The Saskatchewan Court of Appeal has ordered a new trial for disgraced former native leader David Ahenakew, left, upholding a lower court decision that set aside his conviction for promoting hatred of Jews.

In a 3-0 decision, the court ruled the trial judge erred by not
considering the defence contention that Ahenakew acted spontaneously
and without criminal intent when he embarked on a rant against Jews in
response to a reporter’s questions during a conference in Saskatoon in
December 2002.

“Mr. Ahenakew’s comments, on any standard, were shocking, brutal and hurtful,” Justice Robert Richards wrote for the court. “However, that is not the measure of the offence prescribed by section 319(2) of the Criminal Code [the anti-hate section]. It engages only in circumstances where a person ‘wilfully promotes’ hatred against an identifiable group. I agree with the appeal judge that, at trial, there was a failure to consider all the evidence relevant to the question of whether Mr. Ahenakew had the intent necessary for a finding of guilt.”

The Crown has yet to announce whether it will proceed with a new trial, stay the charges or appeal to the Supreme Court of Canada.

Canadian Jewish Congress and B’nai Brith Canada – whose League for Human Rights was an intervenor in the case – urged the Crown to appeal.

Steve Slimovich, B’nai Brith’s national legal counsel, said that “these lower decisions must be re-examined… The decisions constitute a dangerous precedent in which the standard for conviction could be set inappropriately high.

“As the courts themselves have recognized, these hate-filled words were ‘shocking, brutal and hurtful.’ Further proof of motivation is simply not needed. Additional elements introduced in these decisions, such as the need to consider whether the remarks were spontaneous or not is a step in the wrong direction that the [Supreme Court] must set straight.”

Congress CEO Bernie Farber said the Supreme Court must be given the opportunity “to define the issue of wilfulness… It is certainly better to refer it to the [Supreme Court] than to order a new trial.

“The public utterances of Mr. Ahenakew, an important and once-respected Canadian, had the effect of targeting and isolating the small Jewish community in Saskatchewan. After a thorough review, if the Crown believes there may be room to appeal this decision to the [Supreme Court], we certainly hope it does so,” Farber stated.

Ahenakew, 74, the former national chief of the Assembly of First Nations (AFN), drew national headlines in December 2002 for a speech delivered at a meeting of the Federation of Saskatchewan Indian Nations.

In opening remarks to 200 to 300 delegates in which he was expected to discuss government medical services, Ahenakew related conversations he had with German civilians in 1957 while serving with the Canadian armed forces. The Germans, he said, blamed the Jews for starting World War II.

Ahenakew was later approached by a reporter from the Saskatoon StarPhoenix, and in the course of a three-minute exchange, he said Hitler “fried six million of those guys” to prevent Jews taking over Germany or Europe.

“Jews owned the goddamn world and look at what they’re doing. They’re killing people in the Arab countries,” he told the reporter.

Asked about the Holocaust, Ahenakew said “how do you get rid of a… disease that’s gonna take over, that’s gonna dominate, that’s gonna everything, and the poor people, they…”

Ahenakew later apologized for his remarks, but in 2005, he was convicted of willfully promoting hate and fined $1,000. He appealed, and in 2006, a Court of Queen’s Bench judge overturned the decision and ordered a new trial.

Farber said native leaders have condemned Ahenakew’s remarks and that despite his rant, “even in situations like this there are silver linings.

“The six-year battle in the Ahenakew case has solidified our relationships with First Nations,” he said.

The Jewish and Native communities have co-operated on a number of issues, including land claims and the residential schools scandal. “We had the extraordinary pleasure of hosting 18 AFN chiefs on a trip to Israel last year.

“This matter brought us closer together,” Farber said.