R. v. Krymowski, 2005 SCC 7, [2005] 1 SCR 101

                                                 SUPREME COURT OF CANADA

Between:

Her Majesty the Queen

Appellant

v.

Krystopher Krymowski, Ryan Douglas Marshall,

Quinn Mason McFarlane, Michael Peter Schultz,

J.J.V. and A.M.V.

Respondents

‑ and ‑

Attorney General of Canada, League for Human Rights of

B’Nai Brith Canada and Canadian Jewish Congress

Interveners

Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

______________________________

R. v. Krymowski, [2005] 1 S.C.R. 101, 2005 SCC 7

Her Majesty The Queen                                                                                  Appellant

v.

Krystopher Krymowski, Ryan Douglas Marshall,

Quinn Mason McFarlane, Michael Peter Schultz,

J.J.V. and A.M.V.                                                                                        Respondents

and

Attorney General of Canada, League for Human Rights of

B’Nai Brith Canada and Canadian Jewish Congress                                  Interveners

Indexed as:  R. v. Krymowski

Neutral citation:  2005 SCC 7.

File No.:  29865.

2004:  November 8; 2005:  February 24.

Present:  McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for ontario

Criminal law — Hate propaganda — Wilful promotion of hatred — Whether Crown failed to prove that wilful promotion of hatred was against “Roma” as particularized in information — Whether trial judge ought to have taken judicial notice of dictionary definitions demonstrating relationship between gypsies and Roma — Criminal Code, R.S.C. 1985, c. C‑46, s. 319(2) .

After participating in a demonstration in front of a motel housing Roma refugees seeking entry into Canada, the accused were charged under s. 319(2)  of the Criminal Code  with the wilful promotion of hatred against “an identifiable group, to wit Roma, by communicating statements, including the written statements:  ‘Honk if you hate Gypsies’, ‘Canada is not a Trash Can’, and ‘You’re a cancer to Canada’”.  The defence conceded that the Roma are an identifiable group but argued that the demonstrations were directed against “gypsies” and there was no evidence that “Roma” is the same as “gypsies”.  The trial judge refused to take judicial notice of the shared meaning of these terms.  Since the Crown had failed to prove an essential element of the offence, the trial judge acquitted the accused.  The Crown’s appeals to the summary conviction appeal court and the Court of Appeal were dismissed.

Held:  The appeal should be allowed.  The acquittals are set aside and new trials ordered.

The gist of the offence under s. 319(2)  is the wilful promotion of hatred against any identifiable group.  In this case, the Crown particularized the group as “Roma”.  The relevant questions were whether the accused made some or all of the statements in the information and whether the statements promoted hatred of the Roma.  It was not necessary for the Crown to prove that the terms “gypsies” and “Roma” were interchangeable.  It was incumbent upon the trial judge to look at the totality of the evidence and the  reference to “gypsies” was but one item to consider. The ethnic flavour to the demonstration, the fact that it was outside a motel housing refugee claimants who were at times described by the witnesses as Roma, and the fact that the Roma people had been persecuted by the Nazis while a Nazi theme was apparent at the demonstration, were all factors to take into account.  The trial judge misdirected himself and erred in law by focussing entirely on one statement in the information.  As well, the trial judge should have taken judicial notice of  dictionary definitions showing that “gypsy” can refer to “Roma”, and he should have considered that fact together with the rest of the evidence. [13] [17-20] [24]

Cases Cited

Referred to:  R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. McCune (1998), 131 C.C.C. (3d) 152; R. v. Groot, [1999] 3 S.C.R. 664; R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46, ss. 318(4) , 319(2) , (3) , 839(1) .

Supreme Court Act, R.S.C. 1985, c. S‑26, s. 40 .

Authors Cited

New Oxford Dictionary of English.  Oxford:  Clarendon Press, 1998, “gypsy”, “rom”, romany”.

Sopinka, John, Sidney N. Lederman and Alan W. Bryant.  The Law of Evidence in Canada, 2nd ed.  Toronto:  Butterworths, 1999.

APPEAL from a judgment of the Ontario Court of Appeal (O’Connor A.C.J.O., Carthy and MacPherson JJ.A.) (2003), 65 O.R. (3d) 75, 227 D.L.R. (4th) 504, 171 O.A.C. 369, 175 C.C.C. (3d) 112, [2003] O.J. No. 1920 (QL), affirming an order of Ewaschuk J., 2002 CarswellOnt 5516, affirming an order of Otter J. dismissing charges of wilfully promoting hatred, 2000 CarswellOnt 5870.  Appeal allowed and new trials ordered.

Jamie C. Klukach and Eliott Behar, for the appellant.

David Gomes and Peter Lindsay, for the respondents.

Cheryl J. Tobias, for the intervener the Attorney General of Canada.

Marvin Kurz and Steven Klein, for the intervener the League for Human Rights of B’Nai Brith Canada.

Joel Richler and Matthew Horner, for the intervener the Canadian Jewish Congress.

The judgment of the Court was delivered by

Charron J. —

I.  Introduction

1                                   The respondents were charged with the wilful promotion of hatred arising from their participation in a demonstration to protest against the entry of Roma refugee claimants into Canada.  At the conclusion of the Crown’s case, the defence called no evidence and argued that the Crown had failed to prove that the wilful promotion of hatred was against “Roma”, as particularized in the information.  Counsel argued that the evidence showed only that the actions of the demonstrators were directed toward “gypsies” and that there was “no evidence that Roma is the same as Gypsies, similar to Gypsies, related to Gypsies”.  The trial judge refused to accede to the Crown’s requests that he take judicial notice of the shared meaning of the terms, or that he permit the amendment of the information or a reopening of the Crown’s case to address this point.  He accepted the defence argument that the Crown had failed to establish an essential element of the offence and acquitted the respondents (2000 CarswellOnt 5870).  The Crown’s appeal to the summary conviction appeal court was dismissed (2002 CarswellOnt 5516) as was its further appeal to the Court of Appeal for Ontario ((2003), 65 O.R. (3d) 75).  Leave to appeal to this Court was granted pursuant to s. 40  of the Supreme Court Act, R.S.C. 1985, c. S-26 .

2                                   In my view, the trial judge erred in law in finding, in effect, that it was necessary for the Crown to prove that the terms “gypsies” and “Roma” were interchangeable.  In focussing on this narrow issue, he failed to consider whether, on the totality of the evidence, the Crown had established that “Roma” were targeted by the accused.  Because I have concluded that there must be a new trial, I will only review the facts to the extent necessary to dispose of the appeal.

II.  Background 

3                                   Some weeks prior to this incident, there was a large influx of Roma refugee claimants into Canada which attracted considerable media attention and gave rise to some public controversy.  On August 26, 1997, about 25 persons participated in a demonstration in front of the Lido Motel in Scarborough, Ontario, which at that time was temporarily housing the refugees while they awaited the outcome of their claims.  The demonstration included chants and placards.  The placards stated, among other things, “Honk if you hate Gypsies”, “Canada is not a Trash Can”,  “You’re a cancer to Canada” and “G.S.T. — Gypsies Suck Tax”.  The chants included statements such as “Gypsies Out”, “How do you like Canada now?” and “White power”.  Some participants were seen giving the “Sieg Heil” Nazi salute.  Nazi and American Confederate flags were used in the demonstration.  Some of the clothing, accessories and footwear worn by the demonstrators was described as typical “Skinhead” accoutrements.

4                                   The Crown alleged that the respondents were amongst the demonstrators. Separate informations establishing the charges under s. 319(2)  of the Criminal Code, R.S.C. 1985, c. C-46 , against both the adults and young persons accused in this matter read as follows:

. . . [the respondents] did wilfully promote hatred against an identifiable group, to wit Roma, by communicating statements, including the written statements: “Honk if you hate Gypsies”, “Canada is not a Trash Can”, and “You’re a cancer to Canada”, contrary to the Criminal Code  of Canada.

The trial was held for the adult respondents, at the end of which the evidence was admitted in the proceeding against the young persons.  For convenience, I will refer to the two separate proceedings as one.

5                                   During the course of the trial, the respondents admitted that the Roma were an identifiable group within the meaning of s. 319(2) .  The admission was confirmed by letter from counsel stating that “the Roma people are an identifiable group which were historically persecuted by the Nazis”.  Two pages from an article about Nazi persecution of Roma authored by Ian Hancock were attached to the letter.  The article referred to Roma and gypsies interchangeably.  However, counsel’s letter expressly stated that the article excerpt was admitted solely as background and not as any further admission.  The record is replete with examples showing that the witnesses, Crown counsel, both defence counsel and the trial judge referred to the refugee claimants indiscriminately as “Roma”, “Gypsy Roma” or “Romani Gypsies” throughout the proceedings.

6                                   At the conclusion of the Crown’s case, the defence called no evidence and closed its case.  Following the Crown’s closing arguments, the defence made its closing submissions, the main argument being that the Crown had  failed to prove an essential element of the offence as charged, namely that the accused wilfully promoted hatred against Roma, as all evidence pointed to “gypsies”, and no evidence linked “gypsies” to Roma.

7                                   In reply, the Crown submitted that the court could infer, from the wording of the informations, that “Roma” was referable to “gypsy”.  The trial judge rejected that suggestion.  Alternatively, the Crown argued that the court could take judicial notice of that fact, relying on the Hancock article and the author’s interchangeable use of the terms “Roma” and “gypsy”.  The trial judge was unwilling to accept that position.  The Crown therefore asked that the informations be amended by inserting the words “a.k.a. gypsies” after the word “Roma”.  Following a two-day adjournment, the matter was argued more fully.  The Crown again invited the court to take judicial notice of the synonymy of “Roma” and “gypsies” based on five dictionary definitions containing definitions of “Roma” and its varying forms (“Rom”; “Romany”) and “gypsy”. 

8                                   According to the trial judge, the dictionaries did not evince a sufficient degree of uniformity in definitions because several definitions of “Rom” and “Roma” referred only to male gypsies and some dictionary  and internet definitions of “gypsy” presented by the defence contained no reference to “Roma”.  For this reason, and since the issue was “vital and highly contentious”, he concluded that the court should not exercise its discretion and take judicial notice on this matter. 

9                                   Immediately after the trial judge’s ruling on judicial notice, the Crown applied to reopen its case for the purpose of establishing the fact in issue.  The trial judge ruled against the Crown, finding that a reopening at this late stage in the proceedings would be unduly prejudicial to the accused.

10                               The trial judge then dismissed the charge against all respondents finding that there was “no evidence whatsoever, or in any form, establishing beyond a reasonable doubt the willful promotion of hatred against Roma or that Roma are one and the same as or also known as Gypsies” nor was there any evidence that “Gypsies is a pejorative term for Roma as contended by the Crown” (paras. 35-36).

11                               For brief reasons delivered orally, the summary conviction appeal court judge dismissed the Crown’s appeal, essentially finding no reason for interfering with the trial judge’s conclusions.  On further appeal to the Court of Appeal for Ontario, the court dismissed the Crown’s appeal, on the basis that the summary conviction appeal judge had properly declined to interfere with the trial judge’s exercise of discretion in regard to judicial notice, amending the information and reopening the Crown’s case.  The court expressed the view that the relative consistency between the dictionary definitions should probably have led to the trial judge taking judicial notice of those definitions.  However, the court concluded that the summary conviction appeal judge’s rejection of the appeal on this ground was based on his assessment that, based on the evidence, taking judicial notice would not have changed the outcome of the trial, and, as such, the issue did not raise a question of law.  Consequently, the Court of Appeal held that the matter was beyond the court’s appellate jurisdiction under s. 839(1)  of the Criminal Code .

III.  Issues

12                               The Crown argued that the courts below erred in law in their approach to the taking of judicial notice, the amendment of the information, and the reopening of the Crown’s case.  I do not find it necessary to deal with the questions raised on this appeal as three discrete issues.  All three issues were raised at trial in an attempt to meet the defence’s contention, accepted by the trial judge, that it was incumbent upon the Crown to establish that “gypsies” and “Roma” were interchangeable terms in order to prove its case.  Hence, I propose to deal with the single issue of whether the trial judge erred in adopting this approach.  In doing so, I will comment on the taking of judicial notice to the extent that the trial judge was requested to do so.  However, I do not find it necessary to discuss any of the principles governing the amendment of the information or the reopening of the Crown’s case.

IV.  Analysis

13                               The gist of the offence under s. 319(2)  of the Criminal Code  is the wilful promotion of hatred against any identifiable group.  The provision reads as follows:

319. . . .

(2) 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.

14                               The term “identifiable group” is defined in s. 318(4)  as meaning

any section of the public distinguished by colour, race, religion or ethnic origin.

15                               Certain defences are set out under s. 319(3) :

319. . . .

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

(a) if he establishes that the statements communicated were true;

(b) if, in good faith, he expressed or attempted to establish by  argument an opinion on a religious subject;

(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.

16                               The constitutional validity of s. 319(2)  was upheld by this Court in R. v. Keegstra, [1990] 3 S.C.R. 697, on the basis that the terms of s. 319(2)  created “a narrowly confined offence”, the essence of which was summarized as follows (at pp. 785-86):

To summarize the above discussion, in light of the great importance of Parliament’s objective and the discounted value of the expression at issue I  find that the terms of s. 319(2)  create a narrowly confined offence which suffers from neither overbreadth nor vagueness. This interpretation stems largely from my view that the provision possesses a stringent mens rea requirement, necessitating either an intent to promote hatred or knowledge of the substantial certainty of such, and is also strongly supported by the conclusion that the meaning of the word “hatred” is restricted to the most severe and deeply-felt form of opprobrium. Additionally, however, the conclusion that s. 319(2)  represents a minimal impairment of the freedom of expression gains credence through the exclusion of private conversation from its scope, the need for the promotion of hatred to focus upon an identifiable group and the presence of the s. 319(3)  defences.  [Emphasis added.]

Although the relevant provisions of the Criminal Code  have since been amended, the changes are immaterial to our discussion.

17                               In short, it was necessary for the Crown in this case to prove that the respondents, by communicating statements other than in private conversation, wilfully promoted hatred against a section of the public distinguished by colour, race, religion or ethnic origin.  The arguments presented at trial and on this appeal all only relate to the requirement that the hatred be against an identifiable group as so defined.  The Crown in this case particularized this group as being “Roma”.  The defence conceded that Roma are an identifiable group within the meaning of s. 319(2) . The  sole remaining question in respect of this essential element of the offence became whether Roma were the target of the respondents’ conduct.

18                               As noted earlier, the informations also particularized the manner in which the offence was committed:  “by communicating statements, including the written statements:  ‘Honk if you hate Gypsies’, ‘Canada is not a Trash Can’, and ‘You’re a cancer to Canada’”.   Particulars define the factual transaction that the prosecution must prove to support a conviction: R. v. McCune (1998), 131 C.C.C. (3d) 152 (B.C.C.A.); R. v. Groot, [1999] 3 S.C.R. 664.  To make out the offence, however, there was no need to prove any “interchangeability” between the specific hateful terms employed and the name by which the target group was identified in the information.  The relevant questions to be asked with respect to this element of the offence were whether the Crown had proved beyond a reasonable doubt that the respondents made some or all of the statements alleged in the information and whether the statements made, as a matter of fact, promoted hatred of the Roma.

19                               It was incumbent upon the trial judge to look at the totality of the evidence and draw appropriate inferences to determine whether the respondents intended to target “any section of the public distinguished by colour, race, religion or ethnic origin”, in this case, the Roma people.  Several items of evidence potentially related to this issue.  The reference to “gypsies” was but one item of evidence to consider.  To illustrate  the point, it may be useful to consider whether the offence could be made out even if the demonstrators had made the same statements but without using the word “gypsies”.  Among other things, the trial judge in his reasons for judgment referred to the following evidence as fact:  (1) the motel outside of which the respondents demonstrated was temporarily housing the refugee claimants who were awaiting the outcome of their claims; (2) some of the participants were seen giving the “Sieg Heil” Nazi salute; (3) Nazi and American Confederate flags were used in the demonstration; and (4) the chant “White Power” was heard during the demonstration.  Furthermore, the defence concession expressly linked Nazi persecution to the “Roma people”.

20                               Hence, the ethnic flavour to the demonstration, the fact that it was situated outside a motel housing refugee claimants who were at times described by the witnesses as  Roma, and the fact that Roma people are a group historically persecuted by the Nazis while the Nazi theme was apparent at the demonstration were all factors to consider, in addition to the actual words used, in determining whether Roma were the target of the hate speech. In focussing entirely on one of the specific statements particularized in the information, the trial judge misdirected himself as to the essential elements of the offence.  In doing so, he erred in law.

21                               In addition, I will deal briefly with judicial notice in the context in which  it arose in this case.

22                               A court may accept without the requirement of proof facts that are either “(1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy”:  R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32,  at para. 48.  The dictionary meaning of words may fall within the latter category: see J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at § 9.13 and § 19.22.

23                               The Crown presented the trial judge with five dictionaries demonstrating a relationship between “Roma” and “gypsy”.  For example, the New Oxford Dictionary of English (1998) contained the following definitions:

gypsy (also gipsy): noun (pl. -ies) a member of a travelling people with dark skin and hair, speaking a language (Romany) related to Hindi, and traditionally living by seasonal work, itinerant trade, and fortune-telling. Gypsies are now found mostly in Europe, parts of North Africa, and North America, but are believed to have originated in the Indian subcontinent.

Rom: noun (pl. Roma/. . .) a gypsy, especially a man.

– origin mid 19th cent.: abbreviation of Romany.

Romany . . . noun (pl. -ies) 1 (mass noun) the language of the gypsies, which is an Indo-European language related to Hindi. It is spoken by a dispersed group of about 1 million people, and has many dialects.

2 A gypsy.

24                               The dictionary definitions presented to the trial judge hence showed that “gypsy” can refer to an ethnic group properly known as “Roma”, “Rom”, or “Romany”.  I see no reason why the trial judge should not have taken judicial notice of that fact and then considered it, together with the rest of the evidence, to determine whether there was proof beyond a reasonable doubt that the respondents did in fact intend to target Roma.

V.  Disposition

25                               For these reasons, I would allow the appeal, set aside the acquittals and order new trials.

Appeal allowed and new trials ordered.

Solicitor for the appellant:  Ministry of the Attorney General of Ontario, Toronto.

Solicitors for the respondents:  David Gomes and Peter Lindsay, Toronto.

Solicitor for the intervener the Attorney General of Canada:  Attorney General of Canada, Ottawa.

Solicitor for the intervener the League for Human Rights of B’Nai Brith Canada:  David Matas, Winnipeg.

Solicitors for the intervener the Canadian Jewish Congress:  Blake, Cassels & Graydon, Toronto.