Why Canada's plan to criminalize Holocaust denial could be unconstitutional — and redundant

Sidney Zoltak, who has spent a significant part of his life recounting his experiences as a child survivor of the Holocaust, says he's not sure how he would characterize the effort by some to deny the historical genocide.

"I don't know what to call it ... whether it's a crime, a shame, a lie — what would be more appropriate," said Zoltak, 91. As a child, he, along with his family, escaped the Jewish ghetto set up by Nazis in his Polish hometown and went into hiding.

"But what kind of a crime it is, I am not a legal person, not a lawyer, so I wouldn't know how to legislate that."

Yet, that's what the federal government will attempt to do, and join several countries in Europe, including Germany, that make Holocaust denial a crime. However, like any legislation that seeks to curb expression, it could be subject to Charter challenges.

The Holocaust refers to the state-sponsored initiative by the Nazi government during the Second World War that led to the murder of more than six million Jews and millions of others, such as Roma. 

The government's plan to criminalize denial of those events — outside of private conversation — was first unveiled inside this year's 280-page federal budget. Along with a number of initiatives to fight antisemitism, including $20 million for a new Holocaust museum in Montreal, the budget also revealed the government's intent to amend the Criminal Code. Currently the Criminal Code makes it illegal to communicate statements in public that wilfully promote hatred against any identifiable group. 

The amendment would "prohibit the communication of statements, other than in private conversation, that willfully promote antisemitism by condoning, denying or downplaying the Holocaust."

WATCH | Holocaust survivor Sidney Zoltak describes how a Polish family saved his life:

But while many advocates welcome the legislation, some legal experts question its constitutionality. 

"I think it's problematic to criminalize Holocaust denial," said Cara Zwibel, lawyer and director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association. "That's not to say that that kind of expression is not harmful. But the truth is, we don't criminalize lying for the most part."

"I think if it adds things that sort of go beyond the narrow definition of what the court has said is hate speech, then it's probably unconstitutional."

The news was welcomed by the Centre for Israel and Jewish Affairs, which said the amendment would "provide the necessary legal tools to prosecute those who peddle this pernicious form of antisemitism."

"Denying the Holocaust is a reliable predictor of radicalization and an indication that antisemitism is on the rise," Gail Adelson-Marcovitz, chair of the national board of directors of the Centre for Israel and Jewish Affairs, said in a statement.

Record levels of antisemitism took place in Canada in 2021, according to an annual audit by Jewish advocacy group B'nai Brith. The number of violent incidents toward Jews last year increased by more than 700 per cent.