By TIM COOK
In a 35-page decision, Court of Queen's Bench Chief Justice Robert Laing said the original trial judge did not properly assess whether the former head of the Assembly of First Nations had the requisite intent to be convicted of a hate crime. "It was a victory for common sense, that's what I think," said Ahenakew's lawyer Doug Christie.
"It demonstrates that angry, unconsidered words should not constitute criminal offences. They may be bad words, they may be things we shouldn't say, they may even be offensive, but they are the price we pay for freedom in democratic society."
Ahenakew was convicted of wilfully promoting hatred and fined $1,000 for comments he made about Jews to a
Court heard how Ahenakew referred to Jews as a "disease" when approached by the reporter after giving a 45-minute, profanity-laced speech in which he blamed Jews for the Second World War.
In a news release, B'nai Brith
"The Jewish community, the target of Ahenakew's hate-filled remarks, can take no comfort in this latest development as it now faces the prospect of enduring yet another painful legal proceeding," said executive vice-president Frank Dimant.
What must be emphasized is that this decision in no way exonerates Ahenakew. The case against him is far from closed . . . The integrity of hate-crimes legislation in this country will hang in the balance until the original conviction is reaffirmed."
In his decision, Laing pointed out that the reporter, James Parker of the Saskatoon StarPhoenix, was the one to approach Ahenakew.
"Until Mr. Parker asked his first question, the appellant had no knowledge about what the subject matter of the questioning would be," Laing wrote.
"Thereafter, his statements were made spontaneously in response to questions from Mr. Parker."
Laing noted that during the interview Ahenakew told Parker, "I'm not gonna argue with you about the Jews," and when Parker phoned Ahenakew afterward to clarify the remarks, Ahenakew hung up.
"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,' " Laing wrote.
The Crown said a decision on whether to appeal the ruling or proceed with a new trial will likely be made next week.
Prosecutors are not "actively considering" staying the charge at this point, said Murray Brown, the director of public prosecutions for Saskatchewan Justice.
"The law was upheld," Brown said.
"The decision is based on the idea that the trial judge failed to consider a couple of pieces of evidence when he was trying to determine whether or not he thought the accused had the intention necessary for the offence."
Ahenakew could not be reached for comment.
The Canadian Jewish Congress, which was granted intervener status in the appeal, said it will not pressure the Crown to appeal the judgment.
President Ed Morgan said he doesn't think the decision put
"Obviously our community is concerned about the nature of the words uttered by Mr. Ahenakew," Morgan said. "But in terms of the legal process, that is totally up to the Crown and we've got confidence in them to make the right choice one way or the other."
Christie had argued last April that his client's comments were both spontaneous and isolated and that he was being persecuted for angry outbursts he made when "ambushed" by a reporter.
If the conviction were to stand, Christie said, it would lead to the creation of a "tattle-tale state" where anyone who is goaded into vocalizing their racist thoughts could be charged with a crime.
But the Crown had argued Ahenakew knew he was giving an interview to a journalist and knew his remarks would be reported.
Had Ahenakew truly not intended to spread hate, he would have offered no comment to the reporter, the Crown said.
Public interest and racial tensions were both high at Ahenakew's original trial last year.
After the trial, Ahenakew called a news conference and blamed Jewish lobby groups for his conviction and for getting him removed from the Order of Canada, a decision that was sealed when the conviction was handed down.
A spokeswoman for the Governor General's office said the outcome of the appeal changes nothing.
Lucie Brosseau said the revocation of Ahenakew's order is permanent because his actions "have brought disrepute to the order."