Topham Remains Self-Represented as Trial Approaches
Quesnel-based publisher, Arthur Topham, continues to struggle valiantly for the right to publish historical and political material on his website, RadicalPress.com. He stands charged with “willful promotion of hatred,” contrary to section 319(2) of the Criminal Code. If convicted, Mr. Topham faces up to two years in prison for simply republishing a variety of books and articles which are freely and legally available on dozens if not hundreds of other websites.
A two-week jury trial is now scheduled to begin on October 26, 2015. Before trial, Mr. Topham intends to make a number of constitutional arguments regarding the overbreadth of hate speech laws in the context of the internet, and particularly in circumstances where the allegedly “hateful” material is already broadly available to Canadians.
Prosecution of the mere republication and discussion of widely-available literature is not rationally connected to any pressing and substantial objective of “removing” hatred or “protecting” minority groups. The only possible purpose of such a prosecution is to punish political dissent. On that basis alone, criminalizing the republication and discussion of widely-accessible material goes far beyond the narrow basis upon which hate speech laws were upheld in R. v. Keegstra.
Mr. Topham’s case presents a valuable opportunity to re-establish constitutional protection for freedom of expression, but doing so will involve several days of complex constitutional argument, a task which Topham cannot undertake on a self-represented basis. As of January 2015, Topham remains without counsel, having been denied legal aid coverage in 2012 and denied an order for court-appointed counsel in 2013. Despite the significant public importance of the constitutional issues at hand, Topham finds himself in the all-too-common situation of having slightly too much income to qualify for legal aid, yet far too little money to retain legal counsel.
Canada’s judges and legal scholars have nothing but strong words about the importance of access to justice and the need to ensure that everybody gets a fair trial. Yet, in what could be one of the most important free speech cases in a generation, our legal system refuses to dedicate any resources whatsoever to the defence. In the case of the transcript of the preliminary inquiry, for example, the Crown ordered a copy for itself but refused to furnish Mr. Topham with a copy, forcing a self-represented and impoverished accused to incur a substantial disbursement in hopes of staying out of jail.
Generally speaking, there is something very wrong with access to justice in this country. When the Christian-themed Trinity Western University proposes a law school based on “willingly respond(ing) to the world’s most profound needs” through “service-oriented citizenship,” the Law Society prohibits it in the name of the “public interest.” When an impoverished individual attempts to defend himself against a lengthy prison term, our legal system spends tens of thousands of dollars prosecuting him but cannot spare the cost of a defence lawyer, or even of a $400 transcript. Yet, if a graduate of Trinity Western were prepared to defend Mr. Topham in court, he or she would be legally disqualified from doing so, essentially for having religious beliefs which are not agreeable to the Law Society.
Because of the poor state of access to justice in this country, Mr. Topham’s defence is entirely dependent on private donations. Without significant financial assistance in the near future, he will not be able to take advantage of a unique opportunity to enhance and clarify the free speech rights of all Canadians.
Mr. Topham can be contacted through his website at RadicalPress.com, by email at firstname.lastname@example.org, or by mail at the following address:
4633 Barkerville Hwy
Quesnel, BC V2J 6T8
Jeremy Maddock was Doug Christie’s former legal assistant. He is currently studying law in Victoria, B.C. This article was first published in the Friends of Freedom Newsletter. Mr. Maddock can be reached at: Jeremy Maddock@hotmail.com
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