The Criminal Justice Section of the Canadian Bar Association supports initiatives to combat racism, antisemitism and other forms of hatred. But as it explains in a letter to the Senate Committee on Legal and Constitutional Affairs, it does not support using Bill C-19, the Budget Implementation Act, to outlaw Holocaust denial.
The CBA Section acknowledges incidents of antisemitism are on the rise not just in Canada but around the world. The Section has a few concerns over using Bill C-19, starting with the general objection to using a budget implementation bill to enact or amend substantive legislation not directly related to finance, taxation or spending. “We believe Criminal Code amendments should be properly vetted by relevant stakeholders, in a forum where they are the main consideration of the proposed legislation,” the letter reads.
Division 21 of Part 5 of Bill C-19 amends the Criminal Code to create an offence of wilfully promoting antisemitism by condoning, denying or downplaying the Holocaust through statements communicated other than in private conversation.
“If the government’s objective is to punish acts of antisemitism,” the letter says, “this legislation does not achieve that objective. If the objective is a narrow one, to address only Holocaust denial, then the legislation meets its objective.” But even in this case the CBA Section has other concerns.
The first concern is the requirement that the Attorney General give consent to lay the charge of wilfully promoting antisemitism by condoning, denying or downplaying the Holocaust. While the CBA Section agrees requiring consent is appropriate, it says criteria should be made explicit for denial of consent, “so it cannot be denied arbitrarily without explanation.” As the letter also states, approval for alternative measures to prosecution should be given only if individual victims are consulted and their wishes considered, the offender has no history of related offences or violence and accepts responsibility for the act, and the offence did not threaten the safety of the community.
The second concern is related to defences commonly used in hate speech cases. Those include arguing the statements are true, that they were expressed in good faith to make a religious argument, that the person making the statements had reasonable grounds to believe they were true and served the public benefit, or that the statements had been made in good faith to point out a source of racial or religious tension.
As the CBA letter explains, by criminalizing Holocaust denial the law presumes it to be untrue, “so there is no context in which this defence could operate.” It is difficult to imagine a situation where denying the Holocaust would serve as the basis of a religious argument. “Finally, if the purpose is to make Holocaust denial an offence, then allowing an exception under the guise of being in the public interest and benefit, based on a reasonably held belief, would create a situation where any trial could devolve into a forum to air conspiracy theories and other questionable historical studies to support the defence.”
The CBA Section concludes that if the purpose of the amendments is to create a stand-alone offence, then it would be wise to narrow the usual defences to a single one, that the person making the statement, in good faith, “intended to point out, for the purpose of removal, matters producing or tending to produce feelings of antisemitism toward Jews.”