OCLA’s stance is not specific to this issue but to all hate crime legislation, Hickey told The Epoch Times.
“We have, for many years, had the position that all of the speech provisions in the Criminal Code should be repealed,” he said.
“The provisions don’t require the prosecutor to bring any actual witness who would have suffered harm or saw harm. And that is unlike other provisions in the Criminal Code, such as uttering a death threat or incitement to violence. In those cases, you need to actually really show a real connection between speech and a potential harm or an actual harm that happened.”
“‘Hate speech’ in Canada is a victimless crime, because no evidence of any kind is needed for conviction,” Hickey wrote in his letter to parliamentarians. “This is a recipe for arbitrary impression-based state censorship.”
International Law
In his letter, Hickey said the new provision “is explicitly and directly contrary to international law.”In 2011, the U.N. issued General Comment No. 34 on the ICCPR, which states: “Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression. The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events.”
Hickey told parliamentarians in his letter: “All statements of fact and opinion about all historical events must be open to questioning, otherwise we are inhabiting a regime of dogma. In such a regime, there can be no authentic search for truth, and no democracy. The criminalization of expression on state-controlled or taboo topics does not belong in any free and democratic society.”
Hickey also told The Epoch Times that it was “wrong” to bury this provision in a budget bill.
‘Low-Hanging Fruit’
Scott Bennett, a political science professor at Carleton University, said in an interview that “the technical arguments of the OCLA are correct.” Still, he doubts parliamentarians would vote against the new hate provision even if it were introduced separately, especially since Kevin Waugh, a Conservative MP from Saskatoon, introduced a private member’s bill with identical language in February.“In all likelihood, someone in the governing party saw this as low-hanging fruit, as it actually grows out of [Waugh’s bill]. So it could be seen as a minimal attempt at cooperative behaviour in the Commons,” Bennett said.
“There would be very few people who would actually deny that the Holocaust took place more or less as described by mainstream historians. So the public is unlikely to get upset about a new criminal act definition unless they can connect it to personally important but more general concerns, like freedom of speech.”
Interest groups and politicians are often better at “symbolic gestures” than “thoughtful substantive policy,” he says, and this legislation might be one more example.
“Will it reduce the magnitude of antisemitic acts? Will it impact hate crimes of any magnitude in a significant way? I think that is very debatable. It may simply drive certain kinds of behaviour further underground, or it may raise concerns that acts against some groups are being taken more seriously than acts against other groups,” he said.
“Rather than criminalizing certain speech, it would probably be desirable to increase educational activities relating to group-focused hate. Perhaps some of that will come out of the other funding connected to the bill.”
The budget earmarks $5.6 million over five years to the office of former Liberal justice minister Irwin Cotler, now the prime minister’s special envoy on preserving Holocaust remembrance and combating antisemitism.
Germany, Greece, France, Belgium, and the Czech Republic have also enacted Holocaust denial legislation.