The Extraordinary Trial of Arthur Topham
by Eve Mykytyn
Five security guards, members of the RCMP, two in bulletproof vests, all entrants pass through metal detectors, undergo a wand search, check all electronics including cell phones and have their bags meticulously scrutinized. Why all the security? The crown was presenting its criminal case against Arthur Topham, for the crime of “hate.’
Section 319 of Canada’s criminal code is an extraordinary law by most western standards. It reads, in relevant part: “(2) Every one who, by communicating statements, other than in private conversation, willfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
The statute does not define hatred, but does provide 4 statutory defenses.
(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.
It is important to understand that the prosecution (the Crown), with all of its resources, need only prove ‘hate,’ and then the only available defenses are affirmative, meaning that the burden of proof switches to the defense.