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The Ahenakew affair: a bad law, an opportunity missed
By Marjaleena Repo
The David Ahenakew Affair, after five years in the courts, has sprung back with full force after the Federation of Saskatchewan Indian Nations (FSIN) voted to reinstate him as one its senators. The media have reacted with vehement disapproval as have Jewish organizations. The provincial and federal governments – the latter long overdue in its own apology and restitution to Aboriginal people for a variety of oppressive policies over the last century – are in high dudgeon, threatening censure and sanctions against the FSIN. (Mr. Ahenakew, with the storm gathering, declined the offer of reinstatement.)
Mr. Ahenakew’s brutish comments were made at an emergency meeting December 12, 2002, in Saskatoon, organized to oppose yet another detrimental policy imposed on First Nations people. He was angry and agitated – reportedly to the point of being incoherent in his speech – but his most offensive remarks came after the speech, in an encounter with a reporter (described by the reporter as an interview and by Ahenakew as an aggressive ambush). The reporter taped Ahenakew blaming the Jews for creating World War II and calling them “a disease.”
Five days later Ahenakew, in a press conference, apologized profusely for his offensive and hurtful language, stating that his comments were made in anger and frustration over the plight of native people in Canada, but that this did not excuse them. He asked to reach out to the Jewish community.
This was the moment when history could have been made, by a new level of communication and trust-building between Ahenakew, his own constituency whom he had hurt and the Jewish community, victim of his ignorant and deeply offensive comments.
If Jewish organizations had accepted the apology, one can imagine only positive outcomes: a deeper understanding of how wrong his words were and what the actual experience of German Jews was, from their relentless ostracism to the final solution in concentration camps.
With David Ahenakew leading, prepared to be a changed man, his own people, from young to old, could have entered a rich experience of empathetic learning with many connections to their own suffering under brutal colonial rule. A sign of forgiveness (and compassion) about one man’s human failing would have brought Jews and Aboriginals together, in the spirit of good will, resulting in deepening connections and new friendships. Both peoples, Aboriginals and Jews, have a history of resilience and survival, and when given a chance are capable of transcending and recovering from the worst of circumstances, as well as forgiving those who have hurt them and genuinely repent it.
TThis opportunity for transformation and restorative justice by building on the strengths of the people involved was missed when the Jewish leadership rejected, out of hand, Ahenakews apology. It wasnt good enough. They wanted more…
Canadas highly problematic anti-hate law, Section 319 of the Criminal Code, was invoked. Ahenakew was charged with inciting hatred and cornered, forced to try to defend himself against criminal charges. With apology and amends rejected, the case proceeded to a conviction in 2005 overturned on appeal June 2006 on the grounds that a crucial element, willfulness, was missing as the remarks were made in confrontation with a reporter rather than before an audience. Saskatchewan is retrying Ahenakew.
The 40-year-old anti-hate law was flawed from the beginning because it pursues thought-crimes: dissenting opinions, prejudices, stupidity and ignorance among them. One of the first charged were young Canadian nationalists in Toronto, demonstrating against a Shriners parade with a Yankee Go Home! leaflet, supposedly hateful towards all Americans!
Age has not improved this unnecessary law. It now has its offspring in human rights commissions, where a couple of well-known journalists of the right, Ezra Levant and Mark Steyn, have lately had to defend themselves against charges of encouraging hatred in their writings. But, significantly, in their case, they are being defended to the hilt by editorials and columnists across the country, on the grounds of freedom of expression, no matter how distasteful and wrong their opinions are to people whose beliefs and ethnicity they offend.
The explanation might be that Levant and Steyn are attacking an increasingly marginalized group of Canadians – Muslims and Arabs. David Ahenakew, on the other hand, part of a powerless and long-suffering group of original Canadians, having offended a powerful ethnic and religious group, has no such support for his right to be ignorant and wrong, and ends up sharing his guilt with all Aboriginals, to boot. (Contrast this with MP Tom Lukiwski who, having grossly attacked homosexuals, was upon his mea culpa instantaneously forgiven by the Conservative government.)
[youtube]http://www.youtube.com/watch?v=TwumZ5I6vkM[/youtube]
(We’re still looking for it on campaign literature).
Offensive ideas and concepts, of course, need to and will be challenged, and expressing them will have consequences. But these consequences ought to be social and political allowing for apologies and regrets not criminal, with catastrophic consequences for those caught by a law, which to quote Charles Dickens, is a (sic) ass.
(April 6, 08)
Marjaleena Repo is a freelance writer who lives in Saskatoon. She can be reached at mrepo@sasktel.net
Updates
We made some further edits with the piece over some sections we found problematic.
This article has since been published in the Prairie Messenger and the Prince Albert Daily Herald.
Reproduced with the permission of the author. Emphasis in bold, commentary in italics and links added, and some material removed.
Disclaimer: Views expressed in this post are the views of the author, and not of this site. We have presented this piece to try and provide different perspectives on the issue.
The author is a senior advisor to David Orchard and former Progressive Conservative Party Vice-president for Saskatchewan.
A Fantastic Copyright Finally Paying Big
The largest copyright infringement payment in Korea was recently passed down.
A Korean music company, Fantom Entertainment Group, has been ordered by Judge Gu Hoe-geun the Seoul Central District Court to pay 300 Million Korean Won for copyright infringement of Square Enix’s Final Fantasy VII.
The material in question is a video of Korean singer Ivy that parodies a fight in the video game, which is arguably one of the most popular in the word, with 75 million copies sold since 1987.
[youtube]http://www.youtube.com/watch?v=r6m01X8Qzkw[/youtube]
Counsel for Square Enix, Yasuhiko Hasegawa, stated in a realease on Mar. 14, 2008,
We have been consistent in outhis lawsuit regarding the value of FINAL FANTASY VII ADVENT CHILDREN and our FINAL FANTASY series, as well as the damages the company has suffered as a result of the modification and adaptation made without obtaining permission.
Following the conviction handed down by the Seoul Central District Court on December 6, 2007 with regards to the copyright infringement perpetrated by Fantom, a director of Fantom, and Mr. Hong Jeong-ho, we appreciate that the deliberate maliciousness of this act has been recognized in a public forum.
In addition, the amount of damages awarded us in this case is the largest the courts in South Korea have ever awarded in cases infringing one single work of art, and we also appreciate that the severity of the damage caused to the company by this infringement has been acknowledged.
Square Enix will continue to take decisive action against any infringements upon the Company’s intellectual property, recognizing that this property is one of our most crucial resources.
Square Enix claim the scene in question used without the company’s consent is a fight between Tifa and Loz in a church chapel. The similarities are uncanny.
[youtube]http://www.youtube.com/watch?v=AY0OF5z4QGw[/youtube]
The director and producer of the music video were each fined as well. Their only defence was that they wanted to obtain Square Enix’s permission, but couldn’t find their contact information.
We found it in 0.56 seconds here. They even have a regional contact:
Square Enix, Inc.
999 N. Sepulveda Blvd., 3rd Floor
El Segundo, CA 90245
support@square-enix-usa.com
(310) 846-0345
Perhaps basic search engine skills should be mandatory trainging for movie production.
Got Summaries?
Exam time treat.
Here are some resources our team has collected:
Manitoba Law Students Association
Osgoode Hall (Legal and Literary Society)
UBC (UBC Law Society)
UofM (Courtesy Ed Chan)
University of Ottawa (Common Law Student Society)
Misc.
TwistLaw (McGill/International)
Melanie’s Law Notes (UofM?)
Adam Letourneau of Law, Eh? Canadian Law School (need to contact him)
Dead or Inactive Links
UBC (appears dead)
UofC (appears dead)
Queen’s (appears dead)
If you know of any other online summary banks, please let us know and we can add it to the list. Some students have told us that their schools, like UofC, have databases available to their students only.
And of course with enough content over time this site will also be an online, living, flexible, and collaborative summary.
LSUC Seeking Consultation on Articling Reforms
 We previously mentioned some of the articling reforms under consideration in Ontario.
The Law Society of Upper Canada (LSUC) is holding a townhall meeting on the articling requirements of the licensing process.
Details below.
Scientific Ecumentalism
Chris Blattman, an Assistant Professor of Political Science & Economics at Yale University, and a Visiting Fellow at the Center for Global Development, has an interesting post on some of his recent work in West Africa:
You know experimental program evaluation has become a craze when even the Imams want it.
Today we sat down with an inter-faith network of Liberian religious leaders to talk about their peace building plans. They are a truly inspiring organization, building local capacity to resolve conflicts, and training mediators to resolve disputes in the community. The countryside is, to some extent, a powder keg, and they are building local early warning systems and rapid response capability to potentially serious conflicts.
Moreover, to reduce tensions in conflict-prone places, these religious leaders–principally Muslims and Christians–do not just aspire to a new social contract, they sit down with ethnic and religious leaders in each village and coax them to actually write one, specifying norms and sanctions.
And they want to know if it’s working.
I hum and haw about comparison groups, going through my impact evaluation 101 schpiel. I have serious concerns that one would or could develop a control group, let alone randomize, for such a program. So I dance delicately around the subject.
“Wait a minute,” interrupts the Imam, “Are you talking about a randomized control trial?”
I gape.
“Oh I see!” says one Reverend Minister, “We need a control group! This is a good idea.”
It turns out his holiness was once an agronomist. “This is just like our control plots for fertilizer. But how are we going to control for spillover effects?”
An older Methodist leader frowns sitting in the corner glowers. “Please, a moment,” he says. “I see a real problem here.”
Here it comes. Here is the doubt and questioning I expected. We’re talking about a peace building exercise, not fertilizer on a farm plot. Even I have my reservations. This man, of an older generation, clearly has other priorities.
“How,” he asks “are we going to select a proper sample?”
Canada could probably learn a thing or two on how to reduce similar tensions here.
h/t Siris
Osgoode Launches Online Journal
Free online law journals is something we all want in the blawgosphere.
Well, Osgoode Hall is delivering with its new Osgoode Hall Review of Law and Policy.
As a Canadian student-edited publication with student articles, it’s something we’re going to keep our eye on at Law is Cool.
h/t Simon Fodden at Slaw
Not Cool to Segregate Gay Dead
That’s what a cemetary in Copenhagen is proposing.
They’ve set aside a specific area of the cemetary for gay people, based on requests of a gay advocacy group called Regnbuen (Rainbow).
Matt Guerrin disagrees.
Read the rest here.
ON Human Rights Commission Condemns Islamophobia
Although the OHRC decided not to hear the complaint against Maclean’s, they have issued a strong condemnation of Islamophobia in the media.
The Human Rights Code in Ontario covers:
(1) goods, services and facilities
(2) housing accommodation
(3) employment
(4) contracts
(5) membership in unions, trade and vocational associations
But the statement issued by the OHRC also said,
The different approaches in various human rights statutes across Canada can send a confusing message and give rise to inconsistencies, depending on where a complaint is filed. For example, it is possible to initiate complaints about a magazine article in more than one province and, if the article appears on the internet, with the Canadian Human Rights Commission. It is also unclear what matters trigger the application of the hate law provisions of the Criminal Code.
Clearly more debate on this issue is required in Canada. A comprehensive approach to the issue should be one of the goals. The discussion should be about how narrowly or broadly society places limits on freedom of expression in order to protect the human rights of its vulnerable members.
This statement explains why the complaint was also filed in B.C., where the Code is different and does provide jurisdiction (which Steyn has been puzzled over, despite supposed access to counsel, and the information clearly stated on our site).
In calling a “broader mandate,” the OHRC may also seek to address these issues by expanding its power in the future.
It also demonstrates that the issue of free speech is not a clear cut as some would have us think, especially on issues such as this, and needs greater dialogue and scrutiny.
The Commission’s statement said that this complaint has raised some very important issues that would not otherwise be raised. This call for reform, with the hopeful editorial modifications observed recently by Maclean’s, indicate a high degree of success from the complaint.
We have tried to provide some exchange on this site, and hope that more members of the general public investigate the issue further.
Despite declining to hear the issue, the Commission issued a strong condemnation of Maclean’s,
The Commission is concerned that since the September 2001 attacks, Islamophobic attitudes are becoming more prevalent in society and Muslims are increasingly the target of intolerance, including an unwillingness to consider accommodating some of their religious beliefs and practices.
Unfortunately, the Macleanâs article, and others like it, are examples of this. By portraying Muslims as all sharing the same negative characteristics, including being a threat to âthe Westâ, this explicit expression of Islamophobia further perpetuates and promotes prejudice towards Muslims and others. An extreme illustration of this is a âblogâ discussion concerning the article that was brought to the attention of the Commission which, among many things, called for the mass killing, deportation or conversion of Muslim Canadians.
The Commission strongly condemns the targeting of Muslims, Arabs, South Asians and indeed any racialized community by the media as being inconsistent with the values enshrined in the Code. The impact on a community both in terms of the intolerant messages being conveyed and the knowledge that society is willing to accept their dissemination is profound. The United Nations Special Rapporteur on Racism has confirmed the role of the media in contributing to a sharp increase in Islamophobia and its acceptance as normal in âthe Westâ. Further, the Commissionâs 2003 report Paying the Price: The Human Cost of Racial Profiling illustrates the social cost of stereotyping to individuals, families, communities and Ontarians as a whole.
(empahsis added)
Wounder of Rivers Seeks Refuge in Canada
Rabbi Elior Chen fled Israel to hide in Canada.
Not because he was being persecuted in his country of origin, as so many others do, nor was he claiming to flee a war-torn area.
Chen came to Canada to avoid criminal prosecution.
Israel issued an arrest warrant for him in connection to charges of beating children as young as three with hammers and knives to discipline them.
Yes, hammers and knives. As expected, at least one of the children has suffered permanent brain damage and is in a coma.
Yediot Aharonot newspaper also detailed how children were tied up and force fed a concoction of alcohol, salt, pepper and turpentine until they vomited.
Chen explained to one mother,
You see, they vomit the Satan inside them.
Chen is the spiritual mentor of a group called Pitzuei HaNachal, or wounded of the river, alleged to systematically beat children. They refer to him as “His Honour the King of the Messiah.”
Members of the group were arrested in 2005 in connection with a plot to fire a missile at the Temple Mount, in opposition to the withdrawal of Israeli troops from the Gaza Strip. Chen was involved in advising the group on how to obtain funds to purchase the armaments, and said he would put them in touch with Israeli Defense Forces (IDF) that would train them.
He’s not getting any support from the Jewish community in Canada, who have publicly called for him to turn himself in. Chief Ashkenazi Rabbi Yona Metzger in Israel has made similar statements.
But what’s most interesting is the reason why authorities think he is here. Chen apparently believed that Canada had tight extradition laws that would protect him, despite his alleged infliction of cruel and unusual punishment on others.
Sarah Boyd of Osgoode Hall corrects this erroneous impression,
Um, no. That’d be a big no. We only deport to death penalty in exceptional cases, since Burns & Raffay.
The court stated in
Factors for and against extradition without assurances must be balanced under s. 7. The objectives sought to be advanced by extradition without assurances would be as well served by extradition with assurances. There is no convincing argument that exposure of the respondents to death in prison by execution advances Canada’s public interest in a way that the alternative, eventual death in prison by natural causes, would not. Other abolitionist countries do not, in general, extradite without assurances.
The factors they cited include:
- the death penalty has been rejected in Canada, as capital punishment is considered cruel and usual punishment and is irreversible
- advocating for the abolition of the death penalty internationally is a major Canadian initiative
- the Extradition Act (1999) allows refusal of surrender of certain individuals, which include the death penalty,
When Minister may refuse to make order
44. (2) The Minister may refuse to make a surrender order if the Minister is satisfied that the conduct in respect of which the request for extradition is made is punishable by death under the laws that apply to the extradition partner. - A concern over wrongful convictions since Kindler and Ng demonstrate that despite safeguards for the protection of the innocent, mistakes can be made, even by legal systems similar to our own
- death row produces lengthy delays, which cause psychological trauma, even to the innocent waiting to be vindicated
Apparently nobody told Chen about Maher Arar.
Despite all of the above, we do sometimes extradite our own citizens (or assist in doing so) to jurisdictions where the death penalty is used, even when they are innocent. We’re even the only Western nation failing to intervene on behalf of our citizens in places like Gitmo.
Canada is probably the worst place to come to.
Sorry, no refuge here.
Open Discussion with Michael Geist
The CBC is hosting a live open discussion with Dr. Michael Geist, law professor at the University of Ottawa and author of the Michael Geist blog.
An example of some of the issues raised include:
- Are you legally responsible for the comments on your website?
- What about defamation and libel on the net?
- What are the laws and who is affected?
Answers will be provided in a CBC podcast airing tomorrow.
Write in now to get your questions answered by one of the foremost experts in the field.
Updates
Check out Michael Geist’s article in The Star yesterday, detailing the flaws with the proposed do-not-call list,
W hen Canada’s do-not-call list becomes operational later this year, many Canadians may be surprised to learn that some of the country’s most active telemarketing organizations enjoy “exempt” status under the law. As a result of an aggressive lobbying effort when the law was being debated in 2005, political parties, survey companies, charities, newspapers, and any business with a prior relationship is permitted to call Canadians at least once, even if they have registered their number on the do-not-call list.
In response, Geist created the iOptOut site, which will send e-mails on your behalf requesting your name be removed from active marketing lists.
Thanks to Cameron Hutchinson of the UofA Faculty Blog for the heads up.
Curry Bomb Newest Weapon Against Terrorists
The ‘War on Terror’ has a new arsenal in it’s fight – a curry bomb.
India developed an 81mm grenade filled with pepper and phosphorus, intended to bring its target to their knees.
But based on historic use of basic pepper spray in Canada, we don’t think anyone here is going to be rallying for the curry upgrade any time soon.
[youtube]http://www.youtube.com/watch?v=JPzNvSnhFbI[/youtube]
UofM Videos
A late addition (uploaded recently), but better late than never.
Coffee House 2008 – Robson High
[youtube]http://www.youtube.com/watch?v=P1nGM64J5Oo[/youtube]
It’s true, law school is like freakin’ high school,
 You have these extremely highly intelligent people who revert to some sort of immature stage of their life to get some sort of relief.
Thanks to Sam for the heads up.
