Legislation criminalizing ‘residential school denialism’ unlikely to survive constitutional challenge, legal scholars say

On November 26, the Canadian Press reported that Justice Minister Arif Virani was considering options for the criminalization of residential school denialism, a move first looked into by his predecessor, David Lametti, before last summer’s cabinet reshuffle. However, legal scholars argue that such legislation would be unlikely to survive a constitutionality challenge under the Canadian Charter of Rights and Freedoms. Furthermore, they point out that many of the harms the legislation would strive to prevent may already be covered under the Criminal Code. 

The leading voice in favour of the theoretical law is Kimberly Murray, the former executive director of the Truth and Reconciliation Commission, who was appointed in 2022 to be an independent advisor to the federal government to provide advice on dealing with the claims of unmarked graves. Murray’s official title is Independent Special Interlocutor for Missing Children and Unmarked Graves and Burial Sites associated with Indian Residential Schools. 

In June, an interim report from Kimberly’s office recommended among its 48 findings that “[u]rgent consideration should be given to legal mechanisms to address denialism, including the implementation of both civil and criminal sanctions.” Following the report’s release, Lametti said he was open to such a legal solution. 

After Virani replaced Lametti as justice minister, Virani’s office stated that it was “considering the options raised in Ms. Murray’s interim report and looks forward to receiving her recommendation in the final report.”

Joanna Baron, the executive director of the Canadian Constitution Foundation, says the concerns raised by Murray—such as incitement to violence and hate speech—are already covered under the Criminal Code. 

“[Murray] suggested that what she calls residential school denialism is maintaining hate toward Indigenous peoples. If that’s the case, [and] if that can be proven, then that should be covered under other provisions that are already criminalized,” says Baron, adding that a lower threshold than hate speech for criminalizing residential school denialism is unlikely to survive a Charter challenge. 

“Either she’s suggesting a threshold that is lower than hate speech, but which is still criminalized speech, in which case I don’t see how it can be constitutional, or what she’s suggesting is something that’s superfluous, [and] that is just a different variation of hate speech and presented under a separate category for symbolic effect,” she says. 

Camden Hutchison, an associate professor of law at the University of British Columbia, notes that previous reports on the proposed scope of the potential law included personal attacks via email, telephone, and in-person confrontations, trespassing on suspected gravesites, and opinion articles and social media posts. He says that while trespassing and targeted harassment are already illegal, criminalizing denialism via social media or published articles would be more controversial. 

While section 2(b) of the Charter protects “freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication,” Hutchison says there is legislative precedent for criminalizing specific ideas. He points to an addition to the Criminal Code last year—section 319(2.1)—which specifically prohibits the willful promotion of antisemitism by condoning, denying, or downplaying the Holocaust.

“This provision is of questionable constitutionality, but to my knowledge, it’s never been tested in court,” he says. “My guess is that if the Liberal government were to introduce legislation related to ‘residential school denialism,’ it would follow the model of s. 319(2.1).”

Murray herself has compared the potential criminalization of residential school denialism to the criminalization of Holocaust denial. 

“We could do the same for Indigenous people,” she said. “Make it an offence to incite hate and promote hate against Indigenous people by … denying that residential schools happened or downplaying what happened in the institutions.”

Passing the Oakes test

Hutchison notes that in order to stand up in court, Holocaust or residential school denialism laws would have to pass the “Oakes test.” The Oakes test determines whether a Charter violation is a “reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society.”

To meet the Oakes test for Charter rights restrictions, two criteria must be satisfied: the legislative objective must address pressing and substantial societal concerns, and the restriction must be rationally connected to the objective, minimally impede Charter rights, and be proportional. 

Hutchison believes it would be challenging for a law against residential school denialism to meet these criteria. He notes that there is uncertainty about whether there is a pressing interest in prohibiting debate on this topic, as it may not constitute active hate speech.

“It’s also hard for me to see a law against ‘residential school denialism’ passing the second criteria of the Oakes test,” he says. “Banning all debate regarding residential schools doesn’t seem rationally connected to protecting the emotional well-being of Indigenous Canadians. It would likely just cause controversy and inflame the issue.” 

Furthermore, Hutchison points out that unless legislation aimed at residential school denialism is defined very narrowly, it would not impair Charter rights to a minimum extent but would likely cover a wide range of expression. 

Baron, too, is skeptical that the law would survive a constitutional challenge, but she suggests that the bigger question might be who would actually undertake that challenge, given the “obvious sensitivity” around the issue.

She notes that journalists and writers who have raised questions about the existence of unmarked graves at specific sites could potentially be charged under the law and that it is unclear how the law would be applied. 

“If it were challenged, though, I think it’s pretty clearly a violation of section 2(b) on its face,” says Baron. “I don’t think it would be saved by section 1 [which states that rights and freedoms are subject to reasonable limits that can be justified in a free and democratic society], because all evils that it seeks to evade, which no doubt are important goals, are already covered.” 

Hutchison says that while few people in Canada actively try to relitigate the Holocaust, there is far more controversy about residential schools. He says that passing an anti-denialism law would only raise more questions and doubts about the historical record. 

Baron, whose grandparents are Holocaust survivors, appeared before a government committee examining the law relating to Holocaust denial and urged the government not to adopt it. Her reason for doing so was that bringing charges under the law would open the door to relitigating the Holocaust. She believes that the same rationale applies to residential school denialism. 

“Using state sanctions and the threat of jail time, or a criminal record, doesn’t tend to effectively curb hateful speech and misinformed opinions,” she says. “It tends to just drive them underground and form up people who think that there’s some type of big conspiracy.” 

An alternative to criminalization

Karen Restoule, vice president at Crestview Strategy and co-founder of BOLD Realities, wonders about the government’s motivations in considering this issue. “It seems like passing legislation—or trying to—and then having it struck down is the current government’s modus operandi,” she says. “It’s almost as though they don’t intend for these laws to withstand the stress tests, and that the process itself serves as a communications strategy and a tactic for conveying its position and ideology on a specific issue in a manner that’s ‘seriously’ intended.” 

Restoule believes it is possible that the government is signalling that residential school denialism will not be condoned and that it will support those who are affected by it. 

As an alternative to a law criminalizing residential school denialism, Restoule points to the words of the Honourable Justice Murray Sinclair, who stated that “Education is what got us here, and education is what will get us out.”

“Learning about residential schools at all ages fosters important dialogue and pushes Canadians to think about their role in civil society,” she says. “And it also pushes us to consider which principles form the foundation of life in Canada, and how these are both exercised and upheld.”