COURT OF APPEAL FOR ONTARIO - Sossin J.A.:

319(2) of the Criminal Code; (2) that the trial judge erred in excluding expert evidence on the hateful nature of the flyer; and (3) that the trial judge erred in excluding evidence of prior discreditable conduct by the respondent. [...] [10] At a judge-alone trial, the trial judge considered the elements of the offence: first, that the respondent communicated statements, in this case the flyer; second, that the flyer was distributed publicly; third, that the flyer promoted hatred; fourth, that the promotion of hatred was against an identifiable group; and fifth, that if the flyer promoted hatred, the respondent did so wilfully. [...] 319(2)? 2) Did the trial judge err by excluding expert evidence relevant to establishing the hateful nature of the respondent’s flyers? 3) Did the trial judge err by excluding evidence of the respondent’s prior discreditable conduct? [20] The standard of review was the subject of some dispute by the parties. [...] The appellant argued the formulation and application of the objective test for hate Page: 9 speech in light of the record before the trial judge constituted questions of law, reviewable on a standard of correctness, while the respondent argued deference should be owed to the findings of the trial judge that the flyer in question did not constitute hate speech. [...] Page: 18 [45] In sum, the trial judge failed to address whether situating the flyer in its social and historical context was necessary for the trier of fact to determine whether the text, images, and the flyer as a whole, relied on stereotypes and tropes about gay men that expose them to feelings of detestation and vilification in the eyes of the reasonable member of society.