Government bill on Holocaust denial ineffective and likely unconstitutional: civil liberties group
‘We don’t think that the criminal law is the way to approach it. We are talking about putting people in prison for things that they said’
May 19, 2022 •
OTTAWA – Civil liberties groups say a proposed law that would make Holocaust denial a criminal offence is likely unconstitutional and unlikely to be effective in dealing with anti-Semitism.
The Liberals have included a proposed change to the criminal law in their budget that would make “condoning, denying or downplaying the Holocaust,” a criminal offence.
Cara Zwibel, director of the fundamental freedoms program at the Canadian Civil Liberties Association, said the bill is more about politics than actually addressing anti-Semitism.
“We are opposed to this, but that’s not because we don’t think Holocaust denial is egregious and terrible and it’s not because we don’t think it’s harmful. It’s because we don’t think that the criminal law is the way to approach it,” she said. “We are talking about putting people in prison for things that they said.”
Zwibel said as popular as the idea might be politically, it is likely to have unintended consequences.
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She points to the case of notorious holocaust denier Ernst Zündel who was charged with wilfully promoting hatred, an existing piece of criminal law. She said he used his trial to argue his hateful views in a public forum.
“He used his trial to basically make an argument that the Holocaust didn’t happen and it was debated in a Canadian courtroom,” she said. We risk giving a very significant platform to these people that are engaged in this kind of hate
Since Canada currently has a provision of the criminal code that prohibits “wilfully promoting hatred,” Zwibel said it’s unclear why another provision is needed. She said the bill also focuses on one particular genocide and leaves out the many others that sadly exist in history.
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“We’re singling out a particular historical genocide and tragedy and protecting it with the criminal law in a way that we’re not doing for others,” she said, adding groups are inevitably going to ask why a similar law doesn’t apply to the Rwandan genocide or even Canada’s residential schools.
She said fighting racism and anti-Semitism is important, but simply criminalizing it doesn’t do that and risks becomes more about political theatre than actual progress.
“If you look at other countries that have Holocaust denial laws, including Germany, big shocker, they still have anti-Semites. They still have problems with racism and anti-Semitism, so this is not an effective way to tackle the problem.”
The new criminal code offence was included in the budget bill, but a near identical piece of legislation was also moving through the House of Commons as a private members’ bill, which was introduced by Conservative MP Kevin Waugh in February.
The budget bill is currently working through the House of Commons. It also includes funding for education programs around racism and anti-Semitism, as well as $20 million toward a Holocaust museum in Montreal
Friends of Simon Wiesenthal Center President and CEO Michael Levitt said the new criminal code provision is needed as anti-Semitism is on the rise.
“As Canada and the world continue to witness a rise in anti-Semitism and Holocaust ignorance and trivialization, now more than ever we expect our government leaders to support efforts to combat Jew-hatred, particularly through Holocaust education,” he said in a statement released last month. “Once passed, this funding and amended Criminal Code will have a lasting positive impact in the Jewish community and the fight against anti-Semitism.”
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David Taylor, a spokesperson for Justice Minister David Lametti, said they believe it is time Canada had a law like this.
“Our government takes the fight against anti-Semitism and all hate crimes very seriously. No Jewish Canadian should be subjected to racism and hateful rhetoric that has no place in our country,” he said.
Taylor said they’re confident the bill will stand up to any judicial scrutiny.
“Freedom of expression is a fundamental freedom protected under the Charter. Like all rights and freedoms, it is not absolute and may be subject to reasonable limits under the Charter,” he said.
“This Bill was reviewed for consistency with the Charter. It is our government’s position that the offence is consistent with the Charter, and this proposed new offence mirrors existing hate crime provisions.”