I read a story in the Sept 27 print segment of the National Post that comes inserted into my London FreePress that had an odd headline. Well, it was odd if you think it was supposed to be a news story.

“Survivors….deserve to heal.”

The first sentence of the story:

“An NDP MP tabled a bill Thursday seeking to change the Criminal Code to criminalize downplaying, denying or condoning the harms of residential schools in Canada.”

The bill is C-413, a private members bill, and the article goes on to note that such bills ‘rarely pass’ but does not specify what ‘rarely’ means, numerically. Not ‘never’, I would guess.

The article goes on to note that  ‘…several years earlier the Liberal government passed an amendment to its 2022 budget implementation bill that added a criminal provision against making public statements that promote antisemitism “by condoning, denying or downplaying the Holocaust’.”

That got me thinking, and remembering, and that got me digging, which is why this post is just being put on the blog now.

I remember Trudeau’s government doing that, and remember thinking at the time that it was a terrible idea, and I also remember that more than one Jewish organization lobbied against including that in the budget bill at the time. (Other Jewish organizations supported it, to be sure.)

My reasons for being distressed back then at this clearly non-budgetary matter being passed into law is precisely captured by this recent private member’s bill. Once you establish the precedent of passing laws criminalizing what people say or write about any public matter, there is no going back. It just becomes a matter of what things people say might catch the disapproving notice of some MP or – more alarmingly – some government.

Since I don’t trust 21^st century media to report facts accurately, I went to the Parliamentary website to find the exact text of this bill.

That text includes the following:

2.2) Everyone who, by communicating statements, other than in private conversation, wilfully promotes hatred against Indigenous peoples by condoning, denying, downplaying or justifying the Indian residential school system in Canada or by misrepresenting facts relating to it

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

The bill also states what can be a defense against this charge. It states:

Defences — subsection (2.2)

(3.2) No person shall be convicted of an offence under subsection (2.2)

(a) if they establish that the statements communicated were true;

(b) if, in good faith, they expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;

(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds they believed them to be true; or

(d) if, in good faith, they intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward Indigenous peoples.

Confining myself to (a), note that this states that ‘truth’ is a defense against being convicted of this new crime, but it also is written to say that ‘they’ – the person charged with the offence – has to establish that the statements communicated were true. So, I will start by noting that this shifts the burden of proof from where it usually resides – with the prosecution – to the defendant.

Beyond that not-small matter, let me offer a hypothetical example of how a case brought under this new criminal statute, were it to be enacted, could go. Suppose I write to a First Nations leader, or a member of parliament, and ask the following question – or I just post this question on my blog:

“In how many of the claimed residential school gravesites have verified human remains actually been found?”

I have no doubt that my doing this would generate outrage in many circles. The question is, would it subject me to arrest and prosecution if this bill were to pass?

Note that I have asked a question in this scenario, but a question which might be interpreted by some as an attempt at ‘downplaying the Indian residential school system in Canada’.

And there is no statement whose truth could be verified so as to defend myself if I were arrested. I would be asking a question. Questions are not true or false, they are….questions.

Suppose I wrote in my blog that ‘Surely the residential school system benefited many of the children in it in many ways. Nothing is all bad or all good.’

Again, no facts to be verified, just a statement about how the world generally seems to me to work. Am I subject to prosecution, and if I am prosecuted, how might my lawyers defend me?

There are other reasons for being worried about this ‘truth as a defense’ aspect of the bill.

You can read a related story here on the Vancouver is Awesome website. I confess to being unaware of this site until recently, and I deplore the fact that it does not put actual dates on its stories (‘one day ago’ is not a date).

However, it chronicles an argument at the annual meeting of the Law Society of BC about the language to be used in a training program. Two members of the society put forward a motion questioning the language used because to date no human remains had been found at the Kamloops Residential School site. All that had been established was the existence of ground radar ‘anomalies’, a fact which the First Nation had acknowledged by changing the word ‘remains’ to ‘anomalies’ on its own website.

Other lawyers argued passionately against changing the language in the training course. One of them, described as ‘family lawyer Andrea Glen’, is quoted as follows:

“So in light of this significant body of evidence across the country, to quibble over the language of whether something is a burial site at a particular location, or a possible burial site or a probable burial site, obviously completely misses the point, and it’s just so hurtful to quibble over the language used for one particular area when we have a huge body of evidence that this happened across the country,” said Glen.

So, would lawyer Glen then say that, since there is ‘a significant body of evidence that non-indigenous individuals murder indigenous people across the country’ one should not in a particular trial be able to question whether non-indigenous person John Brown actually murdered indigenous person Joseph Alsop, as stipulated in the indictment?

Another lawyer and Society member, Adrienne Smith, is quoted as follows:

Smith added that Heller and Berry’s resolution is “part of a distressing trend in courts to try to inappropriately put a referendum about the needs of equity-denied groups improperly before courts and tribunals.”

Given the chance, I would say to Ms Smith that the resolution seems to me to be an attempt to put a question about certain facts before your society. It is not about anybody’s needs. But this is part of my concern. The law is increasingly concerned with what certain groups ‘deserve’, to quote the article’s headline, or what they ‘need’, as Ms Smith puts it. Not facts, not truth.

Given that, I am exceedingly dubious regarding the idea that Canadian lawyers, a group which, keep in mind, includes Canadian judges, all of whom are lawyers, will give any serious consideration to the question of ‘truth’ in any trial that arises from Bill C-413 if it becomes law. Why would it not be, as 21^st century language often puts it, the ‘lived truth of Indigenous Peoples’, or at least the court’s interpretation of that truth, which would rule the day in most Canadian courtrooms in which a case brought under Bill C-413 was brought? It is increasingly common today to assert that everyone has their own truth. If my truth about residential schools in Canada conflicts with the truth of some Indigenous person, whose ‘truth’ will the court use in determining whether I have a valid defense against a charge of violating the terms of Bill C-413?

To put it simply, I doubt that the ‘truth’ defense will actually be any defense at all.  And, if truth is not a defense, Bill C-413 becomes a device for shutting certain people up, and thereby for stopping any meaningful discussion of residential schools. The law of the land should never serve that purpose in a free society. Never.

I see other issues here. The bill includes the qualification ‘other than in private conversation’. So, if I say something like ‘the residential schools weren’t all bad’  while talking to a friend in a pub, and someone overhears me – is that private conversation? Could a constable who overheard me say that, or a constable who took a sworn statement from someone that I did say that, arrest me for violating C-413?

I would bet they can, by the same legal logic that allows governments at all levels to pass laws that regulate so much of what happens in that pub.

It is by such devices that we get closer to the old Soviet dictum – ‘You can think anything you want, just don’t say it.’

‘Slippery slopes’ are not taken seriously these days, I know. However, Bill C-413 seems to me like a second step on such a slope, following on the first step that was included in the Liberal budget implementation bill of 2022. Bill C-413 will almost certainly not end up as law, if for no other reason than that the Liberal government is on its last legs. But some day, not too far off, I do fear that some government will take step two, about whatever statements it finds objectionable. Then, inevitably, the steps get closer together once you get moving along the slippery slope.