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Regina v. Buzzanga and Durocher

[1979] O.J. No. 4345 25 O.R. (2d) 705 101 D.L.R. (3d) 488 49 C.C.C. (2d) 369 3 W.C.B. 459

Ontario Court of Appeal Martin, Houlden and Zuber, JJ.A. September 17, 1979. Marc Rosenberg, for appellant, Robert Buzzanga. M. Manning, Q.C., and S. Rogin, for appellant, Jean Wilfred Durocher. D. C. Hunt, for the Crown, respondent.

The judgment of the Court was delivered by 1 MARTIN, J.A.:-- The appellants, Robert Buzzanga and Jean Wilfred Durocher, after a trial at Windsor before His Honour Judge J. P. McMahon, sitting without a jury, were convicted on an indictment charging them with wilfully promoting hatred against an identifiable group, namely, the French Canadian public in Essex County by communicating on or about January 12, 1977, at Windsor, statements contained in copies of a handbill entitled "Wake Up Canadians Your Future Is At Stake!", contrary to s. 281.2(2) [enacted R.S.C. 1970, c. 11 (1st Supp.), s. 1] of the Criminal Code.

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2 Following the conviction of the appellants, the learned trial Judge suspended the passing of sentence and directed that they be released on probation for a period of two years. The appellants now appeal against their convictions and the appellant Durocher also appeals, in the alternative, against the sentence imposed upon him, on the ground that the learned trial Judge erred in not granting him a conditional or absolute discharge. 3 This case is somewhat incongruous in that the appellants identify with French-speaking Canadians against whom they are alleged to have wilfully promoted hatred. The factual background 4 The appellant Durocher was born in Windsor, and is bilingual. His early education was received in a French-language public school, a bilingual high school and a French oblate seminary. He attended the University of Windsor for three years where he formed a bilingual theatre group which produced plays designed to show the harmony between the official languages of Canada. He was subsequently employed by the Essex County Board of Education and taught French. In August, 1976, he commenced to work for the Association Canadian Francais de L'Ontario (hereafter, LACFO), an organization funded by the Secretary of State. His role in that organization, as he perceived it, was to stimulate and assist the French-speaking community of Essex County with respect to political, social and cultural matters, and in particular, in relation to the issue of the construction of a French-language secondary school. 5 The appellant Buzzanga was born of Italian parents in Egypt where he learned the French language. He said he went to France, but did not "fit in" and immigrated to Canada where he felt that he could achieve a sense of personal identity. He testified that he embraced the culture of the French Canadian people and identified himself with their aspirations for preserving their culture. He completed his education in Quebec and took courses at Laval University leading to a degree in French literature, but did not obtain a degree. He was employed for a time by the Canadian Broadcasting Corporation, and afterwards as a teacher at St. Bernard's school in Amherstberg. He became a director of LACFO in 1972. 6 There had been a movement for some time for the construction in Essex County of a French-language high school. The appellant Durocher testified that there had been an agreement between the Ministry of Education and the Essex County School Board for the construction of a French-language high school, under the terms of which the Essex County Board of Education received a grant of $500,000 to renovate two English-language schools and the Ministry of Education agreed to pay 95% of the cost of constructing a French-language high school. He testified that the Ministry subsequently reduced the grant rate from 95% to 77% of the cost of the proposed French-language high school, and the board decided not to build the school, although it had received and spent the grant to renovate the two English- language schools. 7 Eventually, the Essex County Board of Education was required by the Essex County French-language Secondary School Act, 1977 (Ont.), c. 5, to construct the school. In the meantime,

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however, the French-speaking community, according to the testimony of the appellant Durocher, was "quite upset" by the position taken by the board of education. 8 There was a great deal of opposition, not entirely confined to the English-speaking community of Essex County, to the construction of the French-language high school. One of the strongest opponents of the construction of the high school was the Essex County Ratepayers Association, the chairman of which was Wilfred Fortowsky. 9 There was to be an election in the month of December, 1976, of members for the Essex County Board of Education. An action committee was formed by LACFO which set up an election office to inform the Francophone community of the stand taken by school-board candidates on the high school issue. The action committee compiled a list of the candidates whom they endorsed, but most of the candidates rejected the endorsement. 10 The list itself became an issue in the election and the appellant Durocher was accused of being an outside agitator sent in to stir up trouble in the francophone community of Essex County. The appellants were angered by the issue created by the action committee's endorsement of a list of candidates, and by the candidates' rejection of the endorsement. They were, of course, disappointed when the majority of candidates elected to the school board were persons who opposed the construction of the French-language high school. 11 After the election, the appellant Durocher began to organize a dinner-dance that "was designed as a political evening to engender protest against the treatment of Francophones and to put pressure on the government and the school board to react favourably to the school issue". 12 On January 5, 1977, Durocher issued a press release which read: The Essex County Action Committee for a French-language high school

On January 29, 1977, approximately 1000 French-speaking ratepayers of Essex County and the Province of Ontario will assemble at 6 PM at Windsor's Cleary auditorium for a festive dinner-dance. What have we to celebrate? It was 65 years ago that the Provincial Government passed the infamous "Regulation 17" which forbade the teaching of the French language in Ontario. Today the same principle holds true in Essex County re the teaching of that language on the secondary level. We will celebrate 65 years of injustice. It was 8 years ago that the Francophones of Essex County actively began to fight for a French-language high school. We will celebrate 8 years of struggle. It has been 2 years since the Provincial Government has guaranteed the grants to cover construction of said school. We will celebrate 2 years of promises. It has been 1 year since the Essex Board of Education broke its promise to build said school after having spent the 1/2 million dollar "conditional grant" given them by the Provincial Government

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to secure that promise. We will celebrate 1 year of treachery. It was Lord Durham who said that the French-Canadians were a people without history & without culture and that they should & would be assimilated. It was a local Essex County politician who said last year that the Francophones of Essex County should accept assimilation and that our tax dollars should not be spent to prevent it. We will celebrate the perpetuation of racism and bigotry in Canadian history. But we will also act. On January 29, 1977, the Action Committee For A French-Language High School will exhort its fellow compatriots to take action, to no longer tolerate their status of second-class citizens, to openly and publicly condemn those "Canadians" who deny us our rights and thereby undermine the very foundations of our country and place its future in jeopardy. We invite all English-speaking medias of Ontario and Canada to come and cover this event at the Cleary Auditorium, to learn something of Canadian history and to witness the celebration of people who will not accept cultural and linguistic genocide. Jean W. Durocher Spokesman, Essex County Action Committee For A French-Language High School. At about the same time, the appellants began preparing for dissemination the following document, the distribution of which is the subject of the charge: WAKE UP CANADIANS YOUR FUTURE IS AT STAKE! IT IS YOUR TAX DOLLARS THAT SUBSIDIZE THE ACTIVITIES OF THE FRENCH MINORITY OF ESSEX COUNTY.

DID YOU KNOW THAT THE ASSOCIATION CANADIAN FRANCAIS DE L'ONTARIO HAS INVESTED SEVERAL HUNDREDS OF THOUSANDS OF DOLLARS OF YOUR TAX MONEY IN QUEBEC?

AND THAT NOW THEY ARE STILL DEMANDING 5 MILLION MORE OF YOUR TAX DOLLARS TO BUILD A FRENCH LANGUAGE HIGH SCHOOL?

YOU ARE SUBSIDIZING SEPARATISM WHETHER IN QUEBEC OR ESSEX COUNTY.

DID YOU KNOW THAT THOSE OF THE FRENCH MINORITY WHO SUPPORT THE BUILDING OF THE FRENCH LANGUAGE HIGH SCHOOL

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ARE IN FACT A SUBVERSIVE GROUP AND THAT MOST FRENCH CANADIANS OF ESSEX COUNTY ARE OPPOSED TO THE BUILDING OF THAT SCHOOL?

WHO WILL RID US OF THIS SUBVERSIVE GROUP IF NOT OURSELVES?

IF WE GIVE THEM A SCHOOL, WHAT WILL THEY DEMAND NEXT ... INDEPENDENT CITY STATES? CONSIDER THE ETHNIC PROBLEM OF THE UNITED STATES AND TAKE HEED. WE MUST STAMP OUT THE SUBVERSIVE ELEMENT WHICH USES HISTORY TO JUSTIFY ITS FREELOADING ON THE TAXPAYERS OF CANADA, NOW. THE BRITISH SOLVED THIS PROBLEM ONCE BEFORE WITH THE ACADIANS, WHAT ARE WE WAITING FOR ...? 13 The statement was composed by the appellant Durocher whose facility with the English language was greater than that of Buzzanga. 14 The appellant Durocher testified that the francophone community seemed to be "fed up" with the issue of the French- language high school and was becoming apathetic. He said that although economics was the stated reason for not building the school, this was merely an excuse and the real reason was prejudice. The appellant Buzzanga shared Durocher's feeling in this respect. 15 Both appellants testified as to their purpose in preparing and distributing the pamphlet. The appellant Durocher testified that his purpose was to show the prejudice directed towards French Canadians and expose the truth about the real problem that existed with respect to the French-language school. He said that the statement was largely composed from written material he had seen and from experiences he had had, although the paragraph: "WHO WILL RID US OF THIS SUBVERSIVE GROUP, IF NOT OURSELVES?" was pure theatrics and has its origin in the quotation "Who will rid me of this meddlesome priest", attributed to Henry II. He testified in some detail as to the origin of various parts of the document and endeavoured to show that it reflected statements contained in such sources as letters to the editor of the Windsor Star, a document alleged to have been circulated by a member of the Essex County Ratepayers Association, a paid advertisement published in several newspapers, a book entitled "Bilingual Today, French Tomorrow", and the like. He said that he thought the pamphlet would be a catalyst that would bring a quick solution to the problem of the French-language school by provoking a Government reaction and thereby put pressure on the school board. He thought that by stating these things people would say: "This is ridiculous." A fair reading of his evidence is that he did not want to promote hatred against the ''French people", for to do so would be to promote hatred against himself.

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16 The appellant Buzzanga, too, said that he wanted to expose the situation, to show the things that were being said so that intelligent people could see how ridiculous they were. The pamphlet was intended as a satire. He wanted to create a furor that would reach the "House of Commons" and compel the Government to do something that would compel the opposing factions on the school question to reopen communications. He said it was not his intention "to raise hatred towards anyone". 17 The appellant Buzzanga arranged for the printing and distribution of the document. He placed the order for the printing of the document in the name of Wilfred Fortowsky, the president of the Essex County Ratepayers Association, but asked the printer to delete the name of Mr. Fortowsky when he picked up the material, leaving, however, the name of the Essex County Ratepayers Association on the order form. Neither Mr. Fortowsky nor the Essex County Ratepayers Association were, of course, aware that their names had been so used. 18 The appellant Buzzanga procured two 16-year-old boys, Martin Foley and Kevin Seguin, to distribute the handbills. Martin Foley testified that the appellants picked up Seguin and him in Buzzanga's car and drove them around while he and Seguin distributed the handbills. The appellants told them not to say anything about it and not to let anyone see them delivering the handbills. The handbills were distributed in apartment buildings, office buildings, a church and at the University of Windsor; the remainder were thrown in a snow bank at the Essex County Education Centre. 19 Apparently, the two youths were later questioned by Kevin Seguin's mother about their involvement and, a day or two later, Martin Foley called the appellant Buzzanga and asked him if the papers that he and Kevin Seguin had distributed were "French hate literature papers". He testified that the appellant Buzzanga said: "Don't say anything or I'll kill you, and tell Kevin that too." He later met both the appellants who were angry because they thought Kevin had told his mother, and he testified that the appellant Buzzanga said that if Kevin were there he would "run him over". The appellant Buzzanga denied making these statements but, in any event, it is clear that these extravagant statements, if made by the appellant Buzzanga, were neither intended nor understood by Foley to be serious threats to harm him or Kevin Seguin. The appellants then obtained some other documents for Foley to give to Mrs. Seguin to convince her that the youths were not involved in the distribution of the pamphlets which form the basis of the charge. Foley gave the papers, with which he had been supplied by the appellants, to Mr. Seguin but afterwards told him the truth. 20 The appellants testified that it had been their intention to come forward and acknowledge the authorship of the pamphlet but when the police investigation commenced they remained silent as a result of legal advice. 21 Father Claude Vincent of the Department of Sociology of the University of Windsor, a witness of eminent qualifications, testified that all persons belong to an ethnic group. He said that the Canadian Government Census assumes the existence of ethnic groups and that for census

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purposes a person's ethnic group is traced through the father. He testified that the term French Canadian represents the type of ethnic group. It has a distinct sense of identity, distinct sense of history, a common culture, a continuing tradition and, above all else, a consciousness of kind. He said that there is an identifiable French Canadian culture or community in Essex County. Within the term "culture" are subsumed the ideas of language, religion and history. He said that the more opposition there is to a particular group, the stronger the "in-group" solidarity becomes. It is, I think, clear that one of the purposes of the appellants in preparing and distributing the pamphlet was to "rally" the French-speaking community on the French-language secondary school issue. Grounds of appeal 22 Although additional grounds of appeal were advanced, only the following grounds of appeal require discussion. The first and principal ground of appeal was that the learned trial Judge misdirected himself with respect to the meaning of the word "wilfully" in the expression "wilfully promotes hatred" in s. 281.2(2) of the Code by holding that "wilfully" meant intentionally as opposed to accidentally. "Wilfully promotes hatred" 23 The following are the relevant provisions of the Code: 281.1(1) Every one who advocates or promotes genocide is guilty of an indictable offence and is liable to imprisonment for five years.

(2) In this section "genocide" means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely:

(a)

killing members of the group, or

(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.

(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General.

(4) In this section "identifiable group" means any section of the public distinguished by colour, race, religion or ethnic origin. [enacted idem]

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281.2(1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace, is guilty of

(a) an indictable offence and is liable to imprisonment for two years; or

(b)

an offence punishable on summary conviction.

(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 two years; or

(b)

an offence punishable on summary conviction.

(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 upon 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 towards an identifiable group in Canada.

(4) Where a person is convicted of an offence under section 281.1 or subsection (1) or (2) of this section, anything by means of or in relation to which the offence was committed, upon such conviction, may, in addition to any other

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punishment imposed, be ordered by the presiding magistrate or judge to be forfeited to Her Majesty in right of the province in which that person is convicted, for disposal as the Attorney General may direct.

(5) Subsections 181(6) and (7) apply mutatis mutandis to section 281.1 or subsection (1) or (2) of this section.

(6) No proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General.

(7)

In this section

"communicating" includes communicating by telephone, broadcasting or other audible or visible means; "identifiable group" has the same meaning as it has in section 281.1; "public place" includes any place to which the public have access as of right or by invitation, express or implied; "statements" includes words spoken or written or recorded electronically or electromagnetically or otherwise, and gestures, signs or other visible representations. 24 The threshold question to be determined is the meaning of "wilfully" in the term "wilfully promotes hatred" in s. 281.2(2) of the Criminal Code. It will, of course, be observed that the word "wilfully" modifies the words "promotes hatred", rather than the words "communicating statements". 25 The word "wilfully" has not been uniformly interpreted and its meaning to some extent depends upon the context in which it is used. Its primary meaning is "intentionally", but it is also used to mean "recklessly": see Glanville Williams, Criminal Law, The General Part, 2nd ed. (1961), pp. 51-2; Glanville Williams, Textbook of Criminal Law (1978), p. 87; Smith and Hogan, Criminal Law, 4th ed. (1978), pp. 104-5. The term "recklessly" is here used to denote the subjective state of mind of a person who foresees that his conduct may cause the prohibited result but, nevertheless, takes a deliberate and unjustifiable risk of bringing it about: see Glanville Williams, Textbook of Criminal Law, pp. 70 and 76; Smith and Hogan, Criminal Law, 4th ed., pp. 52-3. 26 The word "wilfully" has, however, also been held to mean no more than that the accused's act is done intentionally and not accidentally. In R. v. Senior, [1899] 1 Q.B. 283, Lord Russell of Killowen, C.J., in interpreting the meaning of the words "wilfully neglects" in s. 1 of the Prevention

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of Cruelty to Children Act, 1894 (U.K.), c. 41, said at pp. 290-1: " 'Wilfully' means that the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it." 27 On the other hand, in Rice v. Connolly, [1966] 2 Q.B. 414, where the accused was charged with wilfully obstructing a constable in the execution of his duty, Lord Parker, L.C.J., said at p. 419: " 'Wilful' in this context not only in my judgment means 'intentional' but something which is done without lawful excuse ... ". 28 In Willmott v. Atack, [1976] 3 All E.R. 794, the appellant was convicted on a charge of wilfully obstructing a peace officer in the execution of his duty. A police officer, acting in the execution of his duty, arrested a motorist who struggled and resisted. The appellant, who knew the motorist, intervened with the intention of assisting the officer but, in fact, his conduct obstructed the officer. The Queen's Bench Divisional Court quashed the conviction and held that it was not sufficient to prove the appellant intended to do what he did, and which resulted in an obstruction, but that the prosecution must prove that the appellant intended to obstruct the officer. 29 The judgment of the Court of Criminal Appeal of Queensland in R. v. Burnell, [1966] Qd. R. 348, also illustrates that, depending on its context, the word ''wilfully" may connote an intention to bring about a proscribed consequence. In that case the appellant was charged with arson in having set fire to a shed. Section 461 of the Queensland Criminal Code provides that "... any person who wilfully and unlawfully sets fire to ... any building or structure is guilty of a crime ...". The accused had deliberately set fire to some mattresses in a shed whereby the shed was set on fire. The trial Judge instructed the jury that "wilfully" connoted no more than a willed and voluntary act as distinguished from the result of an accident or mere negligence. The Queensland Court of Criminal Appeal, in setting aside the conviction, held that in the context of the section "wilfully" required proof that the accused did an act which resulted in setting fire to the building with the intention of bringing about that result. Gibbs, J. (with whom Douglas, J., concurred), said at p. 356: Under s. 461 it is not enough that the accused did the act which resulted in setting fire to the building foreseeing that his act might have that effect but recklessly taking the risk; it is necessary that the accused did the act which resulted in setting fire to the building with the intention of bringing about that result. Mr. Manning conceded that in some cases the element of wilfulness is supplied by recklessness but he contended that in its context in s. 281.2(2) of the Criminal Code "wilfully" means with the intention of promoting hatred. In the course of his argument, Mr. Manning stressed the definition of "wilfully" contained in s. 386(1) of the Code, which reads: 386(1) Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to

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have caused the occurrence of the event. 30 Mr. Manning emphasized that s. 386(1) provides that wilfully is to have the meaning specified in that section for the purposes of Part IX of the Code. He argued with much force that the state of mind specified in s. 386(1) is recklessness and that where Parliament intends to extend the meaning of wilfully to include recklessness it does so expressly. In R. v. Rese, [1968] 1 C.C.C. 363 at p. 366, [1967] 2 O.R. 451 at p. 454, 2 C.R.N.S. 99, Laskin J.A. (as he then was), referred to the definition now contained in s. 386(1) as an extended meaning of "wilfully". 31 As previously indicated, the word "wilfully" does not have a fixed meaning, but I am satisfied that in the context of s. 281.2(2) it means with the intention of promoting hatred, and does not include recklessness. The arrangement of the legislation proscribing the incitement of hatred, in my view, leads to that conclusion. 32 Section 281.2(1), unlike s. 281.2(2), is restricted to the incitement of hatred by communicating statements in a public place where such incitement is likely to lead to a breach of the peace. Although no mental element is expressly mentioned in s. 281.2(1), where the communication poses an immediate threat to public order, mens rea is, none the less, required since the inclusion of an offence in the Criminal Code must be taken to import mens rea in the absence of a clear intention to dispense with it: see R. v. Prue; R. v. Baril (1979), 46 C.C.C. (2d) 257 at pp. 260-1, 96 D.L.R. 577 at pp. 580-1, 8 C.R. (3d) 68 at p. 73. The general mens rea which is required and which suffices for most crimes where no mental element is mentioned in the definition of the crime, is either the intentional or reckless bringing about of the result which the law, in creating the offence, seeks to prevent and, hence, under s. 281.2(1) is either the intentional or reckless inciting of hatred in the specified circumstances. 33 The insertion of the word "wilfully" in s. 281.2(2) was not necessary to import mens rea since that requirement would be implied in any event because of the serious nature of the offence: see R. v. Prue, supra. The statements, the communication of which are proscribed by s. 281.2(2), are not confined to statements communicated in a public place in circumstances likely to lead to a breach of the peace and they, consequently, do not pose such an immediate threat to public order as those falling under s. 281.2(1); it is reasonable to assume, therefore, that Parliament intended to limit the offence under s. 281.2(2) to the intentional promotion of hatred. It is evident that the use of the word "wilfully" in s. 281.2(2), and not in s. 281.2(1), reflects Parliament's policy to strike a balance in protecting the competing social interests of freedom of expression on the one hand, and public order and group reputation on the other hand. 34 The recent judgment of the House of Lords in R. v. Lemon; R. v. Gay News Ltd., [1979] 1 All E.R. 898, in my view, is not relevant to the interpretation of s. 281.2(2). In that case, the appellants, the editor and publisher of a newspaper for homosexuals, were convicted of publishing a blasphemous libel in publishing a poem accompanied by a drawing ascribing to Christ homosexual practices.

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35 The House of Lords, by a majority, held that the mental element of the offence of publishing a blasphemous libel was satisfied by proof of an intention to publish matter which, in fact, is likely to shock and outrage the feelings of believing Christians, and that it is unnecessary to prove, in addition, that in publishing the blasphemous material the accused intended to produce that effect. Lord Scarman, who shared the majority view, referred to the charge to the jury by Lord Denman, C.J., in R. v. Hetherington (1841), 4 State Tr. N.S. 563 at p. 593, where he told the jury that the only question for them to decide was whether in their opinion the publication in question was blasphemous and whether the defendant "issued it knowingly and wilfully", and then said of this passage: "In context his adverb 'wilfully' meant no more than 'deliberately' " (at p. 926). 36 Lord Diplock and Lord Edmund-Davies, however, were of the view that the subjective intention to insult or outrage, or recklessness in producing that result, must be brought home to the accused. 37 The divergence of opinion between the majority and the minority reflects different views as to the elements of the offence of publishing a blasphemous libel, and does not assist in the interpretation of s. 281.2(2) of the Criminal Code. 38 The majority, as previously indicated, were of the view that the only mental element required to be proved in a prosecution for publishing a blasphemous libel is the intent to knowingly publish the words which are, in fact, blasphemous. Thus, that offence consists in the "wilful" publication of the blasphemous matter. On the other hand, the offence created by s. 281.2(2) is not committed by "wilfully" communicating statements which promote hatred, but by "wilfully" promoting hatred by communicating statements. 39 Having concluded that proof of an intention to promote hatred is essential to constitute the offence under s. 281.2(2), it is necessary to consider the mental attitude which must be established to constitute an intention to promote hatred. The state of mind connoted by "intention", where an intention to bring about a certain result is an element of the offence, has been the subject of much discussion, and writers on jurisprudence, as well as Judges, have not always been in agreement as to its meaning. Some eminent legal scholars hold the view that a consequence is not intended unless it is desired, recognizing that a consequence may be desired not as an end in itself but desired in order to accomplish some other purpose: see Salmond on Jurisprudence, 8th ed. (1930), pp. 393-6 (but cf., the view of P. J. Fitzgerald, the editor of the 12th edition, pp. 367-9; Holmes, The Common Law, pp. 52-3; Glanville Williams, Textbook of Criminal Law, p. 51). Other eminent legal scholars hold that the test of intention is not whether the actor desired the relevant consequence, but whether he decided or resolved to bring it about, even though it may have been distasteful to him: see Jerome Hall, General Principles of Criminal Law, 2nd ed. (1960), p. 112; Russell on Crime, 12th ed. (1964), vol. 1, p. 41. The latter description of intention is in accord with the views expressed by Lord Hailsham as to the meaning of intention in Hyam v. Director of Public Prosecutions, [1975] A.C. 55 at p. 74, and with those of the Court of Appeal (Criminal Division) in R. v. Mohan (1975), 60 Cr. App. R. 272 at pp. 276 and 278.

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40 There are cases which appear to provide support for the proposition that where an intention to produce a particular consequence is essential to constitute the offence, an act is not done with intent to produce the prohibited consequence unless it is the actor's conscious purpose to bring it about, and that the actor's foresight of the certainty of the consequence is not synonymous with an intention to produce it: see R. v. Miller (1959), 125 C.C.C. 8 at p. 30, 31 C.R. 101, 29 W.W.R. 124; R. v. Ahlers, [1915] 1 K.B. 616; Sinnasamy Selvanayagam v. The King, [1951] A.C. 83; R. v. Steane, [1947] 1 K.B. 997. Most of these cases are subjected to critical examination by Dr. Glanville Williams in Criminal Law, The General Part, 2nd ed. (1961), pp. 40-2. 41 There is, however, substantial support for the proposition that in the criminal law a person intends a particular consequence not only when his conscious purpose is to bring it about, but also when he foresees that the consequence is certain or substantially certain to result from his conduct: see Glanville Williams, Criminal Law, The General Part, 2nd ed. (1961), p. 38; Walter Wheeler Cook, Act, Intention, and Motive in the Criminal Law (1916-17), 26 Yale L.J. 645 at pp. 654-8; Rollin Perkins, A Rationale of Mens Rea, 52 Harv. L. Rev. 905 at pp. 910-1 (1938-39). 42 Smith and Hogan, the learned authors of Criminal Law, 4th ed., state at p. 51, that the authorities referred to by them: ... suggest that in the criminal law generally, though not universally, a person intends a consequence if it is his purpose to achieve it or if he knows that the achievement of some other purpose is certain, or "morally" certain, to produce the consequence in question. 43 In R. v. Lemon; R. v. Gay News Ltd., supra, Lord Diplock, however, defined intention in much wider terms. He said that where intention to produce a particular result is a necessary element of an offence, no distinction is to be drawn in law between the state of mind of one who does an act because he desires to produce that particular result, and the state of mind of one who, when he does the act, is aware that it is likely to produce that result but is prepared to take the risk that it may do so in order to achieve some other purpose. He considered that the law has been settled by Hyam v. Director of Public Prosecutions, supra, "that both states of mind constitute 'intention' in the sense in which that expression is used in the definition of a crime whether at common law or in a statute" (at p. 905). 44 Hyam v. Director of Public Prosecutions, supra, was concerned with the mental element required to constitute "malice aforethought". It may well be that either an intention to kill or cause serious bodily harm, or foresight that death or serious bodily harm is a highly probable consequence of an act done for some other purpose, is a sufficient mens rea for murder at common law. I do not

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consider, however, that the actor's foresight that a consequence is highly probable, as opposed to substantially certain, is the same thing as an intention to bring it about: see Hyam v. Director of Public Prosecutions, supra, per Lord Hailsham at p. 75; R. v. Belfon, [1976] 3 All E.R. 46; Smith and Hogan, Criminal Law, 4th ed., pp. 47-51; Commentary on R. v. Lemon et al., [1979] Crim. L.R. 311 at p. 314. In my view, the mental attitude described by Lord Diplock is a form of recklessness. 45 I agree, however (assuming without deciding that there may be cases in which intended consequences are confined to those which it is the actor's conscious purpose to bring about), that, as a general rule, a person who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose, intends that consequence. The actor's foresight of the certainty or moral certainty of the consequence resulting from his conduct compels a conclusion that if he, none the less, acted so as to produce it, then he decided to bring it about (albeit regretfully), in order to achieve his ultimate purpose. His intention encompasses the means as well as to his ultimate objective. 46 I conclude, therefore, that the appellants "wilfully" (intentionally) promoted hatred against the French Canadian community of Essex County only if: (a) their conscious purpose in distributing the document was to promote hatred against that group, or (b) they foresaw that the promotion of hatred against that group was certain or morally certain to result from the distribution of the pamphlet, but distributed it as a means of achieving their purpose of obtaining the French-language high school. Whether the trial Judge misdirected himself as to the meaning of wilfully? 47 The learned trial Judge in comprehensive reasons first considered whether the document objectively promoted hatred and concluded that the cumulative effect of the document rendered it a communication that promoted hatred against the French- speaking community of Essex County. He then said: It is, however, encumbent upon the Crown to prove beyond a reasonable doubt that the two accused wilfully promoted such hatred. In other words, has the Crown established the necessary element of mens rea. In considering the meaning to be given to the word "wilfully" in this section the Court must distinguish between what has been described by learned writers as primary and secondary intent; or to phrase it in a more understanding way, the distinction between intent and motive. I have earlier discussed the purpose or motive as explained by the accused themselves. They wished to create a situation that would require the intervention of senior levels of Government and result in the construction of the high school. It is in evidence that the handbill was, in fact, shown to a mediator representing the Minister of Education who was in this area attempting to resolve the school issue. It is, of course, a matter of judicial notice that the Province did pass special legislation requiring the construction of the school. It is extremely doubtful, however, that this document played any part in

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the formulation of that decision. It was also their desire to unify the French Canadian community. As Father Vincent stated, opposition from outside often cements an ethnic group and tends to strengthen people rather than weaken them.

This is what the Court would refer to as the purpose or motive of the accused.

Wilful in this section, however, means intentional as opposed to accidental. Miss Susan Moylan who testified for the accused was involved in the early discussions between the accused in the preparation of the handbill. She testified that the document was not to create strong feelings but to create strong actions and strong reactions. How one can do the latter without the former is beyond the comprehension of this Court. The accused themselves testified they wished to create controversy, furor and an uproar. What better way of describing active dislike, detestation, enmity or ill will. The motives of the accused may or may not be laudable. The means chosen by the accused was the wilful promotion of hatred. 48 Mr. Manning contended before us that the learned trial Judge erred in his interpretation of the meaning of "wilfully". He said that the trial Judge, in concluding that the document, viewed objectively, promoted hatred, separated the word "wilfully" from the words "promotes hatred" and, consequently, fell into error in only considering the question whether the document was distributed intentionally as opposed to accidentally, when the offence charged was committed only if the appellants' purpose in distributing the document was to promote hatred. Mr. Manning said that the trial Judge was concerned only with the effect of the document, whereas if he had "looked for" an intention to promote hatred, he would have come to a different conclusion with respect to the appellants' guilt. Mr. Hunt for the Crown did not dispute that the central issue in the case is whether the appellants, when they distributed the pamphlet, intended to promote hatred. He contended, however, that the trial Judge found that the appellants intended to promote hatred as a means of accomplishing their purpose. 49 Despite Mr. Manning's able argument I am not persuaded that the learned trial Judge fell into the error of detaching the word "wilfully" from the words "promotes hatred" and applied it only to the distribution of the pamphlet. I am of the view, however, that the learned trial Judge erred in holding that "wilfully" means only "intentional as opposed to accidental". Although, as previously indicated, "wilfully" has sometimes been used to mean that the accused's act, as distinct from its consequences, must be intended and not accidental (as in R. v. Senior, [1899] 1 Q.B. 283), it does not have that meaning in the provisions under consideration. 50 The learned trial Judge's view of the meaning of "wilfully" inevitably caused him to focus attention on the intentional nature of the appellants' conduct, rather than on the question whether

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they actually intended to produce the consequence of promoting hatred. I observe that even if, contrary to the view which I have expressed, recklessness satisfies the mental element denoted by the word "wilfully", recklessness when used to denote the mental element attitude which suffices for the ordinary mens rea, requires actual foresight on the part of the accused that his conduct may bring about the prohibited consequence, although I am not unmindful that for some purposes recklessness may denote only a marked departure from objective standards. Where the prosecution, in order to establish the accused's guilt of the offence charged, is required to prove that he intended to bring about a particular consequence or foresaw a particular consequence, the question to be determined is what was in the mind of this particular accused, and the necessary intent or foresight must be brought home to him subjectively: see R. v. Mulligan (1974), 18 C.C.C. (2d) 270 at pp. 274-5, 26 C.R.N.S. 179; affirmed 28 C.C.C. (2d) 266, [1977] 1 S.C.R. 612, 66 D.L.R. (3d) 627. 51 What the accused intended or foresaw must be determined on a consideration of all the circumstances, as well as from his own evidence, if he testifies, as to what his state of mind or intention was. 52 Since people are usually able to foresee the consequences of their acts, if a person does an act likely to produce certain consequences it is, in general, reasonable to assume that the accused also foresaw the probable consequences of his act and if he, nevertheless, acted so as to produce those consequences, that he intended them. The greater the likelihood of the relevant consequences ensuing from the accused's act, the easier it is to draw the inference that he intended those consequences. The purpose of this process, however, is to determine what the particular accused intended, not to fix him with the intention that a reasonable person might be assumed to have in the circumstances, where doubt exists as to the actual intention of the accused. The accused's testimony, if he gives evidence as to what was in his mind, is important material to be weighed with the other evidence in determining whether the necessary intent has been established. Indeed, Mr. Justice Devlin, in his charge to the jury in R. v. Adams (The Times, April 10, 1957), said that where the accused testified as to what was in his mind and the jury "thought he might be telling the truth", they would "have the best evidence available on what was in his own mind". The background of the appellants and their commitment to preserving the French Canadian culture was, of course, relevant to the credibility of their denial that they intended to promote hatred against the French-speaking community of Essex County. The appellants' evidence as to their state of mind or intention is not, of course, conclusive. 53 In some cases the inference from the circumstances that the necessary intent existed may be so strong as to compel the rejection of the accused's evidence that he did not intend to bring about the prohibited consequence. The learned trial Judge did not, however, state that he disbelieved the appellants' evidence that they did not intend to promote hatred. He appears to have treated the appellants' testimony that they wished to create "controversy, furor and an uproar" as a virtual admission that they had the state of mind requisite for guilt. 54 I am, with deference to the learned trial Judge, of the view that an intention to create

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"controversy, furor and an uproar" is not the same thing as an intention to promote hatred, and it was an error to equate them. I would, of course, agree that if the appellants intentionally promoted hatred against the French-speaking community of Essex County as a means of obtaining the French-language high school, they committed the offence charged. The appellants' evidence, if believed, does not, however, as the learned trial Judge appears to have thought, inevitably lead to that conclusion. The learned trial Judge, not having disbelieved the appellants' evidence, failed to give appropriate consideration to their evidence on the issue of intent and, in the circumstances, his failure so to do constituted self-misdirection. 55 In view of the conclusion which I have reached it is necessary to refer only briefly to the other grounds of appeal which we regard as requiring discussion. The exemption under s. 281.2(3)(d) 56 Mr. Rosenberg contended that there was an evidentiary base for the application of the exemption under s. 281.2(3)(d) of the Criminal Code and that the learned trial Judge erred in holding that it was not available to the appellants. 57 The learned trial Judge said: Counsel have submitted, however, that the accused are entitled to the statutory exemption in para. (d). An accused cannot be found guilty "if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred towards an identifiable group in Canada".

If the accused had produced a document, for example, which pointed out, that in their view, these statements were being made in Essex County and that the public should be aware of it then clearly they would be within the exemption. The exemption also works for the protection of the media, who in the course of editorial comment would be required for the purpose of removal to repeat such statements. The Parliament, in enacting this section, included the words "in good faith". Were the accused acting in good faith when Mr. Buzzanga used the name of Mr. Fortowsky in placing the order with the printer? Were the accused acting in good faith when they instructed young Foley and Seguin to deceive their parents? Were the accused acting in good faith when their stated objective was to deceive elected Members of Parliament and Ministers of the Crown? Surely not. 58 Mr. Rosenberg submitted that the requirement in s. 281.2(3) (d) of "good faith" means no more than the accused "honestly" or "genuinely" intended to point out for the purpose of removal, matters producing or tending to produce feelings of hatred towards an identifiable group. He argued that if the appellants otherwise came within it, the exemption was available to them, notwithstanding that they did not act in an open and "above-board" manner. I accept Mr.

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Rosenberg's submission that the appellants' devious conduct did not, as a matter of law, exclude them from the exemption under s. 281.2(3)(d). I also accept that the exemption under s. 281.2(3) (d) is not, as a matter of law, limited to cases where the communication on its face expressly states that the matters producing or tending to produce feelings of hatred are pointed out for the purpose of removing them. The appellants' devious conduct and the character of the pamphlet were, however, relevant items of evidence to be weighed in determining whether the appellants came within the exemption. If the appellants were properly found to have wilfully promoted hatred as alleged, I would not readily have interfered with a finding that they had not brought themselves within the exemption. 59 The exemption contained in s. 281.2(3)(d) is, in my view, provided out of abundant caution, and where a person has "wilfully" promoted hatred, the cases in which the exemption may successfully be invoked must be comparatively rare. The persons referred to in the pamphlet 60 Dr. Bernhard Harder, who has a doctorate in English literature and linguistics, testified on behalf of the defence. The substance of his testimony was that from the point of view of linguistics the "subversive" group or element referred to in the pamphlet is the French minority who support the building of the French-language high school and not the French Canadian community in Essex County. 61 Counsel for the appellants, on the basis of the evidence, argued that even if the pamphlet promoted hatred, it promoted hatred only against the French minority who supported the building of the high school and not the French Canadian public in Essex County as alleged in the indictment, and the charge, as laid, was not proved. 62 I have serious reservations as to the admissibility of this evidence: see Phipson on Evidence, 12th ed. (1976), pp. 504-5. In any event, I agree with the trial Judge that the meaning of the document is to be gathered from its entirety, and the construction that would be placed upon it by the average person into whose hands it fell. I would not give effect to this ground of appeal. Conclusion 63 I have concluded that the self-misdirection with respect to the meaning of the word "wilfully", and the failure to appreciate the significance of the appellants' evidence on the issue of intent requires a new trial. The outrageous conduct of the appellants in preparing and distributing this deplorable document was evidence to be weighed in determining their intent, but in the peculiar circumstances of this case I am not satisfied that the inferences to be drawn from it are such as to inevitably lead to a conclusion that they had the requisite intent or that the trial Judge would inevitably have reached that conclusion but for his self-misdirection. 64 In the result, I would allow the appeal, set aside the convictions and order new trials.

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Appeal allowed; new trial ordered.