It’s easy to downplay the residential school system. Here’s one example: It wasn’t as bad as the Holocaust, which saw millions of people exterminated, or the Holodomor, which saw millions more intentionally starved to death. That doesn’t mean it didn’t harm people, but it wasn’t as bad as the full-on genocides that had happened in the same time period. There, I just did it.
For now, a 911 call reporting this blasphemous paragraph won’t go far. But that could change.
On Thursday, NDP MP Leah Gazan tabled a bill that would send the whole spectrum of residential school “denialists” — and downplayers — to jail for up to two years. Anyone who is caught publicly “misrepresenting facts” about residential schools, or “condoning, denying, downplaying or justifying” them, in the course of wilfully promoting hatred against Indigenous peoples, could be found guilty if Bill C-413 passes.
There are, of course, limits that the bill’s proponents will be especially keen to point out. The draft crime comes with a set of draft defences: truth, good-faith religious discourse, public interest and communication of hateful materials. Beyond that, courts have established (albeit foggy) limits to hate-promotion crimes as well — “Only the most intense forms of dislike” are in scope, and considerations must be made for the circumstances, tone and audience of the speech in question.
But it’s hard to feel much confidence that these limits will hold, considering how fast we’re headed down the slippery slope, which is more of an inevitability than a fallacy.
It was just in 2015 that the residential school system received the G-label. “Cultural genocide,” the Truth and Reconciliation Commission (TRC) called it. Less intense than genocide-genocide, but still effective in putting a black-and-white spin on the colonial days of the New World.
At that point, in the minds of many, “cultural genocide,” was shortened to just “genocide.” The psyche of the nation — or at least, its bureaucrats — placed in the same box of human atrocity as the Holocaust, which received its own dedicated Holocaust-denial crime in 2019. It was unnecessary, as sufficient hate crime laws were already on the books. But even more so, it was foolish. Criminalizing “downplaying the Holocaust” opens the door to criminalizing the “downplaying” of just about any other historic subjugation event.
Adding to the list is the inclusive thing to do. A few more years and who knows, maybe we’ll start to see bills for Nakba-denial and downplaying the Komagata Maru incident. It sounds ridiculous, but so did the prospect of regulating residential school speech a decade ago.
None of this would be so worrying if we could actually trust the justice system to keep calm in the face of moral panic, but we can’t. When a series of radar anomalies found in the ground at the Kamloops residential school site were reported to the public as “the remains of 215 children” in 2021, legal authorities threw themselves wholeheartedly into reconciling.
In B.C., the law society mandated training for its membership that inaccurately referred to the anomalies as the “unmarked burial site containing the bodies of 215 children”; its membership voted against correcting the statement at its annual general meeting on Tuesday. In Alberta, the law society released a statement referring to a “mass grave,” which was later corrected to the still-incorrect “unmarked burials of 215 Indigenous children.” Ontario, Manitoba and Saskatchewan’s law societies announced their condolences.
Even though it wasn’t true, the “215 bodies” myth even made it to the courts. An Ontario judge factored the “discovery” into the 2021 sentencing of an Indigenous man who violently robbed a leather store in Toronto.
“I believe it is the obligation of this and other courts to acknowledge the discoveries in British Columbia and Saskatchewan as a step towards reconciliation,” wrote Justice Patrice Band.
An even more egregious exaggeration came later that year from Ontario’s Justice André Chamberlain, who sentenced a repeat Indigenous, Black transgender offender most recently in trouble for attempting to burn down a Toronto Catholic church. Chamberlain referenced the “discovery of thousands of unmarked or mass graves of children who died while in residential schools” (though, the judge ultimately condemned the act of vigilante justice).
More recently, in 2023 — long after it was widely disproved that any graves have yet been found, the Federal Court once again mentioned the “tragic discovery” of the “remains of 215 children” in a proceeding to which the Tk’emlúps te Secwépemc First Nation was a party. A glaring inaccuracy.
So, as if it wasn’t bad enough to criminalize speech on a narrow, contested topic on principle, we also have the problem of adjudication. Professional bodies and the courts have each spouted false statements about this already-charged topic — it’s pretty hard to trust that one would receive a fair hearing when major components of the justice system get the basic facts wrong and insist on sticking to them years later.
Similar can be said for legal interpretations of “hatred” — it’s restrained for now, but it could be up for a modern re-interpretation soon enough.
If Gazan had it her way, what would count as “downplaying”? Would she object to the Royal Commission on Aboriginal Peoples finding that records show only a minority — anywhere from less than half to under 17 per cent — of Indigenous children ever attended residential school? How about the fact that tuberculosis, not systemic extermination, is what took the lives of most students? With any hope, we won’t have to find out.
National Post