Why Canada's plan to criminalize Holocaust denial could be unconstitutional and redundant

Sidney Zoltak, who has spent a significant part of his liferecounting his experiences as a child survivor of theHolocaust,says he's not sure how he wouldcharacterize the effortby some todenythe historical genocide.

"I don't knowwhat to call it ... whether it's a crime, a shame, a lie what would be more appropriate," said Zoltak,91.As a child, he, along with his family, escaped the Jewishghetto set up by Nazis in his Polish hometown and went into hiding.

"But what kind of a crime it is, I am not a legal person, not a lawyer, so I wouldn't know how to legislate that."

Yet, that's what the federal government will attempt to do, and join several countries in Europe, including Germany, that makeHolocaust denial a crime.However, like any legislation that seeks to curbexpression, it could be subject to Charter challenges.

'Probably unconstitutional'

The Holocaustrefers to thestate-sponsored initiative by the Nazi government during the Second World War that led to the murder of more than six million Jews and millions of others, such as Roma.

The government's plan to criminalize denial of those events outside of private conversation was first unveiled inside this year's 280-page federal budget. Along with a number of initiatives to fight antisemitism, including $20 million for a new Holocaust museum in Montreal,the budget also revealed the government's intent to amend the Criminal Code. Currently the Criminal Code makes it illegal to communicate statements in public that wilfullypromote hatred against any identifiable group.

The amendment would"prohibit the communication of statements, other than in private conversation, that willfully promote antisemitism by condoning, denying or downplaying the Holocaust."

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But while many advocates welcome the legislation, some legal experts question its constitutionality.

"I think it's problematic to criminalize Holocaust denial," saidCara Zwibel, lawyer and director of the Fundamental Freedoms Program at theCanadian Civil Liberties Association. "That'snot to say that that kind of expression is not harmful.But the truth is, we don't criminalize lying for the most part."

"I think if it adds things that sort of go beyond the narrow definition of what the court has said is hate speech, then it's probably unconstitutional."

'Reliable predictor of radicalization'

The news was welcomed by theCentre for Israel and Jewish Affairs, which said the amendment would "provide the necessary legal tools to prosecute those who peddle this pernicious form of antisemitism."

"Denying the Holocaust is a reliable predictor of radicalization and an indication that antisemitism is on the rise,"Gail Adelson-Marcovitz, chair of the national board of directors of the Centre for Israel and Jewish Affairs, said in a statement.

Record levels of antisemitism took place in Canada in 2021, according to anannual audit by Jewish advocacy group B'nai Brith. The number of violent incidents toward Jews last year increasedby more than700 per cent.

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Sarah Fogg, a spokeswoman for the Montreal Holocaust Museum, said while the organizationwas surprisedto see such a measure in a federal budget, they welcomed the news as an "important step."

"It's a really meaningful legislative effort to combat antisemitism," she said. "I think this this sort of makes that link really obvious between Holocaust denial and antisemitism."

Putting the Holocaust on trial

But Zwibelwarned the legislation could give Holocaust deniers a platform.

She cited the case of Holocaust denier Ernst Zundel, who was tried twice in the 1980s forpublishing thepamphlet Did Six Million Really Die? The Truth At Last. Although convicted, Zundel was eventually acquitted when the Supreme Court of Canada struck down the country's laws against spreading false news as a violation of free speech.

His trialsalso put the Holocaust on trial, with the crown bringing in Holocaust researchersand survivors to support their case, whilethe defence put noted Holocaust denierson the stand.

"What being prosecuted did for [Zundel]was give him a big platformand basically allowhim to parade a bunch of witnesses in court to try and prove that the Holocaust didn't happen and have the government put survivors before the court. It's atrocious," Zwibel said.

Zwibel alsosuggested there could beproblems with how the amendment would define terms such as "condoning' and "downplaying" in relation to the Holocaust.

"There's a lot of different questions to try and figure out what would be caught here."

Genevive Groulx, a spokeswoman for the Department of Justice, said ultimately,the courts will assess what words like "downplay" mean.

"But generally it is understood to encompass actions that try to make (something)appear smaller or less important than in reality and to minimize (something). A court would have to conclude that the downplaying wilfully promotes antisemitism," she said in an email.

Richard Moon, a University of Windsor law professor whose researchfocuses on freedom of expression, said any such law that restricts speech will likely be challenged at some point to determine whether that limitation can be justified underSection 1 of the Charter.

But Moon questioned whether the proposed amendment would add anything to what is already covered in the Criminal Code,other than to potentially specifyor clarify in some way.

"So one possibility, it's not actually doing anything new," he said.

"The way this is framed, it sounds like someone being prosecuted under it, theprosecution would have to establish what they already have to establish under the existing Criminal Code."

'Has to be bulletproof'

Bernie Farber, chair of the Canadian AntiHate Network,said while any tool that can deal with antisemitism is worthwhile, the legislation will have to be carefully thought out.

"It has to be kind of bulletproof in terms of the constitutionality test," he said. "I think it's all going to be in the wording of the legislation.

"Iaccept this in principle. I think it's a long time coming. But people do have the right to be stupid and offensive.And if people want to say that the Holocaust didn't happen, that's kind of their business. But that said, we know that these are, antisemitic dog whistles. And it'll be really important in terms of the wording of the legislationon how it traces back to antisemitism."

Zoltak and his family were some of thelucky few to survive the Holocaust. His family wason the run for two years, staying with differentvillagers, forced to change locations every few months. They eventually found one Polish family that hid them for14 monthsin anunderground bunker, where they did not see daylight for half that time.

When they were liberated and returned home, only70 Jews remained in their village from the 7,000 prior to the war.

"We know a number of nations around the world have made Holocaust denial a crime," Zoltak said."And they have been living with that for quite a while. And it works for them. And why should we be shying away from that?"