Ottawa must ban denial of residential schools for Aboriginal people, special interlocutor urges

Photo: Justin Tang Archives The Canadian Press “The federal government must amend the Criminal Code to make it an offence to wilfully promote hatred by codifying, denying, minimizing, justifying or distorting the facts about the residential school system,” said Kimberly Murray.

Sandrine Vieira in Gatineau

Published at 15:11

• Canada

To combat residential school denial, Ottawa must amend the Criminal Code to prohibit wilfully promoting hatred against Indigenous peoples, concludes independent special interlocutor for missing children and unmarked graves Kimberly Murray.

The request is among 42 “legal, moral and ethical obligations” the federal government must address in its 305-page final report released Tuesday.

“The federal government must amend the Criminal Code to make it an offence to wilfully promote hatred by codifying, denying, minimizing, justifying or distorting the facts about the residential school system,” Murray said in her remarks.

The report also calls on the federal government to establish a commission of inquiry into missing Indigenous children in Canada.

The findings of her report were presented to several hundred members of various Indigenous communities during a song and drum ceremony on the stage of the Casino Theatre in Gatineau.

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• Bill would make residential school denial a crime

Kimberly Murray was appointed to a two-year term in 2022 by former Minister of Justice and Attorney General of Canada David Lametti.

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NDP bill

Kimberly Murray’s report comes just weeks after a bill was tabled in the House of Commons that would make it a crime to deny the harm caused by residential schools the residential school system for natives in Canada.

Bill C-413, entitled “An Act to amend the Criminal Code (promoting hatred against Aboriginal peoples),” was introduced by NDP MP Leah Gazan last month.

“The federal government added Holocaust denial to the Criminal Code. What my bill proposes to do is add to residential school denial. We all have rights and freedoms, but sometimes limitations to those rights are necessary and justifiable,” the MP explained in an interview with Devoir.

If passed, the bill would add to the Criminal Code the act of wilfully promoting hatred against Indigenous peoples “by condoning, denying, minimizing or justifying” the residential school system, with the exception of communications in the context of a private conversation.

A person found guilty could be liable to a maximum prison sentence of two years.

Criminalization that would go “too far”

University of Ottawa law professor Ghislain Otis believes that the bill violates freedom of expression.

“The courts have adopted an extremely broad definition of freedom of expression within the meaning of the Canadian Charter. A priori, it is clear that we have a violation of freedom of expression, since the Supreme Court considers that all non-violent expressive activity is protected,” explains the lawyer in an interview.

The specialist in Aboriginal law, constitutional law and human rights believes that the bill “goes too far” and that the idea of ​​prohibiting speech that “minimizes” or “distorts” the facts is too broad.

“I’m not even sure there’s a rational connection between the end and the means, because the means are pretty draconian,” Otis says.

MP Leah Gazan rejects the idea that her bill goes against free speech. “We have limits in this country when it comes to hate speech and that’s exactly what my bill is designed to do: address hate speech head on and protect survivors,” she says.

The provisions in the Criminal Code prohibiting hate speech are, however, sufficient, judges Ghislain Otis. “We seem to establish an equation between fomenting hatred and relativizing, based on reasonable arguments, certain allegations, testimonies or ideas concerning the residential school phenomenon. It does not seem necessary to me to protect Aboriginal people against hate speech,” he concludes.

The residential school system for Aboriginal people was set up with the avowed aim of “killing the Indian in the child” and was described as “cultural genocide” by the Truth and Reconciliation Commission of Canada in 2015. According to estimates, at least 150,000 First Nations, Inuit and Métis children attended these institutions.