Abenakew conviction invites ‘tattletale state’

By Tim Cook
The Canadian Press

SASKATOON — If David Ahenakew’s hate crime conviction stands, it will lead to the creation of a "tattletale state," where anyone who is goaded into vocalizing their racist thoughts could be charged, his lawyer said Monday.

Appealing Ahenakew’s case in Court of Queen’s Bench, lawyer Doug Christie argued his client never intended to spread hatred against Jews and is being persecuted for angry outbursts he made while in an argument with a reporter.

"I suggest this law wasn’t intended to capture and criminalize people that get ‘lit up,’" Christie said, referring to the way Ahenakew has said he felt during the now infamous 2002 interview with the Saskatoon StarPhoenix.

"This section has never been used to attack isolated, spontaneous speech."

Last July, a provincial court judge fined the former head of the Assembly of First Nations $1,000 for wilfully promoting hatred at a Federation of Saskatchewan Indian Nations conference in December 2002.

Court heard that Ahenakew referred to the Jews as a "disease" when he was approached by a reporter after giving 45-minute, profanity-laced speech in which he blamed the Jews for the Second World War.

Christie spent much of his time arguing that Ahenakew’s interview with the reporter should not be covered by the hate laws.

The section of the Criminal Code under which Ahenakew was convicted applies only to hate spoken "other than in private conversation," and Christie argued that the taped one-on-one interview with the reporter meets that exception.

"I would like to submit that ‘private’ means anything to which the public does not have access to by right," Christie told Justice Robert Lang.

"If it had not been for the existence of the tape recorder, unknown to Mr. Ahenakew, the words would not have gone any further than six feet from the speaker’s mouth."

The trial judge heard how Ahenakew consented to the interview at first, but Christie argued that his client was caught off guard and angered when he was asked questions about his feelings toward Jews.

Ahenakew testified that he felt confronted and didn’t see the tape recorder the reporter was using.

Christie argued Ahenakew didn’t have the required intent for the crime, pointing out that it was the reporter who first approached his client and it was Ahenakew who ended the conversation.

He said it is clear from both the tape of the interview and his preceding speech that Ahenakew was struggling with both his emotions and his diction.

"This conversation was spontaneous. There certainly was no script. It was not even particularly coherent," Christie said.

It was the StarPhoenix that was actually guilty of promoting Ahenakew’s hatred, Christie argued, because Ahenakew ended the interview by telling the reporter he didn’t want to talk about the Jews.

Ahenakew sat beside Christie in court Monday as the arguments were made, but he would not speak to reporters.

The Crown will get a chance to respond to Christie’s arguments and so will the Canadian Jewish Congress, which has been granted intervener status at the appeal.

Christie has suggested he is willing to take the case all the way to the Supreme Court if he’s not successful this week.