The Saskatchewan Court of Appeal has ordered a new trial for former aboriginal leader David Ahenakew, who had a hate-crimes conviction quashed by a lower court.

The Crown will have to decide whether to proceed with a new trial, stay the charges or appeal this latest decision to the Supreme Court of Canada.

In its 3-0 decision released Monday, the appeal court said while Ahenakew's 2002 remarks about Jews were "shocking, brutal and hurtful," the trial judge didn't consider all the relevant evidence as to whether he wilfully promote hatred against them.

Ahenakew, the now-74-year-old former national chief of the Assembly of First Nations, called Jews "a disease" in a December 2002 interview with a newspaper reporter.

Prior to that, during a sometimes-rambling speech to the Federation of Saskatchewan Indian Nations, he had said that Germans had told him the following while serving in Canada's army there in 1957: "But that blessing is being destroyed by the, by your immigrants that are going over there. Especially the Jews, they say, you know. The Second World War was created by the Jews ..."

When approached by the reporter, Ahenakew said, among other things, that: "The Jews own damn near owned all of Germany. Prior to the war. That, that's how Hitler came in, that he was gonna make damn sure that the Jews didn't take over Germany or Europe. That's why he fried six million of those guys, you know."

The interview was characterized as argumentative.

A provincial court judge found Ahenakew guilty of wilfully promoting hatred and imposed a $1,000 fine.

Ahenakew appealed that decision, and a Court of Queen's Bench judge overturned the conviction and ordered a new trial.

"He did so on the basis that the trial judge had failed to consider relevant evidence when determining whether Mr. Ahenakew had the intent necessary for a finding of guilt," the appeal court judgment said.

For example, Ahenakew's remarks were an isolated event made in the heat of the moment, it said.

During his testimony, Ahenakew said he would have never made the remarks had he known they would be broadcast and called the Holocaust a "destructive event."

He also testified that he was a diabetic on medication who had drank some wine before his speech and interview.

The judgment said that proving someone wilfully promoted hatred is a tough legal test for the Crown.

The Supreme Court of Canada ruled in the case of Jim Keegstra, an Alberta teacher who taught Holocaust denial, that a person had to be shown to want to promote hatred.

Similarly, "promote" must be interpreted as meaning active support or instigation, the ruling said.

Neither Ahenakew nor anyone in his home community of Ahtahkakoop First Nation commented on the appeal court's decision. But his lawyer says it's clear what it means about people who use strong words.

"We can criticize them -- but let's not criminalize them," he said. "It's not a good idea to prosecute people when they make a verbal outburst on one occasion -- whether it's to a reporter, a lawyer, a policeman or anyone else."

Reaction

Meanwhile, Jewish human rights group are not happy with the decision, saying minorities need to be protected.

Bernie Farber of the Canadian Jewish Congress told CTV.ca that his group would like to see this case appealed to the Supreme Court of Canada.

"Clearly, what the Saskatchewan Court of Appeal based its decision on is the issue of the wilfulness," he said.

"Wilfulness is an extremely important part of the anti-hate laws. We believe this really does require a reference to the Supreme Court of Canada if only to ensure the issue of wilfulness is best explained through this case."

However, that decision rests with the Saskatchewan Crown, he said.

Saskatchewan Justice hasn't reacted yet to the decision.

Farber said there is one silver lining in the Ahenakew case.

"This six years of dealing with Ahenakew has interestingly brought the Jewish and First Nations communities much closer together," he said.

"They've learned more about us, and we've learned more about them. And so the despicable words of a man like David Ahenakew actually, in the long run, helped bring us together."

Ahenakew was stripped of his Order of Canada, something the Governor General's office has said is permanent.

While the FSIN removed from Ahenakew from all his positions, including the one of senator, there is are signs he might be welcomed back.

He recently sat on a treaty-related task force. The FSIN has asked its senate whether an individual could be reinstated under existing policy.

With a report from CTV Saskatoon's Mark Rogstad