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Victoria's Battling Barrister Douglas H. Christie has won another victory, albeit a small one, in the battle to hold back the minority-instigated assaults on free speech in Canada. "David Ahenakew's conviction for promoting hatred was overturned yesterday and a new trial was ordered by a judge who questioned whether the former aboriginal leader willfully intended to spread hate when he told a reporter that Jews were a "disease."
Chief Justice Laing said that hateful words, where they are said and the tone of voice used are all relevant factors in determining intent.
In 2002, Mr. Ahenakew, now 72, blamed Jews for the Second World War during a profanity-filled speech. The former head of the Assembly of First Nations repeated those sentiments when approached afterward by a reporter from the Saskatoon StarPhoenix. He went on to laud Hitler's use of death camps as a way to "clean up the world" of Jewish people. " (Globe and Mail, June 9, 2006)
Chief Ahenakew maintained his proud and defiant attitude and "told CBC Radio yesterday that the case has been a waste of time and money and that he has 'nothing to repent for.' ...
'I wonder if he'll get his Order of Canada back now,' Mr. Christie said. "He didn't send it [the insignia] back. He said, 'You want it, you come and get it.' ...
Doug Christie, Mr. Ahenakew's lawyer, said during the appeal that upholding the conviction would lead to a 'tattletale state.' He said yesterday the Crown should not bother with a new trial because there was no further evidence of intent.
'You've got an angry man in an unpremeditated argument with indiscreet language. Not an intentional communication at all, really,' Mr. Christie said in an interview. 'It's so different from anything they've ever prosecuted before that I think nothing but a political decision would justify a new trial.'
Murray Brown, Saskatchewan's director of public prosecutions, said his office would decide by the end of next week whether to appeal the ruling or set a date for a new trial.
What about dropping the case?
'Staying? It's not one [option] I'm entertaining,' Mr. Brown said. "
Sadly, if Brown's comments can be taken at face value, the state intends to re-try Chief Ahenakew and continue its policy odf prosecuting politically incorrect dissidents for "hate".
One disappointment is that the Appeal Court Judge seemed to reject the powerful argument that the Chief's remarks were in a private conversation, which does not come under Sec. 319 -- the "hate law", which was passed into law in 1971 after more than 30 years of lobbying by the Canadian Jewish Congress
"During the appeal, Christie suggested Irwin also erred in finding the discussion was not private, which would also exempt it from the Criminal Code's hate law. Ahenakew had no idea it would be made public and had no intention to make it public, he said. That decision was the reporter's, he added, stressing the issue of intent is crucial to rendering whether a comment is criminal or not.
Laing disagreed, endorsing Irwin's interpretation that speaking with a reporter who requested an interview could not be considered private." (Saskatoon Star-Phoenix, June 9, 2006)
Paul Fromm
Dierctor
CANADIAN ASSOCIATION FOR FREE EXPRESSION
Ahenakew's conviction overturned
DAWN WALTON
David Ahenakew's conviction for promoting hatred was overturned yesterday and a new trial was ordered by a judge who questioned whether the former aboriginal leader willfully intended to spread hate when he told a reporter that Jews were a "disease."
Chief Justice Robert Laing of the Saskatchewan Court of Queen's Bench said the lower court judge who convicted Mr. Ahenakew and fined him $1,000 last summer erred by not taking into account whether the comments were made "spontaneously" and in anger.
Chief Justice Laing said that hateful words, where they are said and the tone of voice used are all relevant factors in determining intent.
In 2002, Mr. Ahenakew, now 72, blamed Jews for the Second World War during a profanity-filled speech. The former head of the Assembly of First Nations repeated those sentiments when approached afterward by a reporter from the Saskatoon StarPhoenix. He went on to laud Hitler's use of death camps as a way to "clean up the world" of Jewish people.
"That's why he fried six million of those guys, you know. Jews would have owned the goddamned world," he told the StarPhoenix.
Chief Justice Laing said that Mr. Ahenakew ended the interview abruptly, refusing to talk further about "the Jews" and refused a subsequent phone call from the reporter.
Jewish leaders, native groups and others across the country condemned Mr. Ahenakew's comments and he was removed from the Order of Canada.
Mr. Ahenakew later made a tearful apology, saying he got "caught up in the heat of the moment" and blamed a health "imbalance" for the outburst.
He told CBC Radio yesterday that the case has been a waste of time and money and that he has "nothing to repent for."
Doug Christie, Mr. Ahenakew's lawyer, said during the appeal that upholding the conviction would lead to a "tattletale state." He said yesterday the Crown should not bother with a new trial because there was no further evidence of intent.
"You've got an angry man in an unpremeditated argument with indiscreet language. Not an intentional communication at all, really," Mr. Christie said in an interview. "It's so different from anything they've ever prosecuted before that I think nothing but a political decision would justify a new trial."
Murray Brown, Saskatchewan's director of public prosecutions, said his office would decide by the end of next week whether to appeal the ruling or set a date for a new trial.
What about dropping the case?
"Staying? It's not one [option] I'm entertaining," Mr. Brown said.
He said that he was pleased the court upheld Canada's hate law.
The section of the Criminal Code under which Mr. Ahenakew was charged applies only to hate spoken "other than in private conversation." Mr. Christie suggested that means a one-on-one interview with a reporter is included in that exemption.
The Canadian Jewish Congress said yesterday it would support a second trial. The congress had been granted intervenor status at the appeal on the grounds that Mr. Ahenakew's defence threatened the integrity of Canada's hate laws.
"Sometimes one overspeaks. I can understand that," said congress president Ed Morgan. "You react to a reporter and you might overspeak. On the other hand, his words as reported were quite vile."
Mr. Morgan, who is a professor of constitutional law at the University of Toronto, said he has some sympathy for the judge's ruling.
"We do understand the concern about free speech and we think the courts are right in being very, very careful on these kinds of cases. We would not want it any other way," he said.
Mr. Ahenakew blamed Jewish lobby groups for his conviction and losing the Order of Canada award.
He and his wife "suffered a tremendous amount of humiliation and these are very proud people," said Mr. Christie, who has also represented Holocaust-deniers James Keegstra and Ernst Zundel. "It's been extremely difficult for David Ahenakew and his family and that's the sad part."
The Order of Canada's advisory council, which initially said it would wait until court proceedings were completed, expelled Mr. Ahenakew and asked him to return his membership insignia (which he would wear to news conferences and court proceedings), something that has occurred only once before.
"I wonder if he'll get his Order of Canada back now," Mr. Christie said. "He didn't send it [the insignia] back. He said, 'You want it, you come and get it.' "
Ahenakew wins appeal of hate crime conviction
Trial judge failed to consider if comments 'wilfully' intended to promote hatred, Laing rules
Darren Bernhardt, The StarPhoenix
Published: Friday, June 09, 2006
A new trial has been ordered for former First Nations leader David Ahenakew, who successfully appealed his hate crime conviction of wilfully promoting hatred in an anti-Semitic tirade to a reporter.
In a 35-page decision released Thursday, Queen's Bench Chief Justice Robert Laing wrote that the trial judge erred by failing to consider whether the comments had intent to wilfully promote hatred.
Defence lawyer Doug Christie said he is pleased with the decision, although he would have preferred Laing to go one step further and quash the charges rather than direct a new trial be held.
"But I can certainly live with that," he said, adding the decision should set an "instructful" precedent for Saskatchewan's attorney general.
"My advice would be to leave it alone (and not pursue another trial). He'll be under a lot of pressure though. I just hope he ignores the political pressure and carefully examines the judgment. I think it's quite clear that intention (to promote hatred) is really impossible in this case."
Murray Brown, the provincial director for public prosecutions, said his department will study the judgment and consider whether to pursue a new trial or take Laing's decision to the Court of Appeal.
"That's something we will decide in the next few days," he said.
Last July, provincial court Judge Marty Irwin found Ahenakew, 73, guilty of wilfully promoting hatred against Jews for comments he made in a 2002 interview with then-StarPhoenix reporter James Parker. Ahenakew was fined $1,000.
Shortly after the conviction, the Governor General's office announced Ahenakew would be stripped of his Order of Canada award, but he has refused to surrender it.
"With respect to whether the appellant (Ahenakew) was 'wilfully' promoting hatred against people of the Jewish faith in making the statements he did to Mr. Parker, the trial judge did not consider all the evidence surrounding the making of the statements, the evidence from the interview apart from the hateful words uttered by the appellant or the evidence of the appellant," Laing wrote. "Nor did he make any reference to the position of the defence with respect to the issue of 'wilful.' "
During a Federation of Saskatchewan Indian Nations health conference on Dec. 13, 2002, Ahenakew made a speech to hundreds of delegates, during which he railed against immigrants and said Jews were responsible for starting the Second World War.
Interviewed by Parker afterward, he confirmed he believed that to be true. He then suggested the Holocaust was warranted because Jews are a "disease" that takes over everything.
"That's why he (Hitler) fried six million of those guys," Ahenakew told Parker.
Laing upheld Christie's argument, made during the April 3 appeal hearing in Saskatoon, that Ahenakew's words were spoken "spontaneously" out of anger, not with the intent to promote hatred, Christie said at the appeal.
"That can't be denied when you look at it," he reiterated in an interview Thursday. "The conversation was constantly being interrupted . . . and when Dr. Ahenakew realized he'd gone too far, he stopped the conversation and walked away.
"It was spontaneous, unpremeditated and later regretted. That eliminates the possibility of intent as required under the Criminal Code."
Ahenakew made a tearful, nationally televised apology three days after his initial remarks to Parker. If a person wanted to promote hate, they would have been delighted with the result, Christie said.
"I think the apology should have weighed heavily on the trial judge but it was discounted," he said.
The Crown prosecutor at the trial described the apology as "clearly and obviously contrived" after Ahenakew testified he still believes Jews created the war.
In his decision, Laing accepted Ahenakew didn't know what the interview would be about when he agreed to be questioned. The "argumentative" interview lasted only three minutes and a followup call by Parker to Ahenakew led to him hanging up on the reporter, Laing wrote.
"Therefore, his comments were made spontaneously in response to questions from Mr. Parker," he ruled. "To the extent the foregoing evidence, along with possible other evidence, was not taken into account by the trial judge before drawing the inference he did, was an error in law that requires the setting aside of the judgment."
During the appeal, Christie suggested Irwin also erred in finding the discussion was not private, which would also exempt it from the Criminal Code's hate law. Ahenakew had no idea it would be made public and had no intention to make it public, he said. That decision was the reporter's, he added, stressing the issue of intent is crucial to rendering whether a comment is criminal or not.
Laing disagreed, endorsing Irwin's interpretation that speaking with a reporter who requested an interview could not be considered private.
That finding was crucial for the Canadian Jewish Congress (CJC), which had intervenor status during appeal.
"From our perspective we got what we wanted, so we're satisfied," said lawyer Neil Finkelstein. "We don't care if Mr. Ahenakew is acquitted or convicted, we just want to make sure the (hate) law is applied right. The congress didn't take issue with it being wilful or not. We took issue with the definition of private versus public conversation."
The decision confirms the validity of the hate propaganda law, added CJC national president Ed Morgan.
"If you talk to a reporter you have to be responsible for your words," he said. |