(Quesnel, BC, January 13, 2016) – The Ontario Civil Liberties Association (OCLA) has intervened in the on-going constitutional challenge of the hate speech provisions of the Criminal Code of Canada. The constitutional challenge was separated from the criminal trial in the case of R. v. Arthur Topham, and is occurring following the jury verdict, which was released in November 2015.
The OCLA’s intervention by letter is posted at the following link: http://ocla.ca/wp-content/uploads/2016/01/2016-01-13-Letter-OCLA-re-R-v-Topham.pdf
The text of the letter is:
By Mail and Fax
January 13, 2016
The Honourable Mr. Justice Butler
Supreme Court of British Columbia
Re: Unconstitutionality of s. 319(2) of the Criminal Code (R. v. Topham, Court File No. 25166, Quesnel Registry)
The Ontario Civil Liberties Association (OCLA) wishes to make this intervention, in letter form, to assist the Court in its hearing of the defendant’s constitutional challenge of s. 319(2) of the Criminal Code (“Code”), to be heard in the Supreme Court of British Columbia.
The defendant submits that s. 319(2) of the Code infringes on the s. 2(b) guarantee of freedom of expression contained in the Canadian Charter of Rights and Freedom, and is not saved by s. 1 of the Charter.
The Supreme Court of Canada has determined and reaffirmed that the Charter must provide at least as much protection for basic freedoms as is found in the international human rights documents adopted by Canada:
And this Court reaffirmed in Divito v. Canada (Public Safety and Emergency Preparedness),  3 S.C.R. 157, at para. 23, “the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified”. [Emphasis added.]
Canada has ratified the International Covenant on Civil and Political Rights (“Covenant”). Article 19, para. 2 of the Covenant protects freedom of expression:
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
Further, the U.N. Human Rights Committee, in its General Comment dated 12 September 2011, has specified that any restrictions to the protection of freedom of expression “must conform to the strict tests of necessity and proportionality”:
35. When a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat. [Emphasis added.]
The impugned provision in the Code does not require the Crown to prove any actual harm, and no evidence of actual harm to any individual or group was presented in the trial of R. v. Topham. There is no “direct and immediate connection” between Mr. Topham’s expression on his blog and any threat that would permit restriction of his expression.
The OCLA submits that the current jurisprudence of the Covenant, including the 2011 General Comment No. 34, represents both Canada’s obligation and the current status of reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society, in relation to state-enforced limits on expression. The process and the jury-conviction to date in the instant case establish that s. 319(2) of the Code exceeds these limits, and is therefore not constitutional.
Furthermore, s. 319(2) of the Code allows a maximum punishment of “imprisonment for a term not exceeding two years”. The Code punishment of imprisonment exceeds the “strict tests of necessity and proportionality” prescribed by the Covenant.
In addition, in paragraph 47 of General Comment No. 34, it is specified that: “States parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.” [Emphasis added.] In the penal defamation envisaged in the Covenant, unlike in s. 319(2) in the Code, the state has an onus to prove actual harm.
And in relation to state concerns or prohibitions about so-called “Holocaust denial”, paragraph 49 of the said General Comment has:
Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression.
Finally, the OCLA submits that the feature of s. 319(2) that gives the Attorney General direct say regarding proceeding to prosecution (the requirement for the Attorney General’s “consent”) is unconstitutional because it is contrary to the fundamental principle of the rule of law, wherein provisions in a statute cannot be subject to arbitrary application or be politically motivated or appear as such. The fundamental principle of the rule of law underlies the constitution.
For these reasons, the OCLA is of the opinion that s. 319(2) of Canada’s Criminal Code is unconstitutional and incompatible with the values of a free and democratic society.
If the Court requests it, the OCLA will be pleased to make itself available to provide any further assistance in relation to the instant submission.
The OCLA’s opinion is amply supported by a continuous international legal consensus that any allowed limit to expression must adhere to the principles of necessity and proportionality. Canada has an obligation to respect its ratified adherence to that consensus.
In the OCLA’s opinion, a statutory scheme for a crime of “inciting hatred” must respect both: (1) an onus on the Crown to prove intent to incite hatred, and (2) an onus on the Crown to prove causation of actual harm (discrimination, hostility, or violence) to one or more actual victim(s).
The OCLA rejects victimless crimes of expression, especially those “perpetrated” merely through public internet diffusion from a personal website or blog or social media account, and in the absence of any actual (not perceived) power relationship. Canada should not enforce “crimes” that consist in publicly publishing words arbitrarily judged to induce hypothetical emotional responses.
Prior efforts of the OCLA
The OCLA became aware of the Crown’s intent to use the hate crime provisions prior to the trial. In September 2014, the OCLA launched a petition to the Attorney General of BC asking that she retract her consent for the criminal proceedings against Mr. Topham. The petition, which is now closed, can be viewed online at the following link: https://www.change.org/p/hon-suzanne-anton-attorney-general-of-bc-jag-minister-gov-bc-ca-hon-suzanne-anton-retract-your-consent-for-the-criminal-proceedings-against-mr-arthur-topham
About the Ontario Civil Liberties Association
The OCLA vigorously advocates for authentic and unqualified freedom of expression of individuals, on all topics and in every form, in accordance with the right to free expression enshrined in the Canadian Charter of Rights and Freedoms. The OCLA also advocates for unimpeded civil liberties and civil rights of all persons, in dealings with public and private institutions and corporations.
 Defendant’s “Memorandum of Argument Regarding Charter Issues”, R. v. Topham, Court File No. 25166, Quesnel Registry.
 Saskatchewan Federation of Labour v. Saskatchewan [2015 SCC 4], at para. 64.
 International Covenant on Civil and Political Rights, Article 19, at para. 2.
 Ibid., Article 19, at para. 3, and Article 20.
 General Comment No. 34, UN Human Rights Committee [CCPR/C/GC/34], at para. 22.
 Ibid., at para. 35.
 Criminal Code (R.S.C., 1985, c. C-46), s. 319(6).
 For a recent example where unconstitutionality arising from the rule of law was the main issue before the court, see: Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59 (CanLII); and see Committee for the Commonwealth of Canada v. Canada,  1 SCR 139, 1991 CanLII 119 (SCC), p. 210 (i).