Canadian Jewish organizations are calling on the Liberal government to remove what they see as obstacles to the application of a relatively new provision of the Criminal Code against Holocaust denial, amid rising anti-Semitism.
Shimon Koffler Fogel, CEO of the Center for Israel and Jewish Affairs, said his organization had asked liberals to criminalize Holocaust denial, pointing out that there are similar laws in France and Germany.
He said it was an important symbolic step the government needed to take to show Canada was saying, “This is the red line.”
The Liberal government included an amendment to the Criminal Code in the 2022 budget implementation bill to prohibit the communication of a statement that “deliberately promotes anti-Semitism by tolerating, denying or minimizing the Holocaust,” except in a private conversation.
More than six million Jews in Europe were systematically killed by Nazi Germany, as well as its allies and collaborators, during the Holocaust from 1933 to 1945, with the Nazi regime also targeting other minority groups.
The Canadian legal system had already responded to Holocaust denial in other ways, such as in the high-profile case of Ernst Zundel. He was accused of deliberately spreading 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 striking down the fake news section of the Criminal Code on the grounds that it violated the Charter right to freedom of expression.
More than a year after the new criminal offense against Holocaust denial was created, The Canadian Press requested data from the federal government and several provinces to find out how often it was used.
The federal Justice Department “is not aware of any charges or prosecutions” under the Holocaust denial offense, a spokesperson said in a Nov. 9 statement.
British Columbia, Quebec, Manitoba and Alberta also state that they have no record of any such charges, prosecutions or police referrals regarding this offense. Ontario said it could not compile the data in time.
“It’s disappointing,” said Dan Panneton, director of the Friends of Simon Wiesenthal Center, a human rights organization focused on Holocaust education and programs to combat anti-Semitism.
He sees this as part of a larger problem facing the Jewish community with Canada’s hate speech laws, which require the consent of a province’s attorney general to lay charges either for Holocaust denial or for broader promotion of hatred, which he says can be a problem. long process.
Chantalle Aubertin, spokesperson for Federal Justice Minister Arif Virani, said in an emailed statement on Saturday that there are several provisions regarding hatred in the Criminal Code and that being motivated by hatred can be considered an aggravating circumstance for any offense.
“Decisions regarding criminal investigations and prosecutions are made by independent law enforcement and prosecutorial authorities,” she wrote.
Police, political leaders and members of the Jewish community have denounced an alarming rise in anti-Semitism in Canada since the October 7 attacks by Hamas militants, which killed more than 1,200 people in Israel, including hundreds of civilians, and took around 240 people hostage. .
Since then, more than 11,500 Palestinians have been killed in the ensuing war, according to health authorities in the Hamas-controlled Gaza Strip, which is regularly bombarded by Israeli airstrikes and whose access to water, Electricity and other supplies have been cut off by Israel.
Panneton says it’s easy to find Holocaust denial “in the most extremist online communities,” adding that “this highlights what he sees as “largely a blind spot toward online hate spaces.” with the police.”
A message circulating online accuses Israel of fabricating some of the violence used by Hamas militants in the October 7 attacks and then questions whether they could have lied about some details of a major genocide previous.
The message was posted last month on the Instagram account of “Toronto4Palestine,” which describes itself online as a “dedicated community movement amplifying oppressed voices.” The account, which has about 41,000 followers and promotes pro-Palestinian rallies, acknowledged receiving a direct message asking questions about the post, but as of Sunday morning had not yet provided a response.
Fogel acknowledges there are challenges when it comes to enforcing the new law, which he says could be addressed by better training of police and prosecutors on the forms Holocaust denial takes .
Fogel asserts that Holocaust denial can take the form of conspiracies aimed at controlling the world by Jewish people, dismissing the crimes committed, and minimizing the historical record.
“It may not be motivated by the same thing, or even by far-right Holocaust denial,” he said.
“But ultimately it doesn’t just downplay it, it sort of dismisses it to the margins as something that’s not worth considering or that we can learn moral lessons from about how to lead society.”
Kenneth Grad is a lawyer and doctoral student at Osgoode Hall Law School at York University. His research focuses on hate speech laws, including the Zundel affair. He added that it was not surprising that no charges had been laid under the new offense of criminalizing Holocaust denial.
One possibility, he says, is that the offense overlaps with the existing incitement to hatred provision, which could have been used instead.
But when it comes to assessing the effectiveness of criminalizing Holocaust denial, Grad says it depends on how it’s measured.
Generally speaking, he and other experts say it is difficult to obtain convictions using hate speech laws because the Criminal Code allows for many defenses, such as one that attempts to establish an opinion based on a belief from a religious text or making statements on a subject in public. interest when someone says something they believe to be true.
The laws themselves were designed to be consistent with the Canadian Charter of Rights and Freedoms, which protects “freedom of thought, belief, opinion and expression.”
Grad says it’s hard to argue that criminal hate speech laws are effective when you consider the relatively low number of prosecutions and convictions compared to other offenses. But he said banning Holocaust denial could be seen as effective in terms of the symbolism it carries.
“Not just Jewish groups, but all minority groups can take comfort that the government is signaling that this is unacceptable behavior.”
Kimberly Murray, the special interlocutor tasked with advising the federal government on unmarked burial sites of Indigenous children who died at residential schools, hopes the Liberals will also criminalize denial of what happened at state-run institutions. Church and government funded.
She called for such a measure in her interim report published in June
The report states that after the Tk’emlúps te Secwépemc Nation announced in May 2021 that ground-penetrating radar had located what are believed to be the unmarked graves of more than 200 children at the site of the former residential school in Kamloops, British Columbia, 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 denial as it did the Holocaust, any legislation would have to go hand in hand with a public education campaign.
“We can’t just pass a law and then walk away.”
Grad suggests that it is likely that such a provision would face the same challenges as existing criminal laws when it comes to viewing them as tools to “eradicate this type of speech.”
According to him, federal and provincial legislators could instead take inspiration from the Canadian Human Rights Act and reintroduce a section targeting speech likely to expose people to hatred – including online – on the basis of their race, gender, religion or any other prohibited grounds of discrimination. .
He said the burden of proof was lower than in criminal law and the procedure focused more on the group that was affected by such comments, not what the accused thought, Grad said.
Section 13 of the Canadian Human Rights Act was repealed in 2014 after years of widespread criticism that it violated the right to free speech. The Liberals reintroduced a narrower version in June 2021 in their bill intended to protect Canadians from online harm, 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 promised online harms legislation, Aubertin said in his statement, which will include strengthening 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 and can too easily turn into real-world harm,” 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 hatred anti-Semitic and Islamophobic in recent weeks.”
Grad suggested provinces could allow civil suits for class defamation as another potential remedy. He said Manitoba has allowed such prosecutions since the 1930s, but it is rarely used.
Michael Mostyn, CEO of B’nai Brith Canada, said he wants police to use existing hate speech provisions before new ones are introduced.
“What the Jewish community and every vulnerable community is looking for are consequences when their rights are violated.”
This report by The Canadian Press was first published November 19, 2023.