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

Sidney Zoltak, who has spent a significant part of his life recounting his experiences as a child survivor of the Holocaust, says he is unsure how he would characterize the effort of some to deny historic genocide.

“I don’t know what to call it…if it’s a crime, a disgrace, a lie – which would be more appropriate,” Zoltak, 91, said. As a child, he and his family escaped the Jewish ghetto set up by the Nazis in his Polish hometown and went into hiding.

“But what kind of crime it is, I’m not a legal person, not a lawyer, so I couldn’t legislate on that.”

Yet that is what the federal government will attempt to do, and will join several European countries, including Germany, in making Holocaust denial a crime. However, like any legislation aimed at restricting expression, it could be subject to Charter challenges.

“Probably unconstitutional”

The Holocaust refers to the state-sponsored initiative by the Nazi government during World War II that led to the murder of over six million Jews and millions of others, such as Roma.

The government’s plan to criminalize denial of these events – outside of private conversations – was first unveiled this year 280-page federal budget. Along with a number of initiatives to combat anti-Semitism, including $20 million for a new Holocaust museum in Montreal, the budget also revealed the government’s intention to amend the Criminal Code. Currently the criminal code makes it illegal to communicate in public statements that willfully incite hatred against any identifiable group.

The amendment “would prohibit the communication of statements, other than in private conversation, that deliberately promote anti-Semitism by condoning, denying, or minimizing the Holocaust.”

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Sidney Zoltak describes the courageous act that saved his life

Holocaust survivor Sidney Zoltak describes how a Polish family saved him from Nazi pursuers and why, years later, they refused to accept an honor celebrating their bravery. 3:01

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

“I think it’s problematic to criminalize Holocaust denial,” said Cara Zwibel, a lawyer and director of the fundamental freedoms program at the Canadian Civil Liberties Association. “That’s not to say that kind of expression isn’t harmful. But the truth is, we don’t criminalize lying for the most part.”

“I think if it adds things that somehow go beyond the narrow definition of what the court has called hate speech, then it’s probably unconstitutional.”

“Reliable predictor of radicalization”

The news was welcomed by the Center for Israel and Jewish Affairs, which said the amendment “would provide the legal tools necessary to prosecute those who peddle this pernicious form of anti-Semitism.”

“Holocaust denial is a reliable predictor of radicalization and an indication that anti-Semitism is on the rise,” Gail Adelson-Marcovitz, chair of the national board of the Center for Israel and Jewish Affairs, said in a statement. .

Record levels of anti-Semitism took place in Canada in 2021, according to a annual audit by Jewish advocacy group B’nai Brith. The number of violent incidents against Jews last year increased by more than 700%.

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Sarah Fogg, spokesperson for the Montreal Holocaust Museum, said while the organization was surprised to see such a move in a federal budget, it welcomed the news as an “important step.”

“This is a really significant legislative effort to combat anti-Semitism,” she said. “I think that makes this connection really obvious between Holocaust denial and anti-Semitism.”

Putting the Holocaust on trial

But Zwibel warned that the legislation could give Holocaust deniers a platform.

She cited the case of Holocaust denier Ernst Zundel, who was tried twice in the 1980s for publishing the pamphlet Are six million really dead? The truth at last. Although convicted, Zundel was ultimately acquitted when the Supreme Court of Canada struck down the country’s laws against spreading false news as a violation of free speech.

His trials also put the Holocaust on trial, with the Crown bringing in Holocaust scholars and survivors to support their case, while the defense put known Holocaust deniers on the stand.

“What the prosecutions have done to [Zundel] was to give him a big platform and basically allow him to parade a group of witnesses in court to try to prove that the Holocaust didn’t happen and that the government put the survivors in court. It’s excruciating,” Zwibel said.

Holocaust denier Ernst Zundel was tried twice in the 1980s for publishing the pamphlet Did Six Million Really Die? The truth at last. He is pictured here in Toronto in 1992. (Bill Becker/The Canadian Press)

Zwibel also suggested there might be issues with how the amendment would define terms such as “tolerate” and “minimize” in relation to the Holocaust.

“There are a lot of different questions to try to figure out what would be taken here.”

Geneviève Groulx, spokeswoman for the Department of Justice, said that ultimately the courts will assess what words like “downplay the significance” mean.

“But generally it is understood to encompass actions that attempt to make (something) appear smaller or less important than it actually is and to minimize (something). A court should find that minimization deliberately promotes the anti-Semitism,” she said in an email. .

Richard Moon, a law professor at the University of Windsor whose research focuses on free speech, said any such law that restricts speech is likely to be challenged at some point to determine whether such limitation can be justified. under section 1 of the Charter.

The main gate of the former German Nazi death camp Auschwitz-Birkenau, in Oswiecim, Poland. The federal government wants to amend the Criminal Code to “prohibit the communication of statements, other than in private conversation, which deliberately promote anti-Semitism by condoning, denying or minimizing the Holocaust.” (Janek Skarzynski/AFP/Getty Images)

But Moon wondered if the proposed amendment would add anything to what is already covered in the Criminal Code, other than potentially clarifying or clarifying in some way.

“So a possibility, it’s nothing new,” he said.

“The way it’s worded, it sounds like somebody prosecuted under this, the prosecution would have to establish what they already have to establish under the existing Criminal Code.”

“Must be bulletproof”

Bernie Farber, president of the Canadian AntiHate Network, said that while any tool capable of combating anti-Semitism is worthwhile, legislation will need to be carefully considered.

“It has to be sort of bulletproof in terms of the constitutionality test,” he said. “I think it’s all going to be in the wording of the legislation.

“I accept that in principle. I think it’s a long time coming. But people have a right to be stupid and offensive. And if people want to say the Holocaust didn’t happen, that’s is kind of their business. But having said that, we know that these are anti-Semitic whistles. And that will be really important in terms of the wording of the legislation on how it goes back to anti-Semitism.

In 2014, Holocaust survivor Sidney Zoltak embraces Zygmund Krynski, who saved Zoltak from the Nazi campaign targeting Jews in Poland. (Radio-Canada News)

Zoltak and his family were among the lucky few to survive the Holocaust. Her family has been on the run for two years, living with different villagers, having to change locations every few months. They eventually found a Polish family who hid them for 14 months in an underground bunker, where they didn’t see daylight for half that time.

When they were released and returned home, only 70 Jews remained in their village out of the 7,000 before the war.

We know that a number of nations around the world have made Holocaust denial a crime,” Zoltak said. “And they’ve been living with that for quite a while. And it works for them. And why should we avoid that?”