Civil Liberties Group Raises Concerns Over Proposed Criminal Law Under ‘Antisemitism’ Title

By Lee Harding
Lee Harding
Lee Harding
Lee Harding is a journalist and think tank researcher based in Saskatchewan, and a contributor to The Epoch Times.
April 27, 2022 Updated: April 28, 2022

The Ontario Civil Liberties Association has written to senators and MPs to express opposition to legislation proposed in the 2022 federal budget to criminalize “Holocaust denial” and promotion of antisemitism, saying it will “damage Canadian democracy” and could lead to criminalization of speech about other significant events.

OCLA executive director Joseph Hickey publicized the April 22 letter in a press release that included links to the organization’s previous letters to the federal and two provincial governments calling for the repeal of existing “hate speech” provisions in the Criminal Code.

OCLA’s stance is not specific to this issue but to all hate crime legislation, Hickey told The Epoch Times.

“We have, for many years, had the position that all of the speech provisions in the Criminal Code should be repealed,” he said.

“The provisions don’t require the prosecutor to bring any actual witness who would have suffered harm or saw harm. And that is unlike other provisions in the Criminal Code, such as uttering a death threat or incitement to violence. In those cases, you need to actually really show a real connection between speech and a potential harm or an actual harm that happened.”

Hickey says similar “speech crimes” with low thresholds for prosecution, such as blasphemous libel and defamatory libel, were removed in 2018, and he doesn’t welcome adding a new one.

“‘Hate speech’ in Canada is a victimless crime, because no evidence of any kind is needed for conviction,” Hickey wrote in his letter to parliamentarians. “This is a recipe for arbitrary impression-based state censorship.”

The new provision reads, “In Budget 2022, the government proposes to amend the Criminal Code to prohibit the communication of statements, other than in private conversation, that willfully promote antisemitism by condoning, denying or downplaying the Holocaust.”

International Law

In his letter, Hickey said the new provision “is explicitly and directly contrary to international law.”

“The International Covenant on Civil and Political Rights [ICCPR] requires states to establish a ‘direct and immediate connection’ to an actual ‘threat’ when implementing laws that restrict freedom of expression,” he wrote.

In 2011, the U.N. issued General Comment No. 34 on the ICCPR, which states: “Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression. The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events.”

Hickey told parliamentarians in his letter: “All statements of fact and opinion about all historical events must be open to questioning, otherwise we are inhabiting a regime of dogma. In such a regime, there can be no authentic search for truth, and no democracy. The criminalization of expression on state-controlled or taboo topics does not belong in any free and democratic society.”

He wrote that by the“false logic” of the proposed new crime, “the government could equally criminalize expression, including questions and calls for independent investigations, about other events of national or global significance, such as wars, public health crises, and natural disasters.” 

Hickey also told The Epoch Times that it was “wrong” to bury this provision in a budget bill.

“These types of laws are very controversial. There’s a lot of debate that should be had. But that can only happen if the bill is put forward in an individualized way, not as part of an omnibus bill,” he said.

‘Low-Hanging Fruit’

Scott Bennett, a political science professor at Carleton University, said in an interview that “the technical arguments of the OCLA are correct.” Still, he doubts parliamentarians would vote against the new hate provision even if it were introduced separately, especially since Kevin Waugh, a Conservative MP from Saskatoon, introduced a private member’s bill with identical language in February.

“In all likelihood, someone in the governing party saw this as low-hanging fruit, as it actually grows out of [Waugh’s bill]. So it could be seen as a minimal attempt at cooperative behaviour in the Commons,” Bennett said.

“There would be very few people who would actually deny that the Holocaust took place more or less as described by mainstream historians. So the public is unlikely to get upset about a new criminal act definition unless they can connect it to personally important but more general concerns, like freedom of speech.”

Interest groups and politicians are often better at “symbolic gestures” than “thoughtful substantive policy,” he says, and this legislation might be one more example.

“Will it reduce the magnitude of antisemitic acts? Will it impact hate crimes of any magnitude in a significant way? I think that is very debatable. It may simply drive certain kinds of behaviour further underground, or it may raise concerns that acts against some groups are being taken more seriously than acts against other groups,” he said.

“Rather than criminalizing certain speech, it would probably be desirable to increase educational activities relating to group-focused hate. Perhaps some of that will come out of the other funding connected to the bill.”

The budget earmarks $5.6 million over five years to the office of former Liberal justice minister Irwin Cotler, now the prime minister’s special envoy on preserving Holocaust remembrance and combating antisemitism.

Germany, Greece, France, Belgium, and the Czech Republic have also enacted Holocaust denial legislation.

Lee Harding
Lee Harding is a journalist and think tank researcher based in Saskatchewan, and a contributor to The Epoch Times.