The Acquittal of David Ahenakew

On December 13, 2002, Mr.David Ahenakew, the then Chair of the Federation of Saskatchewan Indian Nations Senate, spoke at a conference in Saskatoon. The conference was organized to deal with a controversial issue regarding the provision of medical services to First Nations people and the requirement that recipients sign consent forms.

For whatever reason, Mr. Ahenakew used the occasion of his presentation to slander Jews. He accused Jews of creating the Second World War. After his presentation, Mr. Ahenakew was interviewed by a newspaper reporter. In his exchange with the reporter, Mr. Ahenakew elaborated on his views of the Jews. According to Mr. Ahenakew "the Jews damn near owned all of Germany". That is why six million of them were "fried" by Hitler. He approved of this Holocaust, because "the Jews owned the goddamn world" and how else would you "get rid of a disease like that that's gonna take over, that's gonna dominate, that gonna everything..". Jews "owned the banks, they owned the factories, they owned everything." Mr. Ahenakew attributed some of his opinions to the Germans who told him these things when he was over in Germany. But "Of course I believe them", he said. He summed up his feelings in a nut shell - "to hell with the Jews, I can't stand them and that's it."

As a result of these statements, Mr. Ahenakew was charged with wilfully promoting hatred against an identifiable group contrary to section 319(2) of the Criminal Code. He was found guilty at trial - see 2005 SKPC 76. This conviction was set aside however by the Saskatchewan Court of Queen's Bench (2006 SKQB 272) due to errors of law made by the trial judge with respect to his failure to consider some of the evidence and a new trial was ordered.

The new trial was held on November 24, 2008 and judgment was rendered on February 23, 2009. The accused David Ahenakew was acquitted of the charge of wilfully promoting hate. The essence of the decision was that although the defendant's words did promote hatred against an identifiable group, namely, members of the Jewish faith, the intent necessary to satisfy the strict requirements of the Criminal Code provision was absent. In acquitting the defendant, Judge W.K. Tucker stated that the statements made by Mr. Ahenakew about the Jewish people "were revolting, disgusting, and untrue". See 2009 SKPC 10, paragraph 43.

I will leave to others who are more familiar with the jurisprudence surrounding section 319(2) of the Criminal Code the task of commenting on the correctness of Judge Tucker's decision. My concern is with whether hateful speech should be criminalized at all.

I frankly do not give a fig about David Ahenakew. He is an ignorant, pathetic bigot. He would presumably continue to hold his hate filled opinions about Jewish people, and "goddamn immigrants, you know, East Indians, Pakistanis, Afghanistan, and whites and so forth", whether he were acquitted or convicted of the charge brought against him.

Although there is a certain satisfaction in seeing bigots being punished for their hate mongering, it comes at a substantial cost. There is the cost to freedom of speech. My default position is clear - freedom of speech is a fundamental value that must be protected. Of course, free speech is not absolute. There are limits. For example, when speech promotes or results in violence, when it is purposively dishonest and defrauds individuals, or when it defames the reputation of individuals in the absence of justification, it must be restricted. Speech which "wilfully promotes hatred" but falls short of promoting or causing violence, does not cross the line. Hateful speech is after all only the external manifestation of hate filled people. Preventing people from expressing their hatred, does not rid them of this hatred. It merely prevents them from expressing it.

I would of course prefer it if individuals did not harbour hateful prejudices about me or others. However, if they do, I want to know about it, especially if these people might end up in positions of responsibility or influence where their hateful views can have a real impact. Take David Ahenakew, for example. He was a respected person in his community, a political leader, and a recipient of the highest civilian decoration in Canada, the Order of Canada. He achieved all of this despite the fact that he hated Jews and thought Hitler had a good reason to exterminate six million of them. Had he not made the mistake of publicly expressing these prejudices, his importance and influence would have continued. It is only because he demonstrated how ignorant and bigoted he is, that he was stripped of his honour and respectability.

I must admit that my views on criminalizing hate speech are subject to one important caveat. I am assuming that while a law which criminalizes hateful speech might lead to silencing the views of people like David Ahenakew, it will not lead to less hate. The haters will continue to hate, but will use more discretion in publicly exposing themselves. If, on the other hand, it can be shown that silencing hate filled people will have a significantly positive influence on reducing prejudice in our society, then I would be prepared to factor that in. The burden of proof, however, will be high and the evidence will have to be convincing.

It has been almost 7 years since David Ahenakew spoke in Saskatoon. The matter has resulted in acquittal. Was anything gained by the criminal prosecution? What will those who pay little attention to the legal niceties take away from the judgment? Is criminalizing hate speech the right way to go? I don't think so, but I am prepared to be convinced to the contrary.