The unpredictability of hate laws

It is bizarre and confusing that David Ahenakew was just quietly found not guilty of hate speech. If his venomous ravings weren't hate speech, what is? And how is anyone meant to understand our laws or court system now?

In case you missed it, a provincial court just let him off, following a 2005 conviction and successful appeal, because his, although his statements "about Jewish people were revolting, disgusting and untrue," he lacked the intent to spread hate -- and you need to have intent for the remarks to be criminal. Now this is foolishness because, as Lorne Gunter wrote in the National Post, Ahenakew repeatedly spewed filth in public settings, even after a theatrical apology, including during his first trial.

I trust you remember the gist of his original 2002 outburst. For one hesitates to repeat his various revolting statements, even when they are well known and even though there now seems to be no legal jeopardy in making them enthusiastically, let alone quoting them critically.

Actually I take that last bit back. Our courts are by now in the habit of delivering astounding judgments and I can well imagine them convicting someone, especially a white person, for saying precisely what David Ahenakew said about any minority except, possibly, Jews. I just don't understand why the legal system does what it does.

The authorities seem equally lost. The Crown prosecutor in the case says he hasn't yet decided whether to appeal the acquittal, but either way "The fact that these comments were noted to be disgusting, untrue and revolting -- that's why these cases must be prosecuted." Which is compound foolishness, implying as it does first that it is the job of the state rather than citizens to blow raspberries at jerks and, second, that it is not the job of the state to create clear rules only against what it considers significant acts of force and fraud, and then enforce those rules firmly, consistently and impartially.

Ahenakew clearly is a jerk. His response to the verdict was "Thank God it's over" but "I'm still that same guy. I'm too damn old to change." So he's not merely unrepentant, he can't even stop swearing in public.

Yet part of me wants to support this verdict, because I am opposed to hate speech laws. Now, now, don't go moving away from me there on the bench. I'm not defending the content of offensive speech.

Rather, I am very close to a free speech absolutist because, as I've said before, John Stuart Mill nailed it in On Liberty. Free speech helps truth defeat error, first because a heretical opinion may turn out to be correct, and second because when a remark is both offensive and wrong, its open expression leads to vigorous criticism and denunciation. Moreover, hateful speech is the rattle not the fangs and usefully warns us that the latter are present.

For instance, news stories at the time of his original outburst made it clear that David Ahenakew's associates knew about his views of Jews, and other minorities. Yet they continued to accord him respect and position. Everybody, of every race, needs to be aware of the long years of bigoted mistreatment of aboriginals in Canada. But we also all need to recognize the sometimes unpleasant and unreasonable forms the resulting resentment has taken. And we should all be able to discuss and debate these things without worrying that someone might go to jail for speaking frankly, even if they are both bitter and wrong.

So I wonder where the defenders of hate speech laws stand on this verdict. Do they, like me, suspect that it is an isolated case, and that if one were to suggest the extermination of six million ... No. I can't. A concern for decency and my legal situation alike forbid me to suggest in print, even to illustrate a judicial hypothetical, that some other group deserved to be dealt with as Mr. Ahenakew praised Hitler for treating Jews.

The same concern for decency requires me to ask pointedly, "Is it just Jews?" and "Did he get off because he's not white?" If so, I defy anyone to justify it. But if not, I presume we're going to get rid of our hate speech laws and Star Chamber tribunals persecuting Mark Steyn and Maclean's, Ezra Levant, and sundry Christian eccentrics and loudmouths. Instead we'll just let people argue and, if they choose, disgrace themselves by the arguments they put forward.

Won't we? Or is it now a coin flip whether spewing race hatred gets you a jail sentence? Indeed, if Mr. Ahenakew were tried again would he be convicted? Can anyone say with any confidence what the rules are, or why?

Surely that's an astounding state of affairs, incompatible even with order, let alone good government.

[First published in the Ottawa Citizen]

ColumnsJohn Robson