Canadian Justice Minister Arif Virani is still considering whether to criminalize so-called residential school denialism.

Residential school denialism is an airy-fairy notion that claims some people are even denying the very existence of Indian Residential Schools in the same way some antisemites have denied that the Holocaust ever took place; or are claiming these schools were not as abusive as many of its former students and their supporters have claimed in the same way many antisemites have played down the number of Jews murdered during the Holocaust.

But there is not a shred of evidence that even the most extreme conspiracy theorist has ever denied the existence of the Indian Residential School system, a carefully documented federal government effort to educate Indigenous children that spanned 113 years until 1996.

Nor has anyone ever denied that some children experienced some physical and other abuse in some of these schools during some historical periods, just as no one has ever denied the existence of similar abuse at non-Indigenous boarding schools during the same period.

The Holocaust analogy fails most of all when it labels the Indigenous boarding schools as genocidal institutions where thousands of children were murdered, a claim containing not a shred of documented evidence.

Nevertheless, Kimberly Murray has repeatedly called on federal parliamentarians to enact “legal mechanisms” that could address the practice of either denying or minimizing the genocidal uses Indigenous children suffered at residential schools in her interim report to parliament released in June 2022.

One way to do that is by amending the Criminal Code to criminalize such actions, Murray said in a recent interview, noting Ottawa did so last year regarding Holocaust denial. 

“We could do the same for Indigenous people,” Murray said. “Make it an offence to incite hate and promote hate against Indigenous people by denying that residential (schools) happened or downplaying what happened in the institutions.”

“Everybody in leadership when I speak about this, Indigenous leadership, all want that amendment to happen in the Criminal Code.”

The Liberal government included an amendment to the Criminal Code in the 2022 budget implementation bill to outlaw statements that “wilfully promotes antisemitism by condoning, denying or downplaying the Holocaust,” except in private conversation.

More than six million Jews in Europe were systematically killed by the Nazis and their collaborators and elsewhere from 1933 to 1945 resulting in what is now called the Holocaust, the worst genocide in human history.

More than a year after the new criminal offence against Holocaust denial was created, The Canadian Press asked the federal government and several provinces to find out how often it has been used. The answer was zero despite the explosion of antisemitism across Canada since the October 7 pogrom in Israel. 

As for the Indian Residential Schools, not one of the more than 150,000 Treaty Indian, Metis, or Inuit children largely enrolled in these institutions are known to have been murdered.

Yes, the Truth and Reconciliation Commission of Canada, which spent six years investigating the system, heard from thousands of survivors who reported physical, emotional, sexual, and spiritual abuse, along with neglect and malnutrition, but none of these claims were ever subjected to careful analysis or verification. 

The oft-repeated claim that some 6,000 Indigenous children died at these institutions is false: this figure, if true, hides the fact that most of these deaths were of students who were enrolled at the schools but died in hospitals or their home communities from contagious diseases like tuberculosis, not on school property. Almost all such children are buried in reserve cemeteries, the wooden markers on their unkempt graves having long decayed.

Despite this evidence, Murray highlighted in her June report what she says is a concerning rise in denialism – such as the words in the preceding paragraph – of what survivors and communities say about children who went missing or died at these institutions and are possibly buried in unmarked graves.

What so-called denialists have been pointing out since May 2021 when the Kamloops Indian Band announced that ground-penetrating radar had located what it said to be the unmarked graves of 215 children at the site of the former residential school on their B.C. reserve is that no human remains, at least none that were not previously discovered or documented, have been found at this and other sites where the same claim has been made.

Uttering or writing such words would also constitute residential school denialism according to the low bar set by Murray and her supporters.

Since then, dozens more First Nations across Western Canada and parts of Ontario have begun their own searches. Federal ministers have acknowledged that work could take years and have pledged millions to assist communities.

Collecting these millions is the main purpose of such searches, according to many so-called denialists.

When Murray released her interim report, which contained nearly 50 findings including the call for legal tools to tackle residential school denialism, former Justice Minister Lametti said he was open to doing so, including the possibility of “outlawing” such talk.

When asked whether new Justice Minister Virani is open to doing the same, a spokeswoman in his office said the minister “is considering the options raised in Ms. Murray’s interim report and looks forward to receiving her recommendation in the final report.”

“Ms. Murray’s final recommendations will be critical for putting in place a federal legal framework that will preserve and protect rights and respect the dignity of the children buried in unmarked graves and burial sites connected to residential schools,” she added.

Last year, Winnipeg NDP MP Leah Gazan moved a motion in the House of Commons that called on Parliament to recognize the residential school system as genocidal, which it did unanimously without debate and without examining any evidence. 

Murray says she hopes Gazan brings forward her private member’s bill seeking to criminalize such denialism, as the Parliamentarian has indicated that she will. Asked recently about its status, Gazan said “there is something in the works.” She later confirmed she remains committed to bringing it forward, but the timing remains unclear.

What remains most unclear of all is the constitutionality of such legislation. Canada’s legal system previously dealt with Holocaust denialism using other means. Ernst Zundel published Nazi propaganda in a pamphlet questioning the number of Jews killed in the Holocaust before being convicted of “spreading false news” in 1985. The Supreme Court overturned his conviction in a 1992 ruling that quashed the section of the Criminal Code regarding false news because it violated the Charter-protected right to freedom of expression.

Given the near impossibility of convicting someone for denying the atrocities of the most carefully orchestrated and documented genocide known to humankind – the Holocaust – trying to do same by labelling careful analysis employing factual evidence “residential school denialism” seems like a fool’s errand. 

Hymie Rubenstein is editor of REAL Indigenous Report and a retired professor of anthropology at the University of Manitoba.