blevkog

The David Ahenakew case has brought hate legislation into view once again, and after having already made my thoughts on the case clear here, maybe it's time to open up a discussion on the legislation itself, as it pertains to the case. Note to readers - I am not a lawyer.

In a brief internet prowl (was their life before it?), I found the hate legislation located here. The two sections that might pertain to the case are 318 and 319, so I will pull elements of these out. The lead paragraphs are mercifully short and easy to read, so it should not be too painful.

318. (1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

I think that it is likely safe to say that section 318 does not apply to the Ahenakew case - it would be a stretch for anyone to argue that he was promoting or advocating genocide. Certainly for that to be the case, we'd have to hear the entire interview and see if Ahenakew's defense, that he was using the statement to comment on treatment of native peoples, is true.

319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.

(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of...

Section 319 (empasis mine) is where I think both Ahenakew's and the Crown's case rest. He knew he was being interviewed, therefore section (2) applies for the Crown and his statements were unlikely to lead to further crimes, section (1) for the defense. However, the results of the first trial were thrown because the original judge did not take into sufficient consideration that Ahenakew was involved in a heated interview with the reporter and that they were made in anger, when presumably the "idiot filter" would be operating below specifications. Therefore, I presume the defense is arguing that he did not willfully promote hatred, which was largely the point of my previous post on the subject. (A post for which I'm receiving surprisingly little abuse - go Canada!)

As I said, I am not a lawyer, but even I know that you do not have to be found guilty of all laws in order to be found guilty of a crime, so having countervened 319(2) is enough to find in favour of the Crown's position.

Also, the legislation goes on to identify various Defenses under which it is acceptable to utter statements that otherwise would be considered hateful.

319. (3) No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious
text;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

This is the section of the legislation that attempts to make it legal to talk about racism and other touchy issues while at the same time making the active spreading of hatred against an identifiable group illegal. And it is in here that Ahenakew's lawyers will also have to work. I have not actually read the interview in it's entirety, I've seen his comments and his comments on his comments afterward, so it is hard to exactly pin down how the law will be applied here. That said, he has stated that his comments were a means to another end and therefore perhaps one of these clauses will be in effect.

So after my reading of the laws as written, the legal argument appears to come down to whether or not a person is responsible for what they say when angry, at least in cases in which intent is a critical issue. And by the use of the term willfull in section 319(2) it looks to me that intent is crucial. I believe, I choose to believe, I really, really want to believe, that readers of this blog are savvy enough to understand how intent is used here and in other crimes like murder and manslaughter and that I won't have to get into that kind of discussion.

Because, as I said, I'm not a lawyer.

I'm interested in hearing from anyone that wants to weigh in on this, especially, but not only, if you can lend any insight on the hate legislation.

Posted by kevvyd on Friday, June 09, 2006 at 12:50 PM | Permalink