One of the Trudeau government’s chief political accomplishments is the repeal of many of the Harper government’s policies. Its first budget alone got rid of income splitting for families, tax credits for children’s arts and fitness, and the doubling of the Tax-Free Savings Account contribution limit. These and other policy reversals have led one commentator to characterize the Trudeau government’s agenda as “undoing Harperism.” 

Yet there’s a strong argument that the most significant case of the Trudeau government’s undoing of its predecessor’s policies actually extends to the Chretien era in the form of its now controversial Bill C-11. 

As we’ve discussed before at The Hub, the Online Streaming Act,^{1Backgrounder: The Government of Canada introduces legislation to support the next generation of Canadian artists and creators https://www.canada.ca/en/canadian-heritage/news/2022/02/backgrounder-the-government-of-canada-introduces-legislation-to-support-the-next-generation-of-canadian-artists-and-creators.html} which will soon go to the Senate for review, extends the Broadcasting Act’s provisions and, in turn, the Canadian Radio-Television and Telecommunications Commission (CRTC)’s regulatory reach to the internet. The net effect is that streaming services like Netflix and YouTube will be subject to Canadian content regulations (typically referred to as CanCon rules) and mandated to make financial contributions to the country’s bureaucratic system of content subsidies. 

Yet we haven’t discussed the origins and rationale for exempting the internet from the CanCon regime in the first place. That decision, taken in 1999 by the Chretien government, is in retrospect one of the most far-sighted and important policy choices of the previous Liberal government. Bill C-11 now threatens it. 

As the internet was emerging as a platform for audio and video content, there was a question about whether the Broadcasting Act’s legal framework (including the CanCon rules) ought to cover it. The CRTC carried out public consultations on this issue through the summer of 1999 and then issued a directive (sometimes referred to as the New Media Directive) in late December.^{2Exemption order for new media broadcasting undertakings https://crtc.gc.ca/eng/archive/1999/pb99-197.htm} 

What’s striking about the directive in hindsight is how its underlying thinking about the positive-sum dynamic of the internet and the growing global potential for Canadian content diverges from the government’s defensive and nationalistic arguments in favour of Bill C-11. 

The basic idea then was that an unregulated internet would actually advance the goals of greater Canadian content better than subjecting it to the Act and its accompanying rules and regulations. The directive stated: “The Commission expects that the exemption of these services will enable continued growth and development of the new media industries in Canada, thereby contributing to the achievement of the broadcasting policy objectives, including access to these services by Canadians.”

The initial directive has been subsequently reviewed over the years and largely upheld as the basis for how the CRTC treats internet-based networks and content. The core insight about the internet’s positive-sum effects on the quantity and reach of Canadian content has endured as the underlying basis for policymaking from the Chretien government to the Harper government. 

Consider, for instance, a 2009 directive that maintained the new media exemption and even expanded it to the content accessed on smartphones.^{3Review of broadcasting in new media https://crtc.gc.ca/eng/archive/2009/2009-329.htm} Based on consultations with content creators and industry players at the time, the CRTC observed: 

“Many parties submitted that the Commission’s hands-off approach has been instrumental in allowing new media to flourish to this point and that regulatory intervention remains unnecessary for continued development and innovation in the new media environment.”

Therefore the CRTC concluded: 

“The Commission retains its view set out in the New Media Exemption Order that the exemption of new media broadcasting undertakings will enable continued growth and development of the new media industries in Canada, thereby contributing to the achievement of the broadcasting policy objectives, including access to those services by Canadians.” 

It’s far from obvious what has changed over the past 13 years or so that would alter this key insight. The fundamental goal of producing and promoting Canadian content has only expanded as content creators have come to leverage new and emerging internet-based platforms to reach domestic and global audiences. It speaks to the prescience of the 1999 decision that the Chretien government understood this potential better than the Trudeau government seems to today. 

Exempting the internet from regulation has contributed to an unprecedented burst of creativity, innovation, and success for Canadian creators. Canadian programming on Netflix, YouTube, and other streaming sites is winning awards and reaching huge audiences. As successful YouTuber J.J. McCullough recently told^{4‘Hello friends’: J.J. McCullough explains why Canadian YouTubers fear the government’s online streaming bill https://thehub.ca/2022-06-02/hello-friends-j-j-mccullough-explains-why-canadian-youtubers-fear-the-governments-online-streaming-bill/} a parliamentary committee: 

“The tremendous success and even worldwide fame of many Canadian YouTubers in the absence of government regulation should invite questions about the necessity of Bill C-11. An unregulated YouTube has been a 17-year experiment—and the result has been an explosion of popular Canadian content, produced by Canadians of every imaginable demographic.”

The broader experiment of the New Media Directive has effectively proven that there’s a significant global demand for Canadian content and that national broadcasting policy shouldn’t assume otherwise. The cultural defensiveness and protectionism of previous eras were wrong. 

Yet in spite of the evidence, the Trudeau government continues to adhere to this misguided thinking. Its views about the internet and Canadian culture reflect a zero-sum understanding that belies the facts and underestimates Canadian content creators. 

For a government that portrays itself as cosmopolitan and futuristic, Bill C-11 has shown the Prime Minister and his Canadian Heritage Minister to be retrograde and parochial on these matters. If they really want to support the “next generation of Canadian artists and creators”,^{5Government of Canada Introduces Legislation to Support the Next Generation of Canadian Artists and Creators https://www.canada.ca/en/canadian-heritage/news/2022/02/government-of-canada-introduces-legislation-to-support-the-next-generation-of-canadian-artists-and-creators.html} they won’t undo the Chretien government’s inspired decision on internet regulation and the successful market-driven experiment that it has spawned for more than twenty years.

This essay is adapted from a speech given by Senator Paula Simons in response to an amendment to the Criminal Code of Canada contained in the government’s budget act. Read the full speech or watch the video here.

Forty years ago ⁠— the very same year that Canada adopted its Charter of Rights and Freedoms ⁠— Alberta was convulsed in a political and legal debate over Holocaust denialism and the trials of Jim Keegstra.

Keegstra had been a high school social studies teacher in the village of Eckville.

He taught his students that the Holocaust was a hoax, faked by a international Jewish conspiracy to control the world, and the global economy. He taught his horrific hate for years, without being stopped by any principal or school board ⁠— until one heroic mum, Susan Maddox, fought to have Keegstra fired. He finally was, in 1982. Two years later, he lost his teaching licence.

So far, so good. But in 1984, Jim Keegstra was also charged, criminally, with the willful promotion of hatred. That case, fought all the way to the Supreme Court, twice, there and back again, finally concluded in 1996, with a conviction…and a sentence of a mere 200 hours of community service.

The landmark legal precedent in the Keegstra case established the constitutionality of Canada’s hate speech legislation.

But far from silencing Keegstra, much less changing his mind, those 12 years of appeals and retrials gave him a bully pulpit to posture as a false defender of civil liberties – and to amplify his conspiracy theories.

He basked in national notoriety. In 1987, he was catapulted from being a village school teacher to leader of the federal Social Credit Party. Meanwhile, Keegstra’s lawyer, a fellow Holocaust denier named Doug Christie, used the profile he gained while defending Keegstra, to become the founder and leader of the Western Canada Concept separatist party.

I’ve been thinking a lot about Jim Keegstra, Doug Christie, and their dark legacy this week, as the Senate has been debating Bill C-19, the new budget implementation act.

Hidden away in the fine print of the budget bill is a line that amends the Criminal Code of Canada. Bill C-19 creates a new offence: to “prohibit the communication of statements, other than in private conversation, that willfully promote antisemitism by condoning, denying or downplaying the Holocaust.” The crime would be punishable by up to two years in prison.

This little provision, hidden away in the budget bill, hasn’t had much public attention. But I fear it’s a ticking time bomb.

As the Keegstra case amply demonstrates, denying the Holocaust is already a hate crime – making this law redundant at best. But prosecutions of this type often have ugly, unintended consequences.

As the child of a Jewish father and a German mother, let me very very clear. There is no good faith way to ‘debate’ or ‘question’ the reality of the Holocaust, one of the best-documented, well-researched atrocities in modern history. Anyone who questions or denies or diminishes its full genocidal horrors is not engaging in authentic intellectual debate.

Holocaust deniers are, by definition, hate-mongers. There is simply no way to question or interrogate the reality of the Shoah that is not, by definition, anti-Semitic.

Downplaying the Holocaust is every bit as morally vile.

When people who oppose masking rules pin yellow stars to their chests, and or dare to compare vaccine mandates to the Nazi war crimes prosecuted at Nuremberg?

Their facile appropriation the horror of the Holocaust dishonours the memory of all those who died ⁠— and all who survived.

Yet attaching criminal penalties to such statements and actions won’t reduce anti-Semitism. It will, instead, give neo-Nazis and racists a perfect excuse to wrap themselves in the rhetoric of free speech, and to claim the public spotlight as faux defenders of “intellectual freedom.”

Slipping this criminal code amendment into a budget bill could well open the door for hundreds of new hate-mongers and bigots to claim victimization, to strut and fret their hour upon the stage, spreading their bile via every social media channel, in ways Keegstra could never have imagined. He had a small captive audience of Eckville school children. Today’s anti-Semites spray their bile to hundreds of thousands of people with the click of a keyboard.

I’ve spent my whole life as an advocate for free speech and civil liberties. I learned that from my father, from my uncle, from my grandfather – all passionate Jewish civil libertarians who taught me early not to trust in the power of the state as protection.

I do not believe we can fight hate by criminalizing speech, however vile or deluded. Nor by silencing it — even if we could. Driving hate underground to curdle and fester doesn’t help.

Once we start to criminalize speech, to police, literally, what is true and what is false, once we use the Criminal Code and the criminal courts to silence the nasty political fringe, we start down a path that leads precisely where we do not wish to go. This strategy will only convince the paranoid and the conspiracy-prone that they are correct. It plays right into the hands of the far-right thought scammers and grifters who prey on fear and ignorance.

I have no doubt the government is well-intentioned, in making this amendment. Many in the Jewish community have advocated for precisely this change — and many in the Jewish community, including many I love, will disagree me, vehemently.

But my father, of blessed memory, had a line he liked to use, half-joking and half-not — “Is it good for the Yidden?” Is it good for the Jews?

This bill will not be good for the Yidden. Nor for Canada.

Instead of criminalizing speech, let’s be sure we tell the real stories of the Holocaust and of the rise of Hitler, over and over.

Let’s record and remember and reamplify the stories of the survivors, before they themselves are overtaken by time, and no longer with us to bear witness.

Instead of arresting and charging every online hatemonger and troll — a next to impossible task — we should focus, instead, on making the big tech platforms more transparent and more accountable for the way their algorithms privilege and promote incendiary hateful speech.

Especially now, with hate crimes of all kinds multiplying, with social media platforms aerosolizing racism, with neo-Nazis parading proudly through our streets, with mainstream Canadian parliamentarians embracing and spreading conspiracy theories and classic anti-Semitic tropes, we must call out lies and champion the truth.