issue as an appeal ground.

[89] With respect to the issue of calling a defence, Mr. Embry states that Mr. Sears made it clear that he would not testify in his own defence because he could not risk exposing the financial backers of YWN. In his affidavit, he states that he explained to Mr. Sears why the video interview would not be accepted in evidence and why, in his judgment, to attempt to introduce the video into evidence by using it to cross-examine the Crown’s experts would be a useless tactic that would have harmed their credibility with the Court and prejudice Mr. Sears’ defence.

[90] Mr. Embry’s evidence is that other than Mr. Sears, himself, he and Mr. Sears only seriously discussed three other persons as possible witnesses to be called. These were, first, a person who is an Ethiopian Jew who would be able to testify that Mr. Sears had no anti-Jewish motive. Mr. Embry states that the proposed evidence did not appear to have any probative value. Second, Mr. Sears suggested that an expert be called on satire to establish that the contents of YWN were, in fact, satirical. Mr. Embry explains in his affidavit why he recommended against calling such an expert and he states that he told Mr. Sears that he would be happy to review any expert Mr. Sears could find, but one was never suggested. Third, Mr. Sears suggested calling a Dr. Jones as an expert witness. Mr. Embry explains in his affidavit why he advised against calling this person as an expert, why he considered that calling this person would be “disastrous”, and that he did not think the proposed witness could be qualified as an expert. Mr. Embry appended an email from Mr. Sears in response to an email recommending against calling this witness in which he states that he trusts Mr. Embry.

[91] Mr. Embry explains in his affidavit that he and Mr. Sears discussed the statutory defences under s. 319(3) of the Criminal Code. Mr. Embry explains why, in his judgment, Mr. Sears could not establish any of these defences and that the best strategy was to focus on raising a reasonable doubt about whether the Crown had proven that the statements in YWN rose to the high threshold of “hatred” as defined by the Supreme Court of Canada.

[92] Mr. Embry explains in his affidavit that he discussed with Mr. Sears that the Supreme Court of Canada in Keegstra had already upheld the constitutionality of s. 319 of the Criminal Code and that nothing had changed that would make such a challenge meritorious in Mr. Sears’ case.

[93] Mr. Embry explains in his affidavit that he told Mr. Sears why he considered that he had a professional obligation not to file the allocution that Mr. Sears had written.

[94] Mr. Sears submits that under cross-examination, Mr. Embry showed a disdain for criticism and that it is clear from his evidence that Mr. Embry has a “God complex”. Mr. Sears questioned Mr. Embry about his decision not to argue defences under s. 319(3) of the Criminal Code and not to call expert evidence. Mr. Sears submits that Mr. Embry’s answers were rehearsed and evasive. Mr. Sears submits that Mr. Embry’s answers on cross-examination about the amount of time he spent vetting Dr. Jones was evasive and contradictory, and that Mr. Embry’s reasons for not calling Dr. Jones were inadequate. Mr. Sears submits that Mr. Embry answers on cross-examination about his defence strategy were incomplete and that he agreed that he did not reveal the details of his strategy for cross-examining the Crown’s experts to Mr. Sears. Mr. Sears submits that the cross-examination showed that Mr. Embry’s strategy of not calling expert evidence and not relying on s. 319(3) defences was flawed and poorly considered. Mr. Sears submits that knowing what he now knows, he would have discharged Mr. Embry before trial, asked for an adjournment, and represented himself at trial.

[95] The written communications between Mr. Embry and Mr. Sears were in the email correspondence appended as exhibits to the affidavits. With respect to oral communications, Mr. Sears accepted that he had discussion with Mr. Embry about tactical decisions and, although they disagreed at times, he acquiesced in Mr. Embry’s recommendations. I accept the evidence in Mr. Embry’s affidavit about his communications with Mr. Sears. I also accept Mr. Sears evidence that he had discussions with Mr. Embry about trial tactics and that he expressed disagreement with certain of Mr. Embry’s recommendations and, in the end, he acquiesced in these decisions.

[96] The complaints by Mr. Sears about his representation by Mr. Embry relate mainly to tactical decisions taken by Mr. Embry with which Mr. Sears agreed or acquiesced. Mr. Sears has not shown that Mr. Embry acted incompetently having regard to the circumstances that existed when they were made. Mr. Sears has not shown that Mr. Embry’s decision not to call expert witnesses, including Dr. Jones, was incompetent or unsound. Mr. Embry explained his reasons for this decision to Mr. Sears, and he acquiesced. With respect to Dr. Jones, I am not satisfied that Mr. Embry failed to adequately consider whether he should be called as an expert. I am not satisfied that Mr. Embry’s decision not to advance s. 319(3) defences was unsound or incompetent. Mr. Sears did not object to the quality of Mr. Embry’s cross-examinations of the expert witnesses called by the Crown until after the verdicts were given. He did not object to the approach taken by Mr. Embry in closing submissions and drafts of the written submissions were provided to Mr. Sears for his input, some of which was accepted. Mr. Sears accepts that he approved the written submissions that were provided to the trial judge.

[97] The complaints now made about decisions taken at trial must not be assessed with the benefit of hindsight. As noted in Archer, there is a strong presumption that counsel’s conduct fell within the range of acceptable conduct, and this presumption has not been displaced by Mr. Sears’ evidence or by the evidence of Mr. Embry after cross-examination. Mr. Sears argument that, in hindsight, he should have discharged Mr. Embry and represented himself, does not displace the presumption that he received competent representation from Mr. Embry.

[98] Mr. Sears has failed to show that he received ineffective assistance by Mr. Embry at trial and that his conviction should be set aside for this reason.

[99] With respect to the trial judge’s decision not to allow cross-examination of Mr. Embry before dismissing Mr. Sears’ application based on ineffective representation, the trial judge relied on the principles in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 38. In Cody, the Supreme Court of Canada held that before permitting an application to proceed, the trial judge should consider whether an application has a reasonable prospect of success and, in appropriate circumstances, exercise discretion to summarily dismiss an application where it is apparent that the application is frivolous. The trial judge, having reviewed the affidavit evidence from Mr. Sears and Mr. Embry, exercised the gatekeeper function as described in Cody and dismissed the application based on ineffective assistance of counsel for reasons given on August 22, 2019. The trial judge found that Mr. Embry made competent, professional, and tactical decisions regarding Mr. Sears’ defence.

[100] The trial judge held that taking Mr. Sears’ evidence at its highest, he had failed to establish that Mr. Embry’s representation amounted to incompetence. This conclusion was reasonably open to the trial judge based on the affidavit evidence before him. I am not satisfied the trial judge exercised his judicial discretion on wrong principles or that he otherwise erred in deciding Mr. Sears’ application based on the affidavit evidence before him.

Did the trial judge commit a reversible error by refusing to allow Mr. Sears to re-open his defence?

[101] Mr. Sears sought to re-open his defence to advance arguments and evidence in relation to the other grounds. The trial judge dismissed Mr. Sears’ application with respect to the grounds by reasons released on July 15, 2019.

[102] The other grounds upon which Mr. Sears relied for his application were:

a. The Crown’s election gave rise to an abuse of process.

b. The trial judge’s conduct of the trial and sentencing proceedings gave rise to a reasonable apprehension of bias.

c. Section 319(2) of the Criminal Code unjustifiably limits freedom of expression under s. 2(b) of the Charter.

d. Mr. Sears was denied a right to a jury under s. 11(f) of the Charter.

e. The reasons for judgment were inadequate.

[103] The governing principles which apply on an application to re-open the defence case once an accused has been convicted are set out in R. v. Arabia, 2008 ONCA 565, citing R. v. Kowall, 1996 411 (Ont. C.A.):

The test for re-opening the defence case when the application is made prior to conviction has been laid down by this court in R. v. Hayward (1993), 1993 14679 (ON CA), 86 C.C.C. (3d) 193 (Ont. C.A.). However, once the trial judge has convicted the accused a more rigorous test is required to protect the integrity of the process, including the enhanced interest in finality. It seems to been common ground in this case that the most appropriate test for determining whether or not to permit the fresh evidence to be admitted is the test for admissibility of fresh evidence on appeal lay down in Palmer and Palmer v. The Queen (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C.) at page 205 (S.C.C.) (see: R. v. Mysko (1980), 1980 2057 (SK CA), 2 Sask. R. 342 (C.A.).) That test is as follows:

(1) the evidence should generally not be admitted if by due diligence, it could have been adduced at trial provided that this general principle will not be applied strictly in a criminal case as in civil cases …;

(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) the evidence must be credible in the sense that it is reasonably capable of belief;

(4) it must be such that it believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the results.

[104] The trial judge considered the governing principles set out in R. v. Arabia and he accepted the Crown’s submission that Mr. Sears had not met the Palmer criteria for introducing fresh evidence on appeal and that he had not shown that denying him the opportunity to adduce evidence and make additional submissions in relation to sentence would give rise to unfairness.

[105] Mr. Sears submits that the trial judge committed a reversible error in so deciding.

Did the trial judge err in deciding that there was no abuse of process because the Crown elected to proceed summarily with a two-count indictment?

[106] Mr. Sears appeals on the ground that the trial judge erred by failing to find that the Crown’s election to proceed summarily was an abuse of process because it did so disingenuously to deny him the benefit of a trial by jury. Mr. Sears also submits that the Crown engaged in an abuse of process because it proceeded with a two-count charge for an improper purpose.

[107] The Crown has the right to elect to proceed summarily or by indictment and the Crown’s election can be made for a variety of reasons. The Crown’s election is a matter of prosecutorial discretion. There is a presumption of prosecutorial impartiality. See R. v. St. Amand, 2017 ONCA 913, at para. 27.

[108] There is no evidence to support the conclusion that the Crown acted in bad faith or engaged in an abuse of process when it elected to proceed summarily. It has not been shown that the Crown exercised its discretion in bad faith or that the discretionary decision was so rare and exceptional in nature that it demands an explanation.

[109] It has not been shown that the Crown’s decision to proceed with a two-count indictment, one alleging promotion of hatred against Jews and one alleging promotion of hatred against women, was made in bad faith. These are two different identifiable groups and the statements made in YWN in relation to each group were different.

[110] The trial judge did not err in failing to set aside the trial verdict for abuse of process, and the evidence does not support setting aside the trial verdict for abuse of process.

Did the trial judge commit a reversible error by dismissing Mr. Sears’ application on the ground that his conduct at the trial and on the sentencing hearing gave rise to a reasonable apprehension of bias?

[111] Mr. Sears submits that the trial judge’s finding of guilt should be set aside on appeal because the trial judge erred by dismissing Mr. Sears’ application to re-open the trial on the ground that the trial judge’s conduct gave rise to a reasonable apprehension of bias.

[112] Mr. Sears submits that this is shown by the trial judge’s demeanor during the trial when he displayed frustration when Mr. Sears’ lawyer was discharged and when he challenged Mr. Sears’ lawyer during his submissions concerning the use of the term “chattel” in a statement written by Mr. Sears using the name “Dimitri The Lover”. Mr. Sears relies on the trial judge’s decisions in respect of his application to re-open the trial after the verdicts were rendered as displaying bias to a reasonable observer.

[113] Mr. Sears submits that the trial judge was hand-picked to oversee the pre-determined verdict and sentence and, generally, the trial judge was compromised through deep seated personal bias towards the political, religious, and societal views held by Mr. Sears and Mr. St. Germaine.

[114] There is a presumption of impartiality in the judiciary. Before concluding that there exists a reasonable apprehension of bias, the reasonable person would require some clear evidence that the judge in question had not improperly used his or her perspective in the decision-making process: R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, at para. 49. The test as set out in S. (R.D.)., at para. 31, is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude?”

[115] I am satisfied that applying this test to the conduct of the trial judge, an informed person, viewing the matter realistically and practically, would not conclude that the trial judge was not impartial. The trial judge did not err in reaching this conclusion.

Did the trial judge commit a reversible error by failing to re-open the trial to allow Mr. Sears to make a constitutional challenge to s. 319(2) of the Criminal Code?

[116] One of the grounds for Mr. Sears’ request to the trial judge to re-open the trial was that he intended to challenge the constitutionality of s. 319(2) of the Criminal Code on the basis that it unjustifiably limits freedom of expression under the Charter.

[117] Before he discharged his lawyer, Mr. Sears had received advice from Mr. Embry that the Supreme Court of Canada had already upheld the constitutionality of s. 319(2) of the Criminal Code in Keegstra and that nothing had changed since that decision was released that would make a constitutional challenge meritorious.

[118] In respect of this submission, Mr. Sears does not meet the test set out in Arabia, citing Kowall. The trial judge did not err by refusing to re-open the trial to allow Mr. Sears to make this argument.

Did the trial judge make a reversible error by failing to allow Mr. Sears to make additional sentencing submissions?

[119] After he discharged his counsel, Mr. Sears asked the trial judge to schedule several additional hearing days for sentencing submissions. Mr. Sear advised that the additional submissions would include a personal allocution, challenge to the community and victim impact statements, cross-examination of the authors of the impact statements, and cross-examination of an officer, Detective Bisla, in order to determine her relationship with Warren and Lisa Kinsella (about whom Mr. Sears had written critically in YWN).

[120] On August 22, 2019, the trial judge heard from Mr. Sears on his application to re-open the trial because of ineffective assistance by counsel and he dismissed this application. The trial judge then gave his sentencing decision without allowing additional time for an additional sentencing hearing.

[121] Mr. Sears submits that the trial judge made a reversible error by not granting his request for an additional sentencing hearing.

[122] In R. v. A.G. 2018 ONSC 5663 the Court set out the relevant principles where, before the trial judge is functus officio, there is an application to make new arguments on an issue previously adjudicated. The Crown submits that Mr. Sears’ request to re-open the sentencing hearing is analogous, and that the principal consideration in the analysis is trial fairness. In R. v. A.G., the Court held, at paras. 14, that considerations of trial fairness include (a) whether the argument could have been raised in the first instance if the moving party had been diligent, (b) if the new argument appears to have merit, such as to be worthy of consideration, (c) whether the new argument has a realistic potential to have a meaningful impact on the decision previously rendered, and (d) whether failure to consider the new argument could result in a miscarriage of justice. The third consideration does not apply to the issue before me.

[123] When this request was made, Mr. Sears had already made fulsome written sentencing submissions that were made when he was competently represented by counsel. I accept the Crown’s submission that cross-examining the authors of impact statements would not have enhanced the sentencing proceedings and, in any event, the trial judge did not rely on them in his reasons for sentence. I also accept that it was not shown that Detective Bisla’s relationship, if any, with the Warren and Lisa Kinsella was relevant to sentencing or to the trial itself.

[124] Mr. Sears has not shown that the trial judge’s failure to re-open the sentencing hearing caused unfairness.

Did the trial judge err in principle in imposing sentences of six months imprisonment on each of two counts to be served consecutively?

[125] The appellants submit that the trial judge committed an error in principle by deciding that the sentence for each count should be served consecutively rather than concurrently.

[126] An appellate court must defer to the sentencing decision made at trial unless the appellate court is convinced that there is an error in principle or that the sentence is demonstrably unfit: R. v. Ramage, 2010 ONCA 488, at para. 69. The trial judge’s decision whether to make a sentence consecutive or concurrent is to be afforded the same deference as the decision regarding the length of the sentence. Absent an error in principle or a failure to consider a relevant factor, an appellate court should not intervene: R. v. McDonell, 1997 389 (SCC), [1997] 1 S.C.R. 948, at para. 46.

[127] In his reasons for sentence released on August 29, 2019, at paras. 12 and 13, the trial judge addressed the issue of whether Mr. Sears’ sentence on each count should be served concurrently or consecutively and held, citing R. v. Gummer, 1983 5286 (ON CA), 1983 O.J. No. 181 (C.A.):

The Crown submits that the sentence is given for each count ought to be served consecutively. In R. v. Grummer, 1983 5286 (ON CA), 1983 OJ 181, the Ontario Court of Appeal, while recognizing the general rule the defences arising out of the same transaction or incident should normally be concurrent, that rule is not applied where the defences 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.

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.

[128] The appellants submit that the trial judge arbitrarily declared that even though the two counts arise out of the same factual allegations, they represent different interests. They argue that the trial judge’s reasons for finding that there are two separate, legally protected groups are insufficient because he relied only on Grummer, without further analysis. They contend that Grummer is factually distinct because in that case, although the convictions arose out of one transaction, the two offences (dangerous driving and failing to remain) were protecting two distinct societal interests, the interest the public has in safe driving and the interest the public has in accountability and rendering help when an accident occurs. The appellants submit that principles of sentencing on charges of promoting hatred against multiple target groups should not be treated as providing protection for separate legal interests. They submit that the trial judge erred in principle, and the sentences should be varied to provide for concurrent sentences.

[129] Counsel for Mr. St. Germaine submits that the only relevant interest for a sentencing judge to consider is society’s interest, and that the trial judge erred by identifying two separate interests. I disagree with this submission. Society has an interest in discouraging hate crimes against different groups and, just as in Grummer, the trial judge concluded in respect of the charges against the appellants, that there were two separate societal interests, discouraging hatred against women and discouraging hatred against Jews.

[130] The Crown proceeded with a two-count information against each appellant and it acted within its discretion to do so. The trial judge had reviewed the collection of the 22 issues of YWN that were introduced into evidence, and he was well situated to decide whether the communications against women and against Jews in those issues should properly be treated as part of the same conduct against two groups who do not not enjoy separate protected interests, such that concurrent sentences would be proper. The trial judge, having reviewed the 22 issues, concluded that the communications promoting hatred were directed against separate identifiable groups, women and Jews, and each has a separate legally protected interest.

[131] The decision of the trial judge is entitled to deference. I am not satisfied that the trial judge erred in principle in ordering that the sentence on each count be served consecutively.

Did the trial judge err in principle with respect to the length of the sentence imposed on Mr. Sears?

[132] The trial judge noted in his reasons that the maximum sentence for a summary conviction offence under s. 319(2) of the Criminal Code is six months in jail. The trial judge held that under s. 718.1 of the Criminal Code, 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. The trial judge considered a number of other decisions that he cited in paragraph 19 of his sentencing decision on the convictions against Mr. Sears. The trial judge concluded that the appropriate sentence, viewed through the lens of s. 718.1, is that both counts should attract an 18 month jail term. The trial judge imposed the maximum jail term of six months for each count.

[133] The disparity between the sentence given to Mr. Sears and the sentence given to Mr. St. Germaine was not shown to have resulted from an error in principle. The trial judge considered mitigating factors that applied to Mr. St. Germaine including that he is Métis and should be sentenced in accordance with the Gladue factors. The trial judge considered that Mr. St. Germaine cooperated with the police by providing a videotaped statement and that he expressed some regrets over the direction YWN took after Mr. Sears took editorial control. The trial judge considered that Mr. St. Germaine is nearly 78 years of age and in poor health. The trial judge did not err in principle in imposing a different sentence on Mr. St. Germaine than he imposed on Mr. Sears.

[134] Mr. Sears points to the decision of the British Columbia Supreme Court in R. v. Topham, 2017 BCSC 551where the accused was convicted of wilfully promoting hatred against an identifiable group, people of the Jewish religion or ethnic origin. The accused operated a website that the Court held had a strong anti-Semitic focus. The accused was sentenced to a conditional sentence of six months in custody to be served in the community.

[135] The factual circumstances in Topham including the aggravating and mitigating factors differ from those involving Mr. Sears. The trial judge was not required to impose the same sentence as the trial judge imposed in Topham imposed on the accused.

[136] Mr. Sears has not shown that the trial judge erred in principle or that the sentence is demonstrably unfit.

Did the trial judge err in principle with respect to the length of the sentence imposed on Mr. St. Germaine?

[137] Mr. St. Germaine submits that the trial judge failed to provide coherent reasons for his decision to impose a six month sentence for each count. Mr. St. Germaine submits that the reasons on sentence are declarations rather than reasons and, therefore, they should attract no deference.

[138] In his reasons for the sentence imposed on Mr. St. Germaine, the trial judge reviewed the positions of the parties and several prior decisions. He recognized that it is a difficult task to find prior sentencing rulings that bear close similarity to the case before the court. The trial judge addressed the sentence in Keegstra. Mr. St. Germaine contends that the trial judge provided insufficient reasons because he failed to record an analysis of the facts.

[139] I disagree that the trial judge’s reasons for his sentence are insufficient such that it is owed no deference. The trial judge explained the factors that he considered with respect to sentencing and he identified the prior decisions he considered. The trial judge was not required to record in his reasons all of the processes he followed to reach his decision in a “watch me think” manner.

[140] Mr. St. Germaine has failed to show that the trial judge made an error in principle with respect to the length of the sentence imposed.

Disposition

[141] For the foregoing reasons, the appeals by Mr. St. Germaine and Mr. Sears are dismissed.

Cavanagh J.

Released: June 14, 2021

COURT FILE NOS.: CR-19-70000077-00AP

CR-19-70000077-00AP

DATE: 20210614

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

JAMES SEARS

Appellant

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

LEROY ST. GERMAINE

Appellant

REASONS FOR JUDGMENT

Cavanagh J.

Released: June 14, 2021