An appeal was filed with the Ontario Court of Appeals and was heard from 22–26 September 1986. Christie introduced more than five dozen grounds for appeal.
The upper court found most of these without merit and specifically accepted the ruling that section 177 (now 181) did not violate a person’s freedom of expression as guaranteed by the Charter of Rights and Freedoms. Five grounds for appeal were recognized. The only serious one involved Locke’s instruction to the jury
15 Judge Locke added: “[Zündel] published not for the purpose of honest public debate, but rather with the fixed intention of destabilizing the Canadian community. Mr. Zündel has slandered the memory of innocent murdered human beings.”
about Zündel’s knowledge of the false contents in his pamphlet. On 23 January 1987, the court ruled in favor of the appeal. The Canadian Government immedi-ately decided to prosecute again.
The second trial took place in Toronto from mid-January until early May 1988, with a one-week interruption in February and another in March. Ernst Zündel again asked Douglas Christie to assume his defense. John Pearson was the gov-ernment’s chief counsel in place of Griffiths. His tactic was to emphasize Zündel’s links with Nazi ideology and modern neo-Nazi groups; this would establish the intent to publish the false contents of the pamphlet. Justice Ronald Thomas, a district court judge, chaired the proceedings. At the start of the trial, he made two important rulings. First, he forbade media coverage. This effectively eliminated the type of grandstanding that Zündel had enjoyed at the first trial. Except for intermittent and vague reports in the daily Toronto Star and the weekly Canadian Jewish News, the trial did not make the headlines and, indeed, was barely noticed by the general public. This strongly contrasted with the first trial, which occupied the press almost on a daily basis and was at the center of public attention. Crude or inflammatory reports from first trial had provoked numerous reactions. During the second trial, the Jewish community wasparticularly pleased by the lack of offensive articles in the nationally distributed newspapers.
Thomas’s second important ruling involved “judicial notice.” Although the Ontario Supreme Court stated that Judge Locke had used his discretion properly by refusing to take “judicial notice” of the facts of the Holocaust in the first trial, Judge Thomas now took “judicial notice” of the same issue. He instructed the jury to accept as historical certainty the mass murder of Jews by the Nazis, though he left open the questions of scale, method, and official policy. This decision dra-matically changed the nature and scope of the trial, making the testimonyof sur-vivors unnecessary. Many of Christie’s theatrics as well as the public wounding of Jewish survivors and their families were thus avoided.
Pearson began by reading, in extenso for the record, the book The Hitler We Love and Why that Zündel wrote under the pseudonym Christof Friedrich, as well as one of his earlier writings, UFOs: Nazi Secret Weapons? He also read the tes-timony of Raul Hilberg from the first trial; unwilling to undergo another session of Christie’s rude questioning, Hilberg did not appear this time. The prosecution then called Professor Christopher Browning as an expert witness.¹⁶ The professor
16 Christopher Browning was then Professor of History at Pacific Lutheran University at Tacoma. His writing includes Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland (New York, 1992), and Fateful Months: Essays on the Emergence of the Final Solution (New York, 1985).
dissected the errors and falsehoods of Zündel’s pamphlet during three of his five days in court. Christie’s aggressive attacks on the scholarly credibility of Brown-ing—including the fact that some of his research had been funded by Jewish groups and published by the Wiesenthal Center—were repelled by Browning’s erudition and bearing. Douglas Christie called twenty-three witnesses. Many, like Robert Faurisson, Ditlieb Felderer, and Botting, had testified in the first trial.
Some of them were not called as experts; instead, Christie invited their “opinion evidence.”¹⁷ Because the appeals court had agreed that visual reconstruction of the camps should have been accepted in the first trial, Felderer was allowed to present slides of Auschwitz that included a supposed swimming pool, a dance hall, and a music auditorium. Under cross-examination, Walendy admitted that he had sent comments and remarks to Zündel about Did Six Million Really Die?, thus enhancing the suspicion that Zündel was fully aware of some errors and falsehoods in the pamphlet and that he had knowingly published a questionable text.
The defense’s strategy seemed to be less coordinated than in the first trial.
For example, Weber wavered on the issue of the Diary of Anne Frank, while Robert Faurisson maintained a strong stand on the question; the latter claimed that it was, at least in part, a hoax. Faurisson also attacked Hilberg’s scholarship. He tried, as did Botting, to reinforce the subtle nuances used in the previous trial about the presentation of opinions as facts. These kind of distinctions escaped most of the other witnesses, who insisted that Zündel’s writings were a true ren-dition of history and that the Holocaust was a fraud.
Two new witnesses appeared before the court. Fred A. Leuchter, an Amer-ican engineer of doubtful credentials, presented his report. After visiting a few concentration camps, he alleged that, from an engineering point of view, the buildings could not adequately perform the task described and asserted that there were no residual traces of gas in the walls.¹⁸ After Leuchter came the star witness: David Irving, the English historian who had written extensively about Hitler and was a leading Holocaust denier. In the 1970s and early 1980s, Irving’s books had initially proposed an image of Hitler as a moderate and fair leader who aimed only at restoring Germany’s power, while his assistants perpetrated
17 Udo Walandy wrote Truth for Germany: The Guilt Question of the Second World War (Torrance, Calif., 1981). He also translated into English and edited Auschwitz im IG-Farben-Prozess: Holocaust-Dokumente? (Vlotho/Weser, 1981).
18 The transcript of the trial includes Leuchter’s full report. Several shorter or updated versions were published in London and reprinted in the Journal of Historical Review. They were also available on the now-forbidden Zündel website.
criminal acts without his knowledge. While accepted by Faurisson and others as an asset to their movement, Irving did yet not share their vision regarding the genocide. Notwithstanding criticism from established historians (Martin Gilbert, Hugh Trevor-Roper, Gerald Fleming and Martin Broszat), he remained a part of the academic debate. Because of his status, he became the star of right-wing and neo-Nazi groups. But in the late 1980s, Irving crossed the line to Holocaust denial after reading and publishing Fred Leuchter’s reports in his Focal Point Publi-cations. On cross-examination, Irving accepted that his views about Hitler had indeed changed and that he was closer to Zündel’s opinion than some of his writ-ings indicated.
Pearson proved himself an efficient cross-examiner. He forced witnesses to admit their errors as well as their ignorance of historical facts and of tech-nical matters. He also successfully linked witnesses to Zündel’s antisemitism, anti-Zionism, to the White Power movement in North America, and neo-Nazism in Europe. The prosecutor exposed Zündel as an ardent Nazi, fully aware that he was publishing racist propaganda and an active promoter of Nazi ideology, regardless of historical truth. Pearson insisted that the discussion was not about securing a more authentic knowledge of history; rather, it concerned the dissem-ination of a political agenda regardless of its harm to society.
As for Christie, he did not attempt, as in the first trial, to argue principally for freedom of speech. Rather, his case centered on Zündel’s belief that the Holocaust did not occur, that the camps were a postwar invention and that the number of Jewish dead was grossly exaggerated. Evidently for strategic reasons, he argued that these were “honest beliefs” and emphasized that the law protects opinions regardless of their accuracy.
After listening to the closing arguments, Judge Thomas instructed the jury at length, emphasizing that the question was not whether Zündel’s beliefs revived Nazism but if he published books that he knew contained falsehoods. The jury convicted Zündel and he was sentenced to nine months in prison. Judge Thomas concluded: “It is not the Holocaust that was a fraud; Ernst Zündel is a fraud.” An appeal was immediately filed.
The Court of Appeals for Ontario heard the case beginning in September 1989 andrejectedthe appeal in February 1990. Its decision confirmed the proper conduct of Zündel’s second trial, including the use of judicial notice. Christie then introduced an appeal to the Supreme Court of Canada, which two years later on 27 August 1992 decided (in a vote of four against three) that the appeal of Ernst Zündel had merit. It found that section 181 of the Canadian criminal code was unconstitutional because it “infringes on the guarantee of freedom of expres-sion” and that “the content of the communication is irrelevant.” The majority emphasized that, at the time of its creation, this law was designed to prevent
“deliberate slanderous statements” but that to combat “propaganda or racism is to go beyond its history.” The court expressed concern about the wording of the law. It felt that the scope covered by the words “statements, tales or news” was ambiguous when it referred to historical and social speech. It also felt that the ter-minology “injury or mischief to a public interest” was vague and thus potentially applicable to too large a social or political group. Between the lines, the judgment seemed to question the need for protection from lies and falsehoods as long as physical force is not used.
In a lengthy and strongly worded statement, the dissenting opinion opposed every aspect of the judgment. It asserted that section 181 was precise enough for reaching its target—punishment of intentional lies and falsehoods used to harm specific groups. It also argued that the term “public interest” was sufficiently defined and thus the limitation imposed by the section was reasonable. Taking a wider perspective, the dissenters determined that the law had an important role in achieving social harmony: “A democratic society capable of giving effect to the Charter’s guarantees is one which strives towards creating a community commit-ted to equality, liberty, and human dignity.” It held that “racism is a current and present evil in this country” and thus, section181 played “a useful and import-ant role in encouraging racial and social tolerance.” The dissenting opinion concluded that “where racial and social intolerance is fomented through the deliberate manipulation of people of good faith by unscrupulous fabrication, a limitation on the expression of such speech is rationally connected to its eradica-tion.” As a consequence of the Court’s judgment, section 181 of the criminal code was declared as having “no force or effect.” In spite of some strong statements by the different courts concerning the repugnance of Zündel’s message and attitude, he was not actually convicted of the charges brought against him. While Zündel’s successful appeal ended the charges rendered against him under section 181, it was not the end of his legal problems.
Epilogue
In March 1991, Zündel sponsored a neo-Nazi conference in Munich. German police broke it up, arrested Zündel and charged him with defaming “the memory of the dead” and “inciting racial hatred.” Because of the German laws aimed at Holocaust deniers, Zündel and his friends have been convicted on a regular basis. A few months later, Zündel was again convicted of inciting racial hatred for distributing a video “The Auschwitz Lie.” He was fined 12,600 Deutsche marks (approximately US $6,000) and expelled from Germany. In 1993, Zündel formally requested Canadian citizenship. After a report by the Canadian Security
Intel-ligence Service (CSIS) found that Zündel was a “security risk,” the Minister of Citizenship and Immigration of Canada refused the request.
Then, in 1995, Sabina Citron—the initiator of the previous trials against Zündel—filed a private complaint at the Canadian Human Rights Tribunal against Zündel for defamatory libel and conspiracy to promote anti-Jewish hatred. The Toronto Mayor’s Committee on Community and Race Relations joined her, esti-mating that it had reasonable grounds to believe that Ernst Zündel was posting hate messages on his website, the “Zündelsite.” These messages were in direct violation of section 13(1) of the Canadian Human Rights Act (CHRA). This section forbids discrimination against persons or groups on the grounds of race, religion, national or ethnic origin, or sexual orientation by telephonic dissemination of messages that are likely to expose a person or persons to hatred or contempt.
The tribunal condemned Zündel for contravening the Canadian Human Rights Act and ordered him to stop using the Internet for promoting hate. It pointed out that the Internet cannot be a place where hate is uncontrolled and unpunished.¹⁹
The Zündel trials transpired in the new legalenvironment created by the prom-ulgation of the Charter of Rights and Freedoms (1982), which set out to balance the rights of individuals with those of society. The Charter also sought equilib-rium between the rights of minority and majority groups—a particularly crucial issue in Canada, where the official policy of multiculturalism is seen as the center of national identity. Thus, the legal decision on hate literature embodied in these trials was an important test for the courts, for Canadian society, and the self-im-age that Canadians want to maintain. In the international arena, Canada has always seen itself as a prime protector and promoter of civil and political rights for individuals. Therefore, editorialists and jurists like Alan Borovoy (general counsel of the Canadian Civil Liberties Association) voiced concern during the trials that Canada might restrain civil liberties within its borders and thus create a discrepancy between its domestic actions and its international stand.
The basic concern has been that while it may be reasonable to desire a ban against extreme opinions and hatred, any such laws would equally impair the legitimate expression of dissenting views. Furthermore, once the principle of intervention and control is established, it will be applied to subsequent cases, some far removedfrom any expression of racial or religious hatred. Basic human rights will be jeopardized: the voices of strikers, demonstrators, anarchists and, of course, all forms of artistic or aesthetic endeavors will bebent to the “will of the majority.” Heated questions like gay rights, abortion, or violence against women
19 The full text of the judgement can be found on http://www.chrt_tcdp.gc.ca /decisions/
docs/citron_e.htm.
are seen as areas where laws against hate literature could easily be abused to silence one side or the other.
One disturbing aspect of this position is the assertion that words alone cannot provoke harm. While linguists reach new conclusions about theimpact of language on reality, western legislators seem able to recognize and act only against physical evidence of wrongdoing or in terms of narrow definitions of per-sonal defamation. Verbal violence against a corporate group, like hate literature against a minority, seems to be outside their designation of harmful enterprise.
This prompted noted law professor Irwin Cotler to observe that the Charter of Rights and Freedoms has emerged as a paradoxical weapon: designed to protect minorities from hate-mongers, it ends up being used by the latter in court to protect their message of hate from being suppressed.²⁰ If legislation on hate liter-ature becomes, in practice, more a shield for racism than a sword against hate, its opponents and proponents will have reversed their roles. Furthermore, Professor Cotler placed the discussion in the larger frame of human rights and their protec-tion. Indeed, hate propaganda is more than just a legal question but an assault on human dignity and basic human rights as well as social peace.