00:00:00.000Hi there, everybody, and welcome to another episode of the Rupa Subramanya show where we
00:00:23.340dive into thought provoking discussions on pressing issues. Today, we're going to be
00:00:29.580talking about the issue of denialism and the search for truth at the former site of Indian
00:00:37.260residential schools in Canada. Now, in her report, Kimberly Murray, the former executive director of
00:00:45.540the Truth and Reconciliation Commission of Canada and now special interlocutor for missing children
00:00:52.040in unmarked graves and burial sites associated with Indian residential schools, recommends the
00:00:58.940introduction of new legal tools, including civil and criminal remedies to combat what she considers
00:01:06.080to be denialism. This proposal has garnered a lot of attention and support with Attorney General David
00:01:13.880Lamedy expressing openness to exploring all possibilities and fighting against residential
00:01:20.360school denialism. According to Murray, denialists attack the credibility of survivors truths regarding
00:01:28.740missing children, unmarked burials and cemeteries at Indian residential schools. And, you know,
00:01:36.320she accuses them of dismissing them as sensationalism. Murray's report cites MP Leah Gazan's perspective
00:01:47.780that denying what happened at residential schools is a form of hate speech, which can re-traumatize
00:01:54.920survivors. And so, therefore, Murray's proposal seeks the adoption of legislation that, in my opinion, is very
00:02:03.040problematic because it conflates critical discussions surrounding residential schools and unmarked graves with hate
00:02:10.340speech and denialism. My own view, I personally think that such a law could potentially be considered unconstitutional
00:02:17.480and jeopardize the principles at the very foundations of free speech. And it's very important to recognize this illiberal
00:02:23.480and ill-advised proposed law and where this is potentially taking us. Criminalizing certain expressions risks driving these sentiments underground. And the best way to counter prejudice and bigotry or hate is open discourse and rational argumentation. In a free society, censorship can never be the solution to ignorance or prejudice.
00:02:44.620To talk about this issue, please welcome Joanna Barron, who's the executive director of the Canadian Constitution Foundation. So, Joanna, welcome. Welcome to the show. It's a real pleasure having you here. So I want to first start by asking you what are the specific recommendations made by the
00:03:14.620the special special special interlocutor Kimberly Murray in her interim report on missing children and unmarked burials. So essentially, she says that there's a legal void in creating remedies for survivors of residential schools in between the overlapping federal and provincial laws. But specifically, she recommends criminalizing what she calls denialism. And it's not exactly defined, but she does refer to
00:03:44.140instances where there's a lot of instances where survivors of residential schools have been harmed or hurt by people who insinuate that what they what they what they what they lived through didn't happen, or that, you know, some of the alleged deaths didn't occur. And part of the issue that I have with this is not at all with suggesting that it's horrible for people to suggest that the residential schools didn't occur. Of course, they occurred. But more when you get into criminalizing
00:04:14.120criminalizing and doing investigative journalism and really just criminalizing speech altogether, I think is a very blunt tool, but I am getting ahead of us. But she suggests to be short criminalizing denial. And the reason that this is relevant, it's not yet law in Canada, but Attorney General Lametti has said he's open to it.
00:04:36.120I mean, he'd like to move forward with proposing a new law. And we know that this government, they have no problem with bringing a new criminal law. But they can do it again.
00:04:45.120Yeah. So did you say that Kimberly Murray, does she actually define what denialism is?
00:04:52.120And I'm sorry, and how does that specifically relate to the issue of residential school denialism?
00:04:59.120Well, so what she talks about is that we'll have raised questions about the unmarked graves about the amounts of deaths. And some journalists have pointed out that there's still a lot of uncertainty, right? Like there haven't actually been any graves dug up as macabre as it is to sign of say.
00:05:19.120But that's the fact. And Terry Glavin, who is I think a former colleague of yours wrote a really trenchant piece, I think it's now two years ago, or sorry, maybe a year ago, just pointing out that the fact of the matter is, you know, there was ground penetrating radar, but we still don't know exactly.
00:05:36.120There haven't been any bodies found. And what this raises the specter of is well, and he certainly has been roundly criticized and called the denier and all kinds of things. But would Terry Glavin's article be considered criminal denialism?
00:05:55.120That was going to be one of my questions for you. Would that include critical discussions and investigative journalism along the line, along, you know, similar to Terry Glavin's work, right?
00:06:07.120Yeah, well, when, so in the report, what she talks about is not a strict, you know, definition of what denialism is, she talks about the effects of, of hurting the feelings of survivors, and the harm that this causes to them.
00:06:24.120And I don't minimize that at all. But if the issue is minimizing hurt feelings and harm, criminal law is not necessarily, that's not the purpose of the criminal law, right? Criminal law is to demarcate acts that society finds truly morally beyond the pale and that deserve our highest restrictions on liberty, i.e. imprisonment.
00:06:47.120And so the issue is hurt. And I don't deny that there's a lot of hurt for people who are residential school survivors or their families. But the remedy can't just be to criminalize people.
00:07:00.120Yeah. What was Attorney General David Lametti's specific responses to Murray's proposals to combat residential school denialism?
00:07:12.120Yeah, so he, of course, appointed Kimberly Murray, and she held a press conference at the COSS First Nations when she released her report. And he said he's open to all possibilities for right for fighting residential school denialism. And he said explicitly, that includes a legal solution outlawing it. And he also mentioned that as a sort of precedent for this, Canada can look to other countries that have criminalized
00:07:41.120Holocaust denial of Holocaust denial as well. I myself, I'm the descendant of Holocaust survivors. And I appeared at Senate committee last year to urge Canada not to criminalize Holocaust denialism again, not because I have sympathy for people, there are people who deny the Holocaust.
00:08:02.120But because I'm of the belief that criminalizing it doesn't help matters, it drives the speech underground, really, the response to it should be you are unlearned, you have not looked at the facts. And you know, you should be ostracized from society if you refuse to acknowledge that the Holocaust exists. I don't see criminalizing how criminalizing it helps us at all.
00:08:22.120Yeah. Given that you're a lawyer, Joanna, could you explain to us why her proposal, why you think her proposal is considered unconstitutional and illiberal?
00:08:32.120Yeah, so first of all, there's just a basic sort of in terms of legal doctrine, as lawyers for something to be a valid law, we say that it has to be clear, predictable, and concise, or not necessarily concise, but you need to I need to know in advance, I need to know in advance that it's illegal for me to drive
00:08:51.120160 kilometers an hour. That's a clear rule. And if I violate it, I deserve to be fined. Here, where you're saying we're criminalizing denialism, and it's very unclear, there's a lot of gray area, does that mean asking about what's going on with the investigation?
00:09:09.120Does that mean asking, asking what the facts are? Is that denialism? And so essentially, it's not really clearly enforceable, because people can't shape their actions around it. Now, yeah, furthermore, to get more specific, here, we're talking about forms of speech and expression.
00:09:29.120Right. And in Canada, there is criminal hate speech. So there are forms of speech that the Supreme Court has said, if they cause such strong repugnance or detestation against certain groups, that will be called criminal hate speech.
00:09:44.120Now, I myself, I'm a sort of free speech fundamentalist. And I tend to think, if we're going to lock people up for behavior, it should be, you know, violent behavior, or at very least counseling violent behavior. So, you know, counseling, counseling, genocide, incitement to threats, these are, I have no issue with criminalizing these, of course.
00:10:04.120When you talk about hate speech. When you talk about hate speech, this is again, again, it gets very vague, but this goes even a step further.
00:10:10.120From that, this is saying this is not hate speech, this is a lower threshold because hate speech is already criminalized.
00:10:16.120But we're going to extend the reach of the criminal law to this, you know, category of speech that we're calling denialism.
00:10:24.120So there's an issue with, so we have a specific right to free expression.
00:10:29.120And the Supreme Court has said, just being offensive is not, is not hate speech, it's still protected speech, even if we find it completely low value, completely distasteful.
00:10:41.120In an open society, you need to have wide ambit for expression because this is how we figure out what we believe, right, is by having an open discourse of ideas.
00:10:52.120And so I believe that the proposal is unconstitutional under Section 2B, which is the right to free expression.
00:10:59.120And I believe Attorney General Lamedi, who is, you know, a very fine lawyer.
00:11:04.120He was my dean when I was in law school. He knows this very well.
00:11:07.120But it's politically attractive for him right now to say he's on board with this proposed new criminal law, but he must know that this is unconstitutional.
00:11:16.120Yeah, I mean, it's, it's kind of worrying because, as you mentioned, Terry Glavin's excellent work in probing this, this issue, like, like, you know, like he did last year.
00:11:29.120You know, I myself have been in situations where I've questioned the existence of, you know, not denying what happened to indigenous communities here in Canada, but certainly to this specific issue, 215 bodies or 251 unmarked graves have been found or bodies, actually, I think the New York Times actually said that they've, that they discovered bodies.
00:11:52.120And it's, it's, it's, it's quite worrying for those of us who were in a position where we challenged these, these narratives, we're called denialists, we're called bigots, we're called, you know, and people want to police that speech.
00:12:11.120So it's, you know, as you point out, hate speech is already criminalized in Canada.
00:12:14.120What is the, you know, I mean, these are all very, very subjective terms, you know, what are the challenges associated with defining the line between repugnant speech and hate speech?
00:12:28.120Yeah, I mean, sorry, it has tried to do many times. And it always ends up reading just like a thesaurus. Like they come up new words like intense detestation, calumny. And to me, this is what you know, in the United States, hates, there is no criminal prohibition on hate speech, the American approach is that basically, but there are very strict prohibitions on, you know, libel, sedition, incitement to threats, but
00:12:58.120the American approach is if it's not connected to physical violence, it's permitted. And I tend to think, well, you know, America is its own culture, and we can critique what's going on there. But I think that that's a very principled position. And I just want to be clear, this is not because I like hate speech. No, of course not.
00:13:16.740It's because I believe in an open society, the best remedy for people who are saying nasty things is to counter them by making them look unlearned and dumb.
00:13:30.140And you mentioned, yeah, and you mentioned that you yourself, you're the descendant of Holocaust survivors, and you're not for, you know, you don't believe that Holocaust denialism should be considered, should be criminalized.
00:13:47.680You know, how do you, and you know, in your piece for The Hub, you talk about this trial of Ernst Zundel, and how it became, it was actually quite counterproductive, the whole exercise. Could you explain to us what exactly happened there, and how that relates to residential school, the issue of residential school denialism?
00:14:10.960Yeah, so if you're going to criminalize something, you put it within the ambit of the court system, right? Because somebody will be charged, and they have the right to make full answer in defense.
00:14:21.460I also used to be a criminal defense lawyer. And so that means the defense counsel has the right to call counter evidence. And so in the case of Ernst Zundel, who published a pamphlet saying, did the Holocaust really happen? Did 6 million really die?
00:14:36.520He was entitled to have a lawyer to defend him against the charges of Holocaust denial, which at that time was alleged as hate speech. And it ended up being that the various Holocaust survivors who the crown called those witnesses to testify to their own experience, were cross examined, and it was implied that they were liars, or that they didn't really understand what was going on.
00:14:59.560And in the meantime, you had Ernst Zundel, who is, you know, lionized in certain communities of Holocaust deniers, which I'm sure are very small, but do exist in Canada, he was seen as this hero, taking the stand and presenting all of his evidence for his beliefs.
00:15:15.500So essentially, it gave him a huge platform. And so we can imagine and you can just imagine the grotesque spectacle of elderly Holocaust survivors, being cross examined by defense counsel being made to feel that, you know, their experience didn't happen.
00:15:31.500So you can imagine with this, with this proposed law, that if somebody was charged, like Mr. Glavin, for example, who I really think, based on some of the comments in that report, that to me is a clear gray area.
00:15:45.480So I think it's, it's not, I'm not being alarmist to say that that could be caught by the law.
00:15:50.220And so you can imagine residential school survivors, being cross examined, did it really happen? Was it really, you know, did it happen, as you say, and all the while, those in Canada who do deny that the residential schools happened, and that they strip children away from their family, strip them from their culture, which are things that as the country, we, you know, we repent for, you can imagine them, you know, similarly, having their story poked holes in anybody's story can.
00:16:21.080Have the poked holes in. So yeah, I think it'd be quite counterproductive, really, to bring this within the ambit of the criminal law in practical terms, if you look at how it would actually work.
00:16:31.980Yeah. A final question for you, Joanna, how would you describe the current state of freedom of speech in Canada? Do you have concerns about it?
00:16:41.100Well, I think Canada is one of the most beleaguered jurisdictions in the world. Right now, I'm in England, and I'm doing some comparative
00:16:49.960analysis. I think we have the, you know, onslaught of restrictions from the online perspective, right, with the online harms bill, which is coming, with the online streaming act, which is now law in Canada, which says that the CRTC is going to be able to regulate our algorithms.
00:17:08.600And the online harms bill, by the way, will bring all of these concepts about hate speech that we talked about, and bring them into a civil remedy for online speech.
00:17:19.040So meaning, it's an even lower threshold. If I say anything, that you can, you know, report me to a bureaucrat for being offensive to you, I could be charged under that, and fined civilly.
00:17:32.620So even if the threshold isn't high enough for criminal speech, it's a civil standard.
00:17:37.400So, and now we have these new proposals about criminalizing denialism. So I think Canada is terribly unfree when it comes to speech.
00:17:47.340Yeah, I mean, it's quite remarkable for what is ostensibly a liberal democracy. We have these very serious challenges to freedom of speech and expression,
00:17:58.860and don't have the kind of constitutional protection that our neighbors to the South have.
00:18:03.900But Joanna, I know you have to get going. So I really appreciate you making the time to chat with me. And I hope to have you back on the show soon.