Paramount Fine Foods v Johnston, 2021 ONSC 6116
COURT FILE NO.: CV-17-580326
DATE: 20210915
ONTARIO SUPERIOR COURT OF JUSTICE
RE: PARAMOUNT FINE FOODS et al., Plaintiffs
-and-
KEVIN J. JOHNSTON et al., Defendants
BEFORE: F.L. Myers J.
COUNSEL: Sameha Omer, for the National Council of Canadian Muslims
Kevin J. Johnston, representing himself.
Jonathan C. Lisus and Niklas Holmberg, for the plaintiffs.
READ: September 14, 2021
ENDORSEMENT
[1] The National Council of Canadian Muslims moves to intervene as a friend of the court in the upcoming sentencing hearing of Kevin J. Johnston for contempt of court.
[2] By endorsement dated August 12, 2021, reported at 2021 ONSC 5530, I set a schedule for the hearing of this motion in writing. Mr. Johnston had until September 10, 2021 to deliver material. He has not delivered any.
[3] The plaintiff supports the request to intervene.
[4] I accept the description of the NCCM set out in para. 2 of its factum:
Through its community outreach, public advocacy, and provision of legal advice and services to Muslims communities and organizations across Canada, NCCM has developed a unique national perspective on the needs and challenges of Canadian Muslims. NCCM is a public interest advocacy organization that protects human rights and civil liberties and advocates for public concerns of Canadian Muslims. Therefore, NCCM has a significant interest in ensuring that the law on contempt proceedings evolves in a way that is informed by on the ground realities and challenges that marginalized and vulnerable citizens or groups face in Canada.
[5] I am satisfied that NCCM is well-positioned to speak for the Canadian Muslim community about the harm or loss suffered by members of the community as the result of Mr. Johnston’s contempt of court and the impact of the contempt of court on the community.
[6] This holding, if made in a criminal proceeding, would entitle the NCCM to deliver a Community Impact Statement under s. 722.2 (1) of the Criminal Code. I am prepared to hear from it on that basis by analogy in this contempt proceeding.
[7] However, I am not prepared to add the NCCM to this proceeding as an intervenor under Rule 13.02 “as a friend of the court for the purpose of rendering assistance to the court by way of argument”. I say this for several reasons.
[8] The NCCM has been unable to provide me with any precedent for a public interest group being added as an intervenor to either a criminal sentencing or a contempt of court sentencing at first instance.[^1]
[9] I completely understand the importance attached by appellate courts to hearing from community groups, special interest representatives, lobbyists, subject matter experts, and a broad range of others when they consider policy issues. This is especially the case when a court is asked to make subjective determinations prioritizing or ranking the importance of disparate value judgments in constitutional law cases. But that is not my task in this case.
[10] I am sentencing an individual for contempt of court. There is a plaintiff who is especially affected and is the moving party.
[11] In sentencing an offender or a contemnor, I am required by law to weigh the appropriate sentencing factors and to look at evidence of aggravating and mitigating circumstances. Aggravating factors must be proven on the evidence beyond a reasonable doubt.
[12] Subsection 718.2 (a)(i) of the Criminal Code requires a sentencing judge to consider as well, “evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion”. [Emphasis added.]
[13] At this stage, I am dealing only with the evidence presented by the parties to determine an appropriate sentence. The NCCM accepts that as a “friend of the court” it will not be introducing evidence and it takes the record as presented by the parties.
[14] But the NCCM has outlined its proposed argument. It is laden with factual assertions that are not supported by evidence. Things that the NCCM may take as obvious about the existence and position of vulnerable people or the effect on marginalized people of internet hate speech – like its assertion that hate speech puts marginalized people at risk of violence, for example, - are not facts proven by evidence in this court. Neither are they linked to Mr. Johnston or his acts in contempt of court.
[15] These may all be matters for social science evidence and may be acceptable hypotheses when policy-makers weigh competing policy options. But, in this court, there is no evidence at all substantiating the factual allegations about the position of the Canadian Muslim community or the effect of Mr. Johnston’s acts in contempt of court.
[16] As quoted above, when a person is appointed a friend of the court, he, she, or it is entitled to make legal arguments in the case. In this case, the NCCM proposes to make argument about the importance of the court adopting a contextual approach to sentencing. That is, the NCCM asks the court to consider the social context of this case, i.e. hate speech, and to reflect on the broader societal impact of hate speech in sentencing Mr. Johnston.
[17] The plaintiff Mr. Fakih has already made argument about the importance of contextualized judging. Para. 34 of his factum says:
- The broader Muslim Canadian community also feels the impact. The NCCM has sought to intervene in this proceeding because it is important for the Muslim community to see justice being done. As set out below, this Court can and should have regard for the relevant social context in imposing an appropriate sentence. The lived experience of Muslim Canadians who face the kinds of anti-Muslim hate speech spewed by Johnston, even in the face of an injunction, is of urgent concern to the Muslim community. [Emphasis added.]
[18] Paragraphs. 55 to 65 of Mr. Fakih’s factum set out at length the jurisprudence regarding the importance of social context in judicial decision-making. He relies on social science literature to set out aspects of the social context that he asks me to consider.[^2] Mr. Fakih also directs me to s. 718.2(a)(iii) of the Criminal Code that requires me to consider evidence that racism or hatred motivated Mr. Johnston.
[19] Mr. Fakih’s factum plainly and thoroughly sets out the same arguments as are sought to be made by NCCM. I have no concern about there being arguments unmade.
[20] Moreover I do not think it helpful or especially fair to a contemnor or a person awaiting sentencing for a community group to be seen to be a co-prosecutor piling on argument in an evidentiary sentencing hearing. This is particularly the case here where NCCM’s arguments are implicitly and explicitly fact-based and are unsupported by any admissible evidence. Mr. Johnston has no way to respond to the factual underpinnings of the arguments.
[21] I agree with Mr. Fakih however, that the lived experience of members of the community faced with hatred is of urgent concern to the community. I know of no group better situated to voice and explain that impact to me than NCCM.
[22] In my view, the NCCM does have a role as representative of its community uniquely situated to speak about the harm or loss suffered by the community as the result of Mr. Johnston’s contempt of court and the impact of the contempt of court on the community. To that end, if it wishes to do so, I authorize NCCM to file a Community Impact Statement by September 20, 2021 by analogy to s. 722.2 (1) of the Criminal Code.
[23] This is not a lesser position. It is the appropriate position to achieve what I understand to be the purpose of NCCM’s proposed intervention. Under s. 722.2 (1) of the Criminal Code, the court is positively required to consider any statement “describing the harm or loss suffered by the community as the result of the commission of the offence and the impact of the offence on the community”. In this way, the NCCM can provide its non-evidentiary views on the impact and social context of Mr. Johnston’s contempt of court for consideration by the court without becoming either a witness or a co-prosecutor.
[24] Counsel may forward to my office a draft order dismissing this motion and authorizing NCCM to file a Community Impact Statement without seeking approval of the parties to the form and content of the draft order.
F.L. Myers J.
Date: September 15, 2021
[^1]: The issues in footnote 1 of Andersson v. Aquino, 2019 ONSC 886, dealing with affiliated corporations have no bearing on the issues before me. [^2]: There may be an issue about the use of any unsworn factual assertions contained in the material or the scope of proper use of the material in this case.

