Dancing on the pin of his head

The last time I weighed in on this David Ahenakew business, I cleverly asked why, if it were justified to prosecute him for his offensive comments about Jews, the media should not also be prosecuted for repeating them. After all, if it is the business of the law to prohibit statements that promote hatred against an identifiable group, what does it matter who says them?

Well, smartypants, now you have your answer. As Chief Justice Robert Laing of the Saskatchewan Court of Queen’s Bench has just ruled, it’s because we didn’t mean it. Actually, what he really said was: neither did Mr. Ahenakew. Or at any rate, the Crown failed to prove that he did, and the trial judge failed to take that into account in finding him guilty.

When the disgraced former native leader said, in December 2002, that Jews were a “disease,” when he blamed Jews for the Second World War, when he said that’s why Hitler “fried” them, when he praised the death camps as a way to “clean up the world” of Jews, because otherwise “Jews would have owned the goddamned world,” he did not intend to promote hatred against them. Good heavens, no. The comments, rather, were made “spontaneously,” in response to questions from a journalist. Or, as Mr. Ahanekew himself said in a tearful public apology some days later, he got “caught up in the heat of the moment.”

Now, granted, the law does not ban the promotion of hatred in general, but only those statements that do so “wilfully.” But how do we know? How do you know whether someone means what he says, or for what purpose he says it? Chief Justice Laing suggests such factors as tone of voice should be considered. Is that really the law’s domain: analyzing vocal inflections?

And what if the defendant swears he never meant anything by it? Mr. Ahenakew even broke down crying -- on national TV, no less -- though he later said he had “nothing to repent for.” According to his lawyer, the apology should have “weighed heavily” in his favour at trial. The Crown has a ready answer to that: when he said he didn’t mean it, he didn’t really mean it. The apology, said the Crown prosecutor at the trial, was “clearly and obviously contrived.”

This is law at the level of marital spat: “I don’t want you to do the dishes,” sighs the Jennifer Aniston character in the new movie The Breakup. “I want you to want to do the dishes.” What on earth is the law doing sifting through the innermost thoughts of a deranged septuagenarian? How can we possibly know at any given moment whether he is sincerely apologetic, or sincerely hate-filled for that matter? I doubt even he knows half the time.

More to the point, who cares? If the object is to prevent hateful sentiments from being spread about, surely it is of no consequence whether the speaker means what he says or not -- any more than the identity of the speaker. All that should matter, if hatred is the issue, is whether hatred is in fact promoted.

But that would require the production of evidence to the effect that somewhere, someone was roused to hatred by Mr. Ahenakew’s ramblings (and not by the media’s endless repetition of them -- the chief consequence of putting him on trial). Alas, there is no such evidence -- not a shred of it. Indeed, it is exceedingly unlikely that one could ever prove such a proposition. Ordinarily, that would advise strongly against prosecution. Only in the politically charged field of “hate speech” is the impossibility of proof considered a trifling objection.

As absurd, in other words, as it is to suggest that Mr. Ahenakew did not intend his remarks justifying the murder of six million Jews to be hateful, the greater absurdity is the law itself -- a law that requires the courts to divine, not only whether a statement promotes hatred, but whether it does so deliberately. Intent is relevant in other areas of the law, for example in assessing whether the accused had the requisite “guilty mind” to commit a crime. But in this case, it seems that intent is the crime: the law is not interested in showing actual harm, only the intent of it. In which case we are not even prosecuting a man for the words that come out of his mouth, but the thoughts that inhabit his head.

Intent is an inherently murky business. Let’s take another recent case. When the Globe and Mail’s Christie Blatchford pointed out that all of the suspects in the recent terrorism arrest were Muslim, was this, as the Toronto Star’s Antonia Zerbisias claimed, “tantamount to hate speech”? Or was she stating a fact?

Or if I say that Antonia Zerbisias is a blithering idiot, am I engaging in deliberate overstatement for comic effect? Or am I making a clinical diagnosis?