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Ahenakew: When the Anti-hate Law Is Invoked

Manuel Prutschi is national executive vice-president of the Canadian Jewish Congress.

Among other racist remarks, David Ahenakew is alleged to have said "[The Holocaust was warranted because Jews] damn near owned all of Germany prior to the war. That's why he (Adolf Hitler) fried six million of those guys, you know. Jews would have owned the goddamned world. . . . How do you get rid of a disease like that, that's going to take over everything. . . . goddamn immigrants - East Indians, Pakistanis, Afghanistans and whites." -- The Sikh Times

The Toronto Star, Apr. 4, 2005

Photo: David Ahenakew

Good, unassisted by the force of law, does not necessarily triumph over evil

Hatred is an assault on the dignity and worth of communities. It is tantamount to a rape of the soul. It inflicts emotional injury and threatens physical security.

Society, as a whole, is no less vulnerable since it will not remain intact for long if it permits its communities to be vilified with impunity.

History has shown that decent people speaking out, important as this is, cannot guarantee the preservation of a multicultural democracy because good, unassisted by law, does not necessarily triumph over evil.

The Holocaust and the genocides and crimes against humanity that have followed - Rwanda and the Balkans, for example - began with hatred, which fostered intolerance, inflamed the passions of the masses and created the atmosphere making mass murder acceptable and desirable.

It is puzzling, therefore, why controversy still surrounds the anti-hate statute on the basis of which David Ahenakew was charged.

Ahenakew, an Order of Canada member and former head of the Federation of Saskatchewan Indian Nations and the Assembly of First Nations, made national headlines when he called Jews a 'disease' who deserved to be 'fried' by the Nazis. He is scheduled to appear in court today.

Parliament as far back as 1970 made it a crime wilfully to promote hatred against groups identified by race, ethnicity, colour and religion. The Supreme Court upheld the law's constitutionality in 1990.

The court found that although the legislation breached the freedom of expression provision (Section 2b) of the Charter of Rights and Freedoms, it nonetheless was valid because this provision was subject to 'such reasonable limits . . . as can be demonstrably justified in a free and democratic society (Section 1).'

Freedom of expression, in other words, fundamental though it is for democracy, can never be absolute in a multicultural society. The Charter continuously requires the striking of a delicate balance between two equally treasured values: personal liberties and collective interests.

The anti-hate law is specific in what it curtails and narrow in its application. It only proscribes the most extreme emotion of hatred.

The hatred cannot be an incidental by-product but must be 'wilfully promoted.' An accused is shielded from conviction if the Crown fails to negate certain defences available to him.

Conviction is, of course, not assured and jail is not mandatory.

Alberta school teacher James Keegstra, in the most notorious hate case, was fined $3,000 and condemned to a one-year suspended sentence and 200 hours of community service.

Irrespective of any non-legal sanctions, no matter how significant and considerable, it is the criminal conviction, more so than the sentence, that is the key in a hate charge.

It imposes upon the perpetrator the burden of guilt and any consequences immediate or more long-term associated with it.

Society is not only punishing and deterring. It is declaring that certain kinds of expression are beyond the pale. It is telling the affected group, 'An assault on you is an assault on us. We share your anguish and your anger.'

Prosecution prevents the victim's alienation by retaining its trust in the legal system that it looks to for protection.

The legal route provides a mechanism for a measured response by allowing for conflict resolution in a highly controlled setting. Any potential societal tension is thereby defused, especially between communities that unwillingly but invariably are drawn into the fray.

Thankfully, in the Ahenakew case, aboriginal and Jewish groups were able to calm the waters considerably with their own timely and positive interaction.

The criminal sanction must be used with caution. Communities ought to be familiar with the legislation and its objectives. They should not shout hate without justification to make a political point, while the authorities should not shrink from litigating for political reasons even though there is justification.

The Saskatchewan attorney-general and his officials obviously felt that in Ahenakew's case, there was sufficient evidence of a crime's commission and fulfilled their obligation to enforce the law. They now face the responsibility of proving it in court.

Will they be able to demonstrate the alleged hatefulness of Ahenakew's vile remarks? Will they further be able to establish, as the Supreme Court requires, that Ahenakew 'intend(ed) or fore(saw) as substantially certain a direct and active stimulation of hatred' as a result of his canards? The outcome is in the hands of the system.

Members of a targeted community are no less entitled than other Canadians to lead their lives free from vilification. The wilful promotion of hatred, rather than the law against it, negates the Charter's assurance of equality and the value it places on Canada's multicultural heritage.

The anti-hate law must be invoked to cleanse the environment of hatred's most toxic manifestations.