R. v. Noble, 2008 BCSC 215 (CanLII)
Date:
2008-02-04
File number:
26508-2
Citation:
IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation:
|
R. v. Noble,
|
2008 BCSC 215
|
Date: 20080204
Docket: 26508-2
Registry: Fort St. John
Regina
v.
Keith Francis William Noble
Before: The Honourable Mr. Justice Parrett
Oral Reasons for Judgment
February 4, 2008
Counsel for Crown:
|
M. Fulmer
| |
Appearing on his own behalf:
|
K.F.W. Noble
| |
Place of Trial/Hearing:
|
Prince George, B.C.
| |
[1] THE COURT: The accused is charged on a single count indictment that:
Keith Francis William NOBLE, between the 1st day of January, 2003, and the 26th day of October, 2005, at or near Fort St. John in the Province of British Columbia did by communicating statements other than in private conversation, wilfully promote hatred against identifiable groups, namely, Jews, Blacks, homosexual or gay persons, non-whites and persons of mixed race or ethnic origin, contrary to Section 319(2) of the Criminal Code.
[2] During the course of this trial, which occupied all or part of some nine days, a total of 11 witnesses were called by the Crown. The accused neither called evidence nor testified himself, and save for certain very limited exceptions, met every request for his participation on any basis with the repeated refrain that "I am not participating in this proceeding."
(a) the search of the apartment occupied by the accused in Fort St. John and the materials seized during the course of that search;
(b) materials retrieved from the hard drive of the computer located in the apartment and used to access the Internet; and
(c) materials retrieved from or downloaded from various websites on the Internet which the Crown submits came from the accused.
[4] After receiving a complaint concerning activity and postings on an Internet website, members of the RCMP began an investigation which led to their obtaining and executing a search warrant on an apartment occupied by the accused at Apartment #203, 10303 - 96th Avenue, in Fort St. John, British Columbia. Upon entry, a police officer attached to the identification section took a series of photographs of the interior of the apartment, together with photographs of the building in which the apartment was located. A booklet containing some 64 of these photographs was entered at Exhibit 3.
[5] At the time the police executed the search warrant, they found a single individual, the accused Keith Francis William Noble, in the apartment.
[6] Within the apartment, the police located a whole series of items, including a resumé in the name of Bill Noble, a Telus bill in the same name in respect of residential telephone services for 250-787-1405, and an application for registration of a copyright of a work "Exterminance." The form records the author and owner as Bill Noble.
[7] The evidence of Crystal Harmon of Sterling Management Services identified the rental agreement documents for the apartment in the accused's name and identified him as the sole occupant. Within the accused's apartment, the police located and seized a computer which was connected to the Internet. On its hard drive, they located a series of files, images, and electronic documents, many of which appeared on and formed a part of the Internet website www.exterminance.org. It is this website and messages and postings on other websites that the Crown submits originated from the accused and this computer in the apartment in Fort St. John.
[8] The presence of software capable of creating and maintaining the website on the hard drive of the computer seized provides, the Crown submits, further strong evidence linking the accused directly to the Exterminance website.
[9] Within the apartment, the police found copies of other documents which were also located in electronic form on the computer and on the Exterminance website.
[10] The indictment in this case contains a single count charging the accused with an offence under s. 319(2) of the Criminal Code. This section of our Criminal Code provides that:
Every one who, by communicating statements, other than in private conversation, wilfully 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.
[11] The gravamen of this offence is wilfully promoting hatred against any identifiable group by communicating statements other than in private conversation.
[12] There are some unusual features of the offence created by this section of the Criminal Code. Firstly, there is the exception created for private conversation. Secondly, an "identifiable group" is defined in s. 318(4) as "any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation." Thirdly, "public place" is defined as "any place to which the public have access as of right or by invitation, express or implied."
“communicating” includes communicating by telephone, broadcasting or other audible or visible means;
“statements” includes words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or other visible representations.
[14] As a result of the drafting of the indictment in this case, the Crown has further particularized the offence by expansively defining the identifiable groups by adding the following language: "namely, Jews, Blacks, homosexual or gay persons, non-whites and persons of mixed race or ethnic origin."
[15] The Supreme Court of Canada considered the exclusion of private conversation from s. 319(2) in R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697. In giving the majority decision, Dickson C.J.C. at page 772 to 773 wrote that:
In assessing the constitutionality of s. 319(2) . . . an immediate observation is that statements made "in private conversation" are not included in the criminalized expression . . . Indeed, that the legislation excludes private conversation, rather than including communications made in a public forum, suggests that the expression of hatred in a place accessible to the public is not sufficient to activate the legislation . . . Moreover, it is reasonable to infer a subjective mens rea requirement regarding the type of conversation covered by s. 319(2), an inference supported by the definition of "private communication" contained in s. 183 of the Criminal Code. Consequently, a conversation or communication intended to be private does not satisfy the requirements of the provision if through accident or negligence an individual's expression of hatred for an identifiable group is made public.
Comments
Post a Comment