David Ahenakew March 9, 2006

R. V. AHENAKEW

QB06138 Date of Judgment: March 9, 2006 Number of Pages: 9 QUEEN'S BENCH FOR SASKATCHEWAN

Citation: 2006 SKQB 110 Date: 2006 03 09 Docket: Q.B.C.A. No. 42 of 2005 Judicial Centre: Saskatoon

BETWEEN:

DAVID AHENAKEW APPELLANT

- and -

HER MAJESTY THE QUEEN RESPONDENT - and -

CANADIAN JEWISH CONGRESS PROPOSED INTERVENER

Counsel: D.H. Christie for Mr. Ahenakew M.L. Gray, Q.C. for the Crown N. Finkelstein and S. Nunnelley for the proposed intervener

FIAT LAING C.J. March 9, 2006

[1] The proposed intervener, the Canadian Jewish Congress, applies for leave to intervene in the summary conviction appeal brought by David Ahenakew. The application is opposed by Mr. Ahenakew. The Crown, respondent, takes no position for or against the application.

[2] Mr. Ahenakew was convicted on July 8, 2005 of the offence set out in s. 319(2) of the Criminal Code of Canada. The relevant portion of the charge for which he was convicted was:

That on or about the 13th day of December, 2002, he did by communicating statements during an interview with James Parker, a reporter with The StarPhoenix newspaper, wilfully promote hatred against an identifiable group; people of the Jewish faith.

[3] Section 319(2) of the Criminal Code states:

Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of: . . . (b) an offence punishable on summary conviction.

The Position of the Parties

[4] The notice of appeal filed by Mr. Ahenakew is as follows:

1. The conviction is against the law on the issue of intention required by the section;

2. The Learned Trial Judge erred in law on the issue of the meaning of a private conversation;

3. That the Learned Trial Judge erred in law in his application of the law to the facts;

4. That the Learned Trial Judge completely misapplied the law to the facts and misunderstood or misperceived the facts;

5. That the Learned Trial Judge improperly intervened in the trial to conduct an unnecessary and improper cross examination, creating a reasonable apprehension of bias;

6. That the Learned Trial Judge erroneously created an improper application of the concept of actus reus which was clearly the conduct of Parker as opposed to the accused, and hence erred in law in convicting the accused.

7. That the Learned Trial Judge erred in law by interpreting the section either as a breach of section 2(b) of the Charter, not saved by section 1, or alternatively, the Trial Judge erred by finding guilt where the actus reus was committed by a third party. In either case, the conviction should be set aside pursuant to section 24(1) of the Charter, or otherwise.

Counsel for Mr. Ahenakew indicates that para. 7 of the notice of appeal is not a Charter challenge, and is simply an argument which uses the Constitution as an aid to interpretation.

[5] The position of the proposed intervener is:

(1) The appeal raises important matters of public interest because s. 319 of the Criminal Code is designed to protect vulnerable identifiable groups.

(2) It represents a constituency that relies on the effective interpretation and enforcement of s. 319 of the Criminal Code.

(3) It will make a useful and different contribution to the resolution of the issues on the appeal because it played an active role in securing the adoption of s. 319, having made submissions and recommendations to the Government on the subject of hate crimes as far back as 1953. It states it has a unique perspective on the important impact that a decision in this matter will have on the enforcement of Canada's hate speech legislation.

Specifically, its brief states it will assist the court with respect to the matters raised in the notice of appeal in the following manner:

(i) An appreciation of the nature of hate speech, its history, and the forms that it takes is important to the proper interpretation of section 319 and its actus reas and mens rea requirements;

(ii) The history of hate propaganda demonstrates that it is frequently disseminated through the media; it would run contrary to the purposes of section 319 of the Criminal Code to allow hate mongers to insulate themselves by speaking through reporters;

(iii) If accepted, the arguments made by Mr. Ahenakew regarding the proper interpretation and application of section 319 of the Criminal Code, could have far-reaching effects, and could significantly undermine the purposes of that section.

[6] Counsel for Mr. Ahenakew in his submission states:

In essence, my submission is that the interpretation of Section 319(2) is not a matter uniquely suited to the Jewish Congress but is strictly a matter of law. In previous cases of intervention by the Canadian Jewish Congress, it was obvious that the public policy aspects of the Charter required their submissions to demonstrate what was demonstrably justifiable in a free and democratic society that was in respect of whether Section 319(2) was a reasonable limit on freedom of expression. That is why the Congress was allowed to intervene in those constitutional cases like Keegstra, Smith, Andrews, Zundel and Ross. These occurred in the Supreme Court of Canada.

There is no authority for them to intervene in circumstances such as are represented by the Ahenakew case where no constitutional challenge exists and therefore no issue arises as to the reasonable limits of free speech in Canada. This case is not a case of general application but of strict statutory interpretation. There was no Charter challenge to Section 319(2) of the Criminal Code in the Ahenakew case.

The Law

[7] Applications for leave to intervene in summary conviction appeals in Saskatchewan are indirectly authorized through the combination of Rule 16 of The Queen's Bench Rules relating to summary conviction appeals, and Rule 75 of the civil rules of court. Rule 16 states that the civil rules of court apply mutatis mutandis for any matters not covered in the summary conviction appeal rules, and interventions are not. Rule 75 of the Rules of the Court of Queen's Bench states:

With leave of the court a person may, without becoming a party to the proceeding, intervene therein as amicus curiae for the purpose of rendering assistance to the court by way of argument or by presentation of evidence, on such terms as to costs or otherwise as the court may impose.

[8] Rule 75 requires that a proposed intervener demonstrate the intervention is "for the purpose of rendering assistance to the court". The Saskatchewan Court of Appeal in a number of decisions have stated that an interest in the result of the appeal will not of itself create a basis for granting an application to intervene. (Vide: Brand v. College of Physicians and Surgeons (Sask.) (1990), 72 D.L.R. (4th) 446, 86 Sask. R. 18 at para. 79 (C.A.); R. v. Daniels (1991), 92 Sask. R. 293 at para. 7 (C.A.); Canada (Attorney General) v. Saskatchewan Water Corporation, [1991] 2 W.W.R. 614, 92 Sask. R. 295 at para. 3 (C.A.)). As noted per Wakeling J.A. in R. v. Brand, supra, at para. 79: ". . . there must be some prospect that the process will be advanced or improved in some way by virtue of the intervention".

[9] In Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), a public interest group wished to intervene in an appeal from a judgment which had ruled a prohibition on Sunday shopping was in contravention of the Canadian Charter of Rights and Freedoms. Dubin C.J.O. at page 167 noted that constitutional cases, including cases under the Charter, which have the potential to greatly impact others who are not immediate parties to the proceedings has resulted in a relaxation of the rules with respect to interveners. In the end result he noted:

Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

The right to intervene in criminal proceedings has historically been treated more restrictively than constitutional cases. In R. v. Seaboyer and Gayme (1986), 50 C.R. (3d) 395 at 398 Howland C.J.O. noted:

The right to intervene in criminal proceedings where the liberty of the subject is involved is one which should be granted sparingly. . ..

The foregoing view has recently been confirmed in R. v. Sharpe, 2002 BCSC 44, at para. 11.

[10] In R. v. Finta, [1993] 1 S.C.R. 1138, McLachlin J. at page 1142 stated:

. . . While the Court is often reluctant to grant intervener status to public interest groups in criminal appeals, exceptions can be made under its broad discretion where important public law issues are considered, as in this appeal. . ..

In this case, McLachlin J., in granting intervener status noted at page 1143:

. . . In particular, these applicants each have distinctive contributions to make in the area of international law theory, comparative law, the Nuremberg principles, and the criminal justice obligations and position of Canada vis-a-vis the victims of war crimes. The arguments discussed in their materials appear to supplement the appellant's submissions in a manner suitable to satisfy the second criterion under Rule 18.

[11] In Ruskin v. Dewar, 2003 SKQB 16, [2003] 5 W.W.R. 92, McIntyre J. of this Court noted with respect to the Attorney General's application to intervene in a case where the issue was whether The Family Property Act, S.S. 1997, c. F-6.3 discriminated on the basis of marital status noted at para. 11:

Can the Attorney-General render assistance to the court beyond that which may be expected of the parties? When it comes to statutory interpretation the court does not, as a general rule, require the assistance of the Attorney-General. The court will have regard to the will of the legislature as expressed in the statute. The petitioner here says it will rely upon Charter values as an aid to that interpretation. Again, as a general rule, that will not be a basis upon which to allow the Attorney-General to intervene amicus curiae.

In the end result, McIntyre J. allowed the Attorney General's intervention noting, "It will assist the court to have as full an appreciation as possible of the competing values."

Analysis

[12] There is no question the Canadian Jewish Congress has an interest in the subject of communications which wilfully promote hatred against any identifiable group, and has considerable expertise in the subject matter, which has been recognized by its success in achieving intervener status in most, if not all, of the hate crime appeals which have reached the Supreme Court of Canada. Many of these have involved constitutional issues, but the more recent one of R. v. Krymowski, [2005] 1 S.C.R. 101 did not involve a constitutional or Charter issue.

[13] All public interest groups which apply for intervener status are partisan, and have a point of view with respect to the matter under appeal. This in itself is not grounds for denying the application to intervene. The question remains, whether despite the partisanship, the proposed intervener can bring a perspective that will supplement, to at least some extent, arguments that might be expected from Crown counsel, and in this way "render assistance to the court".

[14] The issue of whether an intervention will cause an injustice to the immediate parties, is a larger consideration when the application to intervene is at trial, as opposed to on appeal. On appeal, the court has the ability to limit interventions to those matters of public policy that arise with respect to the legislation under consideration. The perception of unfairness at the appeal level is also much reduced where the intervener is not attempting to lead new evidence that the party opposed to the intervention would have to contend with.

[15] In one sense, the narrow sense, this appeal involves the interpretation of s. 319(2) of the Criminal Code. However, the notice of appeal also places in issue the actus reus and mens rea requirements of the offence. The fact these elements of the offence are being placed in issue indicates the parameters of the offence created by s. 319(2) have not yet been fully defined. Such definition does have societal implications beyond the immediate interest of the parties, especially for those identifiable groups which are referred to in the section. The proposed intervener represents one of these identifiable groups. Its perspective on the historical and sociological context of the legislation as well as on the policy and other considerations that bear on the interpretation of the legislation could well differ from, or supplement, that which Crown counsel would be in a position to offer.

[16] Taking the foregoing into account, on balance, I conclude it is appropriate to grant the application of the proposed intervener, the Canadian Jewish Congress, on the basis it will provide assistance to the Court.

[17] The intervention of the Canadian Jewish Congress is allowed on the following conditions:

(1) The intervention will be limited to points (1), (2), (6) and (7) of the notice of appeal; (2) The factum shall be no more than 20 pages; (3) The oral submissions shall be limited to one hour.

[18] Order accordingly.

C.J. R.D. LAING