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BTL 2022

Feds’ proposal on Holocaust denial a very bad idea

Upcoming changes to the Criminal Code could have ominous implications for freedom of speech

Canadian PoliticsHuman Rights

The gated entrance of the Sachsenhausen Nazi death camp with the phrase ‘Arbeit macht frei’ (work sets you free) in Oranienburg, Germany. Photo by Thamara Salvagni.

The federal government has just introduced an initiative to make “condoning, denying or downplaying the Holocaust” a criminal offence. This is a very bad idea.

On April 8, Minister of Finance and Deputy Prime Minister Chrystia Freeland announced the measure in the 2022 Budget. Despite its seemingly anodyne appearance⁠—after all, who but vicious antisemites would defend Holocaust denial⁠—this is an exceedingly problematic measure that threatens freedom of speech and will do little or nothing to combat antisemitism. In fact, it has very little to do with antisemitism at all.

And what about the fact that federal Liberals, sworn to oppose everything Stephen Harperish, borrowed from Harper’s wicked playbook by tucking it away in the budget? Even the NDP, which one hopes would raise principled objections, may be bound by its pact with the Liberals to support the bill.

Don’t we already have anti-hate provisions in our Criminal Code? Yes, we do. Section 319 (1) says it’s a criminal offence to communicate statements in any public forum, that incite hatred against any identifiable group where such incitement is likely to lead to a breach of the peace, or to communicate statements (except in a private conversation) that willfully promote hatred against any identifiable group. Moreover, Section 718.2 allows judges to use evidence that an offence was motivated by bias, prejudice or hate as an aggravating circumstance in sentencing considerations. To further encourage caution, prosecution cannot proceed unless specifically approved by the attorney general of the jurisdiction.

That seems to cover the issue of fomenting hatred against Jews, doesn’t it? Well, obviously not, as far as the Liberal government and the institutional organizations who support the stratagem are concerned.

But before we explore what might be motivating this seemingly unnecessary scheme, let’s consider who is likely to fall afoul of it.

Denying that the Holocaust ever happened or that the historically verified numbers are vastly exaggerated is despicable. But if it is meant to bring hatred upon Jews, that is covered in the already-existing Criminal Code provisions. And non-criminal sanctions exist in all human rights laws. What worries me, a Jewish civil rights activist whose father was a survivor of Auschwitz, and should worry you as well, is that many of the offenders who might be picked up in a sweep under the proposed Holocaust legislation may harbour no ill-feelings at all toward Jews nor intend any harm to Jews. Indeed, it is entirely likely that these transgressors are very favourably disposed toward Jews.

Consider the following scenarios.

Judith, a history professor specializing in genocide, teaches a class in which she compares and analyzes mass murders throughout history. The Holocaust is featured prominently. Judith never question that six million Jews died over five years during the Second World War. But she uses metrics to compare the Holocaust to other infamous mass homicides. The Rwandan genocide that lasted a mere 100 days, she suggests, could be as horrific as the Holocaust because a commensurate number were killed per day. Black slavery in the Americas, she proposes, went on for 400 years and arguably killed as many people. She refers to the claim by some Ukrainian nationalists that six million died in the Holodomor, a man-made famine that took place in the 1930s. Judith bears no malice toward Jews. But some of her students complain about her teaching and she is accused under the new law of “downplaying” the Holocaust because she is perceived as diminishing the singularity of the Nazi genocide of the Jews.

George is a pro-life activist who carries signs and publishes propaganda that insists on using the term Holocaust to describe abortion which, he claims, has slaughtered more millions of human beings than the Nazis did. The comparison may be crude, ill-advised and offensive. But George, like the majority of pro-life advocates is an evangelical Christian who is very friendly to Jews as a people and Israel as a country. Yet George is accused under the new law of “downplaying” the Holocaust because of his mis-appropriation of the term “Holocaust.”

How about Elaine, an anti-vaxx, anti-mask protester who wears a yellow Star of David at rallies to illustrate how badly she and her confederates have been treated by public health mandates? The analogy with Jews forced to wear yellow stars is inappropriate and insulting, especially to survivors who had to wear the stars. However, Elaine bears no ill will toward Jews and is shocked to learn that some Jews are distressed by her actions. She feels strongly that her symbol shows the unfairness of the authorities and where we are headed as a society. But a Holocaust survivor swears out a complaint against her with the police.

Dov, a Jew and a campaigner against the ill-treatment of Palestinians by the Israelis, claims to be motivated by concern for Jews and Israel. He maintains that Israel’s “Nation State Law” of 2018 has many parallels to the Nuremberg Race Laws declared by Hitler’s Nazis in 1935, from the disenfranchising of one religious or ethnic group to allowing the exclusion of Arabs by Jewish municipalities. He quotes Israeli newspaper columnist Gideon Levy to the effect that Israel’s claims to be a democracy are bogus. An Israel lobby organization argues the comparison of the Israeli regime and the Nazi regime demeans the Holocaust and demands that Dov be criminally charged.

Rebecca, an academic, writes an article suggesting that the word “Holocaust” should be replaced with the Hebrew word “Shoah.” A newspaper publishes a distorted and misleading claim that she had called for the Holocaust to be no longer “privileged.” Rebecca’s goal was actually to emphasize the uniqueness of the genocide of the Jewish people, not to detract from it. Nevertheless, she is roundly denounced for antisemitism and a criminal charge is a possibility.

All of these are hypothetical examples, except the last, which actually happened in the United Kingdom in 2017. And then there’s the case of Germany (where Holocaust denial is a criminal offence), which barred entry to noted Cameroonian anti-colonial professor Achille Mbembe in 2020 because he “relativized” the Holocaust by comparing Israeli policy to that of apartheid South Africa. They make the earlier examples even more believable. Like the International Holocaust Remembrance Alliance Working Definition of Antisemitism (IHRA-WDA), once the new legislation is adopted there is a risk that it will be weaponized and used quite promiscuously. Who knows: the author of the article you are reading right here might well be charged under the proposed legislation.

Should we be charging the people above with a criminal offence? Should they face two years in jail? Is this how we are going to deal with opinions that may be found offensive, inappropriate, or with which we strongly disagree?

You should be able to see right away how dangerous this new gambit is. Even if it passes the Charter test of “demonstrably justified in a free and democratic society” is this how we should be dealing with the legitimate concern that memory of the Holocaust not expire with its survivors, that its horrific nature be remembered? And even for the marginal fringe that engages in outright denial of the Holocaust, is incarceration going to be a deterrent?

As journalist Robyn Urback suggests in the April 15 edition of the Globe and Mail, the legislation may even promote antisemitism by privileging Jewish persecution above that of other equity-seeking groups.

One very worrying thing is the way the proposed legislation migrates away from the question of harm to a much easier place. Under existing Criminal Code provisions, prosecutors need to prove palpable harm to an identifiable group. The announcement of the proposed new law, however, does not mention the necessity of proving harm.

The proof hurdle of the new legislation appears not to be actual harm done, but rather whether or not the action condones, denies or downplays the Holocaust. Baked into the proposal is the idea that diminishing the Nazi genocide of the Jews from its solitary and lofty perch atop all other forms of human cruelty automatically foments hatred against the Jews. Even for outright denial of the Holocaust, contemptible as it is, criminalization may not be a suitable remedy. But certainly for anything less than outright denial, the proposed law is overkill.

So why, if civil libertarians are denouncing it, if it is so impractical, if the Criminal Code already penalizes expression of hatred, are Canadian parliamentarians probably going to make it law?

If one single man can be assumed to be at the centre of this overkill, it is Irwin Cotler. A former federal justice minister and retired international law professor, Cotler lives part of his life in Israel and is an avid defender of that country’s policies and activities. In 2020, Justin Trudeau appointed him Special Envoy on Preserving Holocaust Remembrance and Combatting Antisemitism. As such, he has been responsible for touting the controversial IHRA-WDA—which counts harsh criticism of Israel as Jew-hatred⁠—and for last summer’s exclusive National Summit on Antisemitism. After a January 2022 speech on antisemitism at the University of Toronto’s medical school, 45 faculty members signed a letter accusing him of “anti-Palestinian racism.” Among his many claims, Cotler told viewers of the UofT webinar that calling Israel an apartheid state is an example of contemporary antisemitism.

But even though Cotler embodies the project to privilege antisemitism above other forms of oppression and defend Israel, this is bigger than one person.

Let me propose a plausible motivation for the new legislative initiative. It’s not really so much about antisemitism but rather mostly about Israel. It’s about Canada’s desperate attempt to protect that country against the growing chorus of condemnation of its treatment of the Palestinians and demands to end the illegal occupation of Palestinian territories and accompanying outrages. Referencing the International Convention on the Suppression and Punishment of the Crime of Apartheid and the Rome Statute of the International Criminal Court, four important international forums have in the past year denounced Israel as an “apartheid” regime. The premiere Israeli human rights organization B’Tselem, Human Rights Watch, Amnesty International and the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, have all argued that Israel is committing the crime of apartheid.

An alternative explanation is that the feds see their Holocaust denial move as a relatively uncontroversial sop to the defenders of Israel after Canadian academics complained loudly and bitterly about the IHRA-WDA’s threat to academic freedom, making that initiative a political hot potato.

What does criminalization of Holocaust denial have to do with defence of Israel? Canada and Canadians have an understandable sense of historical guilt over our country’s behaviour toward the Jews during the Holocaust. From the infamous words of Frederick Blair, immigration honcho in William Lyon Mackenzie King’s government, “None is too many,” to that government’s refusal to allow the Jewish refugees fleeing Nazi Germany on the ship MS Saint Louis to disembark, only to perish in the death camps, Canada acted shamefully. One way of appearing to expiate that guilt is the “virtue signalling” around current antisemitism. Jewish pro-Israel organizations like the Centre for Israel and Jewish Affairs, B’nai Brith and Friends of the Simon Wiesenthal Centre and the millions of Canadian Christian Zionists have made uncritical support of Israel part of the price of that expiation. Our common horror at the Holocaust is a convenient stick with which to beat support of Israel into us.

But two wrongs do not make a right. Supporting Israel’s current dispossession and oppression of its Palestinian population will not help cleanse the shame of our inaction toward the Jews more than three quarters of a century ago. And mortally crippling freedom of speech will not bring back the dead millions.

Larry Haiven is professor emeritus at Saint Mary’s University and a member of Independent Jewish Voices Canada.

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