OTTAWA (Apr. 26)
As a verdict is awaited in the high-profile trial of a former Canadian aboriginal leader accused of making anti-Semitic comments, Canadian human-rights activists, legal experts and civil libertarians are debating the efficacy of criminally prosecuting hateful speech. David Ahenakew, a former head of the Assembly of First Nations, Canada’s most influential native-rights group, made headlines in December 2002 with a public outburst in which he called Jews a “disease,” accused them of starting World War II and praised Adolf Hitler for “trying to clean up the world” by “frying 6 million of those guys.”
The resulting furor resulted in Ahenakew’s prosecution under Canadian law making hate speech illegal. Many also want Ahenakew to be expelled from the Order of Canada, the country’s highest civilian honor, which is given in recognition of a lifetime’s accomplishments.
Ahenakew told the conference that Jews were responsible for the outbreak of World War II. After the speech, a reporter asked Ahenakew to clarify his statements. In response, Ahenakew launched into a profanity-laced diatribe, not caring that the reporter was taping his comments.
“The Jews damn near owned all of Germany prior to the war,” Ahenakew said. “And that’s how Hitler came in, and he was gonna make sure that the Jews didn’t take over Germany or Europe. That’s why he fried 6 million of those guys!”
To the reporter’s question of whether he thought it was a good thing that 6 million Jews were killed, Ahenakew repeated his opinion that Jews would have owned the world if not for the Holocaust.
When asked “How can you justify the Holocaust?” Ahenakew said, “How else do you get rid of a disease like that? That’s gonna dominate, that’s gonna take over? They owned the banks, they owned the factories, they owned everything!”
Ahenakew was forced to issue a public apology to the Jewish community and to resign from all his positions in Canada’s native community.
He soon also faced demands that he be stripped of his Order of Canada, which he received in 1978 for his work as a member of a United Nations committee and the World Indigenous Peoples Council.
Irving Abella, who is both a member of the Order of Canada and a former president of the Canadian Jewish Congress, lodged an official complaint with the order shortly after Ahenakew’s apology.
“I have never heard, frankly, in all my years dealing with anti-Semitism in the Jewish community, any comments like these,” Abella said at the time to the Canadian Broadcasting Corp. “This was the first time I heard someone say that it was a good thing that the Holocaust happened.”
Ahenakew became the subject of a criminal investigation to determine whether his comments made him criminally liable under Canada’s hate-speech legislation.
Six months later, in June 2003, the Saskatchewan Justice Department announced that charges would be brought against Ahenakew under the hate-speech law, which makes it a criminal offense to “willfully promote hate against any identifiable group.”
Almost two years passed before Ahenakew’s trial began earlier this month in Saskatoon. Courtroom hearings concluded in mid-April; a final verdict is expected in June.
Doug Christie, who has taken on controversial clients such as Holocaust deniers Ernst Zundel and Jim Keegstra, defended Ahenakew.
After an initial, unsuccessful attempt to exclude tapes of Ahenakew’s comments from the trial as private conversations, Christie asserted that his client’s medical condition and alcohol were to blame for the outburst.
But when asked by prosecutor Brent Klause if he still believed that the Jewish people started the World War II, Ahenakew responded with a simple “yes.” He added “I’m talking the truth. I don’t think I said anything wrong during my speech.”
While Jewish organizations welcomed the trial, many legal experts and civil libertarians warned that the hate-speech law was not only dangerous to free speech but also ineffective.
“As far as prosecution is concerned, the problem is the law itself,” Alan Borovoy, general counsel of the Canadian Civil Liberties Association, told JTA.
“Freedom of speech is sometimes most important when it expresses strong disapproval,” he continued. “So where does strong disapproval end and hatred begin? You only have to look at some of the experiences under this very law to see how difficult this can be.”
The same section of the criminal code has been used in the past to harass anti-American protestors and French-Canadian nationalists and has been responsible for delaying a movie in support of Nelson Mandela, Borovoy said.
“It’s a recipe for abuse because of the vagueness of the words,” Borovoy said. “If the law would talk about incitement to violence it would be much less difficult to interpret and apply, but with hatred it opens the door for abuse.”
Manuel Prutschi, national executive vice president of the Canadian Jewish Congress, disagrees with Borovoy.
“We always have to balance two very important rights: the right to free speech and the right of minorities to lead their lives free of vilification,” Prutschi said. “The anti-hate law in my view carefully strikes that balance: It’s not over-broad, the only emotion it proscribes is hatred, it doesn’t prohibit offensive statements or ridicule and it only applies to certain identifiable groups, identified by religion, race, color, by ethnicity or by sexual orientation.”
Edward Greenspan, another prominent legal expert, told JTA that he thinks the law does more than simply pose an intellectual problem.
To lock up Ahenakew “for mere speech is, in my mind, contrary to the liberal notions of a real democracy,” he said.
He added that hate speech trials, as in the cases of Zundel and Keegstra, often provide toxic racists a platform they covet.
“Why should these hatemongers get an opportunity to appear before a jury and argue that the Holocaust didn’t happen?” Greenspan asked.
Sanjeev Anand, a law professor at the University of Alberta, disagrees with those who are worried about the law’s restrictive effect on free speech or the potential platform trials afford to hatemongers.
“There have been empirical studies done after the Zundel and Keegstra trials, which showed that the public actually endorses prosecution of these individuals,” Anand told JTA.
He added that prosecution also often reinforces to the public that certain types of behavior will not be tolerated and indicates to target groups that they’re worthy of protection.
All those asked agreed that the prosecution in hate-speech cases must meet a high standard by proving intent on the part of the accused.
Whether Ahenakew will be convicted, and his status with the Order of Canada, remain open questions.
Jewish organizations repeatedly have called for Ahenakew to be stripped of his award, but the order’s advisory council has said further discussion about his membership will take place only once the legal proceedings are completed.