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'Police state' claimed by lawyer

Darren Bernhardt, Saskatchewan News Network; CanWest News Service | April 4 2006

SASKATOON -- Society is moving down a slippery slope towards a "tattle-tale police state" in which private speech no longer exists, claims the lawyer representing disgraced Indian leader David Ahenakew.

"Everyone in society is going to be left looking over their shoulder to see what might be done with their words every time they talk to another individual," Doug Christie told Court of Queen's Bench Justice Robert Laing on Monday, at the appeal hearing for Ahenakew, 72, who was found guilty in a trial last year of wilfully promoting hatred against Jews in an anti-Semitic tirade to a reporter.

He was fined $1,000 by the court and shortly after, the Governor General's office announced he would be stripped of his Order of Canada. Ahenakew has refused to surrender the pin.

On Monday, Christie argued the conviction should be set aside and an acquittal or new trial granted. He suggested the trial judge erred in finding the discussion between Ahenakew and then-Saskatoon StarPhoenix reporter James Parker was not private, which would exempt it from the Criminal Code's hate law.

He maintained his client became involved in an argument with Parker and failed to recognize the pair were still engaged in an interview. Ahenakew testified last April at his hate trial that Parker had no tape recorder, at least he didn't see one, and believed the pair were hotly exchanging views.

"Mr. Ahenakew had no idea it would be made public," Christie said.

"That was not in the hands of the accused. The act of making it go further (eventually published and broadcast around the world) is the act of Parker and his editors."

The issue of intent is crucial to rendering whether a comment is criminal or not, Christie added. If a person wanted to promote hate, they would have been delighted with the result. Instead, Ahenakew was distraught and eventually made a public apology.

His comments can hardly be described as promoting hate when they were a "spontaneous single utterance" by someone thinking they would go no further, said Christie, whose client sat next to him at the counsel table.

"The law was not created to capture and criminalize people who get lit up in a moment of emotion (and) it has not yet criminalized private expression of hatred," Christie said. "It seems ironic the person who speaks in haste can be criminalized and the person who calmly and rationally, in discussion with editors, decides to publish it is some media hero or at the very least, not deemed a criminal.

"If this precedent stands, it comes close to a Stalinist model of political repression. The advocates of speech, when they're done, there will be no more private speech. It will all have to be secret."

Even police officers have to inform a person that anything they say could be used against them in a court of law, Christie noted.

"Reporters should not be given a special licence."

Crown prosecutor Dean Sinclair reminded Justice Laing that Ahenakew had agreed to an interview with a reporter, which implicitly means the comments would be reported.

"There's nothing in Section 319 (of the Criminal Code) that says words spoken in anger are not covered," Sinclair said. "No one forced him to argue in support of his views. He did it all by himself."

Sinclair noted the trial judge from last year rejected any efforts by Ahenakew or Christie to categorize the interview as anything else. The defence had labelled it a "confrontation" and "nothing like an interview." On Monday, Christie called it an ambush.

Lawyer Neil Finkelstein, who represented the Canadian Jewish Congress, which was granted intervenor status at the hearing, argued Parker didn't need to publish the remarks for them to be criminal.

"The offence was complete when Mr. Ahenakew stopped talking. Mr. Christie's submissions that it has to be made public, are wrong. You don't need proof of actual harm."

"We are here to protect the implementation and interpretation of law to prevent any identifiable groups from being vilified," said Wendy Lampert, spokesperson for the Canadian Jewish Congress.

The hearing was set for two days but was pushed through in one, going well past the usual time court concludes for the day. Justice Laing reserved his decision and suggested it may be "a month or two" before it is ready.

During a Federation of Saskatchewan Indian Nations health conference on Dec. 13, 2002, Ahenakew made a speech to hundreds of delegates, during which he railed against immigrants and said Jews were responsible for starting the Second World War.

Interviewed by Parker afterward, he confirmed he believed that to be true. He then suggested the Holocaust was warranted because Jews are a "disease" that takes over everything.

"That's why he (Adolf Hitler) fried six million of those guys," Ahenakew told Parker.

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