R. v. Ahenakew, 2008 SKCA 4

[1] The respondent, David Ahenakew, spoke at a conference in 2002. In the course of his remarks, he made a disparaging comment about people of the Jewish faith. After the speech, he was asked for an interview by a newspaper reporter. The interview was brief and confrontational. Mr. Ahenakew made statements to the reporter which were, in effect, a rationalization of the Holocaust.

[2] Mr. Ahenakew was charged under s. 319(2) of the Criminal Code with wilfully promoting hatred. Following a trial in the Provincial Court, he was convicted on the basis of the statements made to the reporter. He then appealed to the summary conviction appeal court, i.e. the Court of Queen’s Bench. The appeal judge quashed the conviction and ordered a new trial. He did so on the basis that the trial judge had failed to consider relevant evidence when determining whether Mr. Ahenakew had the intent necessary for a finding of guilt. The Crown takes issue with that decision.

[3] I conclude, for the reasons which follow, that the Crown’s appeal must be dismissed. The trial judge did not take into account all of the evidence bearing on the question of whether Mr. Ahenakew “wilfully promoted” hatred. As a result, the appeal judge made no error in ordering a new trial.