R. v. Ahenakew, 2006 SKQB 272 (CanLII). Publishing False, hateful news information is a criminal offence. Click here.
R. v. Ahenakew, 2006 SKQB 272 (CanLII)
Date:
2006-06-08
File number:
QBCA 42/05 JCS
Other citations:
281 Sask R 47 — 37 CR (6th) 386
Citation:
Citation: 2006 SKQB 272
Date: 2006 06 08
Docket: Q.B.C.A. No. 42/2005
Judicial Centre: Saskatoon
BETWEEN:
DAVID AHENAKEW,
Appellant
- and -
HER MAJESTY THE QUEEN,
Respondent
- and -
CANADIAN JEWISH CONGRESS,
Intervenor
Counsel:
Douglas H. Christie for the appellant
W. Dean Sinclair for the respondent
Neil Finkelstein and Sophie Nunnelley for the intervenor
JUDGMENT LAING C.J.
June 8, 2006
... by communicating statements during a speech and during a subsequent interview with James PARKER, a reporter with the Star Phoenix newspaper, wilfully promote hatred against an identifiable group, to wit: people of the Jewish faith, contrary to Section 319(2) of the Criminal Code of Canada.
In a decision dated July 8, 2005, the trial judge found he had a reasonable doubt with respect to the statements made during the speech, but convicted the appellant for the statements made during a subsequent interview with James Parker.
(a) That the trial judge erred in law on the issue of the meaning of a private conversation;
(b) That the trial judge erred in law on the issue of intention required by s. 319(2) of the Criminal Code of Canada; and
(c) That the trial judge erred in law in his application of the concept of actus reus, which the appellant states was the conduct of James Parker as opposed to himself.
Background Facts and Findings of the Trial Judge
[3] On December 13, 2006, the appellant was one of the speakers at a conference sponsored by the Federation of Saskatchewan Indians Nations which had as its topic the imposition by the Government of Canada of a requirement that First Nations people sign a consent form before medical services would be supplied and paid for by it. The conference was attended by First Nations persons, as well as representatives of the College of Physicians and Surgeons, the College of Dentistry, Amnesty International and the World Health Organization. The media was made aware of the conference, and at least two media persons were present, including Mr. Parker. The appellant was invited to be a speaker at the conference in his capacity as a prominent First Nations politician and chair of the Federation of Saskatchewan Indian Nations senate. The conference proceedings were both videotaped and audiotaped. The appellant’s speech was approximately 45 minutes in length and was an extremely angry one, directed at his view of the injustices First Nations persons have been subjected to post‑European contact. The speech began:
... Anyway, good morning, and you can tell by my few words in Cree that ah, I’m pissed off, okay? I’m, I’m really angry. And I’m angry at us too, not just the government. Because we are getting kicked around all over the place and it’s acceptable in this country, you know, to beat up on the Indians. That’s acceptable. ...
In the course of the speech, the appellant stated as follows:
... I always remember when I, when I was in the armed forces. I ah, after Korea and I, and then I was in Canada for, until 1957 and then I went to Germany for two years with my family. One of my daughters was born over there, Janet. But ah, the Germans used to tell me, and I got to know them well because I played soccer against them and with them and so forth. But they used to tell me that you guys are blessed. What we know about the Indians in Canada. They are blessed. But that blessing is being destroyed by the, by your immigrants that are going over there. Especially the Jews, they say, you know. The Second World War was created by the Jews and the Third World War, whatever it is, right now, the war that war.., that wages on in Israel, in the Arab countries, I was there too. But there’s gonna be a war because the Israelis and the “Bushies”, you know, the bully, the bully, the ah, the bigot and so forth in the United States that tells you that if you’re not with me, you’re against me. ...
The foregoing excerpt, and particularly the reference to the “Second World War was created by the Jews”, is the portion of the speech referred to in the criminal charge, supra. In the evidence he gave at trial, the appellant was asked if he still believed today that the Jewish people started the Second World War, and he replied, “Yes.”
[4] In his judgment at paragraph 10, the trial judge after referring to some of the appellant’s evidence on why he believed “the Second World War was created by the Jews” concluded:
[10] ... I find it very difficult to believe that you being a serving Canadian soldier in Germany shortly after the Second World War would give any credence to comments by Germans who were obviously attempting to justify the actions of the German people in launching such a horrible war against their neighbours and upon hearing such unbelievable comments would fail to take simple investigative steps to verify the accuracy or inaccuracy of such statements. I find it less believable that returning veterans would confirm the alleged statements of your German friends. ...
The trial judge concluded:
[10] ... In short, while I do not believe your evidence, Mr. Ahenakew, I am left with a reasonable doubt as to your guilt after considering your evidence in the context of all of the evidence presented and in particular the nature of your presentation, its lack of focus, and the slight possibility that you did not intend by your statements to foster hatred against Jews.
Covid Falcon 19
[5] Approximately one hour after the speech, Mr. James Parker, a reporter with the Saskatoon StarPhoenix, approached a table where Mr. Ahenakew was seated and asked if he could interview him. Mr. Ahenakew agreed, and they moved to an adjacent table. Mr. Parker tape recorded the conversation, and the transcript was introduced in evidence along with the tape. The transcript reads as follows:
Q You agree with them.
A The Jews own damn near owned all of Germany. Prior to the war. That, that’s how Hitler came in, that he was gonna make damn sure that the Jews didn’t take over Germany or Europe. That’s why he fried six million of those guys, you know.
Q Okay. D’you think that it was a good thing that he, that he killed six million Jews? Isn’t that a horrible thing?
A Well, Jews, Jews owned the goddamn world and look at what they’re doing. They’re killing people in the Arab countries. I was there, I was there.
Q I know, but how can you justify the holocaust? Six million?
A You know, how, how do you get rid of a, a, a, you know, a disease like that that’s gonna take over, that’s gonna dominate, that’s gonna everything, and the poor people, they...
Q How were they taking over Germany? How were they taking over Germany?
A They owned the banks, they owned the factories, they owned everything. They loaned money out to the peasants knowing damn well that they can’t pay it back so they took their land.
Q Well, how is it that the Germans mounted a war effort without the Jews because the Jews by that time were gone, because a lot of the German companies were owned by Germans. And I’m talking about Krupe (phonetic).
A In name only.
Q But the Krupe.
A In name only.
Q Krupe have made ah, some of the best guns for the German army, ah, those various chemical companies that were owned by, I mean, the Germans owned the German economy.
A Well, I’m not gonna argue with you about the Jews.
Q Okay.
A Or the Germans or anybody else. All I know is that the Germans told me when I was there two years.
Q And you believe them.
A Of course I believe them.
Q But they, weren’t...
A Well, because I saw the Jews kill people in, in the Egypt when I was over there. And the Palestinians, the Egyptians, the, the Arabs, generally, eh. I saw them fucking dominate everything.
Q But wasn’t Canadian army, ah, over in Europe to, to liberate the Jews, in a sense?
A No, no, no, to liberate the world, not the Jews.
Q To liberate the world (inaudible)...
A We didn’t give a damn about the Jews.
Q But to liberate the world from a dictatorship that was killing people, killing Jews, killing gypsies, killing homosexuals, killing all sorts of people.
A Exactly. Wanna clean up the world. I, I don’t support Hitler but I...
Q That’s what it sounds like.
A Well, you know, he cleaned up a hell of a lot of things, didn’t he? You’d be, you’d be dominated by, you’d be owned by the Jews right now the world over. Look at a small little country like that and everybody supports them, the States, who in the hell owns many of the banks in the States, many of the corporations, many, well, look it here in Canada, ASPER.
Q Yeah.
A (Inaudible) ASPER, he controls the media.
Q Yeah.
A Well, what the hell does that tell you? You know, that’s power.
Q Well, what does it tell you?
A That’s fucking power.
Q What, what, yeah, so he’s a Jewish man that owns a bunch of newspapers but there are, there are English people, there are (inaudible). There are non‑Jews that own the media companies, there are non‑Jews that...
A Anyway, anyway, to hell with the Jews. I can’t stand them and that’s it.
Q Okay.
A Don’t talk about them.
Q Okay.
[6] At trial the appellant conceded that he had made the foregoing statements to Mr. Parker and agreed that persons of the Jewish faith are an identifiable group within the meaning of s. 319(2) of the Criminal Code.
[7] With respect to whether the statements made by the appellant to Mr. Parker were made in private conversation, the trial judge concluded:
[12] As with the previous statements made by you to the conference attendees, the relative issues are whether there was a private conversation between yourself and Mr. Parker and whether you, Mr. Ahenakew, intended by these statements to wilfully promote hatred against people of the Jewish faith. Throughout your testimony at trial you went to considerable pains to distinguish your verbal interaction with Mr. Parker to be something other than an interview for publication. While there can be occasions where a private conversation is conducted at a public meeting where two people talk discretely and do not intended be overheard such is not the case here. You were well aware, Mr. Ahenakew, that Mr. Parker was a reporter even if, as you testified, you could not remember him from a previous person to person interview. You knew from the time that he approached you and Vice‑Chief Daniels that this was Mr. Parker of the Star Phoenix who had written critical columns on First Nations affairs. You knew that reporters do exactly what their job title describes, that is report. They report what they personally see and hear and what other people tell them. That was particularly true in the case of Mr. Parker, whose reputation was to investigate and report First Nation issues in a critical manner.
[13] Mr. Ahenakew, you also testified that you had participated in approximately 1000 media interviews both by local and national press. The defence attempted to make an issue of whether you were aware that Mr. Parker had a tape recorder during the interview. In the opinion of the court, it is irrelevant whether Mr. Parker had a tape recorder, a pencil and a reporter’s note pad or simply intended to rely on his own recollection of what was said during the interview. The tape recording simply adds to the reliability of Mr. Parker’s recollection and recitation of the actual interview. There is a substantial difference between a private conversation and a [sic] interview, a difference that you, Mr. Ahenakew, from your experience with the media, knew well. ...
[14] Mr. Ahenakew, you are a self‑described First Nations politician. Defence evidence called by your counsel indicates that during your leadership of First Nations in Canada you have engaged in rough and tumble politics. You can hardly maintain that you were taken off guard by the questions posed by Mr. Parker nor can the court put any weight in your description of the conversation as that being a confrontation or that you were somehow the subject of an ambush interview by Mr. Parker. Nothing in the video of your speech to the conference, nor in the audio recording of your interview with Mr. Parker indicates you being timid, unsure or rattled. Indeed, your demeanor bordered on self‑confidence to the point of arrogance.
[15] The same subsection 2(b) of the Canadian Charter of Rights and Freedoms that protects your freedom of thought, belief and opinion and expression also protects the freedom of the press and other media of communication. You may not like what the media says about you nor how your comments were reported by Mr. Parker and the consequences of your statements but you did state them to Mr. Parker, a reporter, who had every right and indeed possibly a professional responsibility to accurately record them and to communicate them by way of print and audio publication. In your testimony both on examination in chief and in cross‑examination you attempted to portray yourself as the wronged party and that Mr. Parker was responsible for communicating your remarks and the consequences flowing from them. Your counsel, Mr. Christie, in his closing arguments argued that you were the victim of a [sic] insensitive self‑promoting reporter. As a Provincial Court trial judge who spends 95% of judicial time in criminal court, the analogy that instantly came to mind was that of a man charged with spousal assault who argues that his spouse made him do it and that he was simply defending himself by putting up his fists which his spouse insisted on running her face into which unfortunately resulted in her nose being broken and her two front teeth being fractured.
[16] I find that the interview of December 13, 2002 conducted by Mr. James Parker of the Saskatoon Star Phoenix with David Ahenakew was not a private conversation within the meaning of section 319(2) of the Criminal Code.
[8] With respect to whether the appellant’s statements wilfully promoted hatred against an identifiable group, the trial judge found as follows:
[17] The final issue to be determined is whether your statements during your interview with Mr. Parker were a wilful promotion of hatred against people of the Jewish faith. As previously stated with respect to your comments about Jewish people delivered at the conference simply because I as the trial judge or indeed the majority of the public do not like or find offensive your comments does not in itself mean that your comments offend section 319 (2). Rather the Crown must prove that the offensive statements are directed to promoting or fostering hatred against people of the Jewish faith as a definable group. As offensive as it may be, you are not criminally prohibited from making untrue statements deliberately or accidentally of your directing these inaccurate or untrue statements against a definable group. What you cannot do is make such statements wilfully to promote hatred against an identifiable group.
[18] I have reviewed the question and answer interview conducted between you and Mr. Parker and attempt to identify those that do not offend the intent of section 319 or in other words, where I feel the Crown has failed to discharge the onus of proving beyond a reasonable doubt that you did wilfully promote hatred against people of the Jewish faith ... [subparagraphs 1 to 6 omitted].
[19] While many of these allegations are distortions, unbalanced opinions, bigoted outbursts and outright lies, I hold that these statements do not meet the very stringent requirements of section 319 (2) of the Criminal Code.
[20] I do however find that the following statements made by you, Mr. Ahenakew do meet the stringent requirement of section 319 (2). These are as follows:
1. You know, how, how do you get rid of a, a, a disease like that that’s gonna take over, that’s gonna dominate, that’s gonna everything, and the poor people, they ...
2. That’s why he fried six million of those guys, you know.
3. Parker: But to liberate the world from dictatorship that was killing people killing Jews, killing Jews, killing gypsies, killing homosexuals, killing all sorts of people.
Ahenakew: Exactly, wanna clean up the world. I, I don’t support Hitler but I
Parker: That’s what it sounds like.
Ahenakew: Well, you know, he cleaned up a hell of a lot of things, didn’t he” You’d be dominated by, you’d be owned by the Jews right now the world over.
[21] When one hears the audio tape and the fury and passion in the delivery of these statements, the court is convinced beyond a reasonable doubt that the sole purpose and intent in making these statements was to wilfully promote hatred against people of the Jewish faith within the meaning of section 319 (2) of the Act. To equate a definable group of people to a disease is to dehumanize them, to deny them the basic respect and dignity that all human beings are entitled to and that it is justified to kill or to use the more offensive word, “fried”, is clearly to subject them to being despised and subject to ill treatment even in the extreme such as was demonstrated by the Holocaust. Daily Canadians and our Governments are being urged to eradicate diseases such as cancer, aids, tuberculosis – to suggest that any human being or a group of human beings are a disease is to invite extremists to take action and to give a justification for violence against them. This is precisely why Parliament enacted section 319 (2) and our Supreme Court of Canada declared it as being constitutional.
[22] Similarly, I totally reject your testimony that your comments on December 13, 2002 were prompted or affected by diabetes, wine or change in medication. Your appearance, demeanor and delivery belie that defence.
[23] Accordingly, I find you, David Ahenakew, guilty of wilfully promoting hatred against an identifiable group to wit people of the Jewish faith contrary to section 319 (2) of the Criminal Code of Canada.
Evidence at Trial
(i) The Evidence of Mr. Parker
[9] Mr. Parker testified on the events surrounding his conversation with the appellant. Excerpts from his testimony in this respect follow:
Q Who did you say that to, I want an interview?
A I – I said it to Mr. Ahenakew.
Q Okay?
A Yeah. And – and then he got up and walked down from the platform and we did the interview.
Q Okay. How long did that interview last then, James?
A I don’t know, three minutes maybe.
Q Okay. So it was a fairly brief interview?
A It was a – it was a brief interview.
Q Did you end it or did Mr. Ahenakew end it?
A Mr. Ahenakew ended it, yeah.
Q Okay. I take it you were – you had – did you have more questions to ask of Mr. Ahenakew?
A Well, I wanted to keep the interview going. I had other questions, but he had had enough.
[Transcript, page 127, line 25, to page 128, line 13.]
...
Q Okay. So when you – when you approached Mr. Ahenakew, there was – was there some – some preliminary chat before you actually got to the – the German/Jewish conversation, if I can use that expression?
A No, I – no, we got right into it.
Q Okay?
A That was the first question. “You said that your German friends told you the Jews started the Second World War.”
Q Okay. And where was your microphone, if you had it with you, where was it being held at that precise moment in time?
A Right in front of his face.
Q Okay. Was it behind your back or in your backpack or hidden under your coat?
A No. No. No.
Q Any – any possibility? Did you see it? Were you able to see it?
A Yes.
Q Are you satisfied Mr. Ahenakew saw it?
A Yes.
[Transcript, page 132, line 21, to page 133, line 16.]
...
Q Okay. And how did the interview end then?
A He walked away.
Q Okay. What did you do?
A I went back to the newspaper; made some more phone calls; talked to my editors; transcribed the tape and – and then we published the story.
Q How is an editorial decision made like that, Mr. Parker, when you were working for The StarPhoenix? Is it made by yourself or is it made by a group?
A It’s – it’s a collective decision, absolutely.
Q And the story was published?
A Yes.
Q And that’s what brings you to court today?
A Yes.
[Transcript, page 136, lines 2 to 15.]
...
Q Did you phone Mr. Ahenakew or his son later about this event and say, You realize I was taping this interview; did you do that?
A No. No.
Q You didn’t? And they didn’t hang up on you?
A I – I talked to Mr. Ahenakew briefly –
Q When?
A After the interview – the initial interview –
Q Yeah?
A – briefly to get some information about his military career. He hung up on me then.
[Transcript, page 152, lines 7 to 17.]
...
Q Can you answer my question? Did you at anytime advise Mr. Ahenakew that you were going to broadcast his words to the world?
A No.
Q Did you at any time tell Mr. Ahenakew that you intended to use his comments for a news story?
A No.
Q Did you ever ask him if you had permission to publish his words?
A No.
Q Did you realize at that time, that he was having an argument with you?
A Did I realize he was having an argument with me?
Q That – that is the question, now what is the answer?
A You could call it an argument. It was also an interview.
[Transcript, page 159, lines 7 to 23.]
...
A It was an argumentative interview.
Q Okay. It was an argumentative interview because you weren’t actually pausing to let him answer a question, you were making statements, and I suggest, you were involved in an argumentative interview; correct?
A It was an argumentative interview and I was involved.
Q Right. And I suggest that you had strong opinions too about this?
A Yes.
Q And you were horrified by some of the things that he was saying?
A Yes.
Q And it’s natural that you were emotional about it yourself, it would be hard not to be.
A Yes.
Q And I suggest that not only horrified, but that would be reflected in, perhaps, your tone and your demeanor, which although we can get the sound, would be hard to appreciate without seeing the facial expressions, wouldn’t it?
A Yes.
Q Would you say this was a rather heated exchange?
A I think it was a frank exchange of views or a frank interview.
[Transcript, page 455, line 14, to page 456, line 13.]
(ii) Evidence of Mr. Ahenakew
[10] Mr. Ahenakew agrees that when Mr. Parker approached him and another person at the table said, “Hello, Mr. Parker”, he knew Mr. Parker was a reporter. Mr. Ahenakew also agrees that Mr. Parker said, “I would like to interview you.”
A I said, Yes, you can interview me. So we walked off – I walked off the podium, just to the left and we – at the end of the podium, he was there and we started talking. No, I don’t classify that as an interview; not a bit.
Q Well, what was it?
A It was a confrontation.
Q Why?
A Because every time I was going to try and answer questions, his questions, he’d answer immediately. And then I’d say, No, No, no, you know. That’s not the way it is. This is what I was told. Yeah, but this – this – and then I said, Just a minute, this is what I was told.
Q Mmhmm?
A And then he’d keep asking and intervening and so on. I mean, we – we were not quiet; we were loud. That’s why I call it a confrontation. I’ve never been interviewed like that in my lifetime and I’ve done all those interviews. This was the first for me.
Q And did you, at that time, know that he was taping the conversation?
A I didn’t see the tape recorder. He says he – he had it right there in front of me. I did not see that tape recorder. I don’t know if it’s because he’s got big hands and it was hidden or whatever, but I did not see the tape recorder, nor did I see the notebook that he’s talking about.
Q Were you tired at all?
A Oh, yes, I was tired. It was a tough speech; it was a long one and I has having a heck of a time controlling my anger during that period and that’s hard on an old fellow like me, and a fellow that’s so used to free‑wheeling and – and to try and be reasonable in my spiel of which I failed, I think, I’ll – I’ll say that. But I got the message across and that was my intent –
Q Mmhmm?
A – to get the message across to the people that – that had to deal with this.
Q What people?
A The Chiefs, the directors, co‑ordinators and the people generally, the Council and so on.
Q Mmhmm. So in this conversation with Mr. Parker, if you didn’t know that you were being taped and you didn’t see a – a reporter’s notebook, did you understand this conversation was going any further than between you?
A No. No.
Q Did he ever say to you, I’m going to use this in a story?
A No. No.
Q Or broadcast it or let the world know about it?
A No.
Q It sounded like you used the word argument at one point. Why did you use that word?
A Me?
Q Yes, I have the –
A Because of the – because of the nature of the discussion which was a confrontational discussion.
[Transcript, page 176, line 1, to page 178, line 9.]
...
Q I’m going to show you the text I’m given as to what Mr. Parker’s tape recorded or he, I’m not sure which, says was said. And what I want to ask you is about the last statement attributed to you. Can you read it off that page out loud and – and then I’ll ask you a question about it?
A And this – his question is, “Okay?” My answer was, “Don’t talk about them.”
Q Now –
A That’s what I have in my own notes, “Don’t talk about them.”
Q And in your recollection, what did you say?
A “Don’t talk about them.”
Q Why – why would you say that to this person?
A Oh, I just – simply because it’s not for dispose with – not for creating conflict all over the place in this country, in this province and this country for that matter because I did not know it was going to become an international incident.
[Transcript, page 179, line 16, to page 180, line 8.]
...
Q But my question was, about your intentions at that very moment when you used the word Jews, what, if any, were your intentions?
A It certainly wasn’t that I hated Jews. I don’t hate anybody, that’s not our upbringing like Alex Kennedy said yesterday about our religion, our leadership training and so on.
Q Yeah, well, I must ask you to consider the question. You’ve answered by saying what wasn’t your intention. Can you tell us with any degree of certainty, what was your intention?
A My intention was to emphasize our situation, and I know it’s a poor excuse, but –
Q Did you – did you think about that intention before you spoke the word Jews?
A No. No, I didn’t.
Q If you were allowed to speak or are invited to speak again in any public place, would it be your intention to ever mention Jews again?
A No, I wouldn’t.
[Transcript, page 586, lines 6 to 25.]
...
Q Now, why did you discuss on that occasion at that time in the presence of Mr. Parker, why did you bring up or talk about the Jews?
A Because he brought it up right off the bat. He brought it up. I said that – I said that in my testimony the other day.
Q Were you thinking of anything when you answered his questions about your beliefs?
A No, I was thinking that – I was thinking although because of what I heard about him and meeting him for the first time, that I can recollect, I thought, so this is the guy that’s been very negative and damaging and destructive of – to – to the First Nations people of this province.
Q Well, what –
A So this is the guy. And I got angry.
Q Did you have any time from the moment when you realized what he was going to ask you to the time you started answering, did you have any time to consider what you were going to say?
A No.
Q Why didn’t you take the time to consider?
A Because he didn’t allow me. He interrupted me and he just kept on asking questions and – and I can – I can emphasize by saying that he was extremely arrogant, and I’m not the first person that has testified to that.
Q Did you think about the possibility of walking away before you did?
A Well, I should have walked away earlier, but I did think about it and I did walk away.
[Transcript, page 588, line 11, to page 589, line 15.]
...
Q When you said, “To hell with the Jews, I can’t stand them,” was that true?
A Because of the discussion, that’s what I said.
Q Yeah.
A Well, I don’t say it’s absolutely true because my feelings at that time, as I indicated earlier, were not really the accurate feelings that I normally have or the accurate thinking, you know, by – by my heart too deeply. You know, I didn’t have control of that – full control and I don’t mean to use that – that event as an excuse for what I did. I’m not doing that, I’m just telling you that I did not. I take medication, the high blood pressure where I increased – where the doctor increased the dosage for my high blood pressure as well, not just the sugar diabetes. Therefore it affected me negatively. It affected me to, you know, to possibly say things that I would never say otherwise.
[Transcript, page 623, line 11, to page 624, line 3.]
...
Q All right. And the last sentence you said was, “Don’t talk about them.” That’s – there’s a little dispute about that, but I – did you say that?
A Yes.
Q And why would you say that if you thought you were being taped?
A Because I was just sick and tired of having that confrontational discussion.
Q Did you think you were being taped when you said, “Don’t talk about that?”
A No.
[Transcript, page 624, line 17, to page 625, line 1.]
[12] The appellant called two character witnesses. Mr. James Sinclair, who is a former leader of the Metis and non‑status Indians, testified that he had known Mr. Ahenakew for 35 years and testified he had not ever observed any evidence or intention on the part of the appellant to promote hatred. Mr. Alex Kennedy, who had served on the Federation of Saskatchewan Indian Nations for eight years with Mr. Ahenakew, was asked:
Q And did he resort to either the expression of hate for a group or promotion of hate in those circumstances?
A Never heard him – never heard him once to distinguish people within this country and say that – that group of people I hate, I never heard him say that.
Q And did you ever hear him speak publically [sic] about the Jews?
A No.
[Transcript, page 572, lines 7 to 16.]
The Legislation
[13] Section 319(2) of the Criminal Code appears in a section of the Criminal Code entitled “Hate Propaganda”. Section 318 makes it an offence to advocate genocide. Section 319(1) makes it an offence to communicate statements in any public place which incite hatred, and which are likely to lead to a breach of the peace. Section 319(2) is entitled “Wilful promotion of hatred” and states as follows:
319. ...
(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any 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.
The defences set out in s. 319(3) are not relevant on this appeal. Section 319(7) contains definitions as follows:
319. ...
(7) In this section,
“communicating” includes communicating by telephone, broadcasting or other audible or visible means;
...
“public place” includes any place to which the public have access as of right or by invitation, express or implied;
“statements” includes words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or other visible representations.
318. ...
(4) In this section “identifiable group” means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.
Was it a Private Conversation?
[15] The Crown has the burden of proving beyond a reasonable doubt that the statements made by the appellant were not made in a private conversation. The question of whether statements are made in a private conversation is a question of mixed fact and law. Interpretation of “private conversation” in s. 319(2) is a matter of law. Whether the evidence falls within that interpretation is a matter of fact.
[16] With respect to the words “private conversation” in s. 319(2) of the Criminal Code, Dickson C.J., in R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697, noted as follows at pp. 772‑773:
In assessing the constitutionality of s. 319(2), especially as concerns arguments of overbreadth and vagueness, an immediate observation is that statements made “in private conversation” are not included in the criminalized expression. The provision thus does not prohibit views expressed with an intention to promote hatred if made privately, indicating Parliament’s concern not to intrude upon the privacy of the individual. ... Moreover, it is reasonable to infer a subjective mens rea requirement regarding the type of conversation covered by s. 319(2), an inference supported by the definition of “private communication” contained in s. 183 of the Criminal Code. Consequently, a conversation or communication intended to be private does not satisfy the requirements of the provision if through accident or negligence an individual’s expression of hatred for an identifiable group is made public.
Section 183 defines a “private communication” as one that is made under circumstances “in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it”.
[17] Counsel for the appellant submitted that a conversation between any two persons, even if one of them is a reporter, is a private conversation unless the person asks the reporter to publish it. His point is that there are no members of the public present during a two‑person conversation, and what a reporter chooses to do with the information received in the context of s. 319(2) is not the responsibility of the speaker. In effect, counsel for the appellant advances the same theme that arises in the third ground of appeal that the actus reus of the offence in s. 319(2) was committed by the reporter, Mr. Parker, and not by the appellant because he is the person who published the appellant’s statements to the public. I am not able to accept this submission.
[18] The word “private” in everyday usage means “not open to or intended for the public”, and this meaning is the generic meaning attributed to the word when used as an adjective in most, if not all, dictionaries. This is clearly the meaning of the word “private” adopted by Dickson C.J. in the quote from R. v. Keegstra, supra. It is also the meaning that a plain reading and a purposive reading of s. 319(2) mandates. A private conversation is a conversation not open to, or intended for, the public. The number of persons present is irrelevant to the determination of whether a conversation is private.
[19] In this matter, leaving aside the issue of whether a formally requested media interview falls within the meaning of the word “conversation” in s. 319(2), a point that was not argued at trial or on appeal, the trial judge clearly addressed himself to the issue of the appellant’s defence that he did not intend his statements to be made public, because he thought he was simply having an argument with Mr. Parker, and did not know he was being tape recorded.
[20] The trial judge looked at all of the circumstances surrounding the interview, including the appellant’s evidence, in arriving at the conclusion it was not a private conversation. He correctly determined that whether or not the conversation was private was to be determined at the time it commenced, not when it ended. He took into account that the appellant knew that Mr. Parker was a reporter, that Mr. Parker had published articles on First Nations affairs, that Mr. Parker had formally requested an interview, that the appellant had moved from the podium to a place where the interview could be conducted, that he had been the subject of many interviews throughout his long career as a First Nations leader and politician, and as a result, knew that the business of reporters is to report. The appellant’s evidence that he did not anticipate the topic Mr. Parker chose for the interview or the confrontational tone of it, as will be referred to later herein, was relevant to the issue of whether the appellant’s intent was to wilfully promote hatred, but was not relevant to the issue of whether he intended his answers to questions posed by Mr. Parker not be made public. The trial judge was entitled to draw the inference he did from all of the surrounding circumstances, that the appellant knew that his answers could be made public, and that he therefore intended they be available to the public. The trial judge did not err in his interpretation of the word “private” in s. 319(2) of the Criminal Code, nor did he err in law in concluding the appellant’s conversation with Mr. Parker was not private.
Wilfully Promote Hatred
[21] The term hatred in the phrase “wilfully promote hatred” is not in issue in this appeal. The appellant does not dispute that his statements to Mr. Parker for which he was convicted are hateful, and “connote emotions of an intense and extreme nature that are clearly associated with vilification and detestation of persons of the Jewish faith.” The issue at trial, and on this appeal is whether he “wilfully” promoted hatred.
[22] In R. v. Buzzanga (1979), 1979 CanLII 1927 (ON CA), 25 O.R. (2d) 705 (Ont. C.A.), Martin J.A., on behalf of the court, concluded that Parliament intended to limit the offence, which is now s. 319(2), to the intentional promotion of hatred. He went on to point out that in criminal law, a person intends a particular consequence, not only when his conscious purpose is to bring it about, but also when he or she foresees that the consequence is certain or substantially certain. He concluded at pp. 722‑723:
... Where the prosecution, in order to establish the accused’s guilt of the offence charged, is required to prove that he intended to bring about a particular consequence or foresaw a particular consequence, the question to be determined is what was in the mind of this particular accused, and the necessary intent or foresight must be brought home to him subjectively ... [authority omitted].
[23] In R. v. Keegstra, supra, Dickson C.J. stated at p. 775 that he agreed with the interpretation of “wilfully” articulated by Martin J.A. in Buzzanga, supra. He noted that the interpretation of “wilfully” in Buzzanga requires more than mere negligence or recklessness as to result. He endorsed a statement in the Law Reform Commission of Canada, Working Paper 50, Hate Propaganda (Ottawa: The Commission, 1986), at p. 36 which stated:
The principle of restraint requires lawmakers to concern themselves not just with whom they want to catch, but also with whom they do not want to catch. ...
Dickson C.J. concluded:
I agree with the interpretation of “wilfully” in Buzzanga, and wholeheartedly endorse the view of the Law Reform Commission Working Paper that this stringent standard of mens rea is an invaluable means of limiting the incursion of s. 319(2) into the realm of acceptable (though perhaps offensive and controversial) expression. It is clear that the word “wilfully” imports a difficult burden for the Crown to meet and, in so doing, serves to minimize the impairment of freedom of expression.
[24] With respect to the word “promotes”, Dickson C.J. in R. v. Keegstra, supra, at pp. 776‑777, stated the word “promotes” indicates “active support or instigation”. He went on to say:
... In “promotes” we thus have a word that indicates more than simple encouragement or advancement. The hate‑monger must intend or foresee as substantially certain a direct and active stimulation of hatred against an identifiable group. ...
Dickson C.J. pointed out that a judge trying a case under s. 319(2) should direct himself or herself, or the jury, to avoid finding that the accused intended to promote hatred merely because the expression is distasteful.
What the accused intended or foresaw must be determined on a consideration of all the circumstances, as well as from his own evidence, if he testifies, as to what his state of mind or intention was.
In Seymour v. R., 1996 CanLII 201 (SCC), [1996] 2 S.C.R. 252, Cory J., in discussing the relevance of intoxication on the issue of intent, pointed out that the inference that a person intends the natural and probable consequences of their actions is not a presumption, but a permissible inference when warranted. He stated:
21 ... It follows that the jury must be instructed to take into account the evidence of the accused’s consumption of alcohol or drugs, along with all the other evidence which is relevant to the accused’s intent, in determining whether, in all the circumstances, it would be appropriate to draw the permissible inference that the accused intended the natural consequences of his actions. [Emphasis added.]
[26] The context in which the alleged crime took place is always a relevant consideration when attempting to assess a person’s intent. The inferences which might be drawn on the intent of a person engaged in self‑defence might be different than the inferences which might be drawn with respect to a person who commits an unprovoked attack.
[27] A trial judge’s obligation in a criminal trial is to acknowledge and consider the positions and theories of both the Crown and the defence in order to arrive at a proper appreciation of the evidence. As noted per Cory J. in R. v. G. (R.M.) (1997), 1996 CanLII 176 (SCC), 110 C.C.C. (3d) 26 at 32:
[9] In the course of giving directions to a jury, it is essential that the trial judge outline for them the theory or position of the defence and refer the jury to the essential elements bearing on that defence in such a way that it will ensure the jury’s proper appreciation of the evidence ... [authorities omitted].
A trial judge sitting alone must instruct himself or herself accordingly.
[28] With respect to whether the appellant was “wilfully” promoting hatred against people of the Jewish faith in making the statements he did to Mr. Parker, the trial judge did not, as he did in considering the statement made by the appellant during the course of his speech, or in considering whether the conversation was private, consider all of the evidence surrounding the making of the statements, the evidence from the interview apart from the hateful words uttered by the appellant, or the evidence of the appellant. Nor did he make any reference to the position of the defence with respect to the issue of “wilful”. After addressing himself to the issue of whether the statements made during the interview with Mr. Parker were a wilful promotion of hatred against people of the Jewish faith, he stated:
[18] I have reviewed the question and answer interview conducted between you and Mr. Parker and attempt to identify those that do not offend the intent of section 319 or in other words, where I feel the Crown has failed to discharge the onus of proving beyond a reasonable doubt that you did wilfully promote hatred against people of the Jewish faith ....
He then went on to say,
[20] I do however find that the following statements made by you, Mr. Ahenakew do meet the stringent requirements of section 319(2) ....
After identifying those statements, the trial judge went on to say:
[21] When one hears the audio tape and the fury and passion in the delivery of these statements, the court is convinced beyond a reasonable doubt that the sole purpose and intent in making these statements was to wilfully promote hatred against people of the Jewish faith within the meaning of section 319 (2) of the Act. ...
The trial judge’s comments thereafter are directed at how hateful the statements are.
[29] The only reference to the defence is in paragraph 22 where the trial judge rejected the appellant’s testimony that his comments on December 13, 2002, were prompted or affected by diabetes, wine or change in medication. His reasons for rejecting them are “[y]our appearance, demeanor and delivery belie that defence.” The medication defence of the appellant was directed at why he said things he might not otherwise have said; in other words, why he made hateful statements. This defence was not directed at whether or not, in uttering the words, his intent was to “wilfully” promote hatred.
[30] The tone of voice used by a person uttering hateful words, along with the words used, is relevant evidence which can be considered along with all of the other evidence in determining whether the person wilfully promoted hatred. Where the hateful words are spoken during a speech, as was the case in Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, 2005 SCC 40, and there are no other factors relevant on the issue of the speaker’s intent, the words used along with the tone of voice might be very persuasive on the issue of intent. But when there is other relevant evidence on the issue of intent, it must be taken into account before drawing an inference.
[31] The theory of the defence that emerges from the transcript of evidence on the issue of the appellant’s intent with respect to the consequences of his words, and from the appellant’s evidence, was that he spoke the words he did in anger in what he described as a confrontation with Mr. Parker and that he did not have the intent to wilfully promote hatred. There is uncontradicted evidence, apart from the appellant’s evidence, relevant to this position.
[32] Until Mr. Parker asked his first question, the appellant had no knowledge about what the subject matter of the questioning would be. Thereafter, his statements were made spontaneously in response to questions from Mr. Parker. Mr. Parker agrees it was an argumentative interview. In the course of the interview, the appellant stated, “Well, I’m not gonna argue with you about the Jews.” At the end of the interview, the appellant said, “Don’t talk about them”, and walked away. Mr. Parker stated “Well I wanted to keep the interview going. I had other questions but he had had enough.” The whole interview lasted approximately three minutes. When Mr. Parker subsequently telephoned the appellant, the appellant hung up on him.
[33] The foregoing evidence was relevant on the issue of the appellant’s intent and his defence that he did not “wilfully promote hatred of persons of the Jewish faith.” To the extent the foregoing evidence, along with possible other evidence, was not taken into account by the trial judge before drawing the inference he did was an error in law that requires the setting aside of the judgment.
C.J.
R.D. Laing
Comments
Post a Comment