By Eve Mykytyn
Read Part 1.
On November 12th the jury found Mr. Topham guilty of ‘inciting hate.’ This leads to a few questions.
First, the jury found Mr. Topham guilty on Count 1 but not guilty on Count 2. Ordinarily, this is a result we are comfortable with since the state (the Crown) may have proved ‘beyond a reasonable doubt’ that a defendant committed an assault but not have shown sufficient evidence of battery. Mr. Topham’s case is different. He was charged with two virtually identical counts, both relating to his website but covering different periods of time, that is, count 1 was for the period from April 28, 2011 to May 4, 2012, and count 2 was for January 29, 2013 to December 11, 2013.
If Mr. Topham intended to incite hate, would he really have changed his mind in the brief period between counts 1 and 2? We will never know what the jury relied upon; in yet another abrogation of free speech, the jury was threatened that if they spoke to anyone about their deliberations, they would be committing a criminal offense. How is the public supposed to understand the mysterious machinations of the term ‘hate’ without knowing what caused a jury to convict a fellow citizen of such a crime?
Hate is a crime the essential elements of which have been left undefined. As a writer, one must not only discern from the miasma what constitutes ‘hate’ but also guess what elements a jury will find persuasive. If one of the main goals of the criminal law is to prevent certain behavior then clarity of what such behavior is, is essential. What can Canadians say? May they say they disagree strongly with a particular group? What evidence can one print in support of their disagreement? Surely, it is not the defendant’s responsibility that a particular political group is also associated with an ethnic identity and a religion. The Crown, by controlling website content through its ‘hate’ law, is controlling not only what Canadians may say but also what Canadians may read. Mr. Topham’s is not the only blog to criticize Israel and Zionism. Should Canadians then read political criticism only from other countries? Very troubling.
Second, the crown had almost 2 years to prepare its case. Its evidence was contained in 4 binders. Many of the pages were illegible and the Crown itself seemed to have extraordinary difficulties in citing to its own arguments. The defense quite properly objected. The Crown wanted to provide clear copies of the illegible pages in yet another binder cross referenced to the originals. The trial could have been an exercise in maze solving. Judge Butler ruled that the Crown had to provide legible copies. This seemed to present a large obstacle and endless court time was wasted in discussions of printing costs, etc. As a foreign observer it seemed ironic that the crown spent $190 an hour on its expert witness, who as an earlier independent complainant against Mr. Topham might have been willing to accept less, and I don’t know how much money on ‘security’ but had so much trouble producing legible copies.
I belabor this point because it is very odd for the prosecution to allow its evidence to be blurry. I would expect in proving an elusive crime like ‘hate’ they would want their evidence to be as clear and convincing as possible. Was the intent to confuse the jury? Was the Crown merely incompetent? This is not impossible. The judge spent much time instructing the crown’s representative, Ms. Johnston, on procedural issues. This gave me the impression (and perhaps the jurors as well?) that the judge was helping and thus favoring the prosecution. Surely this was unintentional on Judge Butler’s part.
Third, and this relates to point two, the jury was given 62 pages of ‘charges’ (or what Americans call jury instructions). Even if all twelve jurors, ordinary men and women, are speed readers, how are they to read and evaluate 62 pages of instructions and then apply them to four binders? The plethora of material leads me to suspect that the jury was not intended to read the material at all. This would tend the jury toward a guilty verdict.
There is not a sinister act by the jury. They were asked to sit through weeks of testimony about Jewish politics, history, religion, and identity. Jury selection would have excluded anyone who was actually interested in such topics. They were handed stacks of paper. Faced with these circumstances, they presumably decided that the Crown and the judge worked for their province and had British Columbia’s best interests at heart. It is actually a testimony to the weakness of the Crown’s case that Mr. Topham was found not guilty at all.
The battle is not over. Following the verdict, both sides indicated that they intended to appeal. (Here Canada differs from the United States where prosecutors can appeal only under very limited circumstances). The Crown asked that Mr. Topham’s bail restrictions be changed and that his website be taken down. Judge Butler did not decide these issues because first, as the defense pointed out, these requests were improperly made. Mr. Topham intends to present a Charter (constitutional) argument that the judge had stayed at the beginning of the trial so that the ‘facts’ of the case could be more fully developed at trial.
Eve Mykytyn graduated from Boston University School of Law and was admitted to bar of the state of New York. Read other articles by Eve.