Citation: 2009 SKPC 10

Date: February 23, 2009

Information: 24021026

Location: Saskatoon

_____________________________________________________________________________

Between:

Her Majesty the Queen

- and -

David Ahenakew

Appearing:

Sandeep Bains For the Crown

Douglas Christie For the Accused

[2] The accused was charged that he:

−2−

Code of Canada."

[3] This trial commenced November 24, 2008 and involved 4 ½ days of evidence and 2 ½ hours of argument by counsel. I reserved judgment until today.

Everyone who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of an indictable offence punishable on summary conviction.

or opinions. He is charged with the wilful promotion of hatred against people of the Jewish faith.

[7] The incident which gave rise to the charge occurred on December 13, 2002. There is no dispute about the over-all scenario, and I am satisfied that it is as I outline it. The First Nations of Saskatchewan, and its leaders, became very concerned regarding a policy proposed by the federal government to require an aboriginal person who was seeking medical care, to sign a consent form. This was perceived to be a violation of the privacy of the individual, and a barrier to the right to medical care embodied in the treaties.

[8] A decision was made by the leadership of the Federation of Saskatchewan Indian Nations (hereafter FSIN), to convene a conference regarding the proposal. The conference had a number of objectives, among them to inform First Nation leaders of the proposal and its ramifications. Other objectives included consulting with First Nation leaders, seeking their advice about the proposal, and attempting to reach a consensus about how to deal with the proposal. An invitation was extended to all Saskatchewan First Nations, to the media, and to other non-aboriginal organizations such as Amnesty International and the College of Physicians and Surgeons of Saskatchewan, to attend. It was an expressed purpose of the conference to generally publicize the government proposal, educate everyone about it, encourage opposition to it, and enlist support for the FSIN and First Nations struggle against it.

[9] Chief Lawrence Joseph was called as a Crown witness. He testified to the above, and testified that the accused was the Chief of the Senate of the FSIN. Chief Joseph believed that the Senate was more of an advisory body to the FSIN, but that their advice was sought, and was important. In that capacity, the accused was invited to speak to the conference. The −4−

evidence, and video tape entered as an exhibit in the trial, show that the accused spoke to the conference immediately after Chief (then Vice-Chief) Joseph. This appeared to be the equivalent to the "key-note" address of the conference. The accused spoke for about 48 minutes, while Chief Joseph, and the speakers subsequent to the accused, spoke for much shorter periods of time, in the range of 10 to 20 minutes.

[10] During the course of his speech the accused made the following comments:

This person called a white person will never stand, stand up for you, for anything. When he first got here, he started to break our people. He started to take everything, he would grab it from us, and then he started to lie and steal from us. That’s why I call them liars and thieves. That’s what we have as neighbours in this country. (Translation from Cree)

You know, I’m very dead serious when I say it’s all right for the non-Indian people, all the immigrants that we have in this country to beat up on ya, to breach and break up your treaty rights, break up your families. You know, and even destroy your kids. It’s all right to do that in this country. And they say, you know, the best country in the world. Bullshit. Maybe for them, yeah, the immigrants for sure. But, but not for us.

My God, we’re having a lot of problems aren’t we? You know, the racial problems, you know, there’s all kinds of bigots and so forth that are, that are wrong. You know, my great grandson goes to school in immersion, goes to school here in Saskatoon and these goddamn immigrants, you know, East Indians, Pakistanis, Afghanistan, and whites and so forth, (inaudible)... dirty little Indian, and he’s the cleanest of the whole goddamn works there. You know. That’s what I’m saying, it’s starting right there, six years old, you know. So what do we do? We look after our people first, first and foremost.

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, 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 Israel, in the Arab countries, I was there too. But there's gonna be a −5−

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.

[11] After the accused spoke, he was approached by Mr. Parker, and they had a conversation. Mr. Parker was a reporter with the Saskatoon Star Phoenix newspaper in Saskatoon, who was well known to Chief Joseph. The details of the approach by Mr. Parker, and the manner in which the conversation was commenced was the subject of much evidence. I will deal with that later in this judgement. Virtually all of the conversation was recorded by Mr. Parker. A tape, identified as the original tape by Mr. Parker, became Exhibit P-2 at the trial. The contents of that conversation are as follows, with "Q" indicating a question by Mr. Parker and "A" indicating an answer by the accused:

Q. You agree with them?

A. The Jews 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 them 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. −6−

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 what 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 .... −7−

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.

At that point, the accused walked away from Mr. Parker, and, apparently, left the conference. Mr. Parker reported the contents of the address to the conference by the accused, and his conversation with the accused, to the newspaper by which Mr. Parker was employed, and to other affiliated news outlets. The story became a matter of national, and apparently, international, interest.

[12] The result of all of this had a disastrous effect on the accused, his reputation, his position with First Nations and society in general, and resulted in an investigation, and the current −8−

charge.

[13] Before discussing the evidence in detail, I will make some general comments about some of the witnesses and their evidence.

[14] With respect to Chief Joseph, he was able to testify quite confidently about the calling of the conference and the reasons for it. Very understandably, his recollection about some of the actual details regarding the interaction between the accused and Mr. Parker was less certain. He had been a colleague of the accused in First Nations governance for many years and undoubtedly knew him on a personal basis as well. Chief Joseph, as current chief of the FSIN, and a past Vice-chief, would have to be aware of the negative impact the charge, and trial of the accused, could have on the FSIN and First Nations generally. He gave his evidence clearly and fairly, and was not reticent about his dislike for Mr. Parker and what Chief Joseph felt was unfair reporting on Mr. Parker’s part.

[15] With respect to James Parker, he was in the position of defending his actions in his profession, and his personal character. He would, understandably, be defensive about them. He endured one of the most searching and assertive cross-examinations possible. His evidence was generally consistent. The contents of the video tape of the conference, Exhibit P-4, and the audio tape of his interview with the accused, P-2, corroborate Mr. Parker’s recollection of the course of events.

[16] With respect to the accused, he was, of course, in the position of an accused person providing his explanation of events and thoughts from a long time before. The factors affecting his testimony are too numerous to mention. His age, state of health, previous prominent position, relationships to the other witnesses, and current family problems are just some. The change in his demeanor from examination-in-chief to cross-examination was one of the most striking I have seen. During examination-in-chief, he was −9−

loquacious, articulate, and expansive in his answers, to the extent that his counsel had to make an effort to keep him on point. He leaned forward to the microphone, and, generally, was assertive, and positive in his replies. On cross-examination, however, he withdrew from the microphone, sat back in the witness box with arms crossed, and, initially, appeared defensive in his responses. His demeanor, on cross-examination, was that of a person who examines each question to determine its import before answering, rather than just responding fully and honestly.

[18] Speaking for the majority, Dickson, CJ said as follows:

[19] As with any criminal offence, the onus is on the Crown to prove each element of the offence beyond a reasonable doubt. The elements of this offence which the Crown must prove are:

....I find the following passages in R. v. Rose (unreported B.C.C.A., November 12, 1992) to be instructive and useful:

In fact, both the Supreme Court of Canada and this Court have recently considered this question, and suggestions have been made about what must be included in the charge to the jury: R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.); and R. v. C.W.H. (1991), 68 C.C.C. (3d) 146 (B.C.C.A.). What follows is a composite of the instructions given in those two cases. The first, third and fourth instructions come from the judgment of Cory J., who gave the majority judgment in R. v. W.(D.) at p. 409. The second instruction is suggested by Wood J.A., who gave the judgment of this Court in R. v. C.W.H., at p. 155:

First, if you believe the accused, obviously you must acquit; −11−

Secondly, if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit;

Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit;

Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

(1) With respect to the speech, there can be no doubt that making a speech to several hundred people, including First Nations people and non-aboriginal people is not a private conversation. The speeches were being video-taped, apparently quite openly. In his speech, the accused commented that he did not know whether there were any persons from the media present. He obviously did not believe it to be a closed, private occasion, and it was not.

(2) With respect to the interview with Mr. Parker, there was a great deal of evidence as to whether Mr. Parker openly displayed the tape recorder that he was using. The defence witness, Ms. Bighead, a daughter of the accused, was very sure that Mr. Parker had no visible tape recorder. Mr. Parker was adamant that he had the recorder visibly displayed, almost in the face of the accused. In the end, much of the evidence was irrelevant with respect to the issue of whether it was a private conversation. This is because the accused testified that, while he did not actually recognize Mr. Parker as a reporter for the Star Phoenix newspaper, (then) Vice-Chief Joseph indicated to the −12−

accused that Mr. Parker was such a reporter. The accused readily agreed to be interviewed by Mr. Parker. Both the accused and Vice-Chief Joseph were pleased that the issue in the conference would possibly receive publicity through Mr. Parker. It is obvious that a person being interviewed by a reporter for the purpose of seeing publicity in a newspaper is not in private conversation with the reporter. I am satisfied that the conversation with Mr. Parker was not a private conversation, nor did the accused believe it to be such.

With respect to the above noted extracts from the speech of the accused, they were delivered in a vehement and emotional fashion, by this accused who was then a highly respected elder and retired leader in the Aboriginal community. The comments to Mr. Parker were equally emotional, with the accused asserting his personal belief in the statements. I have no doubt that those statements, if they were to be believed or accepted by a reader or listener, could not help but result in a feeling of antipathy amounting to hatred in at least some of the recipients.

[26] I wish to deal with the statements made in the interview with Mr. Parker first. At some point after the speech of the accused to the conference, Mr. Parker approached the accused for an interview. Mr Parker was particularly interested in getting more information about the remarks the accused had made about Jews, but that particular interest was not made known to the accused before the interview. The manner in which the request for the interview was made was the subject of much evidence, and lengthy cross-examination of Mr. Parker. The accused did not recall how quickly the request was made after he completed his speech, but his recollection is that Mr. Parker approached the accused and Chief Joseph while they were together and asked Chief Joseph if he, Mr Parker, could interview the accused. Chief Joseph’s response, according to the accused, was to tell Mr. Parker that it was up to the accused. Chief Joseph then said to the accused words to the effect that "This is James Parker a reporter with the Star Phoenix" At that point the accused agreed to be interviewed, and he and Mr. Parker moved to the end of the −14−

head table for the interview.

[27] I am satisfied that, at that time, the accused and Chief Joseph both assumed that the interview would be about the topic of the conference, that is, the proposed consent forms and the opposition to them by First Nations leaders. I accept the fact that the accused was taken by surprise when the first question Mr. Parker put to him was whether the accused agreed that the Jews started the Second World War. The position of the accused is that the question was asked in an aggressive manner, and that the accused automatically responded in an argumentative and confrontational way. The accused maintains that had he known that the interview was to be about the Jewish people, the Second World War, and his comments and opinion about them, he never would have agreed to the interview. Mr. Parker maintains that the initial question was not made in an aggressive way, but was just a question as to whether the accused actually believed the statements he had made about Jews in his speech, and the interview went from there.

[28] However the interview started, I am inclined to accept the evidence of the accused that he never intended, initially, to say anything about Jews or the War, but simply responded to questions he took to be aggressive and rude. The accused did not seek out Mr. Parker to give the interview, nor did he initiate the exchange about the Jews and the war. Approximately seven questions into the interview the accused said "Well, I’m not going to argue with you about the Jews". In my opinion, such a statement is not compatible with someone who is seeking to publicize his views and promote hatred for Jewish people.

[29] The accused was the one who ended the interview with the following exchange:

A. Anyway, anyway, to hell with the Jews. I can't stand them and that's it.

Q. Okay −15−

A. Don't talk about them.

Q. Okay.

Following that, the accused walked away from Mr. Parker. Once again, his actions are not compatible with someone who was seeking to promote hatred of Jewish people. The entire tone of the exchange is argumentative and confrontational. The accused’s tone and comments are not those one would expect from someone who was seeking to persuade a reporter to his views, or, at least, to report the comments in such a way as to promote his views to the public. There is no indication that the accused, at the time of the interview, even considered the possibility that the statements he made to Mr. Parker would cause hatred against Jewish people to be promoted. The surrounding circumstances, in my opinion, made it highly unlikely that he would even think of such a possibility.

[30] The opinions, distorted historical facts, and general views expressed by the accused can only be viewed with revulsion and disgust by ordinary Canadians. That anyone could characterize the murder of millions of innocent human beings as "getting rid of a disease", or "trying to clean up the world" is incomprehensible to decent people. As indicated above, however, the accused is not charged with holding disgusting, inhumane opinions. With respect to the charge against the accused of wilfully promoting hatred against people of the Jewish faith, as it relates to the interview with Mr. Parker, the intent necessary to constitute the offence has not been proven by the Crown.

[31] Before leaving this topic, I wish to comment with respect to the involvement of Mr. Parker in this matter. James Parker was a reporter with the newspaper, the Saskatoon Star Phoenix, at the time in question. Mr. Parker happened to be present when the accused made his speech to the conference, and, quite understandably, −16−

took note of the controversial remarks the accused made. Mr. Parker, again understandably, pursued the matter by asking for an interview with the accused, conducting the interview, and reporting on the incident. That was his job. I found nothing inappropriate in the conduct of Mr. Parker. As is often the case, people like the accused, who are happy to have media attention when it suits them, are quick to attack the media and its members when the media attention does not suit them. Mr. Parker, in my opinion, did nothing more, nor less, than his occupation required.

[32] I turn now to the charge as it relates to the speech the accused delivered to the conference. During the coarse of the trial it was referred to as rambling or disorganised, and was characterised as such during argument by counsel for the accused. Crown counsel, during argument, however, suggested that the speech had a strong theme which carried throughout to try and achieve its purpose to persuade and influence. I agree with Crown counsel that the speech, viewed as a whole, is not as disjointed as defence counsel suggests.

[33] The accused himself, in his evidence, stated that he was very angry at the First Nations leadership for wanting to negotiate over the issue of the consent forms, and that the purpose of his speech was to rally the people at the conference to insist that the leadership fight the issue, rather than negotiate it. He went so far as to say that he wanted the aboriginal people to literally fight like at Caledonia, an apparent reference to the blockade and stand-off between aboriginal protesters and non-aboriginal persons at Caledonia, Ontario in 2006. Caledonia, of course, had not as yet taken place when the conference in this case took place. I took the accused’s remarks to mean that Caledonia was an example of the fight the accused wished to precipitate if necessary.

[34] The accused certainly intended his remarks at the conference to be taken seriously −17−

if he hoped to encourage a confrontation between Aboriginal people and others, that resulted in personal violence and vandalism as happened in the Caledonia situation.

[35] An examination of the whole speech delivered by the accused discloses a coherent, consistent theme, that is, that confrontation rather than negotiation, should be the manner in which the disagreement over consent forms should be resolved. It is true that the accused seemed at times to digress from his main topic, but the over-all theme remained. One of the arguments against negotiation he raised was that the leadership should not negotiate with "the immigrants" who had stolen aboriginal land because they could not be trusted.

[36] He started his speech with an attack on "white people" with the following statement as quoted above:

This person called a white person will never stand, stand up for you, for anything. When he first got here, he started to break our people. He started to take everything, he would grab it from us, and then he started to lie and steal from us. That’s why I call them liars and thieves. That’s what we have as neighbours in this country. (Translation from Cree)

He continued with a specific reference to other racial or ethnic groups such as "East Indians, Pakistanis, Afghanistan, and whites", and he concluded his comments on "immigrants" with his reference to "the Jews" and their alleged role regarding the Second World War. The consistent theme was the dishonesty and unreliability of anyone who was not aboriginal, and the foolishness and futility of the First Nations leadership in negotiating with them.

[37] Reading and hearing the speech as a whole, I find that the purpose of the accused was to influence the audience and the First Nations leadership regarding the proper −18−

course of action to take on the consent form issue, and not to promote hatred against the Jewish people.

either an intent to promote hatred or knowledge of the substantial certainty of such, ...

If an accused person chooses to pursue a goal, and in doing so, makes statements having knowledge of the substantial certainty that those statements will promote hatred against an identifiable group, that knowledge is sufficient to constitute the necessary intent.

[39] This accused chose to try to influence aboriginal leaders and people to follow a course of action he felt was the most appropriate. To do so, he made derogatory and insulting statements about all those he termed "immigrants", that is, anyone who was not aboriginal, with special emphasis on Jewish people. If he had knowledge that the promotion of hatred against the Jewish people was a substantial certainty as a result of his comments, the necessary intent would be established.

[40] In deciding this issue, I take into account the evidence I heard regarding the situation of the accused. He had been a powerful aboriginal leader for many years but had now been relegated to the Senate of the FSIN, to a position Chief Joseph considered to be advisory only. The accused had had some health problems, and, according to his evidence, had been feeling unusually nervous about his speech. According to the witness Greg Ahenakew, the son of the accused, the accused was very angry at the direction the Aboriginal leadership was taking. I believe that the accused knew the primary theme that he wished to set forth in his speech, but I do not believe that he knew the precise words or examples he would use. As a result, −19−

he would not have been able to direct his mind to the specific examples he did use, including the references to Jews and other "immigrants". I am unable to conclude that the accused had actual knowledge that the effect of his remarks would be to promote hatred against people of the Jewish faith.

I have quoted extensively from the case law to make clear the nature of wilful blindness, as it is now understood, in order to measure its adequacy to meet the stringent mens rea requirement for s. 2(b) purposes discussed in Keegstra. In my opinion, wilful blindness meets the test. As can be seen from the authorities I have referred to, to be wilfully blind, an accused must have knowledge of the probability of a fact, and then deliberately refrain from obtaining the final confirmation in order not to know it.

[43] Mr. Ahenakew, the statements you made about Jewish people were revolting, disgusting, and untrue. I find, however, that you did not make them with the intent necessary to make you guilty of the offence charged against you. I find you not guilty. You are free to go.

______________________________

Wilfrid K. Tucker, A Judge of the Provincial Court of Saskatchewan