R. v.

Ahenakew
The Wilful Promotion of Hatred
David Wm. Trenholm
SOCI 3743 X2
3/30/2009
 TABLE OF CONTENTS

Preamble and Overview.............................................................................................................. ...........................3

Overview of the Alleged Crime....................................................................................................................... ...3
Issues to be Examined............................................................................................................................. ...........4
Issues in 319(2)............................................................................................................................... .......................4
Case Facts in Relation to Statute Law.................................................................................................. ..............5
Case Law, Appeal and Acquittal.................................................................................................................... .....6
Conclusion............................................................................................................................................................. .7
Significance and Controversy.................................................................................................. ..........................7
References................................................................................................................................................. .............8

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PREAMBLE AND OVERVIEW
Legislation prohibiting the proliferation or incitement of hate
speech has caused a great stir among many Western nations in
recent years; in Canada, the balance between what provisions
exist within the Criminal Code, and the rights and freedoms
enjoyed within the Charter of Rights and Freedoms is a tenuous
one, and the limitations prescribed by laws that prohibit hate
speech unquestionably violate the right to freedom of expression
within the Charter.

Other nations similar to Canada are not alone in this issue. The
United States, through the U.S. Supreme Court, have ruled on a
number of cases (one being the 1957 Yates decision) that have
tackled the issue of free speech and the incitement of hatred; how
far can a country reasonably censor the expression of its citizens?
In both occasions the U.S. Supreme Court ruled that the
amendment rights enshrined within the U.S. Constitution are
more important than the stifling of hate speech. Other countries
have similarly followed suit, and with the recent David
Ahenakew ruling in February of 2009, Canada is quickly
approaching equilibrium with U.S. jurisprudence with regards to
hate speech.

The following brief will discuss the willful promotion of hatred charge against David Ahenakew in
2005, and the legal progression of that case through the Canadian courts. This discussion of the
Ahenakew case will involve the judicial interpretation of section 319(2) of the Canadian Criminal
Code, previous case law and previous judgments establishing judicial precedent, and the tumultuous
controversy that defined the Ahenakew case in the media.

OVERVIEW OF THE ALLEGED CRIME

R. v. Ahenakew traces its origins to a cold December day in Saskatoon, Saskatchewan, at the
Bessborough Hotel. The Federation of Saskatchewan Indian Nations (FSIN) was hosting a conference
to discuss the issue of the federal government requesting that aboriginal members sign consent forms,
in order to receive medical treatment, something that the FSIN found objectionable. Attending the
conference were many interested parties, including Amnesty International and the World Health
Organization. As an influential member of the FSIN, David Ahenakew—a longtime politician and
former soldier with the Canadian Army—was invited to speak.

Ahenakew spoke for just over forty-five (45) minutes at the FSIN conference; the provincial court
judge who initially convicted Mr. Ahenakew at trial in 2005 described the speech as “wide ranging and
riddled with profanity”. It was during this speech that Ahenakew mentioned briefly his tour in Germany
after the Second World War; these experiences he related to the crowd at the Bessborough included the
allegation that the Jews had caused the war. It was this remark that was later brought up by James
Parker, a reporter for the Saskatoon StarPhoenix, who immediately approached Mr. Ahenakew after his
speech and proceeded to interview him.

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 Mr. Parker’s interview with Ahenakew was described in various
court documents as confrontational and argumentative; during
the course of the conversation, Parker challenged Ahenakew’s
remarks during his speech. The major component of Ahenakew’s
charges stem from statements made during the Parker interview,
including likening persons of the Jewish faith to a disease and
that Adolph Hitler had “cleaned up a lot of things” with respect
to the genocide of millions of Jews.

The Parker interview lasted just over three minutes, but it was
enough to permanently tarnish Ahenakew’s national reputation.
Within a week national news agencies were running stories
describing Ahenakew’s crass and hateful remarks. Months later,
charges of wilfully promoting hatred surfaced, and Ahenakew
found himself on trial under section 319 (2) of the Criminal
Code.

ISSUES TO BE EXAMINED
Whenever a charge under Canada’s hate-crime laws is levied, especially under 319(2), the Charter is
inextricably involved. Section 2(b) of the Charter clearly states that citizens of Canada have the right to
“freedom of expression”. The constitutionality of s. 319(2) will be briefly examined, especially with
regards to previous case law, such as the R. v. Keegstra (1990) conviction.

The Ahenakew case, however, does not revolve around the alleged constitutionality of s. 319(2).
Rather, the various provincial and appeal judges have narrowed their lenses on the wording of the
Criminal Code, and how it relates to Ahenakew’s case. Indeed, the crux of Ahenakew’s eventual
acquittal is his willful intention of promoting hate. When Ahenakew spoke with Mr. Parker, was it his
intention to promote hatred of those persons of the Jewish faith? What were Ahenakew’s intentions?

Another chief concern throughout the case was the definition of a private conversation, as the 319(2)
clearly points out that the willful promotion of hate is only a crime when it is through public channels.
The context in which the alleged crime took place is overall quite important, especially as it relates to
the exact wording of the 319(2).

ISSUES IN 319(2)
Section 319(2) of the Criminal Code is quite precise, and is as follows:

Every one who, by communicating statements, other than in private conversation, wilfully
promotes hatred against an identifiable group is guilty of,

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.

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Furthermore, section 319(3) lays down possible defences to a charge under subsection 2, which was
also relevant during the Ahenakew case. They are as follows:

No person shall be convicted of an offence under subsection (2)

(a) if he establishes that the statements communicated were true;

(b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious
subject;
(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.

When considering a charge of wilfully promoting hatred, the trial judge had to consider the following:

1) Whether Ahenakew’s remarks were made in a public conversation.

2) Whether Ahenakew had wilfully intended to promote hatred.
3) Whether the subject of said hatred was an identifiable group.

Moreover, Ahenakew would have had a viable defence if he could establish that his uttered statements
were true; not just that he believed they were true. According to previous case law, the standard of
proof would be a balance of probabilities.

CASE FACTS IN RELATION TO STATUTE LAW

During the 2005 trial, the provincial judge considered the

necessary provisions under 319(2), as well as the possible
defences within subsection 3, and convicted Ahenakew of
wilfully promoting hatred.

The major component of Ahenakew’s conviction was the

taped interview between the accused and Mr. Parker of the
StarPhoenix; the trial judge, in his decision, listed the hateful
remarks and they were nearly all taken from that
aforementioned interview.

There were several issues that had to be addressed before the

conviction could be secured. The judge had to rule that the
interview was indeed a public conversation, and that those
statements were made in public. The judge also had to
confidently rule that those statements were wilfully promoting hatred, and that Ahenakew’s intentions
were, indeed, to promote such hatred. The judge applied a subjective mens rea test in this instance.

Mr. Parker, being a reporter—with Ahenakew aware that Parker was a reporter—was engaged in an
interview with Ahenakew’s consent, and as a result it was clear that Ahenakew knew that whatever
remarks he made would undoubtedly be received publically. The convicting judge, then, ruled that both
the initial speech and the following interview were both within the public domain.

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As the interview was recorded, the judge was able to rule that “…the court is convinced beyond a
reasonable doubt that the sole purpose and intent in making these statements was to wilfully promote
hatred.”

Finally, the convicting judge reacted to Ahenakew’s claims that the Jews had caused the Second World
War, taking judicial notice of the established historical record of the origins and cause of the Second
World War; any opportunity to prove beyond a balance of probabilities that people of the Jewish faith
had started the war had effectively disappeared.

Ahenakew was convicted of wilfully promoting hatred on July 8th 2005, and was fined $1,000.00.

CASE LAW, APPEAL AND ACQUITTAL

The 2005 conviction of Ahenakew was only

possible because of an earlier ruling fifteen years
earlier. A judge, in 1990, ruled that 319(2) of the
Criminal Code was constitutional, despite its
violation of 2(b) of the Charter of Rights and
Freedoms. The case was R. v. Keegstra, a landmark
event in Canadian legal history that made hate-
crime laws applicable. Beforehand, the application
of 319(2) with the Charter had not been fully
tested.

319(3) had also been tested. One of the listed

viable defences is the accused establishing the
hateful remarks as being true. Such a defence, however, is an example of legislated reverse onus, and is
contrary to section 11(d) of the Charter, which ensures an accused is innocent until proven guilty.
Normally, the onus rests with the Crown to prove the guilt of an accused.

In both cases, however, the courts, in R. v. Keegstra, ruled that the violations of s. 2(b) and 11(d) were
reasonable, as prescribed by section 1 of the Charter.

Ahenakew filed for appeal after his 2005 conviction, and successfully had a new trial ordered in June
of 2006. The appeal judge found that the initial court made an error in law, insofar as 319(2) requiring
the accused wilfully promote hatred. The appeal judge ruled that Ahenakew may have had no
opportunity to form the necessary intent to wilfully promote hatred of those persons of the Jewish faith,
citing the unanticipated interview and line of questioning of Mr. Parker. While Ahenakew did consent
to an interview with the reporter from the StarPhoenix, he had no knowledge of its content, and having
been caught off guard with the “argumentative and confrontational” interview, had no intention of
wilfully promoting hatred with his remarks. Paragraphs twenty-nine to thirty-three outline the reasons
for the new trial, that the convicting judge failed to take such evidence into account.

Finally, in February of 2009 Ahenakew was acquitted of all charges under section 319 of the Criminal
Code, for very much the same reasons as explained above; in paragraph forty of the 2009 trial, the
judge ruled that Ahenakew had no knowledge his remarks would promote hatred among the Jewish
people, and that as a result he could not form the required intent to be found guilty of the charge of
wilfully promoting hatred. In determining this, the judge cited R. v. Harding, where the accused had,
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over the course of three months, prepared documents which, in effect, promoted hatred against an
identifiable group—in contrast, Ahenakew had made quick and angered remarks over the course of
three minutes, after having been provided with an unpredictable line of questioning.

CONCLUSION
SIGNIFICANCE AND CONTROVERSY

The significance and controversy surrounding R. v. Ahenakew is twofold. Firstly, it represents another
high-profile test of hate-crime laws in Canada. Although the Keegstra case ruled that 319(2) is
constitutional and reasonable, the Ahenakew case shows that convictions can be difficult to obtain. This
is understandable; while it may be permissible that section 2(b) can be violated where the promotion of
hatred is concerned, it is necessarily important that such promotion is a clear and evident affront to the
public good in order for a conviction to arise.

Secondly, Ahenakew’s status as a high-profile and very successful First Nations politician is perhaps
another reason why his case has garnered such attention. Ahenakew was inducted into the Order of
Canada in the late 1970s, and has since been stripped of that honour—it is clear that the higher one
climbs, the farther the fall.

Clearly, R. v. Ahenakew raises the proverbial bar as far as hate-crime law is concerned. The standard of
proof is understandably steep, given the importance freedom of expression has in Canada.

David Wm. Trenholm

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REFERENCES

Calgary Herald. “What Ahenakew decision does, and does not mean for free speech.” Canada.com
http://communities.canada.com/calgaryherald/blogs/hannaford/archive/2009/02/23/what-
ahenakew-decision-does-and-does-not-mean-for-free-speech.aspx (accessed March 26th, 2009)

CBC News. “Ahenakew stripped of Order of Canada.” CBC.ca

http://www.cbc.ca/canada/story/2005/07/11/ahenakew050711.html (accessed March 26th, 2009)

Department of Justice, “The Canadian Charter of Rights and Freedoms.” laws.justice.gc.ca

http://laws.justice.gc.ca/en/charter/ (accessed March 26th, 2009)

Electronic Frontier Canada, “The Criminal Code of Canada.” efc.ca

http://www.efc.ca/pages/law/cc/cc.html (accessed March 26th, 2009)

R. v. Keegstra, [1990] 3 S.C.R. 697. CanLII.org

http://www.canlii.org/en/ca/scc/doc/1990/1990canlii24/1990canlii24.html (accessed March
26th, 2009)

R. v. Ahenakew, [2005] SKPC 76. CanLII.org

http://www.canlii.org/en/sk/skpc/doc/2005/2005skpc76/2005skpc76.html (accessed March 26th,
2009)

R. v. Ahenakew, [2006] SKQB 272. CanLII.org

http://www.canlii.org/en/sk/skqb/doc/2006/2006skqb272/2006skqb272.html (accessed March
26th, 2009)

R. v. Ahenakew, [2009] SKPC 10. CanLII.org

http://www.canlii.org/en/sk/skpc/doc/2009/2009skpc10/2009skpc10.html (accessed March 26th,
2009)

Yates v. United States, 354 U.S. 298 (1957). FindLaw.com

http://laws.findlaw.com/us/354/298.html (accessed March 26th, 2009)

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