David Ahenakew July 8, 2005

R. V. AHENAKEW

PC05063 Date of Judgment: July 8, 2005 Number of Pages: 16 2005 SKPC 76

IN THE PROVINCIAL COURT OF SASKATCHEWAN AT SASKATOON

Between

HER MAJESTY THE QUEEN

and

DAVID AHENAKEW

Brent Klause for the Crown Douglas Christie for the Accused JUDGMENT M. IRWIN, PCJ

July 8, 2005

[1] Mr. Ahenakew, you are charged with making comments on December 13, 2002 which wilfully promoted hatred against people of the Jewish faith. On December 13, 2002, the Federation of Saskatchewan Indian Nations sponsored a conference at the Bessborough Hotel in Saskatoon concerning the imposition by the Government of Canada of a requirement that First Nations people sign a consent form before medical services would be supplied and paid by the Federal Government. In attendance at the conference, in addition to First Nations people, there were representatives of the College of Physicians and Surgeons, College of Dentistry, Amnesty International and the World Health Organization. In an attempt to bring public attention to this important issue, the conference organizers also invited the media to attend. The Saskatoon Star Phoenix assigned Mr. James Parker, a reporter with that organization to attend and report on the FSIN Conference.

[2] As you are aware, Mr. Ahenakew, you were invited to be a speaker in your capacity as the chair of the Federation of Saskatchewan Indian Nations Senate and because of your prominence as a Saskatchewan First Nations politician. It was as a result of your comments during your presentation to the attendees, and later to Mr. James Parker, which have given rise to the charge against you.

[3] Before dealing with the specific alleged offending comments it is important to understand the background to section 319 (2) of the Criminal Code, the section under which you are charged.

[4] The Supreme Court of Canada's decision in the case of R. v. Keegstra grappled with establishing a balance between an individual's Charter right to the protection of freedom of thought, opinion and expression and the right of members of an identifiable group not to be the victim of hate propaganda. They held that the propagation of hate causes harm which runs directly contrary to the values central to a free and democratic society and Parliament, in restricting the promotion of hatred, was seeking to support the notion of mutual respect necessary in a nation which respects the equality of all persons. They therefore held that section 319 (2) of the Criminal Code, the section under which you are charged under is constitutionally valid. It provides:

"319 (2) Everyone who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of an indictable offence punishable on summary conviction."

Before you can be found guilty of this charge the Crown must prove each and every element of the offence beyond a reasonable doubt. You are not required to prove anything. Indeed, under our system of justice you are considered to be innocent at a trial until the Crown has proven beyond a reasonable doubt every element or requirement of the charge. Although, you did decide to call evidence by way of witnesses and you decided to testify yourself, you were not obligated to do either. Because section 319 (2) of the Criminal Code does restrict a citizen's right of speech, the Parliament of Canada has included in section 319 of the Criminal Code a list of specific defences which absolve an accused from criminal liability. Subsection (3) of section 319 provides as follows:

"319 (3) No person shall be convicted of an offence in subsection (2): a) if he establishes that the statements communicated were true; b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;

c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada"

[5] As a result of Parliament's commitment to free speech in an open and democratic society and supported by judgments of our Superior Courts in Canada, the Crown must meet very stringent tests on each of the elements of the offence of wilfully promoting hatred. For example, in considering the term "wilful", Mr. Justice Martin, in the case of Regina v. Bzzanga and Derocher, the mental element of wilful was only satisfied when an accused subjectively desires the promotion of hatred and foresees such consequences as certain or substantially certain to result from an act done in order to achieve the same purpose. In the later case of R. vs. Harding, the trial judge noted that people who promote hatred rarely explicitly admit that such is their intention, thus the necessary "mens rea" or guilty mind must be inferred from the offending statements themselves. In other words, the court must look at the alleged offending statements and communications surrounding the offending statements as well as the circumstances under which the offending statements are made. Parliament was also careful in using the word "promote" to indicate that simple encouragement or advancement of emnity is not sufficient. To quote Chief Justice Dickson in the Keegstra case, "the hate monger must intend or foresee as substantially certain, a direct and active stimulation of hatred against an identifiable group." Chief Justice Dickson quotes with approval, the definition of hatred given by a fellow Supreme Court of Canada, Judge Cory, in the R. v. Andrew case "that hatred is not a word of casual connotation. To promote hatred is to instill detestation, enmity, ill will or malevolence in another. Clearly an expression must go along way before it qualifies within the definition of section 319 (2)." Chief Justice Dickson goes on to say, "hatred in this sense is predicated on destruction and hatred against identical groups therefore thrives on insensitivity, bigotry and destruction of both the target group and the values of society. Hatred in this sense is a most extreme emotion that belies reason, an emotion that if exercised against members of an identifiable group implies that those individuals are to be despised, scorned, denied respect and made subject to ill treatment on the basis of crude affiliation." Under the Canadian system of justice before an accused can be convicted of a criminal offence, the Crown must prove both an "actus reus", in other words, a physical act or lack of action, as well as a "mens rea" or guilty mind.

[6] Under Canadian law, a person is free to think what they like, say what they like whether it is true or untrue, mean, vicious or disrespectful, subject only to the laws of defamation and the prohibition against promoting hate against an identifiable group. Simply because a judge hearing a charge under section 319 (2) dislikes or finds offensive or completely untrue, statements of an accused, does not make the utterances of those statements a criminal offence. It is only when those statements are intended to promote hatred against an identifiable group will the court find that a criminal offence has been committed.

[7] The defence did not dispute that David Ahenakew did on December 13, 2002, make the alleged offending statements nor that people of the Jewish faith are an identifiable group within the meaning of section 319 (2) of the Criminal Code. Therefore, the issues to be determined by the court were first, whether the statements were not made in private conversation, and second, what was the intent of Mr. Ahenakew. Did he wilfully promote hatred against the people of the Jewish faith?

[8] Mr. Ahenakew, you made two sets of comments, the first as part of your presentation to the FSIN Conference and second, comments to Mr. James Parker of the Saskatoon Star Phoenix. The first comments to the individuals attending the conference were made over a public address system and were simultaneously audio and video taped. Your speech was approximately 45 minutes long and was wide ranging and riddled with profanity. However, only a brief portion constitutes the basis of the charge against you. This portion is as follows:

"But ah, the Germans used to tell me, and I got to know them well because I played soccer against them and with them and so forth. But they used to tell me that you guys are blessed. What we know about the Indians in Canada. They are blessed. But that blessing is being destroyed by the, by your immigrants that are going over there. Especially the Jews, they say, you know. The Second World War was created by the Jews, they say, you know. The Second World War was created by the Jews and the Third World War, whatever it is, right now the war that war ... that wages on Israel, in the Arab countries, I was there too. But there's gonna be a war because the Israelis and the "Bushies", you know, the bully, the bully, the ah, the bigot and so forth in the United States that tells you that if you're not with me, you're against me."

The statement which is deemed to be the most objectionable is that the "Second World War was created by the Jews" and it was this statement that led to the second set of comments approximately an hour later between James Parker and you, Mr. Ahenakew. In analysing whether these comments constitute a criminal offence under section 319 (2) of the Criminal Code I assumed that the reference to the Second World War related solely to the war in Europe waged by Germany and Italy and did not include the war in the Pacific waged by Japan. I take judicial notice of the fact that the Jews did not create the Second World War. The Second World War was started by the German people led by Adolph Hitler and the Nazi Party and the Italian people led by Benito Mussolini and his Facists. In the years leading up to the Second World War in Europe the Jews of Germany had seen their property destroyed and confiscated by the German state. Numerous Jews had been sent to concentration camps and they along with other unfit and undesirable Germans, euthanised. Despite having been a relatively small percentage of the German population and facing continued historic anti-semitism they had achieved a disproportionately large influence in the arts, science and business. They had also loyally and courageously served in the Kaiser's army during World War I. Ironically, their very success made them one of Hitler's three objects of hatred, the other two being communism and democracy.

[9] I take judicial notice of the following facts: Jews did not occupy the Sudetenland. German citizens cheered its annexation. Jews did not enter and divide Czechoslovakia. German troops did. Jews did not invade Poland, the Netherlands, Belgium, Denmark, Holland, France and Russia. German troops on the order of Adolph Hitler and the Nazi's did. To state that the Jews created the Second World War is not only historically inaccurate it attempts to make Jews, who were the victims of Nazi atrocities, the actual parties responsible for the death of millions and millions of people throughout Europe, North Africa and the Soviet Union and to suggest such is outrageous but to conclude that Jews willingly caused the death of six million other Jews during the Holocaust is obscene.

[10] During questioning, Mr. Ahenakew, by your council, Mr. Christie, you testified that in addition to your German soccer-playing friends, that First Nation veterans returning to Canada told stories concerning the Jews owning, to use your words, "damn near all of Germany prior to the war" and that these stories are based on what they learned in Europe from Jews and from prisoners of war. I find it very difficult to believe that you being a serving Canadian soldier in Germany shortly after the Second World War would give any credence to comments by Germans who were obviously attempting to justify the actions of the German people in launching such a horrible war against their neighbours and upon hearing such unbelievable comments would fail to take simple investigative steps to verify the accuracy or inaccuracy of such statements. I find it less believable that returning veterans would confirm the alleged statements of your German friends. However, the court's disbelief does not mean that you should be found guilty of the offence charged. You have the right to form and express your opinion on the cause of and the initiators of the Second World War. This includes the right not only to be honestly mistaken but to simply lie and fabricate stories blaming Jews for causing the Second World War, such erroneous statements only become a criminal offence if they are used as the basis of promoting hatred against an identifiable group. In short, while I do not believe your evidence, Mr. Ahenakew, I am left with a reasonable doubt as to your guilt after considering your evidence in the context of all of the evidence presented and in particular the nature of your presentation, its lack of focus and the slight possibility that you did not intend by your statements to foster hatred against Jews.

[11] After your presentation to the conference attendees you had a one on one conversation with Mr. James Parker of the Star Phoenix. Your statements to Mr. Parker form part of the charge against you. Mr. Parker recorded the conversation and other than a difference of opinion as to how the interview actually started and what was Mr. Parker's first question it was conceded that you, Mr. Ahenakew actually made the remarks recorded by Mr. Parker and subsequently tendered in evidence at trial. You testified that the interview started by Mr. Parker asking the question, "What the hell do you mean that the Jews started the Second World War?" Mr. Parker, on the other hand, in his evidence believes his question to Mr. Ahenakew was, "You said your German friends told you the Jews started the Second World War, do you agree with them?" Not much turns on what the precise question was. It is clear that Mr. Parker's tape recorder at least picked up, "You agree with them." Mr. Ahenakew's response to the various question and answers is as follows:

"Q. You agree with them?

A. The Jews damn near owned all of Germany. Prior to the war. That, that's how Hitler came in, that he was gonna make damn sure that the Jews didn't take over Germany or Europe. That's why he fried six million of them you know.

Q. Okay. D'you think that it was a good thing that he, that he killed six million Jews? Isn't that a horrible thing?

A. Well, Jews, Jews owned the goddamn world and look at what they're doing. They're killing people in the Arab countries. I was there, I was there.

Q. I know, but how can you justify the holocaust? Six million?

A. You know, how, how do you get rid of a, a, a, you know, a disease like that that's gonna take over, that's gonna dominate, that's gonna everything, and the poor people, they ...

Q. How were they taking over Germany? How were they taking over Germany?

A. They owned the banks, they owned the factories, they owned everything. They loaned money out to the peasants knowing damn well that they can't pay it back so they took their land.

Q. Well, how is it that the Germans mounted a war effort without the Jews because the Jews by that time were gone, because a lot of the German companies were owned by Germans. And I'm talking about Krupe (phonetic).

A. In name only

Q. But the Krupe

A. In name only

Q. Krupe have made ah, some of the best guns for the German army, ah, those various chemical companies that were owned by, I mean, the Germans owned the German economy.

A. Well, I'm not gonna argue with you about the Jews.

Q. Okay

A. Or the Germans or anybody else. All I know is what the Germans told me when I was there two years.

Q. And you believe them.

A. Of course I believe them.

Q. But they, weren't

A. Well, because I saw the Jews kill people in, in the Egypt when I was over there. And the Palestinians, the Egyptians, the, the Arabs, generally, eh. I saw them fucking dominate everything.

Q. But wasn't Canadian army, ah, over in Europe to, to liberate the Jews, in a sense?

A. No, no, no, to liberate the world, not the Jews.

Q. To liberate the world (inaudible)

A. We didn't give a damn about the Jews.

Q. But to liberate the world from a dictatorship that was killing people, killing Jews, killing gypsies, killing homosexuals, killing all sorts of people.

A. Exactly. Wanna clean up the world. I, I don't support Hilter but I ....

Q. That's what it sounds like.

A. Well, you know, he cleaned up a hell of a lot of things, didn't he? You'd be, you'd be dominated by, you'd be owned by the Jews right now the world over. Look at a small little country like that and everybody supports them, the States, who in the hell owns many of the banks in the States, many of the corporations, many, well, look it her in Canada, ASPER.

Q. Yeah.

A. (Inaudible) ASPER, he controls the media.

Q. Yeah

A. Well, what the hell does that tell you? You know, that's power.

Q. Well, what does it tell you.

A. That's fucking power.

Q. What, what, yeah, so, he's a Jewish man that owns a bunch of newspapers but there are, there are English people, there are (inaudible). There are non-Jews that own the media companies, there are non-Jews that ....

A. Anyway, anyway, to hell with the Jews. I can't stand them and that's it.

Q. Okay

A. Don't talk about them.

Q. Okay."

[12] As with the previous statements made by you to the conference attendees, the relative issues are whether there was a private conversation between yourself and Mr. Parker and whether you, Mr. Ahenakew, intended by these statements to wilfully promote hatred against people of the Jewish faith. Throughout your testimony at trial you went to considerable pains to distinguish your verbal interaction with Mr. Parker to be something other than an interview for publication. While there can be occasions where a private conversation is conducted at a public meeting where two people talk discretely and do not intended be overheard such is not the case here. You were well aware, Mr. Ahenakew, that Mr. Parker was a reporter even if, as you testified, you could not remember him from a previous person to person interview. You knew from the time that he approached you and Vice-Chief Daniels that this was Mr. Parker of the Star Phoenix who had written critical columns on First Nations affairs. You knew that reporters do exactly what their job title describes, that is report. They report what they personally see and hear and what other people tell them. That was particularly true in the case of Mr. Parker, whose reputation was to investigate and report First Nation issues in a critical manner.

[13] Mr. Ahenakew, you also testified that you had participated in approximately 1000 media interviews both by local and national press. The defence attempted to make an issue of whether you were aware that Mr. Parker had a tape recorder during the interview. In the opinion of the court, it is irrelevant whether Mr. Parker had a tape recorder, a pencil and a reporter's note pad or simply intended to rely on his own recollection of what was said during the interview. The tape recording simply adds to the reliability of Mr. Parker's recollection and recitation of the actual interview. There is a substantial difference between a private conversation and a interview, a difference that you, Mr. Ahenakew, from your experience with the media, knew well. The most telling exchange with regard to this matter is found in page 175, Volume 1 of the transcript:

A No. No. Q So at that point you knew what? That his name was Parker — A I didn't know - I didn't now Parker at all until that moment when Lawrence Joseph says, Hello, Mr. Parker. Q Right. And at that point did you know he was a reporter when - when Mr. — Vice-Chief Joseph said, Hello, Mr. Parker? Did you know - A Yes, then I knew who Parker was. Q All right? A The first time I saw him, but - that I can recollect accurately and clearly. Q Mmhmm. So what did Mr. Parker say to you? A He said, I'd like - I'd like to interview you. I'd like to talk to you. Q Which was it; I'd like to talk to you or I'd like to interview you? A I'm not quite sure which one, but I - I suggest that it was - I think I remember him saying, I would like to interview you. Q Mmhmm? A I think I'm pretty sure that's what I remember, I'd like to interview you. Q All right. And then what happened? Was it an interview? A I said, Yes, you can interview me. So we walked off - I walked off the podium, just to the left and we - at the end of the podium, he was there and we started talking. No, I don't classify that as an interview; not a bit. Q Well, what was it? A It was a confrontation.

[14] Mr. Ahenakew, you are a self-described First Nations politician. Defence evidence called by your counsel indicates that during your leadership of First Nations in Canada you have engaged in rough and tumble politics. You can hardly maintain that you were taken off guard by the questions posed by Mr. Parker nor can the court put any weight in your description of the conversation as that being a confrontation or that you were somehow the subject of an ambush interview by Mr. Parker. Nothing in the video of your speech to the conference, nor in the audio recording of your interview with Mr. Parker indicates you being timid, unsure or rattled. Indeed, your demeanor bordered on self-confidence to the point of arrogance.

[15] The same subsection 2 (b) of the Canadian Charter of Rights and Freedoms that protects your freedom of thought, belief and opinion and expression also protects the freedom of the press and other media of communication. You may not like what the media says about you nor how your comments were reported by Mr. Parker and the consequences of your statements but you did state them to Mr. Parker, a reporter, who had every right and indeed possibly a professional responsibility to accurately record them and to communicate them by way of print and audio publication. In your testimony both on examination in chief and in cross-examination you attempted to portray yourself as the wronged party and that Mr. Parker was responsible for communicating your remarks and the consequences flowing from them. Your counsel, Mr. Christie, in his closing arguments argued that you were the victim of a insensitive self-promoting reporter. As a Provincial Court trial judge who spends 95% of judicial time in criminal court, the analogy that instantly came to mind was that of a man charged with spousal assault who argues that his spouse made him do it and that he was simply defending himself by putting up his fists which his spouse insisted on running her face into which unfortunately resulted in her nose being broken and her two front teeth being fractured.

[16] I find that the interview of December 13, 2002 conducted by Mr. James Parker of the Saskatoon Star Phoenix with David Ahenakew was not a private conversation within the meaning of section 319 (2) of the Criminal Code.

[17] The final issue to be determined is whether your statements during your interview with Mr. Parker were a wilful promotion of hatred against people of the Jewish faith. As previously stated with respect to your comments about Jewish people delivered at the conference simply because I as the trial judge or indeed the majority of the public do not like or find offensive your comments does not in itself mean that your comments offend section 319 (2). Rather the Crown must prove that the offensive statements are directed to promoting or fostering hatred against people of the Jewish faith as a definable group. As offensive as it may be, you are not criminally prohibited from making untrue statements deliberately or accidentally of your directing these inaccurate or untrue statements against a definable group. What you cannot do is to make such statements wilfully to promote hatred against an identifiable group.

[18] I have reviewed the question and answer interview conducted between you and Mr. Parker and attempt to identify those that do not offend the intent of section 319 or in other words, where I feel the Crown has failed to discharge the onus of proving beyond a reasonable doubt that you did wilfully promote hatred against people of the Jewish faith:

1. The Jews own damn near all of Germany. Prior to the war. That that's how Hitler came in, that he was gonna make damn sure that the Jews didn't take over Germany or Europe. 2. Well, Jews, Jews owned the goddam world and look at what they're doing. They're killing people in the Arab countries. I was there, I was there. 3. The owned the banks, they owned the factories, they owned everything. They loaned money out to the peasants knowing damn well that they can't pay it back so they took their land. 4. Well, because I saw the Jews kill people in, in the Egypt when I was over there. And the Palestinians, the Egyptians, the, the Arabs, generally, eh. I saw them fucking dominate everything. 5. Look at a small little country like that and everybody supports them, the States, who in the hell owns many of the banks in the States, many of the corporations, many, well, look it here in Canada, ASPER. 6. Anyway, anyway, to hell with the Jews. I can't stand them and that's it.

[19] While many of these allegations are distortions, unbalanced opinions, bigoted outbursts and outright lies, I hold that these statements do not meet the very stringent requirements of section 319 (2) of the Criminal Code.

[20] I do however find that the following statements made by you, Mr. Ahenakew do meet the stringent requirement of section 319 (2). These are as follows: 1. You know, how, how do you get rid of a, a, a disease like that that's gonna take over, that's gonna dominate, that's gonna everything, and the poor people, they ... 2. That's why he fried six million of those guys, you know. 3. Parker: But to liberate the world from dictatorship that was killing people killing Jews, killing Jews, killing gypsies, killing homosexuals, killing all sorts of people. Ahenakew: Exactly, wanna clean up the world. I, I don't support Hitler but I Parker: That's what it sounds like. Ahenakew: Well, you know, he cleaned up a hell of a lot of things, didn't he" You'd be dominated by, you'd be owned by the Jews right now the world over.

[21] When one hears the audio tape and the fury and passion in the delivery of these statements, the court is convinced beyond a reasonable doubt that the sole purpose and intent in making these statements was to wilfully promote hatred against people of the Jewish faith within the meaning of section 319 (2) of the Act. To equate a definable group of people to a disease is to dehumanize them, to deny them the basic respect and dignity that all human beings are entitled to and that it is justified to kill or to use the more offensive word, "fried", is clearly to subject them to being despised and subject to ill treatment even in the extreme such as was demonstrated by the Holocaust. Daily Canadians and our Governments are being urged to eradicate diseases such as cancer, aids, tuberculosis - to suggest that any human being or a group of human beings are a disease is to invite extremists to take action and to give a justification for violence against them. This is precisely why Parliament enacted section 319 (2) and our Supreme Court of Canada declared it as being constitutional.

[22] Similarly, I totally reject your testimony that your comments on December 13, 2002 were prompted or affected by diabetes, wine or change in medication. Your appearance, demeanor and delivery belie that defence.

[23] Accordingly, I find you, David Ahenakew, guilty of wilfully promoting hatred against an identifiable group to wit people of the Jewish faith contrary to section 319 (2) of the Criminal Code of Canada.

PCJ