TORONTO – A defence lawyer was incompetent in part because he refused to argue in court that gas chambers were never used against Jews in the Holocaust, a convicted hate monger testified on Tuesday.
Testifying at his appeal, James Sears also argued the lawyer failed to call any witnesses out of fear of angering the judge or appearing anti-Semitic among his dozens of allegations against his trial counsel.
Sears, Toronto-based editor of the free publication “Your Ward News,” said it was important to him that Dean Embry did not contradict the views he had expressed in the paper.
“I have a right to file a truth defence here on historical facts,” Sears said, adding that he does not believe gas chambers were used in the killing of six million Jews.
Sears, and the paper’s publisher, LeRoy St. Germaine, are appealing their convictions for wilfully promoting hatred against Jews and women. Ontario court Judge Richard Blouin found them guilty last year, saying the case against them was overwhelming.
“Mr. Sears,” Blouin said, “promoted hate to a vast audience in an era where online exposure to this material inexorably leads to extremism and the potential of mass casualties.”
Sears, 57, who described himself as “halfway between a lawyer and an actor who portrays a lawyer on TV,” is handling the appeal himself before Superior Court Justice Peter Cavanagh.
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Embry has maintained he did his best to provide effective, professional counsel. While he considered Sears’s views about the Holocaust to be indefensible and vehemently disagreed with much of his client’s thinking, court heard, he believed they had a shot at raising a doubt about whether the accused had been promoting hate with the publication.
During his evidence, Sears said he repeatedly urged Embry to call witnesses in an effort to undermine the testimony of the prosecution’s two experts on anti-Semitism and misogyny. Embry, however, was adamantly opposed.
“I said we should leave nothing on the table and lead our own experts,” Sears said. “He thought again it would piss off Blouin.”
Sears, who fired Embry after the guilty verdict, said he felt stuck with the lawyer whom he described as honest and a good person.
In cross-examination, Crown lawyer Michael Bernstein suggested a lawyer has an obligation to pick an approach, prompting Sears to retort it was an incompetent strategy.
“Mr. Embry acted at all times professionally and competently,” Bernstein said.
“We agree to disagree.”
Bernstein produced a series of emails about planned closing submissions in which Sears praised his lawyer for having done a “really good job” and telling him, “I do trust you as much as a I trust anyone who isn’t me.” At the same time, Sears insisted Embry not say anything in “Your Ward News” was false.
“I gave him the big thumb’s up. That’s correct,” Sears said.
“I didn’t want this, but I acquiesced to it. I wanted to present a full defence.”
“You did a lot more than acquiesce,” Bernstein said, quoting Sears at one point as telling Embry: “You’re looking good. We’re going to get acquitted.”
“At the time, I didn’t think he was incompetent but I had doubts,” Sears, who chose not to testify at his trial, explained of another email.
Embry said in an affidavit he had urged his client to take the stand but couldn’t persuade him. He also rejected many of his client’s strategy suggestions because he thought they would backfire.
Blouin last year handed Sears, who was granted bail pending appeal, the maximum one-year jail sentence, saying he would have given longer had the law allowed. St. Germaine was given 12 months strict house arrest.
The appeal is expected to continue on Thursday.
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