CITATION: R. v.

Sears, 2021 ONSC 4272

COURT FILE NOS.: CR-19-70000072-00AP
CR-19-70000077-00AP
DATE: 20210614

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN: )
)
HER MAJESTY THE QUEEN )
) Michael Bernstein, for the Crown
Respondent )
)
– and – )
) James Sears, in person
JAMES SEARS )
)
Appellant
)
BETWEEN: ) Ian McCuaig, for Leroy St. Germaine
)
HER MAJESTY THE QUEEN )
)
Respondent )
)
– and – )
)
LEROY ST. GERMAINE ) HEARD: November 10, 12, 16, and 17,
) 2020
Appellant )

CAVANAGH J.

REASONS FOR JUDGMENT

Introduction

[1] The appellants, Leroy (Lawrence) St. Germaine and James Sears were tried in the Ontario
Court of Justice before Justice Richard Blouin. Each appellant was charged with two counts
of wilfully promoting hatred against an identifiable group contrary to s. 319(2) of the
Criminal Code. The identifiable group in count one was Jews. The identifiable group in
count two was women.

[2] Each appellant was found guilty on each count.

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[3] Mr. St. Germaine was given a conditional sentence of six months on each count to be served
consecutively under house arrest.

[4] Mr. Sears was sentenced to a term of imprisonment of six months on each count to be
served consecutively, a total of one year.

[5] Each appellant appeals his conviction and sentence.

[6] This appeal was heard in November 2020 by Zoom teleconference because of the COVID-
19 pandemic. Because of the pandemic, the release of the decision on the appeals was
deferred until June 14, 2021.

Summary of Facts

[7] The appellant’s offences were alleged to have occurred between March 1, 2015 and June
30, 2018. During this period of time, Mr. St. Germaine was the owner and publisher of
Your Ward News (“YWN”). Mr. Sears started to write articles for YWN in March 2015.
In May 2015 he became its editor-in-chief and thereafter exercised editorial control over
its contents.

[8] All 22 issues of YWN published between January 2015 and December 2018 were filed as
an exhibit at trial.

[9] At trial, the parties entered into a Statement of Agreed Facts in which the following facts,
among others, were admitted:

a. Jews are an identifiable group within the meaning of section 318(4) of the Criminal
Code.

b. Women are an identifiable group within the meaning of section 318 (4) of the
Criminal Code.

c. The defendant, LeRoy (Lawrence) St. Germaine is the owner and publisher of Your
Ward News which was registered with the Ministry of Consumer and Commercial
Relations in September 2013. The business premises of Your Ward News were
located in East York during the time period set out in the charges. As publisher,
Mr. St. Germaine is aware of the publication’s content distribution.

d. The defendant James Sears (a.k.a. Dimitrious Sarafopouolos) started to write

articles for Your World News in March 2015 and has been the editor-in-chief since
May 2015, exercising editorial control over its contents since then. Mr. Sears
authors articles under his own name and under the pen name “Dimitri the Lover”.
Under this pen name, Mr. Sears also maintains a social media presence through a
website, blog, and Twitter account.

e. Until June 6, 2016, your Work News was delivered by Canada Post. On that date,
the Ministry of Public Services and Procurement issued an order prohibiting
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Canada Post delivery of Your World News. It is now delivered by private delivery
to homes and businesses, primarily in Toronto and adjacent regions.

f. Your Ward News is delivered free of charge and without subscription to over
300,000 recipients. At the time of trial, current and past issues could be accessed
online.

[10] On January 24, 2019, the trial judge released his reasons for finding that both Mr. Sears
and Mr. St. Germaine guilty as charged on each count. On August 22, 2019, the trial judge
released his reasons for sentence on the convictions against Mr. Sears. On August 29, 2019,
the trial judge released his reasons for sentence on the convictions against Mr. St.
Germaine.

Analysis

[11] I first address the issues raised by both appellants with respect to their appeals from the
trial judge’s findings of guilt against each appellant on each count. Mr. Sears supported the
submissions made by Mr. St. Germaine, through counsel, and Mr. St. Germaine also
supported certain of the supporting submissions made by Mr. Sears on the issues of
sufficiency of reasons and whether the verdicts are unreasonable.

[12] I describe the submissions made on these appeals upon which both appellants rely as
having been made by “the appellants” even if the submission was made by one appellant
and adopted by the other appellant.

Were the reasons given by the trial judge insufficient such that the verdicts are unreasonable?

[13] The appellants submit that the trial judge’s reasons are deficient because they do not
explain the court’s disposition of the case and they have placed his decision beyond review
by an appellate court.

[14] I first set out the legal principles that apply on an appeal based on alleged insufficiency of
reasons.

[15] In R. v. Dinardo, [2008] S.C.J. No. 24, at paras. 24-25 and 27, the Supreme Court of Canada
explained the need for reasons in a criminal trial:

24 In R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, this

Court confirmed that courts have a duty to give reasons. Reasons
serve many purposes; in particular, they explain the court’s
disposition of the case and facilitate appellate review of findings
made at trial. The content of the duty will, of course, depend on the
exigencies of the case. As this Court has noted, “the requirement of
reasons is tied to their purpose and the purpose varies with the
context” (Sheppard, at para. 24).

25 Sheppard instructs appeal courts to adopt a functional

approach to reviewing the sufficiency of reasons (para. 55). The
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inquiry should not be conducted in the abstract, but should be

directed at whether the reasons respond to the case’s live issues,
having regard to the evidence as a whole and the submissions of
counsel (R. v. D. (J.J.R) (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at
para. 32). An appeal based on insufficient reasons will only be
allowed where the trial judge’s reasons are so deficient that they
foreclose meaningful appellate review: Sheppard, at para. 25.
…

27. Reasons “acquire particular importance” where the trial

judge must “resolve confused and contradictory evidence on the key
issue, unless the basis of the trial judge’s conclusion is apparent
from the record” (Sheppard, at para. 55).

[16] In R. v. R.E.M., [2008] 3 S.C.R. 3, the Supreme Court of Canada noted that the authorities
establish that reasons for judgment in a criminal trial serve three main functions: (i) reasons
tell the parties affected by the decision why the decision was made; (ii) reasons provide
public accountability of the judicial decision; and (iii) reasons permit appellate review. The
Supreme Court of Canada, at paras. 15-16, noted that in Sheppard and subsequent cases,
the Court has advocated a functional context-specific approach to the adequacy of reasons
in a criminal case. Courts of appeal considering the sufficiency of reasons should read them
as a whole, in the context of the evidence, the arguments made and the trial, and with an
appreciation for the purposes or functions for which they are delivered.

[17] In R.E.M., the Supreme Court of Canada held that these purposes are fulfilled if the reasons,
read in context, show why the judge decided as he or she did. As the Court noted, at para.
17, “[t]he object is not to show how the judge arrived at his or her decision, in a ‘watch me
think’ fashion. It is rather to show why the judge made that decision”. The Supreme Court
of Canada, citing the decision of the Court of Appeal for Ontario in R. v. Morrisey (1995),
22 O.R. (3d) 514, held, at para. 17, that “what is required is a logical connection between
the ‘what’ – the verdict – and the ‘why’ – the basis for the verdict. The foundations of the
judge’s decision must be discernible, when looked at in the context of the evidence, the
submissions of counsel and the history of how the trial unfolded.”

[18] In R.E.M., the Supreme Court of Canada made it clear that explaining the “why” and its
logical link to the “what” does not require the trial judge to set out every finding or
conclusion in the process of arriving at the verdict. The Court, citing Morrisey, held, at
para. 18, that reasons are not intended to be, and should not be read, as a verbalization of
the entire process engaged in by the trial judge in reaching a verdict. The Court held, at
para. 20, that the trial judge need not expound on evidence which is uncontroversial or
detail his or her finding on each piece of evidence or controverted fact, so long as the
findings linking the evidence to the verdict can be logically discerned.

[19] In R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869, the Supreme Court of
Canada explained the functional test for the sufficiency of reasons, at paras. 24-26:
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In my opinion, the requirement of reasons is tied to their purpose

and the purpose varies with the context. At the trial level, the reasons
justify and explain the result. The losing party knows why he or she
has lost. Informed consideration can be given to grounds for appeal.
Interested members of the public can satisfy themselves that justice
has been done, or not, as the case may be.

The issue before us presupposes that the decision has been appealed.
In that context the purpose, in my view, is to preserve and enhance
meaningful appellate review of the correctness of the decision
(which embraces both errors of law and palpable overriding errors
of fact). If deficiencies in the reasons do not, in a particular case,
foreclose meaningful appellate review, but allow for its full
exercise, the deficiency will not justify intervention under s. 686 of
the Criminal Code. That provision limits the power of the appellate
court to intervene to situations where it is of the opinion that (i) the
verdict is unreasonable, (ii) the judgment is vitiated by an error of
law and it cannot be said that no substantial wrong or miscarriage of
justice has occurred, or (iii) on any ground where there has been a
miscarriage of justice.

The appellate court is not given the power to intervene simply

because it thinks the trial court did a poor job of expressing itself.

[20] The appellants submit that the trial judge’s reasons are contradictory and the contradictions
in the reasons are unresolved. They point to paragraph 4 of the trial judge’s reasons in
which he wrote that the evidence from the expert witnesses was not necessary and the
agreed statement of facts, Mr. St. Germaine’s police statement, and the 22 issues of YWN
provide a complete factual foundation for his analysis.

[21] The appellants submit that notwithstanding this statement, the trial judge’s reasons reveal
his reliance on the very evidence he described as being unnecessary. They point to
paragraphs 21 through 26 of the reasons in support of their submission that the trial judge
relied on the expert analysis of Dr. Penslar, one of the experts called by the Crown to testify
at trial. The appellants also submit that the specific examples of hate speech identified by
the trial judge in his reasons at paragraphs 14 to 20 are examples that were cited in the
expert report of Dr. Benedet. They submit this shows that, contrary to his statements in the
reasons that he did not rely upon expert evidence, the trial judge did so.

[22] The appellants point to the trial judge’s statement at paragraph 3 of his reasons in which
he notes the defence argument that the need to employ experts by the Crown, in and of
itself, recognizes the obscurity of the material. The appellants submit that no reasonable
trier of fact could find that hatred which cannot be decoded without the assistance of an
expert constitutes hatred in the context of s. 319(2) of the Criminal Code because no trier
of fact could assume that the general public would have access to the advice that the trial
judge relied on to understand the meaning of the published statements. They argue that
notwithstanding his statements to the contrary, the trial judge did rely on expert evidence
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for this purpose and, therefore, the trial judge’s verdict is unreasonable and cannot be
sustained.

[23] The sufficiency of the trial judge’s reasons must be considered in the context of the
submissions made at trial. The Crown submitted at trial that statements communicated in
YWN self-evidently promoted hatred against women and Jews. This was made clear to the
trial judge in the Crown’s closing submissions where Crown counsel referred to the defence
submission that the statements in YWN, read in context, are obscure, and that the fact that
the Crown called experts demonstrates the obscurity. Crown counsel at trial submitted that
the expert evidence was not tendered for the purpose of assisting the trial judge to find that
the appellants wilfully promoted hatred. Crown counsel submitted in closing submissions
that “no expert is required to observe what I submit is conspicuous, repetitive vile hatred
in these passages. It’s the cornerstone of Your Ward News.” The Crown’s position at trial
was that “[t]he messages of hatred in Your Ward News are clear and readily
comprehensible by the average reader.” Crown counsel at trial relied on the expert evidence
to show that “the form this hatred took conformed with historical hate literature” and as
being relevant to proof of intent. See transcript of proceedings, January 16, 2019, at pp. 22,
28, and 32.

[24] In his written reasons, at para. 3, the trial judge accepted the defendants’ submissions that
any comments expressed in YWN must be viewed contextually and he identified the
argument raised by the defendants that the need to employ experts by the Crown recognizes
the obscurity of the material. The trial judge went on to write, at para. 4:

Given the above submission, I think it is important to deal with the

evidence of both experts at this point. I will first say that both were
extremely impressive. They both provided the Court with a
historical background to many issues written about in YWN. They
both communicated their opinions regarding anti-Semitism and
misogyny succinctly and authoritatively. More impressively, they
both enhanced the strength of their opinions by responding
thoughtfully to questions and challenges in cross-examination. I had
no trouble accepting either expert’s evidence. As helpful and the
impressive as they turned out to be, in my view, they were not
necessary. The agreed statement of facts (Exhibit 1), Mr. St.
Germaine’s police statement (Exhibit 18), and Exhibit 2 (the 22
issues of YWN) provide a complete factual foundation for my
analysis.

[25] In oral reasons given on January 24, 2019, the trial judge stated:

Okay. I agree with your counsel in this matter that it’s important to
read all of the issues of Your Ward News, and not just pick out
certain quotes in certain parts, passages, that are in the newspaper.

When one does that, and I have done that, there is an overarching
and unrelenting message of hate. The breadth and depth of this
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message made it clear to me, beyond any doubt, that you both fully
intended to promote hate.

While both experts in this trial were excellent, and they assisted this
Court in understanding a wider historical context regarding both
anti-Semitism and misogyny, the 22 issues of this newspaper
provided all the evidence necessary to conclude that you both
wilfully promoted hate.

If this material does not rise above distasteful expression to qualify

as hate, then I can’t imagine what will. I find you both guilty on both
counts.

See transcript of proceedings, oral reasons for judgment, pp. 2-3.

[26] I disagree that the passages at paras. 21-26 of the trial judge’s reasons disclose that the trial
judge relied upon expert testimony to found his understanding of hatred towards women
and toward Jews. These passages show that the trial judge considered the expert testimony
in the way he wrote that he did: as providing the Court with historical background to issues
written about in YWN. The trial judge was clear in his reasons that he accepted the Crown’s
submission that the 22 issues of YWN provided the evidence needed for him to reach
conclusions on whether statements in YWN promoted hatred against identifiable groups.

[27] I also disagree that the fact that the trial judge cited examples of speech in paras. 14-20 of
his reasons which correspond with examples cited by Dr. Benedet shows that he did not
consider these examples independently without reliance on expert testimony. It would not
be surprising that the trial judge used examples that were cited by Dr. Benedet if he
considered the examples to be representative and appropriate. Even if the trial judge was
directed to these examples through Dr. Benedet’s report, this would not justify a reasonable
inference that the trial judge did not consider these statements independently of the expert
evidence, as he wrote that he did.

[28] I do not accept the appellants’ submission that the reasons reveal that the trial judge relied
on expert evidence to decode the statements in YWM which are alleged to promote hatred.

[29] The appellants submit that the trial judge erred by failing to explore whether there is an
alternative explanation for the statements which he found constituted wilful promotion of
hatred towards identifiable groups. They submit that the trial judge erred by failing show
in his reasons his analysis of the statements in the 22 editions of YWN in context, and by
failing to show in his reasons that he considered an alternative view of these statements,
that they are merely offensive and provocative and do not constitute prohibited hate speech.
The appellants argue that these failures leave them, the public, and the Court in a position
where they do not know how the trial judge reached his conclusion. They submit that this
creates the situation described in Sheppard, where the trial judge’s reasons are deficient,
and they have placed his decision beyond review by an appellate court.
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[30] Mr. St. Germaine’s counsel accepts that the 22 editions of YWN have many statements
that are highly offensive by any measure, but he contends that when they are read as a
whole, there is an alternative view of the these publications that shows that Mr. Sears and
Mr. St. Germaine were trying to be provocative and offend, inflame, and upset readers,
without any indication that the published statements made against Jews and women should
be adopted by others.

[31] In support of these submissions, Mr. St. Germaine relies on the following passages from
R. v. Keegstra, [1990] 3 S.C.R. 697, at pp. 777-778:

The meaning of “hatred” remains to be elucidated. Just as “wilfully”

must be interpreted in the setting of s. 319(2), so must the word
“hatred” be defined according to the context in which it is found. A
dictionary definition may be of limited aid to such an exercise, for
by its nature a dictionary seeks to offer a panoply of possible usages,
rather than the correct meaning of a word as contemplated by
Parliament. Noting the purpose of s. 319(2), in my opinion the term
“hatred” connotes emotion of an intense and extreme nature that is
clearly associated with vilification and detestation. As Cory J.A.
stated in R. v. Andrews, supra, at p. 179:

Hatred is not a word of casual connotation. To promote

hatred is to instill detestation, enmity, ill-will and
malevolence in another. Clearly an expression must go a
long way before qualifies within the definition in [s. 319(2)].

Hatred is predicated on destruction, and hatred against identifiable

groups therefore thrives on insensitivity, bigotry and destruction of
both the target group and of the values of our society. Hatred in this
sense is a most extreme emotion that belies reason; an emotion that,
if exercised against members of an identifiable group, implies that
those individuals are to be despised, scorned, denied respect and
made subject to ill-treatment on the basis of group affiliation.
…

The danger that a trier will improperly infer hatred from statements
he or she personally finds offensive cannot be dismissed lightly, yet
I do not think that the subjectivity inherent in determining whether
the accused intended to promote hatred, as opposed to an emotion
involving a lesser degree of antipathy, represents an unbridled
license to extend the scope of the offence. Recognizing the need to
circumscribe the definition of “hatred” in the manner referred to
above, a judge should direct the jury (or him or herself) regarding
the nature of the term as it exists in s. 319(2). Such a direction should
include express mention of the need to avoid finding that the accused
intended to promote hatred merely because the expression is
distasteful. If such a warning is given, the danger referred to above
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will be avoided and the freedom of expression limited no more than

is necessary.

[32] The appellants submit that reasons of the trial judge show that he inferred hatred from
statements that he personally found to be offensive and, by following this approach, the
trial judge fell into the error identified as a danger in Keegstra.

[33] In his reasons, at p. 3, under the heading “Is this hate or simply distasteful expression?”,
the trial judge cited Keegstra and, specifically, quoted the passage where Dickson C.J.
explained the meaning of the term “hatred” for the purpose of s. 319(2) of the Criminal
Code as one that “connotes emotion of an intense and extreme nature that is clearly
associated with vilification and detestation”. The trial judge quoted another passage from
Keegstra where Dickson C.J. wrote that hatred “implies that those individuals are to be
despised, scorned, denied respect and made subject to ill-treatment on the basis of group
affiliation”. These passages make it clear that the trial judge was alert to the distinction
raised in Keegstra between speech which the trier of fact finds personally offensive, or is
merely distasteful, and hateful speech. The trial judge correctly gave himself the direction
recommended by Dickson C. J. in Keegstra.

[34] In support of their submission that reasons are insufficient because the trial judge failed to
show that he addressed and excluded other inferences from the 22 issues of YWN that are
inconsistent with guilt, the appellants also rely on R. v. Villaroman, [2016] SCC 33. In
particular, the appellants rely on the principle expressed in Villaroman, at paras. 40-41,
that where a conviction is based on circumstantial evidence, the evidentiary circumstances
must bear no other reasonable explanation, and that this is “a helpful way of describing the
line between plausible theories and speculation”. The appellants contend that the evidence
upon which the trial judge relied, the 22 issues of YWN, is circumstantial evidence and, as
such, the trial judge, when assessing this evidence, was required to show in his reasons that
he considered whether the evidence is reasonably capable of supporting an inference other
than that the accused are guilty.

[35] In Villaroman, the accused was charged with possession of child pornography which was
found on his computer when it was left with a repair shop. The computer files alleged to
be child pornography did not constitute circumstantial evidence. These files were direct
evidence of child pornography. The accused admitted that the computer was his and that
the files found on it constituted child pornography. The issue was whether the Crown had
proven that the accused knew the nature of the material, had the intention to possess it, and
had the necessary control over it. The evidence upon which the Crown relied to prove these
facts was circumstantial and provided by the technician who received the computer for
repairs and a forensic analyst. See Villaroman, at paras. 6-11. Because the evidence of
possession was circumstantial, the Court addressed the relationship between circumstantial
evidence and proof beyond a reasonable doubt and, at para. 26, explained the special
concern inherent in the inferential reasoning from circumstantial evidence “that the jury
may unconsciously ‘fill in the blanks’ or bridge gaps in the evidence to support the
inference that the Crown invites it to draw”.
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[36] In this case, unlike in Villaroman, the evidence upon which the Crown relies is not
circumstantial. The evidence is the 22 issues of YWN that were marked as Exhibit 2 at the
trial. The statements alleged to constitute wilful promotion of hatred against an identifiable
group are found in these issues and constitute direct evidence. This evidence is similar in
nature to the computer files alleged to contain child pornography in Villaroman. The trial
judge was not required to draw an inference that the defendants published these issues. The
principles expressed in Villaroman apply only to assessment of circumstantial evidence
having regard to the special concerns in relation to such evidence. These principles do not
apply on these appeals.

[37] Where the evidence against the accused is direct evidence, the trial judge cannot make
findings of fact based on supposition, speculation, or conjecture, but the trial judge is
entitled to draw inferences and make findings of fact where there is a reasonable basis in
the evidence to do so.

[38] The appellants submit that the verdict should be set aside as unreasonable on the basis that
the reasons disclose that the trial judge misapprehended the evidence.

[39] In the following statement from the decision in R. v. R.P., [2012] S.C.J. No. 22 (S.C.C.),
at para. 9, the Supreme Court of Canada articulated the inquiry to be made by the appellate
court when a verdict is said to be unreasonable:

To decide whether a verdict is unreasonable, an appellate court

must, as this Court held in R. v. Yebes, [1987] 2 S.C.R. 168, and R.
v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36,
determine whether the verdict is one that a properly instructed jury
or a judge could reasonably have rendered. The appellate court may
also find a verdict unreasonable if the trial judge has drawn an
inference or made a finding of fact essential to the verdict that (1) is
plainly contradicted by the evidence relied on by the trial judge in
support of that inference or finding, or (2) is shown to be
incompatible with evidence that has not otherwise been contradicted
or rejected by the trial judge [citations omitted].

[40] Applying this standard requires the appellate court to re-examine and to some extent
reweigh and consider the effect of the evidence for the purpose of determining if the
evidence is reasonably capable of supporting the verdict: R. v. Yebes, [1987] 2 S.C.R. 168,
at para. 25.

[41] In R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, the Supreme Court of Canada explained
how the reviewing court must treat the verdict of the trial judge:

Of course, a jury’s guilty verdict based on the jury’s assessment of

witness credibility is not immune from appellate review for
reasonableness. However, the reviewing court must treat the verdict
with great deference. The court must ask itself whether the jury’s
verdict is supportable on any reasonable view of the evidence and
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whether proper judicial fact-finding applied to the evidence

precludes the conclusion reached by the jury [emphasis in original].

[42] In R. v. Loher, 2004 SCC 80, Binnie J. explained that how the reviewing court should
consider an appeal based on an alleged misapprehension of the evidence, citing the decision
of Doherty J.A. in Morrisey:

Morrisey, it should be emphasized, describes a stringent standard.

The misapprehension of the evidence must go to the substance rather
than to the detail. It must be material rather than peripheral to the
reasoning of the trial judge. Once those hurdles are surmounted,
there is the further hurdle (the test is expressed as conjunctive rather
than disjunctive) that the errors thus identified must play an essential
part not just in the narrative of the judgment but “in the reasoning
process resulting in a conviction”.

[43] The appellants ask me to address individually what the trial judge described as “excerpts
of alleged examples of hate” (which were provided by the Crown as part of the closing
submissions at trial and appended to his reasons as Exhibit A with, the trial judge states
“correction notes”) as part of a comprehensive review of all 22 issues of YWN and decide
in respect of these excerpts, in the context of all 22 issues read as a whole, whether they
properly qualify as speech which promotes hatred. They invite me to find, based on this
review, that some, or many, such characterizations of the excerpts would be unfair, and
conclude for this reason that the trial judge’s reasons are insufficient and that his verdict is
unreasonable.

[44] The Crown submits that such an exercise would not be a proper one for an appellate court
to undertake. The Crown contends that full submissions would be needed to address each
of the excerpts, an exercise that would not be useful, given that the trial judge did not make
specific findings with respect to individual excerpts in Appendix A. The Crown submits
that any finding that a given excerpt does not qualify as speech that wilfully promotes
hatred against an identifiable group would not support a conclusion that the trial judge
misapprehended the evidence as a whole when he found that the overwhelming message
of YWN was hatred of women and Jews.

[45] The appellants rely on Appendix A to the trial judge’s reasons as showing that the reasons
are insufficient. The submit that words used in Appendix A do not correspond with words
in Exhibit 2, such that, they submit, the references are misleading and unfair. The
appellants submit that this was drawn to the trial judge’s attention before he released his
reasons, and no corrections were made. Mr. Sears submits that this is circumstantial
evidence of collusion between the Crown and the trial judge.

[46] I do not agree that the fact that the trial judge appended the references as Appendix A to
his reasons without specifically addressing them shows that the reasons are insufficient.
The trial judge wrote that whole body of each issue must be examined. The trial judge was
clear in his reasons that he relied on the entirety of Exhibit 2 in reaching his conclusion
that the appellants made statements that promoted hatred against Jews and women.
 Page: 12

Appendix A shows on its face that the references are not simply quotations from issues of
YWN but contain some quotations as well as Crown counsel’s submissions. The fact that
corrections were not made to Appendix A before the reasons were released does not show
that the trial judge’s reasons are insufficient or that he colluded with Crown counsel.

[47] Mr. Sears submits that the reasons of the trial judge are insufficient because he fails to
identify each statement alleged to be one promoting hatred and explain why each statement
fulfils all of seven “criteria” for hatred that Mr. Sears takes from Keegstra and other
jurisprudence. Mr. Sears submits that the trial judge was required, in respect of each
statement alleged to be one promoting hatred, to express in his reasons why the statement
satisfies each of these criteria. The criteria identified by Mr. Sears are that the statement is
(i) one of emotion, (ii) intense, (iii) extreme, (iv) clear, (v) one involving vilification, (vi)
one that conveys detestation, and (vii) wilful. Mr. Sears also submits that the trial judge
was required to state in his reasons why, in respect of each statement alleged to promote
hatred, it is not satirical art, and why a given statement rises to the level that it qualifies as
hatred, as opposed to a lower level of criticism.

[48] Mr. Sears submits on this appeal that if, after each excerpt from YWN cited in Appendix
A of the trial judge’s reasons is analyzed by reference to the seven criteria he identifies,
the actus reus for the offences appears to be shown, each passage should then be
individually analyzed for its context including any exculpatory passages that may qualify
the meaning of the passages as written. Mr. Sears asks that I identify any problematic
passages and then allow further written and oral arguments.

[49] The trial judge was not required to record in his reasons on a step-by-step basis or in a
“watch me think” fashion the processes he followed in the course of considering the
evidence as a whole and satisfying himself that the defendants had wilfully promoted
hatred against identifiable groups. The trial judge was not required to identify in his reasons
the individual statements from YWN that he reviewed as part of his consideration of the
collection of issues as a whole. The trial judge was not required to record in his reasons,
by reference to particular words used in Keegstra and other jurisprudence that explain the
meaning of “hatred”, his assessment of whether each individual statement qualified as one
promoting hatred, by reference to a set of criteria or otherwise. The trial judge was not
required to record in his reasons an analysis of each individual passage from YWN that
may be understood to convey conflicting or exculpatory messages.

[50] This appeal is not a new trial, and the approach requested by Mr. Sears for this appeal is
not a proper one for an appellate court to follow. As explained in Dinardo, at para. 25,
citing Sheppard, an appellate court should adopt a functional approach to reviewing the
sufficiency of reasons. The inquiry should be directed at whether the reasons respond to
the case’s live issues, having regard to the evidence as a whole and the submissions of
counsel.

[51] I consider the submissions of counsel at trial as part of my review of the sufficiency of the
trial judge’s reasons.
 Page: 13

[52] At trial, the Crown made submissions that statements communicated in YWN promote
hatred against women and against Jews. The Crown cited many examples taken from issues
of YWN to support these submissions.

[53] In the written submissions made on behalf of Mr. Sears at trial, the argument was made
that the Crown had presented, out of context, condensed quotes from YWN and that the
proper approach was to consider the issues of YWN as a whole. Mr. Sears’ counsel argued
that when analyzed in its entirety and understood contextually, the content of YWN does
not constitute the promotion of hate. Mr. Sears counsel argued that the 22 issues of YWN,
read as a whole, contain no consistent or unambiguous message of hatred towards women
and Jews as much of its content is unfocused, obscure, and contradictory. Mr. Sears’
counsel argued, in the alternative, that a focused review of YWN’s treatment of Jewish
people and women reveals that the messages, while highly offensive, fall short of the
promotion of hatred. Mr. Sears’ counsel made submissions generally, by reference to
various themes in YWN, addressing whether the 22 issues of YWN promote hatred against
Jews and against women. Mr. Sears counsel argued in the alternative that even if the
content of YWN has the effect of promoting hatred toward the identifiable groups, Mr.
Sears did not intend to promote hate and did not see its promotion as reasonably certain.

[54] Mr. St. Germaine’s counsel, in his written submissions at trial, argued that “the amalgam
of referenced statements, organized out of context, obfuscates the real issues to be decided
by the Court”, and that the Crown’s compilation of references does not always accurately
depict the meaning of the material referred to. Mr. St. Germaine’s counsel submitted at
trial that after considering the evidence as a whole, a reasonable doubt exists that Mr. St.
Germaine is guilty of wilfully promoting hatred.

[55] The authorities are clear that the trial judge’s findings of fact are entitled to deference and
an appellate court should not engage in a review of the evidence for the purpose of deciding
whether it agrees or disagrees with the trial judge’s findings and conclusions. The trial
judge was entitled to draw inferences and make factual findings, provided that there was a
reasonable basis in the evidence to do so. The evidentiary review on appeal is for a limited
purpose, to determine if the evidence is reasonably capable of supporting the trial judge’s
conclusions. Provided that this test is met, an appellate court should not substitute its
opinion for that of the trial judge.

[56] I have reviewed the trial judge’s reasons and I have reviewed the evidence of the issues of
YWN marked as Exhibit 2 at trial, a review that was facilitated by a searchable PDF file of
Exhibit 2 provided by counsel for Mr. St. Germaine.

[57] My review was undertaken for the purpose of determining whether the evidence is
reasonably capable of supporting the trial judge’s findings and conclusions as expressed in
his reasons. I do not intend to engage in my own analysis all of the individual statements
and descriptions of statements included in Appendix A to the trial judge’s reasons, or the
statements cited in the Crown’s factums on these appeals, for the purpose of making my
own findings as to whether the statements in YWN in reference to women and Jews,
individually or collectively, read in context, qualify as statements wilfully made to promote
hatred. This exercise would be an improper one for an appellate court to undertake.
 Page: 14

[58] In his reasons, the trial judge found that “[w]hen all 22 issues are examined, one is left with
unfocused and absurd opinions, contradictory messages, and scattershot ramblings. Except
for its stated claims of being the world’s largest anti-Marxist publication, YWN exhibits
no unifying concept.” This finding is reasonably supported by the evidence.

[59] In his reasons, the trial judge explained his findings and conclusions on the issues before
him having regard to the evidence as a whole and the submissions of counsel, at paras. 11
and 12:

[11] After considering the entirety of Exhibit 2, a consistent and

obvious theme that radiated from this publication was hatred. It was
at times contradictory in that love was professed to Jews and some
women. It was at times satirical in that humour and exaggeration
were employed to make the point. But hatred of Jews and women
was overwhelmingly the message.

[12] As noted above, a contextual approach to the views

expressed in YWN is necessary. However, there were representative
examples of vilification and detestation that leapt off the page.
Women were represented as immoral, inferior, and not human. Mr.
Sears celebrated sexual and physical violations towards them. Jews
were consistently blamed, demonized, and maligned. In my view,
YWN repeatedly and consistently dehumanized Jews and women,
and I conclude both men intended to publish hate. No other intent
can be inferred from a complete reading of this newspaper.

[60] In paragraphs 14 to 26 of his reasons, the trial judge supported his findings and conclusions
by describing examples of statements that promote hatred against women and hatred
against Jews. In paragraphs 27 to 29 of his reasons, the trial judge addressed the defendants’
submission that the writings do not attack Jews and women as a whole group. The trial
judge explained in these paragraphs why he did not accept this submission. In paragraphs
28-29 of his reasons, the trial judge accepted that there are “ostensibly benign views of
both Jews and women expressed at times in YWN”, and he explained why he concluded
that YWN, when read as an entire body, contains statements by which the appellants
wilfully promoted hatred against these groups.

[61] Based on my review of the published issues of YWN marked at trial as Exhibit 2, I am
satisfied that there was ample evidence upon which the trial judge could reasonably make
these findings and reach these conclusions. Statements described by the trial judge in
paragraphs 11 and 12 of his reasons as communicating hatred, within the meaning of that
term in Keegstra, against women and Jews are found in the issues of YWN received in
evidence. The trial judge’s reasons show why he decided as he did, and they show a logical
connection between why he decided as he did and the evidence that was the basis for his
decision. The 22 issues of YWN received in evidence provide the basis for public
accountability of the trial judge’s reasons. The trial judge’s reasons, read in the context of
the evidence at trial and the submissions made by counsel, do not foreclose appellate
review.
 Page: 15

[62] The appellants also submit that the trial judge’s reasons are also insufficient because he
does not sufficiently address the question of whether, if YWN includes statements that are
hateful towards Jews and women, the appellants, through these statements, intended only
to be provocative, offensive, and absurd, rather than promote hatred.

[63] With respect to the issue of whether the trial judge’s reasons are insufficient on the issue
of intent, the reasons must be considered in the context of the submissions made by counsel
at trial.

[64] Mr. St. Germaine argued at trial that the tone of the entire publication is presented as absurd
and designed to cause affront, and that the necessary intent could not be inferred from the
published issues of YWN. Mr. Sears’ counsel submitted that there is insufficient evidence
to conclude beyond a reasonable doubt that Mr. Sears intended to promote hatred as a
substantially certain result of his actions.

[65] The Crown argued at trial that the expressions of hatred toward women and Jews in YWN
are extreme in nature and this furnishes powerful evidence of intent to promote hatred. The
Crown submitted at trial that the determination of intent rests on a contextual assessment,
having regard to the circumstances surrounding the making of the statement. The Crown
cited Keegstra for the proposition that “the trier will usually make an inference as to the
necessary mens rea based on the statements made”. The Crown submitted that the only
reasonable inference is that both defendants were well aware of the meanings of the
messages conveyed in YWN and that their purpose was to promote hatred against these
two groups.

[66] In paragraph 12 of his reasons, the trial judge found that both appellants intended to publish
hate, and that no other intent can be inferred. At paragraphs 30-31 of his reasons, the trial
judge gave additional reasons for his conclusion that the appellants intended “to pass on to
others the message of hate towards Jews and women”. The trial judge’s reasons are clear
that he accepted the Crown’s submissions that he should find that the statements were
wilfully made with the requisite intent. The reasons are not deficient in this respect. There
was ample evidence that provided a reasonable basis for the trial judge’s finding in this
respect.

[67] I am satisfied that the trial judge’s reasons responded to the issues raised by the parties
having regard to the evidence as a whole and the submissions of counsel. For these reasons,
I do not accept the appellants’ submissions that the trial judge’s reasons are insufficient or
that the verdicts are unreasonable because the trial judge misapprehended the evidence.

[68] Mr. Sears also appeals the verdict on other grounds upon which Mr. St. Germaine does not
rely. I address these grounds of appeal.

Did the trial judge commit a reversible error by failing to find that Mr. Sears had shown a
defence to the charges against him pursuant to s. 319(3) of the Criminal Code?

[69] At trial, Mr. Sears counsel did not argue that defences under s. 319(3) applied to preclude
a conviction on charges under s. 319(2) of the Criminal Code. Mr. St. Germaine argued
that one statutory defence was relevant under s. 319(3)(c).
 Page: 16

Subsection 319(3) of the Criminal Code provides:

No person shall be convicted of an offense under subsection (2)

(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.

[70] In his reasons, the trial judge addressed the application of the section 319(3)(c) in
paragraphs 33 and 34 as this defence relates to the charges against Mr. St. Germaine. The
trial judge did not accept the submission that Mr. St. Germaine reasonably believed the
statements made regarding Jews and women were true.

[71] Mr. Sears submits that notwithstanding that his counsel did not rely upon defences under
section 319 (3) at trial, the trial judge was required to address these defences in relation to
the charges against him and that his failure to do so is a reversible error. Mr. Sears submits
that many s. 319(3) defences relating to specific passages upon which the trial judge relied
in his reasons or comments made by him were missed by the trial judge. He gives as
examples, with respect to statements in YWN in reference to Jews, that it is not illegal to
call for cultural conversion of a target group and, with respect to statements in YWN in
reference to women, that he “has every right to satirize the notion of ‘rape culture’ and the
resultant ‘consent theory’ that has arisen from it”.

[72] I do not agree that the trial judge was required to address defences under s. 319(3) on which
Mr. Sears did not rely at trial. In any event, I do not agree that had the trial judge been
asked to address the defences under s. 319(3) in relation to the charges against Mr. Sears,
the trial judge’s conclusion would have differed from the one have reached in respect of s.
319(3) as it relates to Mr. St. Germaine.

[73] The trial judge did not commit a reversible error in this respect.

Is Mr. Sears entitled to have the trial verdict set aside on the ground that he received ineffective
representation at trial?

[74] On April 26, 2019, Mr. Sears’ sentencing hearing was held and completed. The Court
reserved, with reasons for sentence to be provided on May 31, 2019. Mr. Sears discharged
 Page: 17

his lawyer and that date was vacated to permit him an opportunity to bring an application
to re-open his defence.

[75] The trial judge received written submissions from Mr. Sears and written responding
submissions from the Crown. In written reasons released on July 15, 2019, the trial judge
dismissed Mr. Sears’ application to re-open the trial on the grounds advanced with the
exception of the ground relating to ineffective representation by trial counsel. The trial
judge allowed Mr. Sears an opportunity to satisfy him that the trial should be re-opened on
this ground, or that a mistrial should be declared, based on affidavit evidence to be
provided.

[76] Mr. Sears provided an affidavit on August 8, 2019 and trial counsel, Wayne Embry,
provided an affidavit on the same day. Mr. Sears provided a response to Mr. Embry’s
affidavit dated August 20, 2019.

[77] On August 22, 2019, the trial judge released his decision. Before doing so, the trial judge
did not find it necessary to allow cross-examination of Mr. Embry, and he refused Mr.
Sears’ request to cross-examine Mr. Embry. The trial judge decided that the evidence in
Mr. Sears’ affidavit, taken at its highest, does not provide a basis to grant the application.
The trial judge concluded that Mr. Embry made competent, professional and tactical
decisions regarding Mr. Sears’ defence. He dismissed the application.

[78] At the hearing of this appeal, both Mr. Sears and Mr. Embry gave viva voce evidence, and
each was cross-examined in respect of Mr. Sears’ ground of appeal that he received
ineffective assistance of counsel at trial.

[79] Mr. Sears’ complaints concerning the representation provided by Mr. Embry as explained
in his August 8, 2019 affidavit are with respect to the following matters:

a. He did not make a constitutional challenge to s. 319 of the Criminal Code.

b. He did not call defence witnesses including expert witnesses.

c. He failed to call expert witnesses to support defences under s. 319(3) of the

Criminal Code.

d. He failed to advance defences under s. 319(3) of the Criminal Code.

e. ‘He was ineffective on a motion at trial to introduce evidence of prior discreditable

conduct by Mr. Sear.

f. He pressured Mr. Sears to agree to the Agreed Statement of Facts.

g. His cross-examinations of expert witnesses called by the Crown were ineffective.

h. Although Mr. Sears had decided not to testify, Mr. Embry failed to introduce into
evidence exculpatory videos of Mr. Sears being interviewed.
 Page: 18

i. He was ineffective in his closing submissions responding to the Crown’s

submissions referencing specific statements published in issues of YWN.

j. He did not submit Mr. Sears’ allocution as written at his sentencing hearing.

[80] In his reasons released on August 22, 2019, the trial judge quoted the following passage
from the decision in R. v. Archer, 2005 O.J. 4348, at paras. 119 and 120:

An appellant seeking to quash a conviction on the basis of

ineffective assistance of counsel must demonstrate three things.
First, where the claim is based on contested facts, the appellant must
establish the material facts on the balance of probabilities. Second,
the appellant must demonstrate that counsel’s acts or omissions
amounted to incompetence. Incompetence is measured against the
reasonableness standard. That assessment is made having regard to
the circumstances as they existed when the impugned acts or
omissions occurred. Hindsight plays no role in the assessment.
Allegations of incompetent representation must be closely
scrutinized. Many decisions made by counsel at trial will come to
be seen as erroneous in the cold light of a conviction. The reasonable
standard must proceed upon a “strong presumption that counsel’s
conduct fell within the wide range of reasonable professional
assistance”: R. v. G.D.B. (2000), 2000 SCC 22 (CanLII), 143 C.C.C.
(3d) 289 at 298 (S.C.C.). As this court said in R. v. White (1997),
1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225 at 247:

An appellate court’s review of trial counsel’s performance should

be deferential. … deference is called for because of the broad
spectrum of professional judgment that might be considered
reasonable. In most cases, even among the most skilled counsel, no
two lawyers will defend an accused in the same way. Different
defence counsel use different trial strategies and tactics, different
approaches to the examination and cross-examination of witnesses,
different styles in opening and closing argument, all of them
reasonable. The art of advocacy yields few, if any, absolute rules. It
is a highly individualized art. What proves effective for one counsel
may be ineffective for another. Most cases, therefore, offer defence
counsel a wide scope for the exercise of reasonable skill and
judgment. Appellate judges, many of them advocates in their own
practices, should not be too quick to conclude that a trial lawyer’s
performance was deficient because they would have conducted the
defence differently.

Third, the appellant must demonstrate that counsel’s ineffective

representation caused a miscarriage of justice. A miscarriage of
justice occurs if the appellate court is satisfied that counsel’s
ineffective representation undermined the appearance of the fairness
 Page: 19

of the trial, or the reliability of the verdict. A verdict is rendered

unreliable where the appellant demonstrates that had counsel
performed in a competent fashion, there is a reasonable possibility
that the verdict could have been different: G.B.D., supra, at pp. 298-
299. Joanisse, supra, at pp. 62-64. The allegations of ineffective
representation on this appeal did not go to the fairness of the trial
process, but to the reliability of the results. The appellant says he
was convicted because of the serious shortcomings in counsel’s
representation of him.

[81] In his viva voce evidence, Mr. Sears testified that he had significant disagreements with
Mr. Embry concerning the questions to be asked on the cross-examination of the expert
witnesses called by the Crown. He testified that he had several conversations with Mr.
Embry about calling expert witnesses, and told him that they “should leave nothing on the
table”. Mr. Sears testified that he suggested that a motion be brought for a directed verdict
and, if this was unsuccessful, expert witnesses could be called, but Mr. Embry did not take
this suggestion seriously. Mr. Sears acknowledged in his evidence that he was not told that
a successful defence was a sure thing, but he started to lose confidence in Mr. Embry,
particularly after the unsuccessful outcome of the Crown’s application to introduce
evidence of discreditable conduct.

[82] Mr. Sears affidavit sworn August 8, 2019, including exhibits was introduced into evidence
on this appeal and marked as Exhibit 1. The exhibits included excerpts from email
correspondence between Mr. Sears and Mr. Embry.

[83] Mr. Sears was cross-examined by Crown counsel. Mr. Sears reiterated his view that Mr.
Embry was required to follow his instructions concerning the conduct of the case. Mr. Sears
testified that Mr. Embry was required to make professional decisions that were in his best
interests, and that the decisions taken not to call expert evidence and not to advance s.
319(3) defences were not reasonable and not in his best interests. Mr. Sears pointed to the
fact that Mr. Embry asked for an adjournment to address examples of alleged hate speech
in the Crown’s closing submissions as showing that Mr. Embry was taken by surprise by
the Crown’s position, and as confirmation that Mr. Embry’s trial decisions were wrong.
Mr. Sears’ testified that Mr. Embry’s trial decisions were unreasonable. Mr. Sears
acknowledged, however, that he acquiesced in the advice given by Mr. Embry concerning
the trial decisions that were taken.

[84] Mr. Sears was asked about an email to him from Mr. Embry dated December 14, 2018 in
which he sent a rough draft of his closing submissions and asked for Mr. Sears thoughts.
Mr. Sears accepts that he supported the draft submissions and, although he did not agree
with the approach taken by Mr. Embry in his closing submissions, he acquiesced in it. Mr.
Sears was shown an email to Mr. Embry dated December 14, 2018 about the draft closing
submissions, in which he told Mr. Embry that he had “really done a good job”. In another
email, Mr. Sears told Mr. Embry in another email on December 16, 2018, in relation to the
draft closing submissions, that he is pleased with how Mr. Embry is approaching the case.
Mr. Sears testified that, although he disagreed with the approach taken, he went along with
Mr. Embry’s approach. In another email in December 2018 in respect of the closing
 Page: 20

submissions, Mr. Sears told Mr. Embry that he would leave the final content of the closing
submissions to him, and that he trusted Mr. Embry.

[85] Mr. Sears, through his affidavit and viva voce testimony, addressed his communications
with Mr. Embry about calling expert evidence. He acknowledged that in the end he
acquiesced in Mr. Embry’s advice that expert evidence would not be called.

[86] Mr. Embry provided evidence at the appeal hearing through his affidavit sworn August 15,
2019 and though viva voce evidence in chief and cross-examination by Mr. Sears. Mr.
Embry explains his view that defence counsel is not to be the alter ego or mouthpiece for
the client, and has the responsibility to exercise professional skill and judgment in making
tactical decisions. His evidence is that he fully communicated with Mr. Sears concerning
tactical decisions and he accepted some suggestions from Mr. Sears but, when he firmly
believed that a request would prejudice Mr. Sears’ defence, he refused to accept the request
and explained his rationale. Mr. Embry’s evidence is that until he was discharged, Mr.
Sears generally accepted his advice and he was generally pleased with how the case was
going.

[87] With respect to the Agreed Statement of Facts, Mr. Embry denies in his affidavit that he
pressured Mr. Sears to agree to it. Mr. Embry states that he was careful not to indicate any
agreement or admission to the Crown without first discussing any such
agreement/admissions with Mr. Sears and obtaining his instructions.

[88] With respect to the motion to introduce evidence of prior discreditable conduct, Mr. Embry
admits that he told Mr. Sears that he was confident that they would win the pretrial motion
and, when the motion was lost, he accepts that he expressed to Mr. Sears that, although the
motion was lost, there was some upside because if Mr. Sears was successful at trial, the
Crowd would not be able to use this issue as an appeal ground.

[89] With respect to the issue of calling a defence, Mr. Embry states that Mr. Sears made it clear
that he would not testify in his own defence because he could not risk exposing the financial
backers of YWN. In his affidavit, he states that he explained to Mr. Sears why the video
interview would not be accepted in evidence and why, in his judgment, to attempt to
introduce the video into evidence by using it to cross-examine the Crown’s experts would
be a useless tactic that would have harmed their credibility with the Court and prejudice
Mr. Sears’ defence.

[90] Mr. Embry’s evidence is that other than Mr. Sears, himself, he and Mr. Sears only seriously
discussed three other persons as possible witnesses to be called. These were, first, a person
who is an Ethiopian Jew who would be able to testify that Mr. Sears had no anti-Jewish
motive. Mr. Embry states that the proposed evidence did not appear to have any probative
value. Second, Mr. Sears suggested that an expert be called on satire to establish that the
contents of YWN were, in fact, satirical. Mr. Embry explains in his affidavit why he
recommended against calling such an expert and he states that he told Mr. Sears that he
would be happy to review any expert Mr. Sears could find, but one was never suggested.
Third, Mr. Sears suggested calling a Dr. Jones as an expert witness. Mr. Embry explains in
his affidavit why he advised against calling this person as an expert, why he considered
 Page: 21

that calling this person would be “disastrous”, and that he did not think the proposed
witness could be qualified as an expert. Mr. Embry appended an email from Mr. Sears in
response to an email recommending against calling this witness in which he states that he
trusts Mr. Embry.

[91] Mr. Embry explains in his affidavit that he and Mr. Sears discussed the statutory defences
under s. 319(3) of the Criminal Code. Mr. Embry explains why, in his judgment, Mr. Sears
could not establish any of these defences and that the best strategy was to focus on raising
a reasonable doubt about whether the Crown had proven that the statements in YWN rose
to the high threshold of “hatred” as defined by the Supreme Court of Canada.

[92] Mr. Embry explains in his affidavit that he discussed with Mr. Sears that the Supreme Court
of Canada in Keegstra had already upheld the constitutionality of s. 319 of the Criminal
Code and that nothing had changed that would make such a challenge meritorious in Mr.
Sears’ case.

[93] Mr. Embry explains in his affidavit that he told Mr. Sears why he considered that he had a
professional obligation not to file the allocution that Mr. Sears had written.

[94] Mr. Sears submits that under cross-examination, Mr. Embry showed a disdain for criticism
and that it is clear from his evidence that Mr. Embry has a “God complex”. Mr. Sears
questioned Mr. Embry about his decision not to argue defences under s. 319(3) of the
Criminal Code and not to call expert evidence. Mr. Sears submits that Mr. Embry’s answers
were rehearsed and evasive. Mr. Sears submits that Mr. Embry’s answers on cross-
examination about the amount of time he spent vetting Dr. Jones was evasive and
contradictory, and that Mr. Embry’s reasons for not calling Dr. Jones were inadequate. Mr.
Sears submits that Mr. Embry answers on cross-examination about his defence strategy
were incomplete and that he agreed that he did not reveal the details of his strategy for
cross-examining the Crown’s experts to Mr. Sears. Mr. Sears submits that the cross-
examination showed that Mr. Embry’s strategy of not calling expert evidence and not
relying on s. 319(3) defences was flawed and poorly considered. Mr. Sears submits that
knowing what he now knows, he would have discharged Mr. Embry before trial, asked for
an adjournment, and represented himself at trial.

[95] The written communications between Mr. Embry and Mr. Sears were in the email
correspondence appended as exhibits to the affidavits. With respect to oral
communications, Mr. Sears accepted that he had discussion with Mr. Embry about tactical
decisions and, although they disagreed at times, he acquiesced in Mr. Embry’s
recommendations. I accept the evidence in Mr. Embry’s affidavit about his
communications with Mr. Sears. I also accept Mr. Sears evidence that he had discussions
with Mr. Embry about trial tactics and that he expressed disagreement with certain of Mr.
Embry’s recommendations and, in the end, he acquiesced in these decisions.

[96] The complaints by Mr. Sears about his representation by Mr. Embry relate mainly to
tactical decisions taken by Mr. Embry with which Mr. Sears agreed or acquiesced. Mr.
Sears has not shown that Mr. Embry acted incompetently having regard to the
circumstances that existed when they were made. Mr. Sears has not shown that Mr.
 Page: 22

Embry’s decision not to call expert witnesses, including Dr. Jones, was incompetent or
unsound. Mr. Embry explained his reasons for this decision to Mr. Sears, and he
acquiesced. With respect to Dr. Jones, I am not satisfied that Mr. Embry failed to
adequately consider whether he should be called as an expert. I am not satisfied that Mr.
Embry’s decision not to advance s. 319(3) defences was unsound or incompetent. Mr. Sears
did not object to the quality of Mr. Embry’s cross-examinations of the expert witnesses
called by the Crown until after the verdicts were given. He did not object to the approach
taken by Mr. Embry in closing submissions and drafts of the written submissions were
provided to Mr. Sears for his input, some of which was accepted. Mr. Sears accepts that he
approved the written submissions that were provided to the trial judge.

[97] The complaints now made about decisions taken at trial must not be assessed with the
benefit of hindsight. As noted in Archer, there is a strong presumption that counsel’s
conduct fell within the range of acceptable conduct, and this presumption has not been
displaced by Mr. Sears’ evidence or by the evidence of Mr. Embry after cross-examination.
Mr. Sears argument that, in hindsight, he should have discharged Mr. Embry and
represented himself, does not displace the presumption that he received competent
representation from Mr. Embry.

[98] Mr. Sears has failed to show that he received ineffective assistance by Mr. Embry at trial
and that his conviction should be set aside for this reason.

[99] With respect to the trial judge’s decision not to allow cross-examination of Mr. Embry
before dismissing Mr. Sears’ application based on ineffective representation, the trial judge
relied on the principles in R. v. Cody, [2017] 1 S.C.R. 659, at para. 38. In Cody, the Supreme
Court of Canada held that before permitting an application to proceed, the trial judge should
consider whether an application has a reasonable prospect of success and, in appropriate
circumstances, exercise discretion to summarily dismiss an application where it is apparent
that the application is frivolous. The trial judge, having reviewed the affidavit evidence
from Mr. Sears and Mr. Embry, exercised the gatekeeper function as described in Cody
and dismissed the application based on ineffective assistance of counsel for reasons given
on August 22, 2019. The trial judge found that Mr. Embry made competent, professional,
and tactical decisions regarding Mr. Sears’ defence.

[100] The trial judge held that taking Mr. Sears’ evidence at its highest, he had failed to establish
that Mr. Embry’s representation amounted to incompetence. This conclusion was
reasonably open to the trial judge based on the affidavit evidence before him. I am not
satisfied the trial judge exercised his judicial discretion on wrong principles or that he
otherwise erred in deciding Mr. Sears’ application based on the affidavit evidence before
him.

Did the trial judge commit a reversible error by refusing to allow Mr. Sears to re-open his
defence?

[101] Mr. Sears sought to re-open his defence to advance arguments and evidence in relation to
the other grounds. The trial judge dismissed Mr. Sears’ application with respect to the
grounds by reasons released on July 15, 2019.
 Page: 23

[102] The other grounds upon which Mr. Sears relied for his application were:

a. The Crown’s election gave rise to an abuse of process.

b. The trial judge’s conduct of the trial and sentencing proceedings gave rise to a
reasonable apprehension of bias.

c. Section 319(2) of the Criminal Code unjustifiably limits freedom of expression

under s. 2(b) of the Charter.

d. Mr. Sears was denied a right to a jury under s. 11(f) of the Charter.

e. The reasons for judgment were inadequate.

[103] The governing principles which apply on an application to re-open the defence case once
an accused has been convicted are set out in R. v. Arabia, 2008 ONCA 565, citing R. v.
Kowall, 1996 CanLII 411 (Ont. C.A.):

The test for re-opening the defence case when the application is
made prior to conviction has been laid down by this court in R. v.
Hayward (1993), 86 C.C.C. (3d) 193 (Ont. C.A.). However, once
the trial judge has convicted the accused a more rigorous test is
required to protect the integrity of the process, including the
enhanced interest in finality. It seems to been common ground in
this case that the most appropriate test for determining whether or
not to permit the fresh evidence to be admitted is the test for
admissibility of fresh evidence on appeal lay down in Palmer and
Palmer v. The Queen (1979), 50 C.C.C. (2d) 193 (S.C.C.) at page
205 (S.C.C.) (see: R. v. Mysko (1980), 1980 CanLII 2057 (SK CA),
2 Sask. R. 342 (C.A.).) That test is as follows:

(1) the evidence should generally not be admitted if by due

diligence, it could have been adduced at trial provided that this
general principle will not be applied strictly in a criminal case as
in civil cases …;

(2) the evidence must be relevant in the sense that it bears upon a
decisive or potentially decisive issue in the trial;

(3) the evidence must be credible in the sense that it is reasonably

capable of belief;

(4) it must be such that it believed it could reasonably, when taken

with the other evidence adduced at trial, be expected to have
affected the results.
 Page: 24

[104] The trial judge considered the governing principles set out in R. v. Arabia and he accepted
the Crown’s submission that Mr. Sears had not met the Palmer criteria for introducing
fresh evidence on appeal and that he had not shown that denying him the opportunity to
adduce evidence and make additional submissions in relation to sentence would give rise
to unfairness.

[105] Mr. Sears submits that the trial judge committed a reversible error in so deciding.

Did the trial judge err in deciding that there was no abuse of process because the Crown elected to
proceed summarily with a two-count indictment?

[106] Mr. Sears appeals on the ground that the trial judge erred by failing to find that the Crown’s
election to proceed summarily was an abuse of process because it did so disingenuously to
deny him the benefit of a trial by jury. Mr. Sears also submits that the Crown engaged in
an abuse of process because it proceeded with a two-count charge for an improper purpose.

[107] The Crown has the right to elect to proceed summarily or by indictment and the Crown’s
election can be made for a variety of reasons. The Crown’s election is a matter of
prosecutorial discretion. There is a presumption of prosecutorial impartiality. See R. v. St.
Amand, 2017 ONCA 913, at para. 27.

[108] There is no evidence to support the conclusion that the Crown acted in bad faith or engaged
in an abuse of process when it elected to proceed summarily. It has not been shown that
the Crown exercised its discretion in bad faith or that the discretionary decision was so rare
and exceptional in nature that it demands an explanation.

[109] It has not been shown that the Crown’s decision to proceed with a two-count indictment,
one alleging promotion of hatred against Jews and one alleging promotion of hatred against
women, was made in bad faith. These are two different identifiable groups and the
statements made in YWN in relation to each group were different.

[110] The trial judge did not err in failing to set aside the trial verdict for abuse of process, and
the evidence does not support setting aside the trial verdict for abuse of process.

Did the trial judge commit a reversible error by dismissing Mr. Sears’ application on the ground
that his conduct at the trial and on the sentencing hearing gave rise to a reasonable apprehension
of bias?

[111] Mr. Sears submits that the trial judge’s finding of guilt should be set aside on appeal
because the trial judge erred by dismissing Mr. Sears’ application to re-open the trial on
the ground that the trial judge’s conduct gave rise to a reasonable apprehension of bias.

[112] Mr. Sears submits that this is shown by the trial judge’s demeanor during the trial when he
displayed frustration when Mr. Sears’ lawyer was discharged and when he challenged Mr.
Sears’ lawyer during his submissions concerning the use of the term “chattel” in a
statement written by Mr. Sears using the name “Dimitri The Lover”. Mr. Sears relies on
the trial judge’s decisions in respect of his application to re-open the trial after the verdicts
were rendered as displaying bias to a reasonable observer.
 Page: 25

[113] Mr. Sears submits that the trial judge was hand-picked to oversee the pre-determined
verdict and sentence and, generally, the trial judge was compromised through deep seated
personal bias towards the political, religious, and societal views held by Mr. Sears and Mr.
St. Germaine.

[114] There is a presumption of impartiality in the judiciary. Before concluding that there exists
a reasonable apprehension of bias, the reasonable person would require some clear
evidence that the judge in question had not improperly used his or her perspective in the
decision-making process: R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 49. The test as set
out in S. (R.D.)., at para. 31, is “what would an informed person, viewing the matter
realistically and practically – and having thought the matter through – conclude?”

[115] I am satisfied that applying this test to the conduct of the trial judge, an informed person,
viewing the matter realistically and practically, would not conclude that the trial judge was
not impartial. The trial judge did not err in reaching this conclusion.

Did the trial judge commit a reversible error by failing to re-open the trial to allow Mr. Sears to
make a constitutional challenge to s. 319(2) of the Criminal Code?

[116] One of the grounds for Mr. Sears’ request to the trial judge to re-open the trial was that he
intended to challenge the constitutionality of s. 319(2) of the Criminal Code on the basis
that it unjustifiably limits freedom of expression under the Charter.

[117] Before he discharged his lawyer, Mr. Sears had received advice from Mr. Embry that the
Supreme Court of Canada had already upheld the constitutionality of s. 319(2) of the
Criminal Code in Keegstra and that nothing had changed since that decision was released
that would make a constitutional challenge meritorious.

[118] In respect of this submission, Mr. Sears does not meet the test set out in Arabia, citing
Kowall. The trial judge did not err by refusing to re-open the trial to allow Mr. Sears to
make this argument.

Did the trial judge make a reversible error by failing to allow Mr. Sears to make additional
sentencing submissions?

[119] After he discharged his counsel, Mr. Sears asked the trial judge to schedule several
additional hearing days for sentencing submissions. Mr. Sear advised that the additional
submissions would include a personal allocution, challenge to the community and victim
impact statements, cross-examination of the authors of the impact statements, and cross-
examination of an officer, Detective Bisla, in order to determine her relationship with
Warren and Lisa Kinsella (about whom Mr. Sears had written critically in YWN).

[120] On August 22, 2019, the trial judge heard from Mr. Sears on his application to re-open the
trial because of ineffective assistance by counsel and he dismissed this application. The
trial judge then gave his sentencing decision without allowing additional time for an
additional sentencing hearing.
 Page: 26

[121] Mr. Sears submits that the trial judge made a reversible error by not granting his request
for an additional sentencing hearing.

[122] In R. v. A.G. 2018 ONSC 5663 the Court set out the relevant principles where, before the
trial judge is functus officio, there is an application to make new arguments on an issue
previously adjudicated. The Crown submits that Mr. Sears’ request to re-open the
sentencing hearing is analogous, and that the principal consideration in the analysis is trial
fairness. In R. v. A.G., the Court held, at paras. 14, that considerations of trial fairness
include (a) whether the argument could have been raised in the first instance if the moving
party had been diligent, (b) if the new argument appears to have merit, such as to be worthy
of consideration, (c) whether the new argument has a realistic potential to have a
meaningful impact on the decision previously rendered, and (d) whether failure to consider
the new argument could result in a miscarriage of justice. The third consideration does not
apply to the issue before me.

[123] When this request was made, Mr. Sears had already made fulsome written sentencing
submissions that were made when he was competently represented by counsel. I accept the
Crown’s submission that cross-examining the authors of impact statements would not have
enhanced the sentencing proceedings and, in any event, the trial judge did not rely on them
in his reasons for sentence. I also accept that it was not shown that Detective Bisla’s
relationship, if any, with the Warren and Lisa Kinsella was relevant to sentencing or to the
trial itself.

[124] Mr. Sears has not shown that the trial judge’s failure to re-open the sentencing hearing
caused unfairness.

Did the trial judge err in principle in imposing sentences of six months imprisonment on each
of two counts to be served consecutively?

[125] The appellants submit that the trial judge committed an error in principle by deciding that
the sentence for each count should be served consecutively rather than concurrently.

[126] An appellate court must defer to the sentencing decision made at trial unless the appellate
court is convinced that there is an error in principle or that the sentence is demonstrably
unfit: R. v. Ramage, 2010 ONCA 488, at para. 69. The trial judge’s decision whether to
make a sentence consecutive or concurrent is to be afforded the same deference as the
decision regarding the length of the sentence. Absent an error in principle or a failure to
consider a relevant factor, an appellate court should not intervene: R. v. McDonell, [1997]
1 S.C.R. 948, at para. 46.

[127] In his reasons for sentence released on August 29, 2019, at paras. 12 and 13, the trial judge
addressed the issue of whether Mr. Sears’ sentence on each count should be served
concurrently or consecutively and held, citing R. v. Gummer, 1983 O.J. No. 181 (C.A.):

The Crown submits that the sentence is given for each count ought
to be served consecutively. In R. v. Grummer, 1983 OJ 181, the
Ontario Court of Appeal, while recognizing the general rule the
defences arising out of the same transaction or incident should
 Page: 27

normally be concurrent, that rule is not applied where the defences

constitute invasions of different legally-protected interests. In this
case, identifiable groups, those being women and Jews, have
separate, legally-protected interests. The defendant could promote
hatred against one and not the other, or vice versa. He promoted
hatred against both. In addition, the hate was promoted against both
groups not from one incident, but many, and consistently over a
period of three years.

In my view, the appropriate sentence should be determined

regarding the promotion of hatred against women, and then
regarding the promotion of hatred against Jews. It should be served
consecutively for the reasons indicated above.

[128] The appellants submit that the trial judge arbitrarily declared that even though the two
counts arise out of the same factual allegations, they represent different interests. They
argue that the trial judge’s reasons for finding that there are two separate, legally protected
groups are insufficient because he relied only on Grummer, without further analysis. They
contend that Grummer is factually distinct because in that case, although the convictions
arose out of one transaction, the two offences (dangerous driving and failing to remain)
were protecting two distinct societal interests, the interest the public has in safe driving and
the interest the public has in accountability and rendering help when an accident occurs.
The appellants submit that principles of sentencing on charges of promoting hatred against
multiple target groups should not be treated as providing protection for separate legal
interests. They submit that the trial judge erred in principle, and the sentences should be
varied to provide for concurrent sentences.

[129] Counsel for Mr. St. Germaine submits that the only relevant interest for a sentencing judge
to consider is society’s interest, and that the trial judge erred by identifying two separate
interests. I disagree with this submission. Society has an interest in discouraging hate
crimes against different groups and, just as in Grummer, the trial judge concluded in respect
of the charges against the appellants, that there were two separate societal interests,
discouraging hatred against women and discouraging hatred against Jews.

[130] The Crown proceeded with a two-count information against each appellant and it acted
within its discretion to do so. The trial judge had reviewed the collection of the 22 issues
of YWN that were introduced into evidence, and he was well situated to decide whether
the communications against women and against Jews in those issues should properly be
treated as part of the same conduct against two groups who do not not enjoy separate
protected interests, such that concurrent sentences would be proper. The trial judge, having
reviewed the 22 issues, concluded that the communications promoting hatred were directed
against separate identifiable groups, women and Jews, and each has a separate legally
protected interest.

[131] The decision of the trial judge is entitled to deference. I am not satisfied that the trial judge
erred in principle in ordering that the sentence on each count be served consecutively.
 Page: 28

Did the trial judge err in principle with respect to the length of the sentence imposed on Mr.
Sears?

[132] The trial judge noted in his reasons that the maximum sentence for a summary conviction
offence under s. 319(2) of the Criminal Code is six months in jail. The trial judge held that
under s. 718.1 of the Criminal Code, the fundamental principle of sentencing is that the
sentence must be proportionate to the gravity of the offence and the degree of responsibility
of the offender. The trial judge considered a number of other decisions that he cited in
paragraph 19 of his sentencing decision on the convictions against Mr. Sears. The trial
judge concluded that the appropriate sentence, viewed through the lens of s. 718.1, is that
both counts should attract an 18 month jail term. The trial judge imposed the maximum jail
term of six months for each count.

[133] The disparity between the sentence given to Mr. Sears and the sentence given to Mr. St.
Germaine was not shown to have resulted from an error in principle. The trial judge
considered mitigating factors that applied to Mr. St. Germaine including that he is Métis
and should be sentenced in accordance with the Gladue factors. The trial judge considered
that Mr. St. Germaine cooperated with the police by providing a videotaped statement and
that he expressed some regrets over the direction YWN took after Mr. Sears took editorial
control. The trial judge considered that Mr. St. Germaine is nearly 78 years of age and in
poor health. The trial judge did not err in principle in imposing a different sentence on Mr.
St. Germaine than he imposed on Mr. Sears.

[134] Mr. Sears points to the decision of the British Columbia Supreme Court in R. v. Topham,
2017 BCSC 551where the accused was convicted of wilfully promoting hatred against an
identifiable group, people of the Jewish religion or ethnic origin. The accused operated a
website that the Court held had a strong anti-Semitic focus. The accused was sentenced to
a conditional sentence of six months in custody to be served in the community.

[135] The factual circumstances in Topham including the aggravating and mitigating factors
differ from those involving Mr. Sears. The trial judge was not required to impose the same
sentence as the trial judge imposed in Topham imposed on the accused.

[136] Mr. Sears has not shown that the trial judge erred in principle or that the sentence is
demonstrably unfit.

Did the trial judge err in principle with respect to the length of the sentence imposed on Mr.
St. Germaine?

[137] Mr. St. Germaine submits that the trial judge failed to provide coherent reasons for his
decision to impose a six month sentence for each count. Mr. St. Germaine submits that the
reasons on sentence are declarations rather than reasons and, therefore, they should attract
no deference.

[138] In his reasons for the sentence imposed on Mr. St. Germaine, the trial judge reviewed the
positions of the parties and several prior decisions. He recognized that it is a difficult task
to find prior sentencing rulings that bear close similarity to the case before the court. The
 Page: 29

trial judge addressed the sentence in Keegstra. Mr. St. Germaine contends that the trial
judge provided insufficient reasons because he failed to record an analysis of the facts.

[139] I disagree that the trial judge’s reasons for his sentence are insufficient such that it is owed
no deference. The trial judge explained the factors that he considered with respect to
sentencing and he identified the prior decisions he considered. The trial judge was not
required to record in his reasons all of the processes he followed to reach his decision in a
“watch me think” manner.

[140] Mr. St. Germaine has failed to show that the trial judge made an error in principle with
respect to the length of the sentence imposed.

Disposition

[141] For the foregoing reasons, the appeals by Mr. St. Germaine and Mr. Sears are dismissed.

Digitally signed by
Mr. Justice Cavanagh

Cavanagh J.

Released: June 14, 2021

 CITATION: R. v. Sears, 2021 ONSC 4272
COURT FILE NOS.: CR-19-70000077-00AP
CR-19-70000077-00AP
DATE: 20210614

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

JAMES SEARS

Appellant

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

LEROY ST. GERMAINE

Appellant

REASONS FOR JUDGMENT

Cavanagh J.

Released: June 14, 2021