Former First Nations leader David Ahenakew knew he was talking to a reporter when he made hateful comments about Jews and could have stopped answering questions at any time had he not intended to promote his views, Saskatchewan's top court heard Thursday.
Ahenakew instead chose to engage the reporter, calling Jews a "disease" and justifying the Holocaust, Crown prosecutor Dean Sinclair told the three-judge Appeal Court panel in Regina.
"The respondent was advocating," Sinclair said. "You don't have to answer questions that you don't want to answer."
Ahenakew, now 73, was convicted in provincial court of wilfully promoting hatredand fined $1,000 for his comments to a Saskatoon StarPhoenix reporter in December 2002.
Court heard how Ahenakew made his comments after delivering a 45-minute, profanity-laced speech in which he blamed Jews for the Second World War.
Chief Justice Robert Laing of Court of Queen's Bench overturned Ahenakew's conviction last summer and ordered a new trial. He ruled the trial judge did not properly assess whether Ahenakew had the requisite intent to be convicted of a hate crime.
Laing pointed out the reporter approached Ahenakew for an interview and that his hateful remarks were made spontaneously in response to questions.
Laing also noted that during the interview, Ahenakew told the reporter, "I'm not going to argue with you about the Jews," and when the reporter phoned him afterward to clarify the remarks, Ahenakew hung up.
Sinclair argued that none of that makes any difference under the law and Ahenakew knew his comments would be reported. He's arguing the conviction should not be overturned.
"The relationship of the parties makes this anything other than a private conversation," he argued.
B'nai Brith, which has been granted intervener status at the appeal, argued that Ahenakew's intent was apparent by the vicious words he used.
"You have to look at the words that are spoken, especially the content," argued lawyer Steven Slimovitch, who added the Laing ruling raises the bar for a conviction under Canada's hate laws too high.
"You don't need a greater intent. You don't need repetition."
Ahenakew was in the courtroom but declined to speak about the case.
Following arguments from lawyers, the court reserved its decision.
Among the options open to the courtis todecide a new trial is still appropriate or to reinstate the original conviction.
Outside court, there wassome verbal sparring between Ahenakew's supporters and representives from B'nai Brith.
"This is not justice …what a waste of time and money," Ahenakew said.
After the original verdict,Ahenakew was stripped of his Order of Canada. The Governor General's office has said he won't get it back because his actions "brought disrepute to the order."