Can Holocaust denial legally be considered hate speech?

“The past,” William Faulkner wrote, “is never dead. It's not even past.” He wasn’t talking about the legacy of the Second World War — but he might have been.

Around the world, racist and far-right movements are on the march. In Canada, a media marketing firm reported a sixfold increase in online hate speech between 2015 and 2016. In the United States a year ago, a resurgent far-right movement erupted into the public sphere with a rally of torch-bearing white supremacists in Charlottesville, Virginia that ended with the death of a counter-protester. Throughout Europe, far right and anti-immigrant political movements have been making strides in politics, while in Germany, one university study found that the share of online content classified as anti-Semitic rose from 7.5 per cent in 2007 to more than 30 per cent in 2017.

Against that backdrop, the trial of Monika Schaefer in Germany might seem like small beer. Schaefer, a German-Canadian (and a former Green Party candidate in Alberta) has published multiple videos online denying the fact of the Holocaust. She was arrested on January 3 while visiting relatives in Germany and now faces six charges of “incitement of the people.” She faces up to three years’ imprisonment on each charge.

Schaefer is getting some high-profile support back home. Last month, the Ontario Civil Liberties Association wrote to Foreign Affairs Minister Chrystia Freeland and Justice Minister Jody Wilson-Raybould to demand the federal government step in to “save (Schaefer) from her ongoing unjust and immoral imprisonment in Germany.”

The OCLA argues that Schaefer is a “political prisoner” on trial for violating a German criminal law that does not exist in Canada, and that “is categorically contrary to international law.” It cites the International Covenant on Civil and Political Rights, which Canada ratified and which states that laws penalizing “the expression of opinions about historical facts” are “incompatible with the obligations that the Covenant imposes.”

The OCLA’s stance drew a sharp response from Shimon Koffler Fogel, CEO of the Centre for Israel and Jewish Affairs. In an op-ed piece published last month, Fogel stated that Germany’s Holocaust denial law doesn’t violate the covenant — that multiple courts and human rights bodies, including the European Court of Human Rights, have ruled it’s compatible with international law.

Who’s right? So far, the Canadian government doesn’t seem to be offering Schaefer more than the usual consular assistance. That might reflect, in part, Canada’s unique mid-Atlantic position among countries that have laws governing ‘hate speech’ — not as libertarian as the Americans, not as restrictive as many European countries.

Germany’s Holocaust law grew out of its post-war sense of guilt and responsibility for the monstrous crimes of the Nazi regime. It criminalizes the act of denying the genocide (or of downplaying its scope by, for example, claiming that far fewer people died in the Holocaust than the six million figure cited by credible historians).

The OCLA is correct when it says that denying the historical fact of the Holocaust, or claiming it’s been overblown, is not illegal in Canada. But the legal status of Holocaust denial in Canada isn’t that simple, says a specialist in constitutional law and freedom of expression.

“The OCLA makes the mistake of assuming that the absence of a law specifically banning Holocaust denial means we have no law on the matter,” says Richard Moon, a professor of law at the University of Windsor.

In Canada, hate speech is covered in sections 318 and 319 of the Criminal Code. Section 318 makes the promotion of genocide against an “identifiable group” an indictable offence. The first half of s. 319 forbids the communication of statements that incite “hatred against any identifiable group where such incitement is likely to lead to a breach of the peace,” while the second half outlaws public statements that “willfully (promote) hatred against any identifiable group.”

No one can be prosecuted under s. 319 (2) without the express permission of the provincial attorney general. Those accused have recourse to four key defences: that the statements made were true; that they were expressed in “good faith” to make a religious argument; that the person making the statement believed “on reasonable grounds” that they were true and served “the public benefit”; or that the statement was made “in good faith” to point out a source of racial or religious tension.

That’s a high bar for prosecutors to reach — but it certainly doesn’t rule out a conviction in a case of Holocaust denial, says Moon. “The question,” he says, “is whether Holocaust denial itself amounts to willful promotion of hatred.” In many cases, he argues, it does.

“Holocaust denials almost always are accompanied by specific claims that the Jews as a people are deceptive, controlling, seeking to make false claims to their benefit,” says Moon. “They tend to play on racist stereotypes about Jews as deceptive.”

So the critical difference between the German and Canadian laws regarding Holocaust denial is in the nature of their targets: in Germany, it’s the statement, while in Canada, it’s the effect on the identifiable group. If someone publicly accuses the Jewish people of having hoodwinked the world about the existence or extent of the Holocaust, that could be interpreted under Canadian law as hate speech.

“The question is whether Holocaust denial can be viewed as willfully promoting hatred,” says Moon. “It’s true that historical claims should be open to dispute, even when the claims are foolish and wrong.

“But there is almost always another agenda behind these claims about the Holocaust, and that is to present Jews as liars and swindlers. This agenda is often explicit.

“So it may very well be the case that acts of Holocaust denial are contrary to Canadian law, once we look at how and where it happens.”

Doug Beazley is a regular contributor based in Ottawa. (Photo: Some rights reserved by Luke McKernan)