Canada criminalized 'condoning, denying or downplaying' the Holocaust: is it working?

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Ottawa — Canadian Jewish organizations are calling on the Liberal government to remove what they see as barriers to enforcing a relatively new Criminal Code provision against Holocaust denialism amid a rise in antisemitism.

Shimon Koffler Fogel, CEO of the Centre for Israel and Jewish Affairs, said his organization had been asking the Liberals to criminalize Holocaust denialism, noting there are similar laws in France and Germany.

He said it was an important symbolic step for the government to take as a way to show that Canada says: "This is the red line."

The Liberal government included an amendment to the Criminal Code in the 2022 budget implementation bill to prohibit communicating a statement that "wilfully promotes antisemitism by condoning, denying or downplaying the Holocaust," except in private conversation.

More than six million Jews in Europe were systematically killed by Nazi Germany, as well its allies and collaborators, during the Holocaust from 1933 to 1945, with the Nazi regime also targeting other minority groups.

Canada's legal system had previously responded to Holocaust denialism through other means, such as in the high-profile case of Ernst Zundel. He was charged with the wilful dissemination of false news after publishing a pamphlet questioning the number of Jews killed in the Holocaust.

The Supreme Court overturned his conviction in a 1992 ruling that quashed the section of the Criminal Code regarding false news, on the grounds that it violated the Charter-protected right to freedom of expression.

More than a year after the new criminal offence against Holocaust denialism was created, The Canadian Press sought data from the federal government and several provinces to find out how often it has been used.

The federal Justice Department "is not aware of any charges or prosecutions" under the offence created for Holocaust denialism, a spokesperson said in a Nov. 9 statement.

British Columbia, Quebec, Manitoba and Alberta also all say they do not have records of any such charges, prosecutions or referrals from police regarding that offence. Ontario said it could not compile the data in time.

"It's disappointing," said Dan Panneton, a director at the Friends of Simon Wiesenthal Center, a human rights organization focused on Holocaust education and programs to combat antisemitism.

He sees it as part of a larger problem the Jewish community has with Canada's hate speech laws, which require the consent of a province's attorney general to lay of charge of either Holocaust denialism, or the broader promotion of hatred, which he says can be a lengthy process.

Chantalle Aubertin, a spokeswoman for federal Justice Minister Arif Virani, said in an emailed statement on Saturday that there are several provisions regarding hate in the Criminal Code, and that being motivated by hate can be considered an aggravating factor for any offence.

"Decisions regarding criminal investigations and prosecutions rest with independent law enforcement and prosecutorial authorities," she wrote.

Police, political leaders and members of the Jewish community have been decrying an alarming rise in antisemitism in Canada since the Oct. 7 attacks by Hamas militants, who killed more than 1,200 people in Israel, including hundreds of civilians, and took about 240 people hostage.

More than 11,500 Palestinians have since been killed in the resulting war, according to health authorities in the Hamas-controlled Gaza Strip, which has been under regular bombardment by Israeli airstrikes and had access to water, electricity and other supplies cut off by Israel.

Panneton says it is easy to find Holocaust denialism "in more extreme communities online," adding that "this underscores what he considers "largely a blind spot towards online hateful spaces with law enforcement."

One message that has been circulating online accuses Israel of fabricating some of the violence used by Hamas militants during the Oct. 7 attacks and then asks whether "they may have lied about certain details of a previous big genocide."

The message was posted last month on the Instagram account for "Toronto4Palestine," which describes itself online as a "dedicated community-based movement amplifying oppressed voices." The account, which has about 41,000 followers and has been promoting pro-Palestinian rallies, acknowledged receiving a direct message asking about the post but as of Sunday morning had not yet provided a response.

Fogel acknowledges there are challenges when it comes to applying the new law, which he believes could be solved by better training for police and prosecutors about what forms Holocaust denialism takes.

Fogel says Holocaust denialism can take the form of conspiracies about Jewish people controlling the world, to dismissing the crimes that happened and minimizing the historical record.

"It may not be motivated by the same, or even … extreme right-wing Holocaust denial," he said.

"But in the end, it still doesn't just minimize it, it sort of discards it to the margins as not something that merits considering or from which we can draw the moral lessons about how to conduct society."

Kenneth Grad is a lawyer and doctoral student at York University's Osgoode Hall Law School. His research focuses on hate speech laws, including the Zundel case. He said it is not surprising there appears to have been no charges laid under the new offence of criminalizing Holocaust denialism.

One possibility, he says, is that offence overlaps with the existing provision around the promotion of hatred, which could have been used instead.

But when it comes to evaluating how effective criminalizing Holocaust denialism has been, Grad says it depends on how it is measured.

Broadly speaking, he and other experts say securing convictions using hate speech laws is difficult because the Criminal Code allows for many defences, such as someone trying to establish an opinion based a belief from a religious text, or making statements regarding a topic in the public interest where someone says something they believe to be true.

The laws themselves were designed to be compliant with the Canadian Charter or Rights and Freedoms, which protects "freedom of thought, belief, opinion and expression."

Grad says it is hard to argue criminal hate speech laws are effective when looking at the relatively few prosecutions and convictions compared to other offences. But he said the prohibition against Holocaust denialism could be seen as effective when it comes to the symbolism it carries.

"Not just Jewish groups, but all minority groups may take solace, some comfort in the fact the government is signalling that this is unacceptable behaviour."

Kimberly Murray, the special interlocutor tasked with advising the federal government on unmarked burial sites of Indigenous children who died in residential schools, hopes the Liberals will also criminalize denialism of what happened at the church-run, government-funded institutions.

She called for such a measure in her interim report released in June

The report said that after Tk’emlúps te Secwépemc Nation announced in May 2021 that ground-penetrating radar had located what are believed to be the unmarked graves more than 200 children on the site of the former residential school in Kamloops, B.C., some people showed up with shovels, saying they wanted to "see for themselves" if children were buried there.

Murray says if Canada were to criminalize residential school denialism as it did for the Holocaust, any legislation should go hand in hand with a public education campaign.

"We can't just pass a law and then go away."

Grad suggests it is likely such a provision would run into the same challenges existing criminal laws have when it comes to seeing them as tools for "eradicating this type of speech."

Rather, he says, federal and provincial lawmakers could look to the Canadian Human Rights Act and reintroduce a section that targeted speech likely to expose people to hatred — including online — on the basis of their race, gender, religion or other prohibited ground of discrimination.

He said there is a lower burden of proof than criminal law and the proceedings focus more on the group that has been affected by such speech, not what the accused was thinking, Grad says.

Section 13 of the Canadian Human Rights Act was repealed in 2014 after years of widespread criticism that it violated rights to free speech. The Liberals reintroduced a narrower version in June 2021 in their bill meant to protect Canadians from online harms, but it died on the order paper when Parliament was dissolved for the federal election later that summer.

Virani is working on a new version of the promised online-harms legislation, Aubertin said in her statement, which will include strengthening both the Canadian Human Rights Act and the Criminal Code.

"There is a significant difference between respectful public debate, which is vital to democracy, and the hateful rhetoric that has amplified online, that can too easily turn into real world harms," she said.

Aubertin also said Virani and Public Safety Minister Dominic LeBlanc spoke with their provincial and territorial counterparts on Saturday about how they can work together to protect communities across the country from the "alarming rise in antisemitic and Islamophobic hate in recent weeks."

Grad suggested that provinces could allow civil lawsuits for group defamation as another potential remedy. He said Manitoba has allowed such lawsuits since the 1930s, but it is rarely used.

B'nai Brith Canada CEO Michael Mostyn said he wants to see police use the existing hate speech provisions before any new ones are introduced.

"What the Jewish community and every vulnerable community is looking for is for consequences when their rights are violated."

This report by The Canadian Press was first published Nov. 19, 2023.