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Joanna Baron: Criminalizing residential school ‘denialism’ is both unnecessary and unconstitutional

Commentary

Independent Special Interlocutor Kimberley Murray, in her Interim Report, “Searching for Missing Children and the Unmarked Burials,” has recommended that the government introduce new legal tools, including the adoption of civil and criminal remedies combatting “denialism.” In her report, Murray wrote that, “There are significant gaps in legal protections at the federal, provincial, and territorial levels to protect the sites pending searches and investigations” and that “[…] denialists are attacking the credibility of Survivors’ truths about missing children, unmarked burials, and cemeteries at Indian Residential Schools as sensationalist.” Murray’s proposal has been countenanced with openness by Attorney General David Lametti, so it bears consideration.

Lametti, who appointed Murray to her role, indicated at her recent presentation held at the Cowesses First Nation that he is open to all possibilities for fighting residential-school denialism. He said that includes “a legal solution and outlawing it,” adding that Canada can look to other countries that have criminalized Holocaust denial.

“Denialism” is defined by the Oxford Dictionary as “a person who does not acknowledge the truth of a concept or proposition that is supported by the majority of scientific or historical evidence”. It’s a term borrowed, as with many current lobs in the culture wars, from psychology, where it refers to a person who rejects an uncomfortable or identity-threatening truth. Denialism has emerged as a recent shibboleth for abetting increasingly illiberal restrictions on open discourse.

There is such a complete lack of rigour and clarity in what constitutes denialism that any legal project proposing to attach criminal sanctions to it would be devoid of clarity and predictability, basic stipulations of the rule of law. Would residential school denialism, for example, encompass investigative journalism such as Terry Glavin’s trenchant piece from 2022?

In his bombshell investigation for the National Post, Glavin agreed that the government’s residential school policy amounted to cultural genocide and entailed brutal psychological, physical, and sexual abuse. Glavin also found that, for all of the country’s paroxysms, a year after the announcements not a single mass grave was discovered, nor any human remains unearthed. Not a single child among the 3,201 registered on the Truth and Reconciliation Commission’s 2015 record of deaths was located. Glavin also noted the caution urged by local Indigenous leaders most involved in the sites in question.

Glavin’s piece asked questions that are rightfully, and somberly, asked in the wake of as grim an allegation as the discovery of unmarked graves of children: What remains were unearthed and how can they be connected to existing historical records? What charges ought to be laid? Who will lead these efforts? For asking these questions, Terry was made persona non grata by the legacy media. Journalist Bari Weiss, who interviewed Glavin in September 2022 for her Honestly podcast, summarized her interest in l’affaire Glavin as showing what happens to a society “ when the truth no longer matters.”

Murray’s report quotes MP Leah Gazan for the proposition that “denying genocide is a form of hate speech. That kind of speech is violent and re-traumatizes those who attended residential schools.” However, hate speech is already criminalized in Canada—although defining the line between merely repugnant speech and hate speech is a famously fraught exercise, and free speech defenders like myself would be more comfortable if the state relegated itself to its highest fetter on liberty—imprisonment—only in cases of actual or threatened physical violence, since it is particularly these grey areas that create huge chill effects against open discourse.

But Murray’s proposal seems to go beyond that, urging the adoption of new legislation which would conflate any critical discussion surrounding residential schools and unmarked graves with hate speech or pathological denialism. If the new law goes beyond what has previously been defined as hate speech, it is likely unconstitutional under s. 2(b) of the Charter, which protects even the most offensive and repugnant speech which comes short of hate speech.

Besides being unconstitutional, such a law would be thoroughly illiberal and ill-advised. It raises the spectre of driving anti-Indigenous racism underground, where it will flourish away from the disinfecting influence of open discourse.

Other discourse that Murray would seem to target, while distasteful, is best responded to with rational argument rather than criminal censure. There is a somewhat arcane small fringe of Canadian conservative intellectuals who are apologists for residential schools, and I personally find these apologists misguided and odious. In an op-ed published last year, Brian Giesbrecht decried the fact that, in the midst of a national frenzy of self-flagellation following the announcement of the detection of 215 human remains, nobody bothered to mention that enrolment in the schools was often voluntary, nor did they mention “the fact that at that time the school had an impressive outdoor swimming pool.”

This minimizes real horrors. Canada’s policy of residential schools was unmistakably evil and cruel, stripping children from their families, meaning-making traditions, and communities, and any attempt to minimize this by pointing to the upsides of assimilation or the impressiveness of swimming pools are wrong-headed. Still, it seems likely that a law aimed at criminalizing those who “don’t want to admit the schools inflicted those harms”, as one survivor quoted in Murray’s report put it, would put Giesbrecht’s blithe comment, better dealt with by opprobrium and counter-speech, within the realm of criminalization.

The practicalities of criminalizing denialism also should be contemplated. Were such a law to be passed, and someone prosecuted under it, it would effectively put residential schools on trial. In the 1980s, Holocaust denier Ernst Zundel sat trial several times for his pamphlets “Did the Holocaust Really Happen?” His trials effectively put the Holocaust on trial, with the crown bringing in Holocaust researchers and survivors to support their case, while the defence put noted Holocaust deniers on the stand and cross-examined Holocaust survivors about the accuracy of their recollection. The trials gave Zundel a platform to bolster his case that the Holocaust never really happened. It was an unsightly, disgraceful spectacle.

The solution to ignorance or prejudice in a free society can never be censorship. Attorney General Lametti is a celebrated legal scholar and was even my dean at McGill Law. He knows full well that Murray’s proposed law is constitutionally suspect and should put a halt to it.

Peter Menzies: How the government accidentally pushed the news industry into the abyss

Commentary

Even more spectacularly than anticipated, the federal government’s attempts to become world leaders in rescuing journalism have not only collapsed but pushed the nation’s private sector news industry to the edge of an economic abyss.

It is difficult to recall a more complete public sector failure than that which Heritage Minister Pablo Rodriguez has engineered through his stubborn and uninformed management of the Online News Act, also known as Bill C-18.

As the Globe and Mail’s Andrew Coyne succinctly summarized the situation on Twitter:

“Never seen a government that so perfectly fused ruthless partisanship, ideological fanaticism and flower-child naivety.”

Internet law expert and University of Ottawa law professor Michael Geist was similarly concise in referring to Bill C-18 as “a massive own goal.”

“Cannot overstate the harm from this: news sector loses hundreds of millions, Canadians face degraded search results and prominence of low quality sources increase,” Geist tweeted. “Blame squarely on (Rodriguez) who did not take risks of flawed C-18 seriously.”

Lobbied for years by a news media industry that had seen billions of dollars in advertising shift from their suddenly less interesting products to the flashing lights and sensory balms of social media and search engines, the government of Canada decided to come to the rescue. In doing so, it might very well have killed the industry.

The companies it targeted are Meta, which operates Facebook and Instagram, and Google, through which Canadians funnel about 90 percent of their online search activity. Hyperbolic and unsupported claims that the web giants were “stealing our content” were thrown around (a comprehensive analysis by Montreal media analyst Steve Faguy can be found here.

Liberal and NDP politicians bashed Meta and Google resistance as “bullying.” Big tech executives were at first excluded from House of Commons hearings and then, once invited, smacked around contemptuously by Chris Bittle, the parliamentary secretary to the heritage minister, and others. Having watched their heritage critic, Rachael Thomas, be excoriated by Postmedia for daring to raise concerns all might not end well, Conservative politicians just tried not to alienate some of their friendliest publishers.

Meta made it clear as soon as C-18 was tabled that it would have to consider no longer carrying news. Google was less public but both companies pointed out they already had commercial and other arrangements with more than 150 Canadian publishers. Meta claimed that the free delivery its platform offered had a $230 million annual value to news organizations for which it wasn’t being credited. Google put its number at $250 million. Both made it clear that Bill C-18’s structure in terms of demanding compensation on a per-link basis over which they had no control, their unlimited liability under the Act, its baseball arbitration format, unrealistic expectations from news publishers/broadcasters and the enormous financial ramifications for them globally if Canadian legislation was replicated combined to create a hill to die on for them.

Their arguments were dismissed with the wave of a parliamentary hand.

Others, such as this writer, Geist, and Coyne (the latter suggested in commentary that it was perhaps the publishers who should be paying Facebook) were accused of being shills for or in the pay of “web giants.”

And so, determined that Meta and Google were bluffing, Rodriguez rejected all criticisms, suggestions, and warnings and Bill C-18 received royal assent on June 22.

Meta, true to its word, confirmed immediately that, once the Act came into force, it would “comply” by ceasing to allow the posting of links to Canadian news stories within Canada. Google, still hopeful it could find some way to, in exchange for improved spending, wriggle off Rodriguez’s hook, managed to get a meeting with officials in the prime minister’s office the night before the bill was signed by the Governor General. The next morning, Rodriguez invited them for an emergency meeting designed to keep them from announcing action similar to Meta’s.

Minister of Canadian Heritage Pablo Rodriguez on April 5, 2022. Sean Kilpatrick/The Canadian Press.

After that meeting, there was a ray of hope, but when Rodriguez put his thoughts in writing, Google swiftly announced that it would eliminate Canadian news from its search results.

And then both it and Meta started canceling the deals they already had in place with publishers big and small. The amounts are unknown as they are confidential commercial contracts, but it is fair to assume they amount to at the very least tens of millions of dollars.

Jeff Elgie, CEO of Village Media, a company that specializes in digital local news startups where print has failed, had previously warned in Senate hearings that the departure of Facebook and Google from the news ecosystem would devastate his company. In a blog post to employees which he shared online, he estimated that “the potential impact on our traffic would be in the range of 50 percent: roughly 17-18 percent from Facebook (some sites more, some less) and 30-35 percent from Google search, Google News, and Google ads.

“From a news publisher’s perspective, it’s a perfect storm,” Elgie summarized. “…Village Media’s position on this is that this has been a bad bill from the start. It was based on bad messaging created by others in the industry. The premise of the bill was that Google and Facebook ‘steal’ our content when nothing could be further from the truth.”

The truth Rodriguez now has to face up to is that his department doesn’t understand digital economics and got suckered into producing legislation based on a fantasy.

And that as a result, the straits the nation’s news producers find themselves in today are far, far more dire than they were before he decided to “help.”

There are a few more weeks and maybe months left for Rodriguez to keep from being the guy whose hubris killed the Canadian news industry. After all, the blocking won’t begin until C-18 legally comes into force.

But fixing this will require something of which there’s been scant evidence to date within this government: humility.