There are particular views that, to some, seem too wretched for mere censure, and surely denial of the Holocaust qualifies. It takes someone either unconscionably ignorant, or imbued with hate, to deny or downplay the most thoroughly documented genocide of the 20th century. Some of us know the stories because we have heard them in our own families; others have learned about them through textbooks and history lessons. But regardless of how you come to know the truth, it can feel monstrously wrong that we would tolerate any views that erase or minimize the Holocaust.
The Liberal government is seizing upon this perspective to outlaw Holocaust denial in Canada. Using the coming budget-implementation bill, the government plans to amend the Criminal Code to “prohibit the willful promotion of antisemitism through condoning, denying or downplaying the Holocaust” in non-private conversations, according to Public Safety Minister Marco Mendicino. The language of the change is said to be identical to a private member’s bill tabled by Conservative MP Kevin Waugh earlier this year.
In a country where reports of antisemitic incidents are on the rise, it might seem like a no-brainer to amend the Criminal Code to prohibit Holocaust denial. Indeed, many people would likely say that because it feels monstrously wrong that we would tolerate these kinds of opinions, it should be legally wrong for Holocaust deniers to air their views in public.
But this impulse to use the power of the state to prohibit even the most poisonous opinions should be resisted as a matter of principle. There are already limits on free speech in Canada, and Holocaust denial that incites or wilfully promotes hatred against Jews is already illegal. Since neo-Nazis and antisemites who deny the Holocaust tend to wade into hate speech at the same time – indeed, such denial is usually a symptom of antisemitism, not the cause of it – this change, in practice, will mostly affect those who are truly ignorant of history. The Canadian government should not be in the business of criminalizing ignorance.
Some will argue that the only people who should be concerned about this change are white supremacists and others who want to downplay the horrors of Nazi Germany. But that view is akin to the flawed argument that the only people who should be worried about government surveillance and intrusion are those who have something to hide. Charter protections for all Canadians, by their very nature, should not be dependent on moral assessments of individuals, or on how many people violations might affect.
In the Supreme Court of Canada ruling on Ernst Zündel, the prominent Holocaust denier who was convicted of publishing false news (a law that the court found unconstitutional), then-chief justice Beverley McLachlin wrote that “the view of the majority has no need of constitutional protection; it is tolerated in any event.”
“Before we put a person beyond the pale of the Constitution, before we deny a person the protection which the most fundamental law of this land on its face accords to the person, we should, in my belief, be entirely certain that there can be no justification for offering protection,” she wrote. With that ruling in mind, it is hard to see how this change to the Criminal Code would survive a Charter challenge if it is taken up by the courts in the future.
There are other reasons to be wary of this law. While the intended effect – to quiet Holocaust denial – will likely be negligible to non-existent, the unintended effect might be, paradoxically, to stoke antisemitism even further.
Indeed, your average basement-dwelling, whataboutist neo-Nazi will inevitably start to wonder why the Jews are getting special Criminal Code protection from revisionist history, while the Tutsis, Rohingya, Armenians, Yazidis and Indigenous populations in Canada are not. What strings are Canadian Jews pulling in government, these conspiratorial-minded white supremacists will ghoulishly ask, that they get to control what people in a free society can and cannot say? And why is this change being snuck into the budget-implementation bill, rather than tabled independently and debated on its own merits?
This change might be politically popular. After all, how many people are going to argue for a Holocaust denier’s right to free speech, really? But the principles it undermines makes it corrosive in a democracy. There are much better ways to tackle antisemitism, and this government has committed to pursuing many of them as outlined in its recent federal budget.
But as far as actions that a government can later tout as a “mission accomplished,” a move to swiftly ban Holocaust denial is far better than, for example, devoting $5.6-million over five years to support the Special Envoy on Preserving Holocaust Remembrance and Combatting Antisemitism – even if the former is far less effective.
Though it might seem like a great win, this is a change of which we should all be wary. The horrors of the Holocaust must be remembered and truthfully retold, but this is not the way to make sure that happens.
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