The Extraordinary Trial of Arthur Topham

I find this trial to be an outstanding example of how our world actually works, but those who deny it are completely blind to it, even when they may be otherwise highly principled and well researched. Such is the nature of belief. Indeed, if such an individual understood that 9/11 was in inside job, they would almost certainly struggle to accept – more likely simply deny – the abundant evidence of Israeli involvement in those events.

There are many articles on the ‘net that discuss this current Canadian trial, and I find this one is a good starting point:

The Law
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.

This week I attended some of the extraordinary trial of Arthur Topham in the Supreme Court (the highest provincial trial court) in Quesnel, British Columbia. As a lawyer, the differences in procedure between American and Canadian courts were of interest to me. Ahead of the trial, I read a little about the Canadian legal system and found that on paper the differences appeared minor. I don’t know if the huge differences in practice that I observed in this trial has to do with the way trials are usually conducted in Canada, the understandable loosening of formality in a court in a small town and/or the nature of the trial.

The Background

The history of Mr. Topham’s travails can be found here.

It is sufficient to understand that this trial follows eight years of harassment. Mr. Topham has already had to close his successful remodeling business. This is a criminal trial, and Mr. Topham could go to prison for two years. Mr. Topham and his wife live on a remote property on which they maintain a chicken coop, grow vegetables and engage in other rural activities. But it is clear that Mrs. Topham could not live there alone. These are not wealthy people. Mrs. Topham told me that she is not a political person, but she loves and supports her husband and believes in free speech. The defendant and his wife have exhibited bravery, courtesy and calm to a degree that is awe inspiring.

The police arrested Mr. Topham for ‘hate’ after they received complaints from various Jewish people who found his writing hateful. Although the police clearly knew where he lived, they arrested Topham as he and his wife were driving, leaving his wife stranded and Mr. Topham in jail. While jailed, Mr. Topham’s house was searched and his computers, shotguns and other items were taken. (Shotguns are essential in an area where grizzlies often decide to take up residence on the porch.)

The Trial

I understand that before I arrived, the Crown presented the arresting and investigating officers. Clearly the officers are not qualified to establish ‘hate,’ so how does the Crown do this? There is no victim to present, no one whose injuries the jury must assess, instead it is to the jury to decide if ‘hate’ is present, no injury need be shown.

The Crown chose to use an expert witness to show hate, and qualified Len Rudner as an expert in Judaism and anti-Semitism. Mr. Rudner’s biography indicates that he is a ‘professional Jew,’ in that he has been employed for the last 15 years by the Canadian Jewish Congress and its successor organization, the Centre for Israel and Jewish Affairs (CIJA). Prior to this trial, Rudner has attempted to force Mr. Topham’s internet service provider to shut down his web site, and has lodged civil complaints against Mr. Topham.

The crown used its questioning of Rudner to introduce what it considered to be the most damaging articles on Topham’s site, Radical Free Press (RFP). These included a list of books and articles, all of which are easily accessible on the internet and/or for sale at Amazon.ca.

Most of these publications accuse Jews of some pretty nasty politics. What at first appeared to be the Crown’s most damning evidence was a picture of a stereotyped Jew holding puppets that were Canadian politicians. On cross examination, it was hard for Mr. Rudner to counter what a careful viewing showed to be a clear political statement. I think the shocking picture of the Jew served to make the statement more powerful. But is it the job of the court to evaluate the strength of a political cartoon?

Without going to the truth of the matters presented, I am troubled that Mr. Topham is on trial for reprinting sources that are widely available in Canada. Again, on cross examination, Mr. Rudner had to admit that this was so. A quick google search for “the protocols of the Elders of Zion,” reveals hundreds of sources that display the protocols in full.

The procedure, at least in this court, was that all objections had to be heard outside the presence of the jury. This meant that each objection forced the jury to leave the room (not the judge and the lawyers) thus making an objection, even for the record, was a cumbersome and time consuming process.

In one of these interminable objection interludes, the Crown stated that ‘free speech is not on trial here.” Shockingly, Judge Butler echoed her sentiments. Legal fictions (such as that all lawyers are capable of providing an adequate defense) are generally employed to allow the system to work. In this case, the legal fiction went to the charge itself. Mr. Topham is on trial for writing and for publishing articles that presumably reflect his beliefs. What else is free speech if not that?

End of quote.

I’m sure you get the drift.

This is how our world works – deny it if you will.

I commend the rest of the article to you.

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