Legislating Hate: Pro-Israel Advocacy and Hate Speech Criminalization in Canada

Jillian Rogin

I’m really and truly honored to be here today and I’m so grateful to all of the organizers who have done epic work to ensure that we are in fact here today and able to engage in discussion, debate, and solidarity building exchanges, which are all needed in this moment more than ever. 

By way of introduction to this article, I am a criminal defense lawyer and a law professor and  I’ve been engaged in Jewish-based activism with Palestine solidarity since about 2002. I am currently a member of a number of organizations and in the past number of years, of course, we’ve been focused, as many of us have, on responding to the International Holocaust Remembrance Alliance definition of antisemitism (IHRA); its violences, its erasures, and the weaponization of antisemitism.¹ In the midst of activism primarily occurring in the academic context, in 2022, the Canadian Parliament enacted a new Criminal Code offense, that criminalizes Holocaust denial. Under the heading “the willful promotion of antisemitism,” section 319(2.1) of the Criminal Code in Canada now criminalizes speech that willfully promotes antisemitism by condoning, denying or downplaying the Holocaust.² The amendment came about as a result of the efforts of several pro-Israel lobby groups.³ It was enacted just as I was about to take a leave of absence from my job as a professor to start a Ph.D. I quickly changed the focus of my proposed research for the Ph.D to examine the new Holocaust denial offense. Was it relying on the IHRA definition of antisemitism? How did it come about? What kind of speech was the provision targeting? 

What I found very immediately was that the language of the provision replicates the IHRA definition of antisemitism and in fact the IHRA definition is explicitly mentioned in the parliamentary and Senate debates.⁴ 

The paper that I’m going to present today is just one small part of my research, which is more broadly related to the influence of Zionism on Jewish advocacy and the enactment of hate speech legislation in Canada. I focus here on Jewish advocacy for the enactment of Canada’s initial hate speech legislation that came into force in 1970 which offers a window into understanding how, as mainstream Jewish institutional interests became more aligned with a pro-Israel agenda, these interests converged with neo-liberalism, criminalization, surveillance, and the Canadian state.

In the 1950s and 1960s, and then culminating in 1970, Canada saw its first hate speech legislation enacted in the Criminal Code which was largely the result of Jewish led advocacy.⁵ My central questions include: how did we get to this point where Canadian criminal law hierarchizes the Holocaust as the only genocide, denial of which, is criminalized? It’s perfectly legal in Canada to deny for example the Nakba, to deny the ongoing settler colonial genocide of Indigenous people, to deny the history of slavery in Canada and the ongoing legacy of anti-Black racism in Canada. Indeed the presence of the Holocaust denial provision in the Criminal Code highlights the absence of other genocides, historic and ongoing, and amplifies Canada’s own practices of denial and erasure vis á vis Indigenous and Black people. 

These denials are part of the fabric of everyday multicultural life in Canada and contribute to the maintenance of racist structures of differentiation.⁶ How did we get to a point where the IHRA definition, which is essentially Israeli hasbara or propaganda, now forms part of Canadian criminal law? How did we get to a point where the Holocaust is being used as a political tool to attempt to erase Palestinians? While these questions have largely been taken up in the US context, they are grossly understudied in Canadian scholarship. I’m going to talk today about the history and more recent moments of Jewish led advocacy in the enactment of hate speech legislation in Canada. Within this history, we see the very meaning and scope of antisemitism shift, as the organizations involved in the advocacy in the 1950s and 1960s became more entrenched in and influenced by Zionism. With this transfiguration, we see Ashkenazi Jewish people in Canada shifting from racialized “other,” to entering mainstream white society via reliance on ne-liberal mechanisms such as law enforcement, surveillance, and criminalization.

I’ll start here with a glimpse into this history. Jews in Canada used to be racialized as not quite white ⁷ to borrow Karen Brodkin’s terminology⁸ and as a racialized minority, Jewish people were very active in solidarity movements struggling alongside marginalized people.⁹ I’m not trying to glorify those moments and say we were perfect or there weren’t uneven power dynamics or imbalances, but it’s a reality that there was a serious struggle that Jewish people were involved in, a collective struggle for rights. Many of those struggles culminated in a shift in the 1960s with the dawn of anti-discrimination legislation in Canada and human rights-oriented laws and policies being enacted. While we continue to work on anti-discrimination, this era saw the more overt legal racism being challenged which coincided with the emergence of Canada’s official policy of multiculturalism and shifts in Canada’s legal landscape with respect to human rights and anti-discrimination laws.¹⁰ 

In the 1950s and ’60s, there was simultaneously a resurgence of neo-Nazism and white nationalism in Canada. There were neo-Nazi rallies, leafleting, marches, mass mailings of hateful and racist propaganda.¹¹ The Canadian Jewish Congress (CJC) took a leading role in responding to these demonstrations of white nationalist, neo-Nazi violence. Through their joint committee with B’nai Brith, the Joint Community Relations Committee (JCRC), the CJC worked to respond to this kind of racism including the promotion of hate speech criminalization.¹² It took 15 years to enact this legislation, and it has been referred to as the most debated piece of legislation ever to be passed in Canada.¹³ Some members of Congress were themselves ambivalent about the efficacy of hate speech criminalization because of the potential erosion of civil liberties in terms of freedom of speech. They were also concerned that it would give a platform to Nazis by way of trials, and that if you litigate these issues, racist groups and individuals would be able to broadcast their racist vitriol even further than was otherwise possible.¹⁴ 

Amongst the general Canadian population, there were concerns about hate speech legislation that were rooted in antisemitism. Some members of the Canadian public believed that claims by Jewish people about experiences of antisemitism were being exaggerated by Jews and that antisemitism was not a problem.¹⁵ Others acknowledged that antisemitism was a persistent problem but had concerns about the impact of hate speech criminalization on freedom of speech. The debates were robust and heated but it is interesting to note what was not debated particularly within Jewish communal organizational circles; there was no debate about what antisemitism was, and there was no need to define it. It was understood as scurrilous hate speech and actions directed at Jewish people as Jewish people. It only was in the following years that questions began to arise within mainstream Jewish communal organizational circles about the scope, meaning and definition of antisemitism. 

I’ll turn here to two significant turning points that shifted that conversation in Canada. One is the Six-Day Arab–Israeli War in 1967, and the other is the Black Power/Black Panther movement. While the focus of the JCRC in the 1950s and 1960s had been on the rise of white nationalism and neo-Nazi activity as well as on Canadian legal racism, the focus shifted in 1967 and 1968. Almost immediately, within one or two weeks following the Six-Day War, the issue of antisemitism in Canada became globalized as it now more concretely engaged issues relating to Israel and Palestine. Palestinian solidarity struggles began to be understood as part of Global South decolonizing movements (supported by the Soviet Union), and Israel’s alignment with Western imperial powers was solidified.¹⁶ The anticolonial demands of Palestinians and their supporters began to be interpreted as antisemitic and as contrary to Israel’s nation-building goals. On the other hand, as pro-imperialists fell into the trap of this binary, the CJC began to monitor the responses of various countries and communities to the 1967 war who lent their support to Palestinians. 

The CJC and other institutional Jewish pro-Israel organizations began to consider views on Israel and Palestine as part of their work in the fight against antisemitism. It’s not that the CJC and other mainstream Jewish organizations weren’t involved in Zionism or Israeli nation-state building prior to 1967, it’s that this is the first moment where it became part of their work of the Joint Community Relations Committee in the fight against antisemitism. In this moment, antisemitic threats faced by Canadian Jews began to be interpreted to include the threat of opposition to Israeli state policies and practices. This shift aligned with official Israeli state policy in the aftermath of the 1967 war, which Antony Lerman has detailed.¹⁷ 

Shortly after the 1967 war, the Black Panthers came to Canada and the JCRC again began to turn its attention towards speech relating to Israel and Palestine and to what was labeled “Black antisemitism.”¹⁸ The long-standing joint struggles and solidarity between Black and Jewish organizers in Canada began to erode as the CJC became caught up in the moral white panic about the Panthers and what it perceived to be antisemitism emanating from Black power movements. This played out in Canada in the fall of 1968, when the Congress of Black Writers convened in Montreal. This was a gathering of an international nature bringing together prominent artists, activists and scholars in the Black radical anticolonial anti-imperial struggle. Stokely Carmichael was there as was C.L.R. James and so many others. They brought the energy and the intellect of revolution to the gathering.¹⁹ 

Media reporting of the event elicited fear and promoted anti-Black racism, highlighting what was interpreted as calls to violence emanating from the speakers as well as perceived antisemitism. One article reported that the Black Power movement was a “Frankenstein monster which will devour us if it’s not stopped,” and that the movement posed the biggest threat to Jews since the death of Nazism.²⁰ Stokely Carmichael gave an impassioned speech denouncing Western imperialism and advocating for Palestinian liberation. Other than these words, no other speaker said anything about Israel and no one, including Stokely Carmichael, said anything about Jews.²¹ However, there was intense focus on the perceived antisemitic nature of the conference  in the media and otherwise. The CJC sent one person to attend the Writers Congress and to report back. That person provided the CJC with an official report that the Writers Congress was rife with antisemitism.²²

Amiri Baraka, an artist and part of the Black power movement in the United States, whose controversial writing attracted criticism for being derogatory towards certain groups, including Jewish people, was supposed to attend the Writers Congress in Montreal.²³ Though his name was on the agenda, he wasn’t actually able to attend because he was facing a criminal charge in New Jersey and couldn’t cross the border.²⁴ Even in his absence and without any other indication of any kind of antisemitism, there was a moral panic about Black people gathering and talking about liberation and revolution. The CJC adopted and reiterated this white neoliberal narrative associating Blackness with risk and danger in need of monitoring and surveillance. By this time, in 1968, it seems that Jewish people within the CJC saw themselves as white and aligned themselves with the anxieties of white Canada which included drawing on the policing apparatus. The Royal Canadian Mounted Police and the local police force in Montreal had infiltrated the Writers Congress and were engaged in surveilling the Black Power movement in Canada.²⁵ With the Writers Congress, we see here a synergy that perhaps hadn’t existed before, which was that Jewish anxieties in Canada began to align very closely with those of the state. This had not previously been the case, because historically Jewish people themselves had been targets of state surveillance and state-promoted antisemitism. Historically, antisemitism in Canada was supported by Canadian institutional power. The Writers Congress and the growth of the Black Power movement represented a moment where the CJC shared in those Canadian-state sponsored anxieties, those neoliberal tendencies of turning towards surveillance and policing and to manage and contain perceived “risks.” In the years following 1967–1968, supporters of Palestine Liberation were to be monitored and even surveilled, particularly racialized people and groups. 

I came across a file at the Canadian Jewish Archives labeled “Neo-Nazis and the Canadian Arab Federation 1970” (CAF).²⁶ Each file and all of the papers within the files were marked as confidential. Each was unsigned, unaddressed, undated. They are titled “Flipper,” which is the name of the informant who refers to themselves as “Flipper” throughout the notes. The files read as surveillance notes, mostly completely mundane recordings of named individuals who are Arab and Muslim socialists. Each one details the involvement of certain individuals with groups such as the Popular Front for the Liberation of Palestine, and each includes wildly racist statements and innuendos about Arab people referring in passing to them as “terrorists,” “out for revenge,” as “plotting,” a pastor of a “Mohammedan flock,” as “maneuvering,” “deceiving,” “spying” and as virulently anti-Israel and anti-Canadian.²⁷ 

Whereas all of the CJC files I’ve reviewed at the Canadian Jewish Archives are written by Jewish lawyers, politicians, and academics, and all are meticulously detail oriented with proper grammar and spelling, the Flipper reports change dramatically in tone and style and are not likely written by any member of the CJC. The Flipper reports read like law enforcement surveillance documents. Whether these documents are the result of the CJC hiring private detectives to conduct surveillance or whether they are a Canadian state surveillance project shared with the CJC, it is not known. What is known is that there’s nothing in the reports on CAF members that indicate any kind of antisemitism. These are reports on socialists organizing for Palestinian liberation. 

Without debate, criticism of Israel promoted by the CJC in the late 1960s as antisemitic and by the time the hate speech legislation came into force in Canada in 1970, both Palestinians and Black people were becoming understood as merchants of antisemitism, providing further impetus for hate speech criminalization. The turn towards Black and Palestinian people as purveyors of antisemitism came immediately following the 1967 Arab–Israeli Six-Day war, and in light of the rise of the Black Power movement. 

In other words, as the CJC began to increasingly align itself with Israeli state-building narratives portraying critiques of Israel as being antisemitic, they began to turn their attention away from white nationalism as a main source of antisemitism and focus on Black people, Palestinian people, Arab people, and Muslims. We see here those early kernels of that shift that continues to pervade pro-Israel politics. Years later, looking back on the 1960s and looking back at that time of all of anti-discrimination legislative changes, including the enactment of hate speech legislation, Saul Hayes, the former leader of the CJC, said this: “…and then we finally became white.”²⁸ That was his comment. 

Becoming white does not happen in a vacuum, it comes by contrast. In order to “become white,” you need to denounce blackness and become anti-Black.²⁹ In this case, becoming white also included orientalizing, engaging in anti-Palestinian racism, and overt Islamophobia. And that’s how you become white. When you articulate interests that align with state objectives, goals, and processes, including criminalization and surveillance, there is a synergy of interests. In this reading of the work of the JCRC and in more current times, pro-Israel lobby groups, it is not that these groups have disproportionate power or influence as is often assumed. It is that what these groups are calling for, and the source of their anxieties, perfectly align with neoliberal and racist state practice. The trajectory of aligning with state interests that the JCRC followed in the late 1960s has continued into the present day and can be identified in many forms. With respect to the enactment of more current Holocaust denial hate speech legislation in Canada, the following quote was noted by Shimon Fogel, Chief Executive Officer of the Centre for Israel Affairs (CIJA), highlighting that in addition to antisemitism emanating from the extreme right, attention to so-called “Muslim extremism” is a key factor in fighting antisemitism:

The delegitimization of some elements on the extreme left is equally worrisome, because it marginalizes and excludes Jews from participation in things that are part of our DNA, including the pursuit of human rights and so forth. Then there are elements within the Muslim world, some of whom have a particular approach to their beliefs, that create hospitable territory for that kind of extremism directed at Jews.³⁰ 

This was said in the context of CIJA making submissions to a Senate committee with respect to the need for Holocaust denial legislation. In the context of calling for the criminalization of Holocaust denial, the ease with which Fogel espouses Orientalist tropes that are blatantly anti-Palestinian and Islamophobic, the normalization of this kind of vitriol follows a trajectory that can be traced back to the advocacy of the Canadian Jewish Congress and the JCRC in favor of hate speech criminalization. Following this trajectory is not about tracing the influence of Zionism on Canadian criminal law practice and policy; it is more about understanding the convergence of the interests of pro-Israel lobby groups, neoliberalism, and the Canadian state. Now, more than ever, we ought to be paying close attention to these convergences and to ensure that we disrupt them.