I am forever grateful to the high school friend who threw me into a car and drove me away when I drunkenly yelled “FASCISTS” at police breaking up a friend’s house party. And then there was the certain brief televised incident involving codeine that I do not care to disclose but that so-called friends bring up when I’m trying to appear mature and suave. I didn’t say anything terrible, by the way, just inadvertently filthy.

But most of us have the wit to avoid justifying anything truly awful we’ve said when less than sober. And those of us who have been in the public eye, even a little bit, understand that reporters exist to get a story, and if you don’t want to become one, stay clear of them when you’re in no shape for a discussion. And most important of all, if you express the same views sober that you did drunk, you’ve ruined your alibi and it’s fair game to beat you like a gong for your vile behaviour.

This is all by way of pondering the possibility that former Assembly of First Nations Chief David Ahenakew may face a new trial on charges of willfully promoting hatred against Jews.  The Saskatchewan Court of Appeal has dismissed the Crown’s appeal of a lower court’s overturning of Ahenakew’s conviction. The Crown must now decide whether to stay the charges, re-try Ahenakew or appeal to the Supreme Court.

Ahenakew, you may remember, gave one of the most repulsive public addresses in Canadian history in 2002, justifying Hitler’s genocide of Jews, whom he characterized as a disease, and carrying over into a rambling attack on Israel, the United States, and George Bush Jr. A Saskatoon Star Phoenix reporter interviewed him on tape for three full minutes afterwards, during which Ahenakew elaborated upon his opinions in sickening detail. Ahenakew knew who the reporter was. He had been interviewed by the press many times before.

Although Ahenakew said that he had been under the influence of alcohol and medication when he made those statements, this is not a particularly strong defence. Alcohol does not create opinions, and we’re not talking about a brief interjection but a sustained attack involving convoluted conspiracy theories. Further, under questioning in court, Ahenakew did not disavow the beliefs behind the comments, he merely regretted their publication.

Hate legislation is a touchy subject. It is easy to get carried away in a stout defence of total freedom of expression or in an equally vigorous assertion of rights to freedom from harm caused by certain types of expression. Governments are in the business of drawing lines and this is one of the trickiest to etch in a diverse and democratic country. 

The Hate Provisions of Canada’s Criminal Code are very specific and their contravention is extremely difficult to prove. This is as it should be, as we as a nation embrace freedom of expression as essential to the construction and functioning of our society. We may express obtuse, outlandish and unpopular opinions and stay clear of the courts. Hell, we might even form a government that way (no, not picking on anyone here, geez). 

But we may not advocate genocide (section 318), nor may we “incite hatred against an identifiable group, in such a way that there will likely be a breach of the peace (section 319).”  And no conviction would result if the statements were established to be true, or were uttered in good faith in the context of, for example, a religious debate. These sections have withstood constitutional challenges, and I would argue that they reflect a broad Canadian consensus.

To get a conviction, the Crown must prove that the offence was intentional and public, and that the statements were not made in a protected context. An unconscionably racist joke told in private wouldn’t land someone in court, nor would the broadcast of someone reciting biblical passages deemed to condemn homosexuality.

With so many caveats, it’s no surprise that convictions have been few and far between. But in my view, Ahenakew clearly breached both sections. Section 318 states that “advocating genocide” includes “supporting or arguing for the killing of members of an ‘identifiable group’”, which Ahenakew did. And Ahenakew’s performance in court establishes his intent, the critical element behind section 319. The Supreme Court of Canada held in a previous hate case that if the alleged offender “knew or strongly suspected,” i.e. was willfully blind to the impact of his comments, this would be sufficient to demonstrate intent. Someone with Ahenakew’s vast political and media experience could not have been unaware of the controversy he would create.

It is now up to the Crown to continue to purse this case and do its best to ensure that justice finally done.  

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