** Unedited ** Indexed as: R. v. Burdi Between Her Majesty the Queen, (respondent), and George Burdi, (appellant)  O.J. No. 554 No. C21788/C21820 Ontario Court of Appeal Toronto, Ontario Finlayson, Abella and Goudge JJ.A. Heard: February 13, 1997. Judgment: February 14, 1997. (5 pp.) Counsel: Peter Connelly, for the appellant. Brian McNeely, for the respondent. The following judgment was delivered by [para1] THE COURT (endorsement):-- The appellant, George Burdi, was convicted of assault causing bodily harm and sentenced to 12 months' imprisonment as a result of a violent confrontation which occurred in Ottawa in May, 1993. Burdi was the leader of a white supremacist group called "Church of the Creator" and the lead singer of a band called "Ra Ho Wa (Racial Holy War)." After a band concert on May 29, which was picketed by anti-racist protesters, Burdi and the leader of the Neo-Nazi Heritage Front, Wolfgang Droege, led their supporters on a march to Parliament Hill and eventually to the front of the Chateau Laurier Hotel. As the white supremacists marched, they chanted "sieg heils", made racist remarks, and gave Nazi salutes. The appellant Burdi directed the group and gave media interviews. [para2] At Parliament Hill, Burdi and Droege passionately addressed their followers with the express purpose of trying to raise the emotional pitch of the evening. Burdi then led the white supremacists to the Chateau Laurier. Once there, he led his followers on an angry charge across the street to attack the anti-racist demonstrators. [para3] One of the victims of that charge was the young female complainant, who was struck on the head while running from Burdi's supporters. When she fell, she was kicked several times on her right side. She saw Burdi kick her in the face and utter "This is the cunt that started the whole thing." As a result of the assault, the complainant suffered a broken nose, temporarily lost consciousness, and had memory problems for weeks. [para4] The appellant's main submission is that the trial judge erred in his instruction to the jury relating to s. 21 of the Criminal Code in two ways: (a) by appearing to charge the jury as if s. 21(2) rather than s. 21(1) applied; and (b) by "mixing" s. 21(1) and (2). [para5] Any ambiguities in the charge were, in our view, fully clarified on the recharge. In the recharge, the trial judge made it clear to the jury that liability was to be decided under s. 21(1) and not under s. 21(2). He also instructed them that the issue was not "common intention". Any potential confusion arising from the "mixing" of sections was adequately clarified when the trial judge told the jury that the following were the key questions to be answered: "Was there an aid given to the actual offence? Did the accused first of all commit, or did he simply assist or abet, that is, encourage the matter to go forward?" [para6] In any event, there was no prejudice to the appellant arising out of the trial judge's instruction with respect to s. 21. Given the overwhelming nature of the evidence, which could easily have supported a conviction under either s. 21(1) or s. 21(2), the verdict would likely have been the same. The appellant knew from the outset that the Crown's theory was that he was either the assailant or a party to the offence. Looked at as a whole, if the appellant was not the actual assailant, he was clearly a leader of the demonstration. [para7] The appellant also impugned the charge on the basis that the instruction on self-defence was inadequate. In the absence of any evidence from the appellant that could support a claim of self-defence, and given the preponderance of evidence to the contrary, we see no reason for the trial judge to have said any more than he did on the issue of self-defence. [para8] The appellant did not strenuously advance his submission on "identification" and conceded that if the s. 21(1) issue was determinative, identification was not relevant. [para9] Accordingly, the appeal from conviction is dismissed. [para10] The appellant also appealed his 12 month sentence. We can see nothing unreasonable about the sentence imposed. This was a brutal assault committed in the name of racist ideology. The purpose of the white supremacist organization of which the appellant was a leader, was to use violence and hatred for racist ends. The incident on May 29 was a planned and deliberate outgrowth of his malevolent strategy and deserves the strongest possible censure. The march through Ottawa streets was designed by Burdi to incite his Neo-Nazi followers to a frenzy of hatred. In this he succeeded, and the resulting attack against the anti-racist demonstrators was an inevitable outcome of his deplorable tactics. [para11] The assault on the complainant was severe, cowardly, and caused serious injuries, for which Burdi expressed neither remorse nor regret. The appellant's aim in life was to promote hatred, violence, and racism, and it was appropriate for the trial judge to take this into account. It was not merely the brutality of the assault or the assailant which made the sentence fit, but also the unconscionable racist context in which it took place. [para12] Accordingly, leave to appeal sentence is allowed, but the appeal from sentence is dismissed. FINLAYSON J.A. ABELLA J.A. GOUDGE J.A. QL Update: 970224 qp/d/bbd crim Material appearing in GOLEM GAZETTE is distributed without profit for research and educational purposes. Submissions are welcome.
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