THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, May 18, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 12:02 p.m. [ET] to study the subject matter of those elements contained in Divisions 1, 21 and 22 of Part 5 of Bill C-19, An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures.
Senator Mobina S. B. Jaffer (Chair) in the chair.
[English]
The Chair: I am Senator Mobina Jaffer, from British Columbia, and I have the pleasure of chairing the committee. Today we are conducting a hybrid meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
[Translation]
If you run into any technical difficulties, especially with the interpretation, please let me or the clerk know, and we will do our best to get the problem resolved.
I’d like to take a moment to introduce the committee members participating in today’s meeting. We have Senator Boisvenu, our deputy chair, Senator Batters, Senator Campbell, Senator Clement, Senator Cotter, Senator Dalphond, Senator Dupuis, Senator Klyne, Senator Pate, Senator White and Senator Wetston.
[English]
Honourable senators, today we will go back to our previous ways. Please signal to the clerk or raise your hand on Zoom if you have a question.
As you know, senators, today we begin our study of Divisions 1, 21 and 22 of Part 5 of the Budget Implementation Act. Today we will be focused on Division 21.
We are happy to welcome, for our first panel today, Sam Goldstein, Director, Legal Affairs, B’nai Brith Canada; Shimon Fogel, Chief Executive Officer, Centre for Israel and Jewish Affairs; and Bernie Farber, Chair, Canadian Anti-Hate Network.
I will ask Mr. Goldstein to start. You have five minutes to present, Mr. Goldstein.
Sam Goldstein, Director, Legal Affairs, B’nai Brith Canada: Thank you, chair and honourable senators. We are very honoured to be able to give submissions today: on behalf of B’nai Brith Canada, or BBC, on Bill C-19.
B’nai Brith Canada’s comments are directed solely at the proposed amendment to section 319 of the Criminal Code, creating a new offence of wilful promotion of antisemitism. The need for this offence is evinced by Statistics Canada’s own studies on hatred toward the Jewish community and B’Nai Brith’s 2011 audit of antisemitism. Antisemitism may take many forms, but, as this legislation recognizes, Holocaust denial and distortion is still a go-to staple for antisemites. It is with a heavy heart that BBC thanks Parliament for this unfortunate and useful legislation.
We do, however, have two suggestions for you to consider in this legislation. The first is to eliminate the defences of religious belief and truth. The second suggestion is to change the wording of the operational section of the new offence by substituting the word “distortion” for the word “downplaying.”
Let me address first the defence of religious belief. The objection to a defence based on religious belief is simple: Religious belief is not a defence to the commission of other offences in the Criminal Code. If it were, it would make the Criminal Code unworkable. The same is true for this offence. Moreover, a concern is that a religious defence opens the door to Holocaust denial and distortion coming from the Iranian regime of Mullahs. Various components of that regime have been actively involved in denying the Holocaust and the distortion of the Holocaust, including the Islamic Revolutionary Guard and the terrorist entity known as Hamas. Indeed, Iran sponsored a conference on Holocaust denial and distortion in 2016 and releases a statement denying the Holocaust each year that coincides with Holocaust Memorial Day.
Now I turn to why the defence of truth should be removed. The answer is simple: Do not take away with one hand what you are giving with the other. Do not allow a potential prosecution of wilful promotion of antisemitism to become another circus like the Zundel trial in 1988. The Jewish community still remembers Zundel’s defence counsel Doug Christie suggesting to an Auschwitz survivor that the concentration camps had swimming pools. The Holocaust should not have to be put on trial again as a historical fact, and that’s exactly what would happen by allowing the defence of truth.
Indeed, the Senate may not know that not only is it an indisputable fact that the Holocaust happened, but it is a fact that Canadian law already recognizes, because the court, in the retrial of Zundel in 1988, took judicial notice of the existence of the Holocaust. Creating a truth defence would actually be stepping backwards in time. You would be going against the already-recognized common-law precedent of the recognition of the Holocaust.
Lastly, B’Nai Brith Canada suggests that the word “distortion” replace “downplaying.” We think that the word “distortion” brings more precision to the offence.
The International Holocaust Remembrance Alliance, the IHRA, defines Holocaust distortion as the:
Intentional efforts to excuse or minimize the impact of the Holocaust or its principal elements, including collaborators and allies of Nazi Germany;
The IHRA also points out that “distortion” would equate with “Gross minimization of the number of the victims of the Holocaust in contradiction to reliable sources.” Three more points to the IHRA definition of “distortion” are: “Attempts to blame the Jews for causing their own genocide;” “Statements that cast the Holocaust as a positive historical event,” such as a statement that suggests that the Holocaust did not go far enough in carrying out its goal to “the Final Solution”; and lastly, the IHRA defines “distortion” as any attempt to blur the responsibility for the establishment of concentration and death camps devised and operated by Nazi Germany by putting blame on other nations or ethnic groups.
In conclusion, BBC wants to see this legislation succeed, and we think that amending the legislation to eliminate the truth and religious defences and change the word “downplaying” to “distortion” would certainly help it do that. Thank you very much.
The Chair: Thank you very much.
We are also joined by Senator Lucie Moncion, the sponsor of the bill. Welcome.
Shimon Fogel, Chief Executive Officer, Centre for Israel and Jewish Affairs: Thank you, honourable senators, for inviting the participation of the Centre for Israel and Jewish Affairs in this important discussion.
The introduction of legislation criminalizing Holocaust denial represents the result of years of effort on the part of the Jewish community to secure recognition of and a constructive response to the unique and toxic impact of Holocaust denial on Canadian society. This effort reached its culmination at last summer’s unprecedented emergency summit on antisemitism convened by the Government of Canada under the chairmanship of Canada’s special envoy for Holocaust remembrance, the Honourable Irwin Cotler, where it served as one of the key recommendations the Centre for Israel and Jewish Affairs, or CIJA, presented to the government.
Hate and intolerance are increasing at a frightening and disturbing rate. Hate directed against Jews, who constitute only 1% of the Canadian population, represents 62% of all police-reported hate crimes targeting religious minorities. All Canadians must be alarmed by these StatCan figures for both particular and general reasons.
On the particular level, Holocaust denial effectively tries to erase the lived Jewish experience, dismissing as a grand hoax the murder of 6 million people, the destruction of one third of the global Jewish population. On the general level, Holocaust denial represents the quintessential conspiracy theory. It’s the foundation upon which the entire architecture of hate directed against all vulnerable groups is constructed. Numerous studies in North America and Europe have found that Holocaust denial and hatred directed against Jews serve as the most powerful predictor of radicalization and the violence that inevitably flows from toxic ideology and hateful rhetoric.
The poisonous replacement theory, which served as the perverse rationale for the murderous rampage in Buffalo just days ago, is predicated on the idea that the Jews are the authors of a grand conspiracy, one that has its roots in the fabricated narrative of the Holocaust. It’s the genesis of the conspiracy that is playing out today in Buffalo, in Christchurch and in Pittsburgh.
It is the central and unique place of Holocaust denial in the broader hate factories that merits special consideration. If you cut out the root, you cut out the virus. The imperative cannot be ignored. Violent speech leads to violent action, hate speech leads to hate-inspired action, and people die as a result.
We must therefore deploy our entire arsenal to combat this growing cancer. That toolbox includes, to be sure, educational initiatives, engagement at the community level and, where appropriate, reconciliation with past transgressions, but it must also extend to legal remedies, which ultimately are a reflection of the principles that define us.
I recognize that the concept of free speech is a cherished principle of an open and democratic society, but it has never been the case that all speech is protected speech. There is a direct path from the demonization of the Jewish people, and that is exactly what Holocaust denial represents, to the targeting of the Jewish people, and as it has often been observed, what starts with the Jews never ends with the Jews. Everyone has a vested interest in silencing the obscenity of Holocaust denial and explicitly signalling that it represents a red line Canadian society is not willing to cross.
I’ll leave my comments there for now, and invite any questions later on in the discussion.
The Chair: Thank you very much, Mr. Fogel.
Bernie Farber, Chair, Canadian Anti-Hate Network: Thank you, honourable senators, for inviting me here today. I’m actually sorry I have to be here today. I wish we wouldn’t have to be discussing this.
Conspiracy theories spread by the far right and White supremacists, such as Holocaust denial and, as we saw this past weekend in Buffalo, the so-called great replacement theory, continue to be the number one deadly threats to Jews in Canada and in North America. In 2018, 11 people were murdered at the Tree of Life Synagogue in Pittsburgh. The White supremacist Robert Bowers believed in the great replacement or White genocide theory. What did he believe? He believed that Jews were trying to replace White people by bringing in immigrants. That same conspiracy inspired the Buffalo mass murder targeting the Black community in Buffalo just this last weekend.
Our far-right movement has and embraces antisemitic elements, especially the more extreme elements inside it. It spreads that antisemitism within the COVID conspiracy movement, as we have sadly seen over the last two years. That has very much become the vehicle of conspiracy, and Jews, as always, and Holocaust minimization and distortion are in the centre of it, as always. Pat King was one of the organizers of the Ottawa occupation. He is a Holocaust distorter, a Holocaust minimizer. So is Chris Sky, who is another prominent figure in the COVID conspiracy movement. So is Jeremy McKenzie, the de facto leader of the Diagolon movement, a neo-Nazi organization. His supporters were charged with conspiracy to commit murder and caught with a cache of guns near the border crossing into Coutts, Alberta. These are the people, my friends, we are dealing with all the time. Antisemitism, conspiracy, Holocaust minimization and distortion and Holocaust denial go hand in hand with far-right conspiracy and mass murders.
Our courts consider 11 hallmarks of hate when determining if a piece of material is hate propaganda. Holocaust denial is one of those hallmarks of hate. They claim that the messages trivialize or celebrate past persecution or tragedy involving members of a targeted group. That’s the definition. In Warman v. Kulbashian, the respondents made riddles and jokes about the Holocaust. The Canadian Human Rights Tribunal found that these riddles and jokes made cruel light of the genocide of Jews in Nazi death camps. The effect was to dehumanize members of the targeted group and set a tone of denigration that would allow hatred and contempt to flourish, and that is to say Holocaust denial and minimization are already considered hallmarks of hate and contribute to whether a court would find a person guilty of the willful promotion of hatred towards that group, in this case, the Jews.
Is the issue the law itself? Well, in my view, we have to have enough law so that police are prepared to deal with it head on. Right now, it is sad to say that police do not deal with it head on. We need to look at passing new law, which we support, but the bigger issue is that law enforcement doesn’t enforce the hate crime law that already exists on the books. It’s not an issue of resources. Dr. Barbara Perry, probably one of the most famous of the researchers on hate in this country, did a study and interviewed officers in Ontario and found that the issue was cultural. Many police officers were, in fact, reluctant to press those kinds of charges.
We need to look at whether we need to have a section like section 13 of the Canadian Human Rights Act back into play. It lets citizens access the legal system to complain when people are promoting hatred, have a trial or a hearing, and the Human Rights Tribunal could order a cease and desist with the power of a court order. In this case, this is essential.
Thank you very much.
The Chair: Thank you very much.
I have a question for all three of you. The Government of Canada has announced various initiatives to consult Canadians in order to better address antisemitism, online hatred and other issues. In your view, is the Government of Canada pursuing the right approach with these initiatives? Most importantly, are they providing resources to raise awareness that this is now going to become illegal and also for enforcement? Mr. Farber said that enforcement means getting the police more aware that they have to enforce, but also resources have to be given to the police.
Mr. Goldstein: Thank you for that, chair.
My friend Mr. Farber has a good point about the prosecution of a hate crime, but keep in mind that the Criminal Code requires — 319 is the section he’s referring to — the permission or discretion of the AG. In fact, I believe in my written submissions we have noticed that there are more hate crime allegations than prosecutions.
In Ontario, I know the unit that deals with hate crimes. They are a group of very good Crowns. The Ontario Government has developed good policies, and they do their best to prosecute it. While I respect what Mr. Farber is saying, I think we do try to do a good job in Ontario. I have the greatest respect for the Crowns in who are in charge there. Some are my friends. I started off as a Crown attorney.
The real issue to solve the problem that Mr. Farber is talking about, however, is the B’nai Brith suggestion to give more precision to the definition and what we would suggest is a distortion of rather than downplaying. The reason is another issue Mr. Farber is alluding to. Once the Attorney General makes a decision not to engage in a prosecution, we can’t judicially review that. The courts have said we don’t want to have judicial review of the Attorney General’s discretion because then we may be adjudicating on the substantive issue of the trial. But if we give more precision to the offence itself, then the Attorney General would have more precision and understanding of what he or she should be prosecuting on, and therefore, that Attorney General would be more accountable to the public because the precision and the language would be there. So that’s one issue.
The second issue in terms of the antisemitism — and the government is doing a good job, to answer your question. Mr. Farber, no offence to you. I’m not trying to pick on you at all. Mr. Farber, like the government, wants to focus on the ethno-nationalist antisemitism, which is important. It exists and certainly by and large this Criminal Code amendment goes to that. However, there is also the progressive, radical, humanitarian left antisemitism, which is dealing with Holocaust distortion and minimization. In order to really get at antisemitism, we both have to look at the radical left and the radical right. Thank you.
Senator White: Thanks to the witnesses.
These are interesting comments in relation to the investigation and prosecution because Canada and Australia have similar statistics in that we have thousands of complaints and really very few charges and prosecutions. However, if we look to the U.S. where the FBI takes a much larger role in investigating hate crimes, so the federal police agency takes a much larger role, I would argue that, either directly or indirectly, the crimes end up being heard at some point in a court, even sometimes after criminal charges are already dealt with, as we have seen in particular in a number of cases where police officers were charged themselves with hate crimes. Would you recommend that there be a responsibility of the RCMP to oversee hate crime investigations, if not even, pardon the pun, take up arms in relation to the actual investigation to the laying of charges and prosecutions? Would that be a helpful move?
Mr. Farber: My view is all police services in this country should be involved in the investigation of hate crimes. Now, that said, I go back to what Sam is saying. I have been around the corner on this for well over three decades, and I remember a time back in the 1990s and even the early 2000s when various urban police services from Ottawa, Toronto, Calgary, Regina and Vancouver had actual anti-hate units. I’m not talking about a couple of officers who are geared from intelligence to look at hate crimes, look at Antisemitism and make recommendations. Like a homicide squad or like a bikes and gangs squad, there needs to be trained officers whose sole purpose it is to investigate hate crime, period, full stop. We have lost that. It doesn’t matter to me, quite honestly, if it’s done within the OPP, with the RCMP or local police services. I think all of them do the job that needs to be done, and they would certainly do it if they had the correct training and understanding of what is absolutely necessary.
Secondly, I kind of agree with Sam. I understand the necessity for having the permission of the provincial Attorney General to go forward. If you take a look at what happened even recently in Ottawa with the convoy, the Crown in Ottawa was very focused on exactly how to prosecute these kinds of crimes, but then we have situations like James Sears, who was basically a neo-Nazi publisher of a newspaper in Toronto. From the time that the Canadian Jewish community actually laid complaints, which dated back to almost 2011, to the time that he was found guilty and spent time in jail for spreading hatred against women and Jews, it took almost 10 years to go through the courts. It is way too long. We have to find a way to streamline this. We have to find a way to do it properly. We have to make sure that we have trained personnel both within the court system and within our police services system.
Senator White: One of the challenges, Mr. Farber, is that we have 198 police agencies in Canada. I have worked in three of them — two large municipal, Durham Region and Ottawa, as well as the RCMP. It’s easy enough to actually identify those specialized resources in Ottawa, and in fact, we had specially trained officers in Ottawa; and to be fair, we had a number of investigations that we conducted. The challenge you have, though, is in a lot of places where these occurrences are happening, they are very small agencies where, realistically, even getting the training is difficult, let alone the expertise. You can be trained all you want, but if you’re not doing the investigations, it’s very difficult to maintain that level of expertise.
I guess I’m always back to having a federal police agency, and the reason it is responsible for national security threats, as an example. Would you have an issue with the fact that there is an agency responsible? They may still actually only be in support of Calgary Police Service as they are conducting the investigation, but I think it would add a granular level of oversight and even challenge function when they decide not to lay a charge, for example. They could maybe push that envelope, like the FBI does, very much a “coming home” moment for a number of these agencies that fail to follow what the legislation states in the U.S.
Mr. Farber: Senator, let me be clear. I would have absolutely no problem with that. I would encourage it. As a matter of fact, I worked closely as a consultant both to the RCMP and to CSIS on matters of hate crimes. You and I have worked together on matters of hate crimes. Ottawa had probably one of the quintessential hate crime units in the country. But I take your point that when you have places in northern Alberta and places in New Brunswick where you have one or two or three officers, it’s pretty hard to get that kind of training, so this is where provincial police services and national police services can certainly play an important hand. The idea of actually overseeing some of the more onerous hate crimes has a lot of heft to it and I like it.
Senator White: Thank you very much to the witnesses.
Senator Klyne: My question is for the chair of the Canadian Anti-Hate Network, Mr. Farber, but I invite anybody else to join in if they care to. There is no doubt that there are growing concerns with the number of radically racially motivated attacks on Canada’s Jewish population, and I have three questions around this.
One, I would be interested in hearing your definition of the bright red line between tolerable freedom of expression and hate speech. I don’t think it’s a blurred one. There is probably a point where it crosses over that bright red line. I would like to hear that.
As StatCan has noted, hate crimes against the Jewish population in Canada rose in 2020. That’s very sobering news. Could you tell this committee why you think these sorts of crimes seem to be on the rise, not just in Canada but around the world, as I’m pretty certain that North America doesn’t have the market cornered on hate crimes. I’m wondering if you have any views on other countries that are making progressive movement on these things and could serve as a model in terms of what they are doing right, what they have been actively doing to address other measures and what else they are preparing to do in the future. I’m speaking to this compared to what this legislation is trying to do.
Finally, do you think what it is doing, left as is, is this new legislation being proposed enough to push back against those who commit these acts or mitigate those committing the acts?
Mr. Farber: Senator, we could have a one-week seminar on those three questions.
Senator Klyne: Just three little questions.
Mr. Farber: Yes. And possibly not get them all answered.
Let me take the first one on the definition of “hate.” We’re not talking about something that is simply intolerable or offensive. Sadly, Canadians are allowed to be intolerable, stupid and offensive, and there is no law against it. Chief Justice Brian Dickson in the Keegstra case actually identified exactly what was meant by the legal definition of “hatred.” I urge you and the other senators to make that part of your assessment as you go forward. I believe it was Justice Rothstein a few years later in the Whatcott case where there was developed what was known as the 11 hallmarks of hate. Here in Canada we have some very specific understandings and definitions of “hatred,” and it is really what the police and others use to assess and go forward.
In relation to what has stimulated and moved hatred forward, I don’t think it is a deeply kept secret. Social media is where it’s at today, and it was nowhere yesterday. It allows haters to access the public in numbers that we have never seen before. Shimon Fogel and others will remember that in the good old days, people used to stand at the Bank and Sparks Street and hand out little leaflets of hate, and if five people took that leaflet, that was considered a pretty darn good day. Today, they go onto their laptop, and they get messages out through Twitter and Facebook and Telegram and Signal and you name it, potentially reaching hundreds of thousands of people, even millions. Of those hundreds of thousands, if even only 2% or 3% of them are diehards and are embracing it, and of that 2% or 3% let’s say only a hundred or so are the ones that would take up arms, you only need one person. We’ve seen that in London, Ontario, and we’ve seen that in Sainte-Foy, Quebec, and in Pittsburgh. It just takes one person. Today we have moved, sadly because of social media, I believe, from hateful words and hateful symbols to hateful actions, assaults and even murder.
Lastly, you are asking about what is happening elsewhere. We are all struggling with this, whether it’s in Europe, whether it’s in Canada or whether it’s in the United States. Here, like in other countries, we are now looking at a whole new alignment of what is online harms, and I was honoured to be asked to represent the federal government and to sit on an online harms panel of experts where we are, hopefully, going to assist the government in developing legislation for online harms, in the same manner that we see happening, by the way, in the U.K., Australia, Germany, Belgium, France and elsewhere. The world is united. They understand what hate is all about and they understand that something must be done, but we have a long way to go in order to make this work.
[Translation]
Senator Dupuis: My question is for Mr. Goldstein. One of your recommendations is to substitute the word “distortion” for the word “downplaying.” The French equivalent would probably be déformation.
Can you explain why that is a more precise term? Distortion could actually be harder to prove than downplaying. I’d like some clarification on that.
In his opening remarks, Mr. Farber referred to section 13 of the Canadian Human Rights Act. As I believe you pointed out, section 319 of the Criminal Code requires the Attorney General’s permission to prosecute, whereas an individual complaint under section 13 of the Canadian Human Rights Act could be a private complaint.
Do you think that is something that should complement the amendment being made to the Criminal Code? The idea would be to reintroduce in the Canadian Human Rights Act a clear section authorizing complaints related to hate speech.
[English]
Mr. Goldstein: Thank you.
First of all, going to the use of the word and what it would mean in the French terminology, “distortion” versus “downplaying,” I think the reason, Madam Senator, that “downplaying” was used is because it is actually used in the German legislation. They use the word “downplaying” in the German language. The reason I’m resorting to “distortion” is because there is a body of thought that already exists dealing with that word. I don’t know what the exact translation of “distortion” would be in French — it might be “minimization” — but we know, for example, that the IHRA discussed this. We know that there are many other bodies out there who have discussed the concept of Holocaust distortion, so we’ve already given a definition to that word, and that is why I think it is very important.
To get back to what Senator Klyne was alluding to, BBC supports freedom of expression in this country, and we understand that any legislation will ultimately have to undergo some sort of Charter scrutiny. The more precision you give your language, the better the success rate will be if there is any constitutional challenge to the legislation. It is not so much that I’m fixated on the word “distortion.” I’m just using that word because I know that there is a body of interpretation to it already that is easily accessible to any jurist who may be faced with this issue.
In terms of your next question with respect to the Attorney General’s consent, I am a criminal lawyer as well as being a director of legal affairs, and I’m supposed to have my BBC hat on in this, but the reality is that on something like this, you have to have some sort of level of discretion whether to prosecute or not. The reality is that while there is a huge body of jurisprudence dealing with what section 13 means, my friend Mr. Farber referred to the Sears case. That was a successful case. Keep in mind, that case was not just simply on antisemitism; it was also about misogyny. The court looked at the body of jurisprudence and was able to apply it. The legislation stood up to Charter scrutiny. To perhaps avoid problems, I think it is still important to have the AG stepping in and deciding on certain issues like this. I think it makes sense. Despite the fact that I’m sure many communities would like to remove the Attorney General’s discretion, I still think it is a good idea.
I hope I’ve answered your questions.
Senator Cotter: Gentlemen, thank you for your focused and insightful presentations.
I have two questions for Mr. Goldstein. One builds upon the dialogue you’ve just had with Senator Dupuis. My sense is that the two words we are kicking around here in your submission — “distortion” and “downplay” — actually convey different concepts. They may overlap in some ways, but it strikes me that “downplay” is a larger envelope, in a way. I’m curious. I do not want to be offering a drafting suggestion to you, or just yet to the Minister of Justice, but I’m wondering why you would not be comfortable with having both “distortion” and “downplaying” included in the phraseology of the offence. It seems to me that each of them conveys a powerful but maybe slightly different meaning.
Perhaps I could ask my second question and you could respond to both. You were discussing the argument to eliminate some of the defences that are offered up in this legislation. I have not gone back and studied section 319 specifically, but it appears to me that some of the suggestions you are making are actually also suggestions that would remove some of the defences that are in the existing legislation. I’m wondering whether the intent of your suggestion is that the defences that are available in this area reach too far and should be drawn back more generally and not just with respect to this specific provision.
Mr. Goldstein: Thank you, senator, for those excellent questions. I have my Criminal Code here and am looking up section 319 as we speak.
Let me deal with the issue of the words “downplaying” and “distortion.” We’re suggesting “distortion” as the word because we all believe in free speech. It is very important. My ability to speak out and say that the Holocaust did happen is, I think, the best way of countering. The way to counter speech you do not like is with more speech. That said, unfortunately, we see the necessity for this amendment to the Criminal Code specifically on Holocaust distortion and denial. Because of our concern for freedom of expression, we want to make sure that Ms. Zwibel from the Canadian Civil Liberties Association — not to pick on her for a moment, but they have been a long-time free speech advocate, and we’re sensitive to those concerns. The greater precision you use, the better this legislation will survive any Charter scrutiny.
In terms of the concept of downplaying, there isn’t a body of thought build up around that word like there is for distortion. I’m concerned that, legitimately, someone might say that “downplaying” is too vague. If you put in downplaying and distortion, you are creating a piece of legislation with greater over-breadth, and that would be a concern. In many ways, this specific amendment is kind of replacing the fake news provisions in the Criminal Code back when Zundel was prosecuted. The Supreme Court ultimately struck down the fake news provisions in the Criminal Code — section 181, I believe, was the number — because of the over-breadth, so we want to make sure this provision does not create the same over-breadth that exists.
With respect to section 319, I do not believe it allows a defence of religion or truth. I would have to go back and look at section 319, senator. You have me on the hot seat. I am not able to specifically answer your question on that. I’m not suggesting that any defences be removed. I do not think those are defences to the hate crime legislation. I stand to be corrected, however.
The Chair: Mr. Goldstein, could you kindly send us something in writing on that, if you are able? We have a week. I know you are very busy. If you could send it to the clerk, it will be shared with everyone.
Mr. Goldstein: Thank you.
Senator Clement: Thank you to all the witnesses for your testimony.
Thank you, too, for referencing the recent events in Buffalo and in Pittsburgh. The list is long. I am a Black woman, and all of my nieces and nephews are children of a Jewish mother, a beloved sister-in-law of mine. You can imagine the Zoom dinner table conversations we’ve had in the last two, three or four years. It is pain, upon pain, upon pain.
I want to come back to Senator Jaffer’s question about what the government is doing. Do your organizations feel supported by the Federal Anti-Racism Secretariat, for example, and by what the government is doing to elevate these issues into public discourse? You spoke of how social media amplifies the bad. Is the government doing enough to talk about the good and to allow your organizations to deal with these things, as well as the backlash, by the way? Because we move forward with this and there is always backlash for our communities. Are you prepared, and do you feel supported to deal with that?
Mr. Fogel: I will say that governments at all levels — certainly the federal government, provincial governments across the country and many municipal governments — have been exceptionally responsive not just to the threats and challenges faced by the Jewish community but also by the Muslim community and all other targeted minorities.
This touches on Senator White’s question in terms of the approach on the law enforcement side. There has been an effort to try to consolidate, to the extent possible, and find common formulae and solutions that could have applications to many different sets of circumstances. Many communities face unique sets of threats, some by virtue of colour, some by virtue of inclusion in an economic segment of Canadian society, some because they are new Canadians and some because of sexual orientation or the clothes they wear, for that matter. One of the central themes that have been put forth — to be sure by the federal government but also echoed by governments at all levels — has been to try to find common cause that allows communities who are disparate in terms of experience to join together and find shared solutions. These have been accessible across the board. Our experience, as a Jewish community, has been one of remarkable responsiveness on the part of the government.
Bernie Farber made reference to efforts that are being made in terms of online harms. This is really challenging. We have competing imperatives between freedom of speech and freedom from hate. We have enormous challenges to thread the needle so that meaningful protection is provided to communities while still ensuring that we have a free and open society. The scope of consultation and inclusion by the secretariat and by their counterparts in other jurisdictions has demonstrated a genuine effort, even down to the school board level, to listen, hear and appreciate the challenges faced by communities and to invite them to be a part of the resolution and solution to these challenges.
Senator Wetston: I want to thank Mr. Fogel, Mr. Farber and Mr. Goldstein.
I am trying to remain objective about this. I am Jewish. Some of my colleagues know that I was born in a displaced persons camp in Germany in 1947. My parents lived in Uzbekistan for almost 3.5 years to flee the Nazis. Other members of my family did not do so well. I will try to remain objective about this because of my role here as a senator and ask you a specific question in that regard to understand the legislation and what is attempted to be achieved here. I do not mind any of the panellists trying to answer this question. It may be a bit more legal.
The way in which section 319 is amended, it discusses the willful promotion of antisemitism by condoning, denying or downplaying the Holocaust. Why do you believe downplaying or denying or condoning the Holocaust should be connected to antisemitism versus being an offence of its own, recognizing that — you have talked about this — it is well established and that one would be unable in any way to demonstrate today that the Holocaust did not occur? This is not just for Jews obviously, even though 6 million Jews died in the Holocaust. I will ask you that as my first question. Can any of you answer that question?
Mr. Farber: I might just give this a shot. I too am the child of a Holocaust survivor. My late father’s entire family was murdered. In his entire town in Poland, no Jew existed except for him.
We know that the Holocaust in and of itself is a fact, but we live in a time of craziness. We live in a time where people will believe whatever they want to believe. We do know that Holocaust denial — Shimon and others have said this — is the quintessential form of antisemitism. Where there is Holocaust denial, almost inevitably Jew hatred will follow, and when Jew hatred follows today, almost inevitably we can see pain, assault and even murder, so we have to find a way to effectively root it out at its very core. If its very core happens to be Holocaust denial for Jews, antisemitism is, as Robert Wistrich, the great historian, once noted, “the longest hatred,” and it’s not for nothing that it’s the longest hatred. Six million Jews were murdered in our living memory.
We need to find the tools to address the conspiracy theories that are running rampant today. Holocaust denial is just one of the key conspiracy theories. We have COVID conspiracy theories and the “Great Replacement” conspiracy theories, and they kill. They kill. We need to find law that works and will root it out, in my view, right at its very core.
Mr. Fogel: Senator, if some idiot stands on a soapbox and declares that the world is square, not round, we’ll all recognize that as a nonsensical statement, but there are no implications for him or her having uttered that statement. The difference with Holocaust denial is that there is a consequence. It is a catalyst for something else. As Bernie noted, there is a direct correlation between Holocaust denial and translating that into action. All of the conspiracy theories that Bernie just enumerated, including COVID — which, if you don’t know, is a cause claimed to be effected by Jews for various nefarious purposes — are out there on the social media platforms that we have all spoken about just a few minutes ago. One has to appreciate that some nasty, offensive language, while not benign, does not serve as a trigger for something more serious. In the case of Holocaust denial, it is unique in that it is almost always a predictor of radicalization that will lead to harm, not just to Jews but to others. Clichés become clichés because they have an essential truth to them. Jews are the canary in the coal mine. As I noted earlier, what begins with Jews almost never ends with Jews. We have to be especially mindful and sensitive to the threat posed to the Jews, which is the particular threat, and to how that expands to a general threat to all vulnerable communities.
Senator Pate: Thank you to the witnesses.
I am curious, for all three of you, if you have recommendations on how police and prosecutors might best determine that all the necessary steps of the offence are established. For instance, for the mens rea and actus reus of the defence, what you would consider private conversation versus promotion of antisemitism? Would it be necessary to prove that an accused intended to promote antisemitism by engaging in Holocaust denial, or would the mere utterance, the engaging in Holocaust denial, in your view, be enough to establish the elements of the offence?
Mr. Fogel: I do not want to dominate, but if I can just quickly opine over here, I think intentionality is a vital and critical element of this. When discussing antisemitism — and I think my colleagues would agree — we would recognize that the most offensive comments, the majority of them, are born out of ignorance or insensitivity, not out of malice. What we’re looking at over here and what this piece of legislation is intended to be a remedy for are situations where a person has a very specific and deliberate agenda to incite hatred, to fan intolerance and for that to lead to action. On both the law enforcement and the judicial sides, there is a need for them to have clarity about the motivation and the intention because here the remedy is for those who are incorrigible. Education and other instruments within the toolbox can be deployed in a much more constructive way to educate, to sensitize and to create a higher level of tolerance.
This brings us back, and I made reference to Senator White before, and he has vastly more experience than any of us on these issues. Where we have found the deficit in terms of coordination is, in part, in the training that Bernie referenced, too, which is lax in many different jurisdictions. However, I’m pleased to say it has been revived, and there is a new political will to resource law enforcement in many, many communities across the country with that capacity. The real challenge here is to achieve that level of coordination. Senator White talked about the RCMP at a national level providing support and extra resources where they are needed. I think communities have to be aware of that. There has to be a collective plan of action. One of the outcomes of the emergency summit last summer was an undertaking by the provinces, together with the federal government, along with leading municipalities, to try to achieve that kind of cooperation, a sharing of best practices and a leveraging of resources in one place to another. Senator, that would go a long way to not just create a level playing field but to much more effectively address the challenge.
Mr. Goldstein: Senator, if I may, I will address your question in a more legalistic way. I agree with my friend Mr. Fogel. I have my Criminal Code open, and I was looking at section 319. There have been many cases that have actually looked at establishing mens rea, which you talked about, and the meaning of communicating in a public place, and section 319 deals with that. There are cases which deal with that issue. Again, if the concern is the over-breadth of the legislation and if you are concerned that it will not stand up to Charter scrutiny, these issues have already been litigated within section 319.
To Senator White, I must apologize to you. You are correct. There is a section in 319, as I looked over it. I want to always admit when I am wrong about something and correct it immediately. The difference, however, and the reason I am asking for “truth” to be removed from 319 as it is being amended is this: We’re laser-focusing on a specific issue, where section 319 generally deals with many different issues. The reality is that we have already established, and we have taken judicial notice in Canada in 1988 in the retrial of Zundel, it was the second case — that the Holocaust existed. It happened. So you don’t need to have a defence that you’re going back in time. The big problem with the Ernst Zundel trial litigation, both Zundel 1 and Zundel 2, more so in Zundel 1, is that you end up putting the Holocaust itself on trial, as if you have two sides debating a historical reality. That wasn’t good for the community in Canada. It wasn’t good for the truth. That’s why I’m suggesting, in this case, that if we already have judicial precedent that acknowledges that the Holocaust happened, and allowing an exception for truth would be going backward in time.
Mr. Farber: I will add something. I adopt both what Shimon and Sam said. But in Zundel, the real issue was the constitutionality test as well. In fact, the Supreme Court found that the law at the time — section 181, I believe — to be unconstitutional in regard to the false news aspect. It just didn’t reach the constitutional test.
I just want to get back to the senator’s question on intentionality and to Shimon’s example of that soap box at Bank and Sparks Street and somebody getting up and saying the Earth is flat. In the same way, somebody can get up and say that the Holocaust never happened. That’s stupid and ignorant. People know that. But if they take it two steps from there and say, “Not only did the Holocaust not happen, but it’s those Jews, you know, who are the ones who are pulling the wool over everybody’s eyes in order to extract payments for the Jewish state of Israel,” then that is intentionality. All too often when we see Holocaust denial, that element is always there. So intentionality plays a role.
I still do want to add a plug for section 13. I think section 13 is a good, less “canon” of a way to deal with certain forms of hate expression where people themselves can take action. But in terms of Holocaust denial, I think we need to be very clear as to its clear and present danger.
The Chair: Mr. Fogel, I have a question for you. I was a refugee to this country 50 years ago, so it’s not part of my history. I have never understood it. There are many Canadians like me. Since these meetings are heard by many people, what is the cause of this rise of reported antisemitism, and how concerned should Canadians be about this?
Mr. Fogel: As Sam Goldstein noted, antisemitism, or hatred toward Jews, is expressed across the spectrum. It’s borne of different things. As Bernie noted, the kind of hatred expressed by the extreme right is beyond worrisome, as is their penchant for translating that hate into action. The delegitimization of some elements on the extreme left is equally worrisome, because it marginalizes and excludes Jews from participation in things that are part of our DNA, including the pursuit of human rights and so forth. Then there are elements within the Muslim world, some of whom have a particular approach to their beliefs, that create hospitable territory for that kind of extremism directed against Jews.
Bernie noted that we’re living in crazy times. In many respects, everybody on this call would recognize that we almost have no terms of reference for what we’re experiencing — the kinds of polarization and the permission that social media anonymity has provided for people to say whatever they want without filters, restraints or constraints. All of that has contributed to society being ratcheted up to a fevered pitch.
It’s no accident that we’re finding its expression most acutely on Jews. It’s not just the Jews, but it’s always “the Jews and.” In some respects, it’s just the Jews, because as Bernard Lewis noted, there is a lot of hate going around, but only with respect to one particular group is cosmic evil attached. That goes to the root of the whole conspiracy theory. In every generation, there is a narrative about the Jews exercising control for diabolical and self-interested purposes.
The Chair: It was my question, but we are over time. I don’t want to halt you, but I have to.
Senator Campbell: Thank you, witnesses. I have so many questions that I don’t know where to start.
I’m sure all senators are aware of this, but we get emails that would make you throw up in a bucket with regard to antisemitism, racism and the rest of it. We talk about the enforcement, the police and we have all of these different police organizations that can do this. This certainly isn’t scientific, but from the emails I get, the worst come from very small towns that I have to look up to even find where they are. They’re coming from very small towns, and they cover the gamut of disgusting racism, who is in charge of the world and all the rest of it.
My question is this: How do we get to those small towns? How do we address these issues that are clearly based on no facts except what they get off of the internet? How do we go about addressing that? My fear is that we always worry about Toronto, Vancouver and the big cities. I can tell you that they get beat, hands down, by people where there are maybe 50 or 60 people. How do we get the police resources there? How do you see that happening? My question is to any witness.
Mr. Farber: I’m not so sure it should always be in the hands of the police. We have a system right across this country known as our education system. My view is that the education system has to be used as a tool to teach. Teachers have to understand what it looks like when their students are being radicalized. Young people have to understand that when they go online, what they are seeing is not always what they are getting. This is going to be a huge effort on the parts of boards of education right across the country, but at least they are built in there, senator. We have the ability to do something through our education system. Then it’s working with the police, but every one of those pieces have to turn and work together. It does start with education. It doesn’t end with education, but in smaller places where we have an ability to reach out to young people, it is through our schools that we can do the most good.
Senator Campbell: I’m willing to bet you that in those places where I’m getting these emails, there is no such thing as that kind of education going on.
Mr. Fogel: Senator, I absolutely agree with Bernie that education is one of our most powerful tools in helping frame a more tolerant, open and constructive society. However, let me pitch one other quick idea to you that we also raised last summer: a social media literacy campaign.
To use an analogy, without commenting on the merits of it, when the Canadian government decided that it was going to legalize marijuana, it quickly discovered that it was a two-edged sword and that there were dimensions to marijuana use that they had not factored into it, like mixing alcohol and marijuana, or the particular potency of edible marijuana products. They understood they had to undertake a significant, sustained and comprehensive public education campaign in order to sensitize Canadians to the dangers of use of marijuana.
What I’m suggesting is that the government has to undertake a comprehensive public literacy social media campaign that explains how it can be used constructively, how it can be used destructively and how to recognize the difference, for young people to become more fluent with the danger signals and for parents to be able to appreciate when their kids are being led down a dangerous path. This is something, you’re right, senator, that has to go beyond conventional education to a layer that supports and complements what children can be taught in schools.
Senator Campbell: I have one comment. It has been over 80 years since the Holocaust. Quite frankly, from: where I’m sitting, it’s worse now than I can ever remember. Even with all of our efforts in education and all of our efforts in making legal bills, all of that, we have got to do better, because as you say, every day we see something happening. I agree with you that it all starts with the Jew, and it goes from there. It’s all being blamed on that. In 80 years, we haven’t got it right. That’s a tragedy for us.
The Chair: Mr. Goldstein, Mr. Farber and Mr. Fogel, you can see there are so many questions for you, and there is a need for the senators here to have further discussions with you. Unfortunately, we have run out of time. I want to thank the three of you for a frank discussion with us. I hope we will have other opportunities in the future. Thank you for being here.
Senators, we will go to our second panel. We start with Cara Zwibel, Director, Fundamental Freedoms Program, Canadian Civil Liberties Association. You have five minutes, Ms. Zwibel.
Cara Zwibel, Director, Fundamental Freedoms Program, Canadian Civil Liberties Association: Thank you, chair and members of the committee. I am honoured to appear before you today on behalf of the Canadian Civil Liberties Association, or CCLA. The CCLA has been around for well over 50 years, protecting, promoting and defending the rights and freedoms of people in Canada.
I want to start off today by making it crystal clear that the CCLA takes no pleasure in appearing to oppose a law with the goal of rooting out and condemning antisemitism. Holocaust denial is not only the denial of historical reality but is very often done for the purpose of and in conjunction with antisemitic messaging, which we categorically denounce. It is no more acceptable to deny the historical reality of the Holocaust than it is to deny the historical truths of colonialism, residential schools or slavery. However, it is worth noting, none of these egregious lies are criminal in and of themselves.
In the short time I have today, I want to make three points. First, the proposed new offence of condoning, denying or downplaying the Holocaust is likely unconstitutional. Second, the proposed new offence is not necessary. Third, the proposed new offence, if ever used, risks having some very serious unintended and adverse consequences.
First, on constitutionality, our Canadian Charter of Rights and Freedoms protects freedom of expression in broad terms and requires almost any restrictions on expression to be justified by the government. Although the proposed provision is narrow in the sense that it’s focused only on the Holocaust, it is broad in the sense that not only denial but also condonation and downplaying are captured.
The Criminal Code already prohibits the willful promotion of hatred, and our courts have found it can do so without running afoul of the Constitution provided it targets a specific, narrow and fairly extreme species of expression. Resorting to the language of “downplaying” and “condoning” in particular give rise to concerns of vagueness and overbreadth.
Downplaying could reasonably capture someone who recognizes the historical reality of the Holocaust for the atrocity that it is but might argue that other historical atrocities were worse. Could an academic who examines historical genocides that doesn’t characterize the Holocaust as the worst example be considered downplaying and thus captured by the law? What about anti-abortion activists who use the term “holocaust” to describe abortion? Could this kind of rhetoric give rise to criminal sanction? In our view, the proposed offence creates too much potential to capture speech that, while offensive and unpopular, should not and cannot be properly criminalized.
Second, this offence is unnecessary. Holocaust denial that willfully promotes antisemitism, or hate more generally, is already captured by the existing offence set out in Section 319(2) of the Code, a provision that has already been tested in our courts. Indeed, perhaps the most famous case dealing with hate speech, R. v. Keegstra, involved the prosecution of a vehement Holocaust denier. The Supreme Court rejected Mr. Keegstra’s Constitutional challenge and upheld his conviction. One has to ask: What is this new offence intended to add? To the extent it seeks to go further than the existing hate speech offence, the constitutional problems I mentioned clearly arise.
Finally, the proposed new offence, if it is ever used, risks having some serious, unintended and adverse consequences. I use the caveat of “if it’s ever used,” because although it is the federal Parliament that would be creating this offence, it is ultimately provincial attorneys general that would have to approve proceeding with charges, and just as has been the case with section 319(2), many will be very reluctant to do so. If they do, we can look forward to giving hateful and hurtful rhetoric and those who espouse it a national platform. When Ernst Zundel was prosecuted many years ago for spreading false news, he used his trial as a way to further disseminate his views, resulting in debates in a Canadian courtroom about whether Auschwitz was a Jewish country club rather than a Nazi death camp. The proposed offence includes a defence of truth, inviting this kind of grotesque theatre into our courtrooms.
In urging this committee to remove this proposed amendment from the budget bill, I will conclude with a few words from CCLA’s former general counsel, the late Alan Borovoy, who said in an op-ed published 25 years ago:
In a democratic society that values freedom of speech, the goal with the likes of Ernst Zundel should be not to muzzle them, but to marginalize them. The law should let them speak, but the culture should ensure that they lack the influence to persuade.
I look forward to your questions. Thank you.
The Chair: Thank you very much.
Joanna Baron, Executive Director, Canadian Constitution Foundation: Good afternoon, Senator Jaffer and members of the committee. It’s an honour to be here to speak to you about this extremely important issue.
I speak to you as the executive director of the Canadian Constitution Foundation, or CCF, a legal charity that protects Canadian constitutional liberties, but I also speak to you as the granddaughter of two Holocaust survivors. My grandmother Daisy Baron survived both Auschwitz and Bergen-Belsen before immigrating to Canada as a lone orphan from Hungary. My late grandfather Istvan Steven Baron hid out in warehouses and hospitals across Budapest with his little brother before being also being sponsored to come to Canada when he was 13. I make my comments with full awareness of the vicious scourge of hatred against Jews that exists and has existed.
The proposed bill amends the Criminal Code to prohibit the willful promotion of antisemitism through condoning, denying or downplaying the Holocaust. The CCF’s first submission is that this bill is superfluous. Holocaust denial that incites or willfully promotes hatred against Jews, including presumably by way of Holocaust denial, is already criminalized. Section 319(2) of the Criminal Code already sets out that any person who publicly communicates hatred against any identifiable group is guilty of an indictable offence and liable to up to two years’ imprisonment for it.
The proposed amendment is also likely unconstitutional, violating section 2(b) of the Charter, which protects the right to free expression. Nearly 30 years ago, the Supreme Court of Canada struck down section 181 of the Criminal Code, the so-called fake news provision under which Ernst Zundel had been charged and convicted for his pamphlet, Did 6 million really die? It raised questions about whether it was really true that 6 million Jews were killed before and during World War II and suggested that the Holocaust is a myth perpetuated by worldwide Jewish conspiracy. The court in this case explicitly held that all expression, regardless of content, was protected by section 2(b).
McLauchlin J., as she then was, specifically commented on unpopular or repugnant opinions. She said:
Thus the guarantee of freedom of expression serves to protect the right of the minority to express its view, however unpopular it may be … it serves to preclude the majority’s perception of `truth’ or `public interest’ from smothering the minority’s perception. The view of the majority has no need of constitutional protection; it is tolerated in any event. Viewed thus, a law which forbids expression of a minority or “false” view on pain of criminal prosecution and imprisonment, on its face, offends the purpose of the guarantee of free expression.
The state should only limit expression to the extent necessary. The rights protected under section 2(b) should only be restricted, therefore, in the clearest of circumstances. The proposed amendments are either duplicative, in that they repeat existing criminal prohibitions on speech inciting hate, or extend a criminal prohibition to merely misguided or ignorant statements about the Holocaust that do not amount to hate speech or incitement. Therefore, they are either duplicative or overbroad and present a threat of vagueness, as my colleague Ms. Zwibel spoke about a moment ago.
Finally, it should be emphasized that protecting Jews and noting the disturbing rise in antisemitic incidents is vital and we should turn our mind to it. However, the government cannot identify a pressing and substantial objective in the amendments given that speech that is hateful to or incites violence is already criminalized. If the government’s objective with the proposed amendment is to curb antisemitic incidents, they may consider the experience of France and Belgium, where Holocaust denial is indeed criminalized and rates of antisemitic incidents continue to rise to disturbing effect.
Those who downplay the Holocaust are ignorant, and the best remedy for ignorance of history is education and the open marketplace of ideas, where the utter falsehood of any denial of the atrocities committed against the Jewish people can be openly demonstrated by free citizens, not the threat of imprisonment by the state.
For all of that, I do not have a utopian libertarian view of the ability of the sunlight of free speech to disinfect our society from antisemitism, which is humanity’s most ancient form of prejudice. However, the solution cannot be burdening a free and liberal society with vague and disproportionate encroachments to free expression in the form of redundant laws.
Thank you. I welcome any questions.
The Chair: Thank you very much, Ms. Baron.
John Carpay, President, Justice Centre for Constitutional Freedoms: Thank you, honourable senators, for inviting the Justice Centre to be one of the witnesses for this very important hearing today.
On a personal note, while I am deeply honoured by the opportunity to make a presentation, I find this exceedingly difficult today. Holocaust denial is vile speech. It is destructive. It is the propagation of a falsehood, whether it’s done sincerely by deluded individuals or whether it’s done with malice. Either way, it’s a vicious falsehood, so I speak with a heavy heart.
The objectives of combatting antisemitism and Holocaust denial are laudable. I support them 100%. I would ask the committee to consider what is the best way to achieve this. I will turn to nine points, all of them very brief and some of them already made by other witnesses.
First, the existing Criminal Code section 319 already prohibits the willful promotion of hatred on the basis of race, national ethnic origin, religion and effectively prohibits public expression of antisemitism. We also have Criminal Code section 718.02, which allows judges to use the evidence. If an offence was committed with hatred, a graver penalty can be imposed. This proposed addition to section 319 is simply not necessary.
Second, only authoritarian regimes dictate truth on behalf of all. This could be right-wing fascist, a left-wing communist or a theocratic regime, what have you. Authoritarian regimes and totalitarian regimes are in the business of determining truth for the entire population, and people are not free to think, hear, listen, consider and come to their own conclusions. This proposed amendment is a very small step, but nevertheless a step, away from a free society and toward an authoritarian regime.
Third, there are unintended consequences. It’s reasonable to say that it’s likely that if this bill becomes law, antisemites will make use of it and will claim this is evidence of how powerful the Jewish lobby is. That is an unintended consequence.
Fourth, if we add this to section 319, it will likely lead to demand for further criminalization in respect of other historical genocides and events. We have Armenians, Ukrainians, Tutsis in Rwanda and many other groups, sadly, that have been victims of genocide. It is not unlikely that Canadians belonging to these ethnic groups will say, “Well, why not make it a crime to deny the Holodomor,” the death by starvation that Stalin’s communist regime perpetrated on Ukrainians in the 1930s. I think it will open up a bad dynamic there with other groups saying, “Why not us?”
Fifth, if the government has criminal law power to declare what truth is — and I think that the reality of the Holocaust is a truth — I object to governments declaring that and enforcing it with penal sanctions. If governments can do that in the field of history, it opens the door for governments to be able to do the same thing in the realms of science, medicine, art, philosophy and so on.
Sixth, this will have a chilling effect on Canadians’ free expression. In that regard, the language of making it criminal to downplay or minimalize the Holocaust is particularly dangerous for chilling the free expression of debate. Canadians should not have to look over their shoulders and worry that if they are talking about how terrible other genocides are, they might inadvertently be downplaying the Holocaust. I’m not suggesting that the wording of the proposed amendment is such that it would do that, but I’m talking about a chilling effect that will exist even if the application of the law does not necessarily criminalize open discussions about other genocides.
Seventh, general laws garner far more respect than laws that appear to favour one group. This goes back to unintended consequences. People can respect and appreciate the broad application of section 319 prohibiting the willful promotion of hatred. The moment that one group is seen to be privileged and put into some kind of higher place, it can diminish respect for the law.
My eighth point is that the better alternative is public education. The only sure way to prevent a genocide, in my respectful submission, is when the public embraces the highest standards of virtue, morality and enlightenment. That has to be the goal, and that can be best achieved in a free society through respecting the right of every individual to respect their opinions.
My ninth and final point — and Mr. Farber alluded to this — is that if the current section 319 provisions are not being properly and appropriately enforced, it just makes no sense to put more laws on the books if the section 319 current laws are not being enforced.
I thank you again for this opportunity this afternoon, and I look forward to your questions.
The Chair: Thank you, Mr. Carpay.
We will now go to questions. Senators, I remind you that if you have a question, please let the clerk know.
Senator Batters: My question is to the Canadian Civil Liberties Association, Ms. Zwibel, and to Ms. Baron of the Canadian Constitution Foundation.There can be no doubt about how important this topic is and how terrible the scourge of Antisemitism continues to be in our society. Given this, what do both of you think about the fact that the federal government has chosen to deal with this topic and proposed to bring these fairly major amendments to the Criminal Code of Canada to combat this via a budget implementation act that is 440 pages and allows parliamentarians only a more constrained ability to debate and deliberate on these amendments?
Ms. Zwibel: Thank you for the question.
Initially, I think my answer would have been that it is a big problem to fold a provision like this into the budget bill. Obviously, it has nothing to do with the budget. It does limit the extent to which parliamentarians can engage in the kind of debate that we would want to see when we are talking about turning a type of expression — a grotesque type of expression, but still a type of expression — into a criminal offence.
The only thing is that I know there was a private member’s bill introduced in the House of Commons to make essentially the same amendments to the Criminal Code. I watched some of the discussion of that private member’s bill in the House. There actually seems to be almost no debate among members of the House of Commons that this is something we should do — that we should put this in the Criminal Code. I think that the reason there is consensus is partly because I don’t think anyone wants to be seen as defending Holocaust deniers. I appreciate how difficult it would be to be a member of Parliament and stand up against a bill like this.
However, I do think there are real problems with folding this in. Frankly, this is a situation where we all want to feel like we’re doing something about the problem, but in my submission, this is not something that will be an effective way to address the problem. I do take your point, and I do agree that it is a problem to have measures like this put into the budget.
Ms. Baron: I agree with everything that my colleague Ms. Zwibel said. I would make two additional points.
The first is that the CCF has seen it happen before where very portentous legislation has come in under a budget bill. For example, the CCF litigated an amendment to the Canada Elections Act that was brought in at the end of 2018, also in a budget bill, that criminalized uttering false statements even if the utterer did not know at the time that it was false. This one seemed to get no notice until the CCF started its litigation.
Second, it just calls to prominence the importance of this honourable body as well as public interest groups that work on constitutional liberties, because certainly, yes, for a politician, this is a very difficult issue to be seen to oppose, for obvious reasons.
Senator Batters: Absolutely. Yes. We also, at this committee, have seen a budget implementation act around that same year contain a deferred prosecution agreement section that came to prominence later on. Thank you.
The Chair: I have a question. Having heard the last panel, do you have an opinion on changing the word “downplaying” to “distortion,” and does it affect your concerns of overbreadth?
Ms. Baron: I don’t think so, to be honest. Nailing down the verbiage around hate speech is a notorious problem. The Supreme Court of Canada has tried to come up with as clear a definition as I think we’re going to get to in Whatcott, but it is still quite circular. They use language about feelings of intense condemnation and repugnance, but there is still going to be an element of subjectivity, and I do not think that “distortion” really, to my mind, is any more objective or less vague than “downplaying.” So my answer is no.
Mr. Carpay: I would agree with Ms. Baron. “Distortion” versus “downplaying” is definitely more vague and create way more breadth than strictly “Holocaust denial.” I think that is fairly straightforward and fairly understandable. I have nothing further to add on that point.
Ms. Zwibel: I agree with what has been said. As Ms. Baron said, we do have this issue in hate speech cases where we define hate speech by using other words for “hate” — things like “detestation.” If you look at the International Holocaust Remembrance Alliance’s definition of “Holocaust distortion,” which I believe is what the witnesses in the last panel were referencing, it talks about distortion including minimizing the effects of the Holocaust or minimizing the impacts, which is another way of saying “downplaying.” So I do not think it gets us anywhere helpful.
Senator Cotter: I have just a couple of questions for Mr. Carpay. You had expressed concerns about going down the road to where truth is dictated by authoritarian governments. I observe in this legislation, as is the case with 319, that truth is a defence. Could you respond to that one? I have a second one as a follow-up, if I might.
Mr. Carpay: The four defences that are now set out in section 319 minimize the harmful effect on free expression, and I note that the proposed amendment also has those same defences in place, so that certainly minimizes the negative impact on free expression.
My concern is the opening of the door and the slippery slope. It is not so much that this addition to section 319 in and of itself will overnight transform us into a country where government decrees what is true or false. What I find disconcerting is that it is a very small step in that direction, and I think that government has no place in declaring — neither in history nor science nor medicine and so on and so forth — what is true or false, with criminal sanctions. Even as a small step, it is a dangerous step in the wrong direction.
Senator Cotter: Were you also opposed to the provision in 319 that includes truth as a defence, then?
Mr. Carpay: I accept the majority Supreme Court ruling. I personally am more sympathetic to the dissent that was authored by McLachlin, J., as she then was, but I recognize that the law in Canada is that section 319 is constitutionally valid. That is not likely to change anytime soon. I don’t really have an opinion on those defences other than to say that those four defences minimize the negative impact on free expression.
Senator Cotter: If we were to think this question through guided by your philosophy, can you speak to what are or might be the boundaries of free speech? If somebody calls out for sedition, say, the overthrow of the government by non-democratic means, are we starting to bump up against the scope of legitimate free expression?
Mr. Carpay: That is an excellent question. I fully support some restrictions on free expression, just not this one being proposed with Bill C-19. I think advocacy of genocide, advocacy of violence, uttering threats and calls for the violent overthrow of the government should be criminalized. There is a long list of valid restrictions. I think this particular one that the Senate is considering is a step in the wrong direction.
Senator Cotter: Thank you very much.
Senator Clement: Thank you to all of the witnesses for being here with us this entire time.
My question comes from the very powerful quote of Mr. Borovoy made by Ms. Zwibel, where you want a culture that marginalizes hateful speech rather than having law muzzle free speech. How do we get that culture? How do we get there? That’s what we need. That quote was from decades ago, but now social media amplifies all the bad. Do any of you have a comment on how we get to a culture that marginalizes rather than relying on criminalizing?
Ms. Zwibel: That is the million-dollar question, and it is a very difficult one. I do not think that it is one thing. The witnesses in the last panel talked about education, and that is very important.
When it comes to the extent to which some of these message and problems are amplified by social media, by our lives online, there is a lot of work we need to do on digital literacy and making sure that especially young people, but really all people, look at the content that they are being fed in a critical way.
The best answer I can give is that I do not think that we achieve the culture that marginalizes by using the criminal law. I think that by using the criminal law, we risk amplifying that message and making these people martyrs for free speech. They get to use their prosecution as evidence of how controlling the government is. Very often with conspiracy theories, the biggest bolster to them is to have government stamp them as a conspiracy theory. That is the hallmark that says that government does not want you to know the truth.
I think that achieving that culture involves education and involves counter-speech, and counter-speech not just by individuals but by governments. Governments can be doing a lot of public-relations work about the need to stand up against racism and antisemitism. But I do not think that the criminal law is the thing that is going to achieve the goals that we want to achieve.
Ms. Baron: I would just note briefly that I believe that this same budget bill introduces new funding for various Holocaust museums and Holocaust education initiatives in various communities across Canada, and that is certainly something that I applaud and think is much more constructive.
Of course, I have mixed feelings about this, but it is a question for another day. It certainly is true that the various digital social media platforms do have pretty extensive fact-checking mechanisms that will flag misinformation as soon as it goes up on their platform. It does not mean that the misinformation does not circulate on various more open-source platforms, but we should be aware that that is happening.
I think that the main deleterious effect of focusing on the criminalization element is that no one seems to be making even a bare suggestion — I listened to the extremely thoughtful comments of the witnesses in the previous session — that criminalization will reduce incidents of antisemitic hate. It is almost like we are focusing our energy into a void.
Mr. Carpay: The work of creating and, hopefully, maintaining a culture that marginalizes hatred and falsehoods is a permanent, never-ending project. It is not for the faint of heart. It takes a lot of hard work.
A related point to that is that genocides require or at least thrive on unthinking, obedient people who are going to submit to the orders of the state. The worst genocides have been state-orchestrated and state-promoted. We need a culture where people do not have that unthinking, blind obedience and this authoritarianism. To criminalize certain falsehoods is a small step towards that authoritarianism that I think is very dangerous.
[Translation]
Senator Dupuis: My question is for all three witnesses. Thank you for being here today.
Mr. Carpay, I won’t ask you this, but you made me wonder whether you were equating any type of government with authoritarianism. We know that all radicalized groups, including those based on conspiracy theories, no matter their allegiance, are anti-government. They aren’t anti-authoritarian government; they are just plain anti-government.
Here’s my question, which I also put to the witnesses in the first panel. You’re saying that it shouldn’t be criminalized—and I understand that—but do you agree that one way to prevent, or at least try to counter hate speech against certain groups—would be to reintroduce in the Canadian Human Rights Act a provision allowing groups or individuals who are victims of hate speech to file a complaint with the Human Rights Commission, in other words, outside the criminal justice system?
Mr. Carpay: Thank you for your question, senator.
I don’t agree with former section 13 of the Canadian Human Rights Act. It’s a broad issue, one that has been hotly debated, and I doubt we have enough time to get into it.
To your first point, I would say that the government is like electricity or fire. It has to be overseen properly, with clear limits. Fire is a very useful tool; people like it and benefit from it. However, when fire is out of control and moves beyond its limits, it becomes very dangerous.
The same is true of electricity, which serves us so well. When it has the upper hand, however, electricity is dangerous. That is really the point I’m trying to make.
Senator Dupuis: Thank you. I’d like to hear what the other two witnesses have to say, please.
[English]
Ms. Baron: I will comment on the question about section 13 and whether section 13 proposes to introduce a civil remedy for hate speech that is preferable. I would say no, because, for many reasons that my colleague mentioned that we do not have time to get into, it preserves the issues we have with vagueness and the circular definitions of hate speech and how to know when one sees it, but it also supports these civil complaints with the protection of the state and the protection against any type of adverse costs award, so it certainly invites frivolous litigation or frivolous suits being commenced. It also presents a significant chill effect. I do not think section 13, although it evades the issues with criminalization, is a suitable solution.
[Translation]
Ms. Zwibel: Thank you for your question.
[English]
I am not in favour of reinstating section 13 of the Canadian Human Rights Acts. The Canadian Civil Liberties Association was among the organizations that appeared before this committee about its repeal and argued that it should be repealed. I agree with much of what Ms. Baron has said, in particular that there is a concern about the chill and about how these provisions are used.
I also think that there was a report commissioned by the Human Rights Commission many years ago by Professor Richard Moon at the University of Windsor that talked about section 13 and what it did. One of the things that he identified, which I think is a compelling reason not to bring back section 13, is that what it requires of the Canadian Human Rights Tribunal is very much out of step with what that tribunal is supposed to do in all of its other work. In all of its other work, it is supposed to take a very expansive understanding of the right to equality. It is supposed to be there to support marginalized groups. But because of the constitutional protection that we have for freedom of expression, and because of the way that the Supreme Court has said we need to define hate speech as quite narrow and extreme, it means that the tribunal can have individuals who have been subjected to very hurtful and harmful messages coming before it making complaints, and the tribunal has to say that it is just not bad enough to rise to the level of hate speech. I think that that does not sit well. That function does not sit well with that body, so I’m not in favour of that remedy.
Senator Wetston: Thank you for your testimony today.
This question is for whoever wants to respond to it. We have heard a great deal about the constitutionality of these provisions. Of course, the ultimate decider of these issues remains with the courts, for obvious reasons, because no interpretation of this can be given clarity unless it is contextual. The factual situations will give rise to the development of the law, should this be passed. I recognize that you do not want to see that.
What do you think the purpose of the criminal law is? It seems to me that we hear many arguments, and I have had a lot of experience with constitutional law myself. I ask myself: What is its purpose in this context? I think that all the witnesses are minimizing the purposes of the criminal law here by not recognizing that the criminal law is not just about prosecution; it’s also about messaging to the public. It is the message that you want to give to Canadians about what is abhorrent and what is not acceptable in our society. I think that the government is saying that this is unacceptable conduct, and one of the ways in examining what might be a reasonable limit, and, of course, we must consider reasonable limits prescribed by law, is recognizing that. I think that you are suggesting that the government doesn’t recognize that. And if you believe that they have, the defences that are included — all of which I find a little challenging, admittedly — do suggest that the government recognizes the reasonable limits prescribed by law. Can any of you or all of you briefly respond to that? Thank you.
Ms. Baron: I have thought about this issue a lot as a former defence counsel who also did graduate work in criminology. I agree that there is broadly a symbolic, moral function of the criminal law. However, also as someone who is a criminal defence lawyer here in downtown Toronto, it is important to remember that where that ends is by the threat of jail time, by the most draconian and serious restriction on liberty interest. The function of the proposed amendments cannot be understood, if we are to do justice to this country, just as important bits of messaging but as the threat of jail time. In order to move forward with that threat of jail time, we have to look very seriously at what the proposed effects are and whether the purpose is proportionate to the restriction on liberties. In this case, I would say, yes, of course, criminal law has an important moral symbolic function, but it primarily has a function to put people in jail, so we have to consider that. Thank you.
Mr. Carpay: I agree with those comments.
I would add to that, Senator Wetston, that I agree with you that the law is a teacher. Definitely, it has an impact on the personal psychology of every citizen. Law is a teacher, but I do not think that it is the place of government to teach by way of criminal sanctions what is historical truth, even though the Holocaust is historical truth. The government should not be in the business of declaring that or enforcing that for two reasons. It is going to lead to demands for governments to weigh in on other historical truths, potentially criminalized denial of those truths, and then further expansion outside of history into science and medicine. This is just not the right place for the criminal law.
Ms. Zwibel: I agree with much of what has been said. I think that certainly there is symbolic value, and the Criminal Code does intend to send a message to people about what is acceptable and unacceptable behaviour. But I would say that when it comes to this kind of rhetoric, we already have a provision that covers it. We already have section 319(2), and as Mr. Farber from the last session said, Holocaust denial has been recognized by the Supreme Court of Canada as one of the hallmarks of hatred in assessing whether that line has been crossed. I think here the symbolic value is actually one for the government to say, “Look at what we’ve done. We’ve done something about this problem.” But I do not think that it is something that is effective, and I do not think that it is something that we should do.
The Chair: There is one topic that has not been covered, and that is personal conversation. The prohibition section of 319(2) does not apply to private conversation. I wanted one or two of you to say what constitutes private conversation. In particular, what is considered private conversation regarding the many different ways people communicate online, whether in video calls, chat groups or social media platforms?
Ms. Baron: Thank you for the question, Senator Jaffer.
I think that you are drawing attention to something that further raises the spectre of vagueness, of course, because there are WhatsApp group chats that have hundreds of people. As you mentioned, there are Zoom calls that are large groups. Is that a private conversation? At what point do we cross the threshold? We have had similar issues with the government’s regulation of social media and whether that would cover the semi-private conversation domains. I support that the government delineated out private conversations, but I think there is a lot of grey area on what that constitutes.
Mr. Carpay: I would agree with that. I would add that you would think a large email discussion is private, but if there are 20, 30, 40, 50 or 100 people copied on the email, I think that the law is not clear as to whether it becomes public conversation once your email discussion exceeds a certain number of people.
Ms. Zwibel: I do not think that I have anything to add. It has been covered.
The Chair: Thank you very much. This has stretched our imaginations. We have thought of other things today with the three of you and your presentations. I want to thank you for taking the time to appear in front of us, and I am sure that we will be inviting you again. Thank you for being here.
(The committee adjourned.)