Christine Van Geyn is litigation director of the Canadian Constitution Foundation.
Kimberly Murray’s work as the independent special interlocutor investigating unmarked burial sites and collecting the stories from residential schools is important. Unfortunately, it has been undermined by some controversial statements, including in her final report released last month.
Ms. Murray’s most polarizing recommendation is to “implement criminal and civil sanctions” around residential school denialism. She has also mischaracterized the scope of a private members’ bill proposed by NDP MP Leah Gazan that would “create an offence of wilfully promoting hatred against Indigenous peoples by condoning, denying, downplaying or justifying the Indian residential school system in Canada through statements communicated other than in private conversation.”
On November 7, Ms. Murray spoke at a luncheon at the Canadian Club Toronto where she applauded Ms. Gazan’s bill, comparing this effort to a 2022 criminal code amendment that criminalizes the willful promotion of antisemitism “by condoning, denying or downplaying the Holocaust.” To be clear, there are civil libertarians who also object to that law, which has not been tested in court. And there are many Canadians who do not agree with the comparisons between the Holocaust and residential schools; it should not be a criminal offence to say that not all terrible historical events are in the same category.
But Ms. Murray seems to misunderstand what would constitute willful promotion of hatred even under Ms. Gazan’s misguided proposal. Ms. Murray claimed that, under the proposed legislation, it would be a criminal offence to say “I don’t believe there’s burials and I think all the Indians are lying to get money from the government, and to get their people to burn down churches, and to take your cottages away.”
For clarity, these statements do not rise to the level of incitement required under existing hate law in sections 319(1) and (2). And if they do under Ms. Gazan’s proposed law, the bill would likely violate section 2(b) of the Charter, the right to freedom of expression.
Existing hate-speech prohibitions cover the most extreme types of speech. The Supreme Court considered the definition of hate speech under the lower human-rights standard in Whatcott v. Saskatchewan, and held that the speech needs to rise to vilification and detestation to attract sanction. This standard “filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects.” Whatcott described some “hallmarks of hatred,” including describing a group as subhuman or animalistic, a dangerous or unclean menace to society, blaming all of society’s problems on a certain group, or as inherently violent. Saying members of a group are lying about a topic for financial gain, even if that is not true, does not rise to the standard required for a criminal sanction.
But the proposal in Ms. Murray’s final report to criminalize denialism goes even further. She provides an impossibly broad definition of denialism, including minimizing the harm of residential schools, saying the death rates were typical for the period, saying that we don’t know the truth and that there is a conspiracy to exaggerate deaths, and that it wasn’t a genocide.
First, assistant law professor Stéphane Sérafin has pointed out that criminalizing “minimizing harm” would essentially be to criminalize a value judgment. Second, the claim that the residential school system was an act of genocide remains a highly fraught issue, as the Truth and Reconciliation Commission originally referred to a “cultural genocide,” which is not a genocide as defined by the United Nations. While the House of Commons passed a motion urging the government to recognize that residential schools were an act of genocide in 2022, many Canadians don’t agree with it. Saying that should not risk landing them in jail.
To be clear, it is foolishness to try to minimize the harm many Indigenous children and families suffered at and because of residential schools. We know that there were children who were forced to attend, and there is no justification for forcibly separating a child from their loving family. We know there were children who were abused, who died and who disappeared. Ms. Murray’s report references some of the horrifying stories of medical experimentation on children, including the use of experimental vaccines, and of pharmaceutical and nutritional testing. This is the stuff of horror films.
But Ms. Murray’s controversial call to criminalize speech distracts from and undermines the importance of this work. Much remains unknown about unmarked burial sites, and creating a broad criminal sanction around this topic will not allow for a full investigation to take place. The stories of the people who attended residential schools ought to be our central focus. There are people who want to minimize the terrible policy of residential schools, but these stories – not criminalizing speech – need to be part of the answer.