Canada’s illegal witch-hunt: Arthur Topham trial continues Monday

Israel's 2014 military attack on Gaza civilians

Israel's 2014 military attack on Gaza civilians
Israel’s 2014 military attack on Gaza civilians

In a shameful display of state hubris, Canada is using illegal concocted provisions of its Criminal Code to prosecute a citizen for innocuous postings on a personal blog (The Radical Press). The provisions allow a maximum 2-year prison sentence, where the state prosecutor (“Crown”) does not need to prove intent to harm or any actual harm to a single person. Intent and actual harm are not even relevant legal considerations in the proceeding. Both harm and intent are presumed.

The said Criminal Code provisions are straight out of the playbook of a totalitarian state.

The show trial was separated into two parts, despite the objections of the accused. In the first part the accused was found criminally guilty, for one blogpost, while not guilty for the other blogpost of the Crown’s charge. In the second part, which is scheduled to start tomorrow Monday October 3rd, the constitutionality of the law is being challenged on limited grounds. Any sentencing will be decided after the ruling on constitutionality.

The process of thus dividing the show trial into two parts is equivalent to first determining that the witch is guilty of blasphemy or worst, followed by a hearing to determine if burning at the stake in the town square is still within the bounds of community standards, rather than evaluating the legitimacy of the law at the same time (and before the same jury) that the nature of the “offense” is evaluated.

Meanwhile, the “defendant” was gagged from identifying the original complainants (the usual crew) but allowed to continue blogging about the process until a conviction is finally secured, and has mounted a funding campaign for the expensive constitutional challenge.

These kinds of show-trial proceedings and the associated media assaults are attempts to create a false impression of a victimized Israel, to shield the apartheid state from international condemnation for its on-going violations of the Geneva Conventions, illegal annexation, constant violations of human rights, and mass-murder “mowing of the grass” in Gaza. Israel wants a free hand to continuously expand by the same criminal methods it has used for decades. Therefore, when successful, the domestic show trials (most prominent in Canada, France, and Germany) are geopolitical in character by virtue of Israel’s leading role in US interference in the Middle East, with Canada and France as lead accompanying sycophant states.

Canada’s Ontario Civil Liberties Association (OCLA) has defended Arthur Topham against the state’s attack on freedom of thought and expression with several interventions. OCLA applies the principle that those who’s views are most at odds with orthodoxy and who are most aggressively attacked using the state apparatus are those most in need of civil defense.

The OCLA’s 2014 on-line petition to the state authority gathered over 1,400 signatures. OCLA also, in 2015, intervened by letter against other “civil liberties” associations that adopted a statement that harmed Mr. Topham’s case.

This year, OCLA intervened prior to the constitutional part of the trial by sending a letter directly to the trial judge, with all the state actors in cc. OCLA’s letter, reproduced below, spells out the illegal character of the criminal law being used in this particular show trial and witch hunt:

    January 13, 2016
    The Honourable Mr. Justice Butler, Supreme Court of British Columbia

    Your Honour:

    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.[1]

    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:[2]

    “And this Court reaffirmed in Divito v. Canada (Public Safety and Emergency Preparedness), [2013] 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:[3]

    “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[4] to the protection of freedom of expression “must conform to the strict tests of necessity and proportionality”:[5]

    “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.][6]

    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”)[7] 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.[8]

    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.

    Yours sincerely,
    Joseph Hickey
    Executive Director
    Ontario Civil Liberties Association (OCLA)

    [1] Defendant’s “Memorandum of Argument Regarding Charter Issues”, R. v. Topham, Court File No. 25166, Quesnel Registry.
    [2] Saskatchewan Federation of Labour v. Saskatchewan [2015 SCC 4], at para. 64.
    [3] International Covenant on Civil and Political Rights, Article 19, at para. 2.
    [4] Ibid., Article 19, at para. 3, and Article 20.
    [5] General Comment No. 34, UN Human Rights Committee [CCPR/C/GC/34], at para. 22.
    [6] Ibid., at para. 35.
    [7] Criminal Code (R.S.C., 1985, c. C-46), s. 319(6).
    [8] 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, [1991] 1 SCR 139, 1991 CanLII 119 (SCC), p. 210 (i).

Author Details
{p}Denis G. Rancourt was a tenured and full professor at the University of Ottawa in Canada. He was trained as a physicist and practiced physics, Earth sciences, and environmental science, areas in which he was funded by a national agency and ran an internationally recognized laboratory.{/p} {p}He published over 100 articles in leading scientific journals. He developed popular activism courses and was an outspoken critic of the university administration and a defender of Palestinian rights. {/p} {p}He was fired for his dissidence in 2009 by a president who is a staunch supporter of Israeli policy. He is the author of the 2013 book “Hierarchy and Free Expression in the Fight Against Racism”.{/p}
DISCLOSURES: All content herein is owned by author exclusively.  Expressed opinions are NOT necessarily the views of VT, authors, affiliates, advertisers, sponsors, partners or technicians. Some content may be satirical in nature. All images within are full responsibility of author and NOT VT.

About VT - Read Full Policy Notice - Comment Policy


  1. Scottish Palestine Solidarity Campaign
    Building effective solidarity with the Palestinian people

    Stand up for the right to free speech

    In an outrageous attack on civil liberty, members of the public were refused access to court on Friday 9th September to support Ally Coutts.

    Ally has been charged with racism for saying the words ‘Viva Palestina’ within earshot of an Israeli. It is a sinister development that Scottish legal authorities now consider the idea of ‘Long live Palestine’ to be a thought crime, and are moving against the right of Scots to express support for the Palestinian people’s right to exist and prosper.

    In a further repressive move, all 40 supporters of the accused who turned up at Aberdeen Sheriff Court to observe the proceedings were barred from attending, while police allowed entry to two Zionist observers. This political profiling of attendees at political trials is unacceptable and needs to be resisted. for no other reason than they had been observed participating in an entirely lawful and peaceful demonstration. This act was enforced by Police Scotland, on request from the Court Administration, and is the latest in a catalogue of attacks on Palestine solidarity in Aberdeen, and attempts to criminalise solidarity nationally.

    SOLIDARITY WITH PALESTINE IS NOT A CRIME! We will not be silenced or denied our right to political protest. VIVA PALESTINA!

    >>>>> We will boycott!!

  2. Here in Australia a few years ago our first female PM, Julia Gillard spoke on a stage somewhere not sure where, on the occasion of signing a pledge to stamp out anti antisemitism (around the world,leaders where asked to sign) and surrounded by about 30 jews said at the end that she was proud the Supreme court of Australia had deter mend Holocaust denial was illegal.
    First I new of this, hope I run into her one day, zionist whore..
    Google, ‘Israeli apologist, Jon Fain at it again’. ( A jew from NZ) And hear ex PM Fraser talk about the USS Liberty attack.

  3. Everyone must observe the underlying evil group of intellectual rapists behind all this: Lying lawyers. All this simply confirms the conclusions of Earl Carey in his book published in 1992, a copy of which I sent to Denis in Canada. “The mythical society of Utopia banned lawyers because their profession disguised matters.” ” This was in the year 1513!” “I think we may class the lawyer in the natural history of monsters.” John Keats “Paul Revere should have shouted, ‘The lawyers are coming the lawyers are coming.'” Carey lists no less than 42 federal judges by name and location who violated their meaningless oaths and law with impunity. Carey concludes all lawyers must be banned from holding any government jobs at any level period. I found this profound book purely by accident at a flea market. It was bad luck that it was published about 8 years before the internet came online. The title is “IBM and the Corruption of Justice in America” by Earl Carey, Bismarck House, St. Louis, 1992. All Carey ever wanted was a simple jury trial on his dispute with the computer giant. He tried every legal means and every legal means failed. The tyranny in Canada today is on its way to the U.S. tomorrow and likely will cross the Ambassador Bridge of Matty Moroun before he reaches his 90th birthday.

    • Everyone must exercise their fundamental right of boycott. Boycott this intellectual cesspool Canada today. Do not travel there for any reason. Do not buy any goods with any Canadian component or profit. Do not vacation there. Do not take any railroad trips there as enticing as they might be. If traveling to Alaska, fly directly on a non Canadian owned airline or take a ship on a non Canadian owned ship. This is likely the only kind of language these despicable uncivilized criminals might understand. I never in my short lifetime thought I would see this level of moral and intellectual depravity in Canada of all places, but it is clear it is coming right here to the USA and soon too. Denis has had his own problems with these despicable unspeakable inconsistent whores to the North. Avoid Canada like the plague it is.

  4. “OCLA’s letter… spells out the illegal character of the criminal law being used in this particular show trial and witch hunt”……in all seriousness, while this case is no comedy, this comparison is not far off….the spotlight is on a Judge and a court , the illegal character of the criminal law being used amounts to re-entering the dark ages ….that is clearly evident

  5. Has the Canadian contagion spread so far, that the facts of the defendant’s alleged crime cannot be set forth–for fear of committing another offense?

    • That was a strategic choice to emphasize the absurd character of the law, and to avoid ancillary discussion about whether or not readers like the blogposts of the accused. Fear was not a factor for me. Although, technically, yes, repeating the blogposts could give the Canadian police a pretext to make fresh criminal charges. The details of the entire saga are on Mr. Topham’s blog (which is linked in my article above), until there is a take-down order if there will be one.

Comments are closed.