With his Eminem-style haircut and boyish good looks, Mark Roy Elms seems an unlikely poster boy for the skinhead movement. In a Finch West courtroom June 9, Elms, on trial on 15 charges of wilful promotion of hatred for selling hate rock CDs, was acquitted of all charges, making him the first in Canada to be acquitted of such charges under Sections 318 and 319 of the Criminal Code.
Only 11 cases of wilfully promoting hatred have been heard, seven of which resulted in convictions. Two have yet to be heard, and another, thrown out on a technicality, is currently under appeal.
The high rate of conviction can be partly explained by the fact the attorney general must first consent to charging the accused for hate-related offences before charges can be laid by police. Attorneys general are very careful about giving that go-ahead unless there is more than just a reasonable likelihood of conviction.
In the Elms case, however, no one who sat in the courtroom seemed surprised when Elms was acquitted. ***
Elms, 22, was selling CDs at a skinhead event in the basement of the Fox and Fiddle pub on Lakeshore West on January 12, 2003. He was part of a group that had booked the room for two bands that night, just as they'd done five or six times before. "They have never caused any trouble at all, and this time was no different," Bill Lykiardopoulis, manager of the Fox and Fiddle, said in an interview later.
Detective James Hogan of the Toronto police services hate crimes unit was the first on the premises that evening. The Canadian Security Intelligence Service (CSIS) had notified the detective of the skinhead event just a few days before, and Hogan didn't want to miss it.
In June 2002, Anti-Racist Action (ARA), a group Hogan called "militant" in the way they counter racism, confronted a Toronto skinhead group in a violent protest. Hogan testified that he was not about to let that happen again, especially since ARA was throwing its 10th anniversary party that same night at the Opera House.
Hogan decided to stake out both events with the help of several other officers. When he walked into the basement room, Elms immediately began taking CDs off the table, prompting Hogan to check out the merchandise.
Displayed on the table in front of Elms, police testified, were 83 albums by Angry Aryans, Blue Eyed Devils and Extreme Hatred, to name a few.
In the courtroom, Elms smirked with head hung low as Browntown Burning Down, by the Angry Aryans, from their album Old School Hate, played through the speaker system.
"Browntown burning down / Negro in flames rolling on the ground / No longer welcome in our cities because you'll get beat / Extreme white racial violence is what the darkies can expect to meet."
The court also listened to Holocaust 2000, by the Blue Eyed Devils. "We've heard your tales of persecution and we've listened to your lies / But this time it's for real / The final genocide."
"Although some words may be hateful, we must tolerate speech without calling it criminal," Elms's lawyer, Peter Lindsay, who is also Holocaust denier Ernst Zundel's defence attorney, told me later outside the courtroom. "Just because you don't like something someone says doesn't mean he can be prosecuted for saying it."
Hogan described the 45-odd patrons still in attendance at 1 am at the Fox and Fiddle as "uniformed" males with shaved heads and white supremacist tattoos, wearing T-shirts, suspenders and cuffed jeans exposing their Doc Martens boots.
Elms admitted to owning the CDs, but Justice Derek Hogg didn't seem to read anything into that, or into the fact that others at the pub were decked out in white supremacist regalia. "It sounds like you're describing any NBA basketball player," the judge said.
Crown expert witness Karen Mock's portrayal of neo-Nazi hate propaganda received the same reaction from the judge.
"Mark Twain's Huck Finn uses the word 'nigger.' Blacks even call each other 'nigger,'" Hogg said without the slightest hint of emotion.
In order for an accused to be convicted of wilfully promoting hatred, five essential elements must be proven beyond a shadow of a doubt: that the accused communicated statements, that the communication occurred in a public place, that the communication constituted hatred, that the hatred was aimed at an identifiable group, and that such communication was done wilfully.
Although the Crown did prove beyond a shadow of a doubt that the CDs Elms owned were in fact hate propaganda against an identifiable group, it failed to prove, in Hogg's view, that Elms had communicated statements, that he did so wilfully or that the event where the alleged crime took place was a public one.
Crown attorney Jennifer Woollcombe argued that since Elms was at the event he must have been part of the skinhead group, and since he was behind the table he had indeed sold the CDs and knew what they contained.
Leaning back in his chair with arms folded, Hogg delivered his verdict.
"The Crown has not met their difficult burden," he said. "Great suspicion is not enough. The Crown asked me to infer a great many things, and I cannot infer doubt."
Although eyewitnesses claimed they saw Elms behind the table, no one, except for maybe his skinhead buddies, saw him actually selling the CDs. Not that it would matter, Lindsay argued. "Are we to arrest every clerk at a bookstore who sells Hitler's Mein Kampf?"
Len Rudner of the Canadian Jewish Congress says he's not pleased with the decision.
"The only good news is that at the very least all of the material was seized and ordered destroyed," he says. "Personally, I'd say there's a difference between selling insurance and selling hate CDs. If someone chooses to sell material that contains hate, there's no evidentiary test, but a reasonable person will ask, why is he selling it? But that's the difference between the opinion of a man and the opinion of the law."
Woollcombe declined to comment on the Elms case except to say that she's still waiting to hear from higher-ups today (Thursday, July 8) about whether the Crown will appeal.