R. v. Ahenakew (D.), (2008) 307 Sask.R. 220 (CA)

• Judge: Lane, Richards and Smith, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 21, 2007
• Jurisdiction: Saskatchewan
• Citations: (2008), 307 Sask.R. 220 (CA);2008 SKCA 4

R. v. Ahenakew (D.) (2008), 307 Sask.R. 220 (CA);

      417 W.A.C. 220

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. JA.009

Her Majesty the Queen (appellant) v. David Ahenakew (respondent) and The League for Human Rights of B'nai Brith Canada (intervenor)

(No. 1223; 2008 SKCA 4)

Indexed As: R. v. Ahenakew (D.)

Saskatchewan Court of Appeal

Lane, Richards and Smith, JJ.A.

January 14, 2008.

Summary:

The accused spoke at a conference sponsored by the Federation of Saskatchewan Indian Nations. Comments made by the accused during his speech and in a subsequent interview with a reporter gave rise to a charge against him for wilfully promoting hatred against people of the Jewish faith, contrary to s. 319(2) of the Criminal Code.

The Saskatchewan Provincial Court, in a decision reported at 267 Sask.R. 124, found the accused guilty. The court was not convinced that statements made during the accused's speech were intended to foster hatred against Jews. However, the court found the accused guilty of the charge based on the statements he made during the subsequent interview with the reporter. The accused appealed.

The Saskatchewan Court of Queen's Bench, in a decision reported at 281 Sask.R. 47, allowed the appeal, set aside the conviction and ordered a new trial. The Crown appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Criminal Law - Topic 7662

Summary conviction proceedings - Appeals - Grounds - Failure to consider evidence - The trial judge found the accused guilty of a charge of wilfully promoting hatred against people of the Jewish faith, contrary to s. 319(2) of the Criminal Code, based on statements that he made during an interview with a reporter - The accused appealed - The summary conviction appeal judge allowed the appeal and ordered a new trial - The appeal judge held that the trial judge's failure to consider evidence relevant to the defence position that the accused did not intend to wilfully promote hatred was an error in law that required the setting aside of the judgment - The Crown appealed - The Crown argued that the appeal judge wrongly assumed that the trial judge was under a duty to provide reasons for decision which laid out the theory of the defence and the evidence bearing on that defence - The Saskatchewan Court of Appeal dismissed the appeal - The court did not accept the Crown's characterization of the appeal judge's decision - The appeal judge did not find the quality of the trial judge's reasons, in and of itself, to be the basis for overturning the conviction - Rather, he found that the reasons disclosed a substantive error of law in the form of a failure to consider relevant evidence - The court saw no mistake in the appeal judge's conclusion.

Cases Noticed:

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 12].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 2005 SCC 40, refd to. [para. 21].

R. v. Buzzanga and Durocher (1979), 25 O.R.(2d) 705 (C.A.), refd to. [para. 23].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 26].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1; 2002 SCC 27, refd to. [para. 28].

R. v. MacDonald, [1977] 2 S.C.R. 665; 9 N.R. 271, refd to. [para. 30].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255; 133 D.L.R.(3d) 546; 65 C.C.C.(2d) 193, refd to. [para. 31].

R. v. R.M.G., [1996] 3 S.C.R. 362; 202 N.R. 1; 81 B.C.A.C. 81; 132 W.A.C. 81; 110 C.C.C.(3d) 26, refd to. [para. 33].

Counsel:

W. Dean Sinclair, for the appellant;

Douglas H. Christie, for the respondent;

Steven G. Slimovitch, for the intervenor.

This appeal was heard on June 21, 2007, before Lane, Richards and Smith, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Richards, J.A., on January 14, 2008.