Background
The respondent, Leslie Bory, was convicted by a jury of advocating genocide and the wilful promotion of hatred after he posted videos online calling for violence against Jewish people. However, the trial judge acquitted him on a separate charge of public incitement of hatred. The acquittal was entered on a directed verdict because the judge concluded that the internet was not a “public place” within the meaning of s. 319(1) of Canada’s Criminal Code.
The Crown (the prosecution) appealed the acquittal, arguing that the trial judge erred and that online spaces should be interpreted as the modern public square for the purposes of the hate speech law. The respondent, Mr. Bory, and the Crown are also both appealing his sentence. Amid these proceedings, The Alliance of Canadians Combatting Antisemitism (ALCCA), a coalition of Jewish advocacy organizations, brought a motion seeking leave to intervene as a “friend of the court” in the Crown’s appeal of the acquittal.
The Court’s Holding
The Court of Appeal for Ontario, in a decision by Associate Chief Justice Fairburn, granted ALCCA’s motion for leave to intervene. The court did not rule on the merits of the main appeal—that is, whether the internet is a “public place”—but only on whether ALCCA should be allowed to participate in that future hearing. The court found that the issue is one of “wide-reaching impact” as public discourse increasingly moves online and that an appellate court has not yet provided guidance on this specific offense.
In granting the motion, the court determined that ALCCA’s proposed submissions were not merely duplicative of the Crown’s arguments. While the Crown had addressed the issue only briefly, ALCCA intended to provide a detailed statutory interpretation analysis and suggest analytical frameworks from other legal contexts. The court concluded that this different perspective would be useful and assist the panel in resolving the important legal question. The court granted ALCCA the right to file its own written arguments and to make a 20-minute oral submission at the appeal hearing.
Key Takeaways
- Advocacy groups with relevant expertise can be permitted to intervene in criminal appeals if they can offer a unique and useful perspective on an issue of broad public importance.
- The court recognized that ALCCA’s detailed analysis on the interpretation of “public place” would be a valuable contribution distinct from the parties’ submissions.
- This procedural ruling confirms that the central legal question—whether online forums are “public places” under Canadian hate speech law—is a significant issue worthy of in-depth argument before the appellate court.
Why It Matters
This decision paves the way for a full hearing at the Court of Appeal for Ontario on a critical question for the digital age: do Canada’s laws against public incitement of hatred apply to the internet? The outcome of the underlying appeal will have profound implications for how online hate speech is prosecuted, potentially setting a major precedent for the application of laws written for physical spaces to online conduct. The court’s willingness to hear from an expert intervener signals that it recognizes the complexity and public importance of adapting criminal law to the realities of the modern internet.