On expressing hatred

Editorial

Free expression and its limitations have been a recurring theme on this page recently. At times, it seems, this is a theoretical issue upon which people of goodwill can disagree. Now, thanks to the Saskatchewan Court of Appeal, we are likely to get a very practical determination on what Canadian law really means regarding freedom of speech and the propagation of hatred.

On Monday, Saskatchewan's provincial Court of Appeal upheld an earlier appeal court decision in the case of former First Nations leader David Ahenakew. In 2005, Ahenakew was found guilty under Canada's hate crime law for comments he made about Jews in a 2002 speech and then repeated to a reporter.

A three-judge panel of the Saskatchewan court ruled Monday that, while Ahenakew's tirade was "shocking, brutal and hurtful," this does not meet the legal onus of "wilfully promoting hatred." The law does not forbid expressing hatred; it prohibits promoting hatred – and it adds the issue of intent with the adjective "wilfully." One of the variables raised in a 2006 decision overturning the 2005 conviction was whether Ahenakew was speaking spontaneously or out of anger, which would go to the issue of his wilfulness.

The province of Saskatchewan now has three options: retry the case, stay the charges (meaning drop the issue) or take the matter to the Supreme Court of Canada. The latter is the preferred route of B'nai Brith Canada, which was quick out of the gate Monday in condemning the development.

That Ahenakew was expressing hatred can hardly be refuted. He called Jews a "disease" responsible for starting the Second World War and spoke favorably of Hitler's efforts to "clean up the world" when he "fried six million of those guys." The legal issue, though, is whether he promoted hatred.

The reality, from Ahenakew's standpoint, is more about reputation and principle than about the severity of the accompanying sentence – the guilty verdict resulted in Ahenakew being slapped with a $1,000 fine. (Being stripped of his Order of Canada was a penalty resulting from the public uproar; it was not a legal matter.)

The promotion of hatred is the legal issue and, rather than the mere expression of hatred, which is perhaps easily demonstrable, promoting hatred requires intent and is far more difficult to prove, because it requires certainty about the speaker's purpose, if any.

Courts of law, like the ones this case is progressing through, hold a much higher threshold than, say, a human rights tribunal or certainly the court of public opinion. But given the severity and infamy of this particular case, as well as its potential for setting benchmarks, B'nai Brith's suggestion seems a wise course – let the Supreme Court review the case.

Canadians have traditionally held to a different standard than the United States in terms of freedom of expression. The saga of Little Sister's bookstore in Vancouver, a gay and lesbian institution known as much for its legal as its literary impact on the country, forced the courts to set parameters on the arbitrary search and seizure of sexual literature entering the country. But hate literature or expression is held to a different standard than "obscenity," which is mostly in the eye of the beholder and does not depend on proof of intent. On Tuesday, nine Canadians were arrested on charges of purchasing child pornography, and it is a safe bet that intent will play little to no role in that evolving case.

The general Canadian willingness to accept limitations on free expression may well change, like so much in the age of the Charter of Rights and Freedoms, as courts emphasize individual human liberties over collective rights. Again, though, the law's modifying terms – "wilfully" and "promoting" – proffer a meaning that is several steps beyond banning nasty talk. Uttering hateful comments is not the charge. So the court – any court – needs to determine wilfulness and promotion. Nobody doubts that Ahenakew made the despicable comments (and, for what it's worth, Ahenakew acknowledged his words and apologized in a teary spectacle in which he blamed an "imbalance").

In recent weeks, as numerous little brush fires of free expression have raged in the Independent, we have expressed the view that freer expression is preferable to less free expression. But, as we have also stated, no freedom is absolute – either under natural law or the Criminal Code of Canada or any other country. It would be helpful if the Supreme Court could guide Canadians in determining where our societal limits lie – when the expression of merely unpleasant ideas becomes the wilful promotion of hatred.

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