The recent Assembly of First Nations chiefs produced some good stuff. For example, their resolution to oppose the Carney government’s reforms aimed at streamlining major project approvals, if those reforms weaken environmental protections or sidestep Indigenous rights. At a time when the northern hemisphere is burning, we obviously shouldn’t be “streamlining” environmental protections.

The chiefs also came up with a questionable resolution. They called for criminalization of residential school denialism. According to Grand Chief Garrison Settee, “It is a shame to live in a country that will not protect our people from hate crimes.”

With all due respect to the chief, they don’t. In fact the Criminal Code protects every one of us from hate crimes. Section 319 (2) of the code reads “Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.”

As for residential school denialism, a bill to that effect already awaits second reading in the House of Commons. Private members Bill C-254 was tabled last fall by NDP MP Leah Gazan.

Gazan’s bill reads, “Every one 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 is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or is guilty of an offence punishable on summary conviction.”

This duplicates Sub-section 2.1 of the code which forbids promoting “antisemitism by condoning, denying or downplaying the Holocaust,” the only mention of a specific group.

The code does allow exceptions to the rules. For example, it states “No person shall be convicted of an offence … 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 he believed them to be true.”

The legislation is apparently designed not to forbid debate on issues but rather to discourage statements made simply to promote hatred. This is laudable, but if the code forbids such statements, why are amendments necessary to protect specific groups? Despite the exceptions, laws such as Section 319 (2) suppress free speech and that is a profoundly serious business.

A special case can be justified in the case of the Holocaust. The Holocaust was history’s greatest atrocity, evil throughout from intent to commission. Any positive statement about the Holocaust, i.e. any speech that could be oppressed by the law, would be motivated by either ignorance or hate, no loss to public dialogue.

That is simply not the case with the residential schools. Badly designed and managed, indeed, but a reasoned argument can be made that educating thousands of children from an illiterate society, teaching them to read and write and do their numbers, was a worthy goal and achieved some good. Both the intent and commission can be debated by reasonable people.

The Code’s exceptions would seem to allow public debate by permitting statements that are “relevant to any subject of public interest” discussed “for the public benefit” and believed “on reasonable grounds” to be true.

But who decides all that? Does someone who wishes to engage in public debate about the residential schools need to hire a lawyer? Someone who has something rational to say about the schools should enjoy the right to speak their mind and speak it in public. If some find their opinion offensive, that is just part of living in a free society. Freedom of expression, the most prized of our rights, should not be whittled down. Bill C-254 should be defeated.