A convicted hatemonger who maintains his defence lawyer deliberately threw his case will get a rare chance to show why his trial should be reopened, a judge ruled on Monday.
Instead of sentencing James Sears for promoting hatred against women and Jews, Ontario court Judge Richard Blouin said he would allow the editor of Your Ward News to show he didn’t get the opportunity to defend himself properly.
“My overarching obligation is to ensure a fair trial,” Blouin told court. “I’m allowing Mr. Sears an opportunity to satisfy me that this is a exceptional case.”
Sears, who was convicted in January and made sentencing submissions in April, put forward several arguments for either reopening his trial or declaring a mistrial. Blouin, however, focused on his argument that Sears’ lawyer, Dean Embry, provided ineffective counsel.
Among other things, Sears, 55, maintained Embry refused to call any defence witnesses. He fired Embry, who denies any wrongdoing, in May.
While the Crown argued Sears’ new arguments were without merit, Blouin said he felt he had no choice even though tactical decisions the defence makes at trial cannot be second-guessed.
“You’ve made the argument that Mr. Embry basically threw the case,” Blouin said to Sears. “That’s an issue I’m going to have to decide.”
The judge gave Sears two weeks to provide a list of proposed witnesses, their credentials, and what they would testify to. He said he would then decide whether to proceed with sentencing, reopen the trial to hear those witnesses, or declare a mistrial.
Sears waived solicitor-client privilege to allow Embry to discuss the case.
Sears and co-accused LeRoy St. Germaine, 77, were convicted of promoting hatred against women and Jews for content in Your Ward News. The free Toronto-based publication was distributed to more than 300,000 homes and businesses as well as having an online presence. The publication consistently portrayed women and Jews in beyond ugly terms.
The Crown had called for a total one-year jail term for Sears, who now returns to court on Aug. 1. The defence argued for a four-month conditional sentence.
Separately Monday, the prosecution urged Blouin, who is retiring from full-time work at the end of August, to jail St. Germaine for three months on each of the two counts for which he was convicted — to run consecutively.
“A custodial sentence is warranted in this case,” Crown lawyer Erica Whitford said. “He has admitted he does have final say over the contents of the publication.”
Whitford also urged two years probation, barring St. Germaine from publishing Your Ward News or any other material that disparages Jews or women. She also wanted him barred from contact with Sears.
The publication which became more vile over its three years, Whitford said, had a profound impact on recipients, robbing many of a sense of safety.
St. Germaine, who identifies as Metis, has a criminal record, including for break and enter, court heard.
Although he has expressed some regret for his role, Whitford said he did appear to have been less culpable than Sears, author of most of the Your Ward News content.
“He seems to have been led by Mr. Sears,” Whitford said.
St. Germaine’s defence lawyer, Ian McCuaig, called for a conditional sentence. He cited his client’s unstable family background for turning him into an angry man.
“It’s lashing out,” McCuaig told the court.
St. Germaine, who is single and has a Grade 8 education, deserves a break because of his background, McCuaig argued.
Meanwhile, Sears, a married father who was found guilty of sexual assault in the 1990s and lost his medical licence over sexual impropriety with female patients, said he saw no need to hire a new lawyer.
Colin Perkel, The Canadian Press
Colin Perkel, The Canadian Press