Judges Quash Zundel Guilty Verdict

Published: 1992-10-01

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(Following are excerpts from stories reported in the Toronto Star, the Globe and Mail, and the Toronto Sun when this story first broke.)

Toronto Star (27 August): Toronto publisher Ernst Zundel's conviction for spreading false news about the deaths of 6 million Jews in the Holocaust was struck down today by the Supreme Court of Canada.

The court in a 4-3 decision declared the law unconstitutional because it violates the guarantee of freedom of expression contained in the Charter of Rights and Freedoms.

Canadians should be "no longer afraid to tell the truth," Zundel told The Star's Michael Tenszen.

...Madam Justice Beverley McLachlin, writing for the majority, said the minority must be allowed to present its view—no matter how unpopular it is.

"To permit the imprisonment of people, or even threat of imprisonment, on the ground that they have made a statement which 12 of their co-citizens deem to be false and mischievous to some undefined public interest, is to stifle a whole range of speech, some of which has long been regarded as legitimate and even beneficial," she wrote.

Zundel was originally convicted in 1985 of publishing a pamphlet which said the Holocaust was a hoax. It asked the question "Did Six Million Really Die?" and answered by saying the mass murder of 6 million Jews never happened.

The German-born Toronto publisher was convicted a second time in May, 1988. after a four-month trial and sentenced to nine months in jail. He was freed on $10.000 bail after serving 11 days.

Zundel argued the seldom-used but highly controversial section of the Criminal Code was an "instrument of thought control" that violated his constitutional guarantee of freedom of expression.

The law was modelled on one in 13th century England that was enacted to protect nobles from slanderous statements. It bas been used in Canada four timcs in 100 years.

The Ontario and federal governments, backed by two Jewish groups, said the law was needed "to preserve social and racial harmony."

"It was not possible to have a happy outcome to this case," said Alan Borovoy, the Civil Liberties Association's general counsel.

"The decision in this case is a correct one because the false news section of the Criminal Code was defective and capable of nailing wide varieties of speech that don't bear the faintest resemblance to the malevolent obscenities espoused by Ernst Zundel."

David Satok of the Canadian Jewish Congress said the decision in no way changes the finding of two separate juries that Zundel was guilty of propagating falsehoods about the Holocaust.

"The seven years of battling Zundel in the courts was fully worth it," said Greta Freiberg, also of the Congress. "As a result, Zundel has become a synonym for despicable, malicious falsehood and group libel."

"The ruling is not a vindication of Ernst Zundel's anti-Semitic ideology," said Warren Bass, B'nai B'rith's research director for human rights.

"What it is a legal ruling on fine points of law and leaves the door open for a charge under the hate propaganda statute."

The Globe And Mail (editorial), 28 August: Section 181 of thc Criminal Code, under which Ernst Zundel was twice tried for claiming in print that the Holocaust never happened, reads as follows: "Every one who wilfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years." Yesterday the Supreme Court of Canada struck down Section 181 by a vote of four to three. The court had ample reason for doing so; the mystery is why the vote was so close.

In one short sentence, Section 181 manages to break several fundamental precepts of criminal law, and affront the Charter of Rights and Freedoms. Under Section 181, no one need be demonstrably harmed by the "false" speech, nor must it be shown that anyone has suffered a measurable injury. The three dissenting judges tried to justify the false news law as a sort of group libel law, but for damages to be awarded in a normal libel case, actual damage must be shows.

This should mark the end of the Zundel affair. Aside from the philosophical and legal reasons for not trying the likes of Ernst Zundel, there is also one very practical reason for leaving the man and his twisted vision alone. Mr. Zundel himself articulated it. After his first trial in 1985, he proudly gushed, "it cost me $40,000 in lost work but I got a million dollars worth of publicity for my cause. It was well worth it."

* * *

Mr. Zundel said in an interview that if the Jewish community is upset [by the court's decision], "they have only themselves to blame. They tried to do something evil, and it carried within itself the seeds of its own dcstruction. So here they are with egg all over their face."

Toronto Star, 28 August: Jewish groups are calling on Ontario's attorney general to lay fresh criminal charges against Ernst Zundel.

"Without so much as even waiting to take a breath, Zundel resumed his Holocaust denial activities today in a nationally televised news confcrence," said [Canadian Jewish Congress] chair person Gerda Frieberg.

"It is our opinion that Mr. Zundel is breaking the law."

Zundel said at the news conference that the accepted number of 6 million Jews dying in the Holocaust is widely inflated by Jews to make all Germans look bad.

The Congress, which represents Canada's Jews, was to present evidence to Metro Police today asking that Zundel be investigated under anti-hate law not affected by the Supreme Court Decision, said congress official Bernie Farber.

B'nai B'nth also urged [prosecution of] Zundel under anti-hate laws...

"The ruling is not a vindication of Ernst Zundel's antisemitic ideology," said Warren Bass, the groups's research director for human rights. "What it is a legal ruling on fine points of law and leaves the door open for a charge under the hate propaganda statute."

Toronto Sun, 28 August: "Ernst Zundel is back," the Toronto publisher told reporters… "I've exposed this racket [the holocaust story] for what it is," Zundel said in response to the high court decision.

Jewish groups immediately protested his remarks, demanding the province prosecute Zundel under laws which ban the wilful spreading of hatred against an identifiable group.

Ontario must show its commitment to eradicating bigotry by charging Zundel for inciting hatred against Jews, said Marvin Kutz, of B'nai B'rith.

In the basement of a Toronto house, where he celebrated his victory with about 34 supporters, Zundel said Canada, the media, and the legal system had failed him, forcing him to fight for nine years to protect the right to express unpopular views.

"I am disgusted by the hypocritical lip service paid to free speech and civil rights in Canada," Zundel said.

"I, who have been vilified as a Nazi,… have been a better friend of democracy than you in the press."

(I telephoned Ernst to congratulate him on his great victory for intellectual freedom in the West. It was one in the afternoon in Toronto, and he said he had already given six interviews to Canadian media.

I first met Ernst Zuendel one spring afternoon in 1985 at his old, narrow, three-story house in Toronto. I'd gone there to do a story on his first free press trial where he was charged with having distributed a booklet titled Did Six Million Really Die?, which argued that six million didn't. I went up the walk alongside the house, rang the buzzer, and the barred door was opened by a young man. I stepped inside. There I recognized Ernst from photographs I had seen. A little under middle-height, a little overweight with a ruddy, healthy complexion. He was standing at a desk reviewing a document which he was holding in both hands. He had to turn his head a little to see me from the comer of his eye, and there was a moment's pause—and I became aware that he was sizing me up. It was only a moment, but time enough for me to realize that I never take time to size anyone up but just blunder on in and take the consequences. And then Ernst grinned and put his hand out to me, and with a substantial German accent said: "Welcome to hate house." What a wonderful welcome, I thought, and from that moment to this, though we don't see eye to eye on everything, Zuendel has been my kind of guy.

The following comments are based on notes I took by telephone on 28 and 29 August.)

Today I'm a totally free man. Free at last. I've been persecuted for nine years by Jews and Jewish organizations and by the government on behalf of Jews, and now we find that the law they used all this time was unconstitutional. Do you have any idea how much these nine years have cost me? The money. The time. The vicious, vicious harassment? If there was justice in this country, if there was any sense of fairness in this country, someone would say he was sorry.

Melting Holocaust

When you're a free man, your world changes. Now I have ways to act that have been denied me for nine years. I have my plans too. Don't think I'm not going to tell you what they are. Let my enemies guess. Here I am (laughing) one man against the world. CNN has done a little story on me. You didn't see it? Don't you watch television? What do you do with your time down there, Bradley? They referred to me as an "alternative historian." Oh, boy. I'll bet about 10,000 Jews went crazy when they heard that.

Yesterday afternoon I had a press conference downstairs in the war room. You remember that room, don't you? I think every newspaper and television station in this part of the country was here yesterday. Fifty of my supporters were here too. Some were old soldiers who were already past middle age when they came to my help nine years ago. Some of them are on crutches now, but they were here, just like they've always been here when I've needed them.

We have overturned, nullified, removed from the books a censorship statute bequeathed to this country by England, where it's been on the books since the 13th century. Something to brag about, eh? Now I'm going to insist that every notation of my conviction is removed from every computer in every government office in Canada.

It was sweet revenge having the press here yesterday. I laid it out to those hypocrites who get so misty-eyed about the law and freedom of the individual in this country. I reminded them, and not too gently either, that I'm a truth purveyor and that they have vilified me for nine years, and with almost no exceptions did they ever stand up for free speech. They pointed the finger at me for nine years while I fought for the truth and for a free press, and now the time has come for them to turn that pointing finger back at themselves. This archaic, totalitarian law created to stifle free speech was overturned in spite of the media. They spent their time drinking cocktails and eating shrimp with the mighty and the powerful so they could keep up with their mortgage payments, while one lone man they attacked as a hater did their work for them and for all the people of Canada. Even for the Jews. Jews deserve a free press too.

This touted Anglo-Saxon judicial system failed me from day one. The first prosecutor who looked at the complaint the Jews took to him should have recognized that it was illegal. None of the trip-wires that should have come into play in a decent legal system functioned. The judge for the preliminary hearing should have seen that 181 offended the Charter. Didn't these guys go to law school? It should have stopped right there, but it didn't, because the prosecutors and judges were doing the Jews' work for them.

What did happen, at the very last minute, after nine grueling years of bombings, beatings and vilification, the very last minute to pull the final emergency break of this judicial system, four judges had the courage to say yes, the law was unconstitutional. People in Canada don't have much to feel proud about and plenty to be ashamed of. A last minute correction imposed on a nine year miscarriage of justice.

I told the press yesterday that it had been clear to me from the beginning, and I'm a simple working man, that 181 was unconstitutional. I told them that I knew why they hadn't fought for a free press in Canada. They were intimidated by the Zionist lobby in Canada. I told them, that's the long and short of it.

One of the first things I'm going to do is go to the American consulate and confront them. They denied me a visa before my appeal was even heard. They denied it because Jewish organizations told them I don't believe in the gas chambers so I'm a dangerous man. The Americans denied me a visa because I'm not a true believer. The Americans, especially, should understand that even men who don't believe the gas chamber hoax are innocent until proven guilty of something.

What can I say? Americans aren't going to understand these things until they begin to understand their own criminal behavior at Nuremberg and the atrocities they committed against the German people and the Japanese and the Indians and the Blacks and everyone else they have ever given their attention to.

God used to be with the Americans, but I think He's changed his mind. The good Lord is with me now. He's already sent [Hurrican] Andrew to level south Florida, and that's just the beginning, believe me. [laughing] He's teaching you Americans what it means to be destroyed from the air. Do you think only the Iraqis should understand that? When I was a child in the Black forrest, I remember the old women crying out, "God Punish the Americans!"

If I can get a U.S. visa, I'll be able to visit my brother, who I haven't seen in ten years. He lives in California like you. You didn't know I had a brother? Oh, yes. He think's I'm crazy, but I love him.

This victory is very exciting for my oldest son. He's watched the press here in Canada vilify me with their filth for ten years. He's told me it's the press that's taught him the significance of the holocaust baloney.

The last time when I was in Germany I attended a reunion of my grammar school class. There were 96 kids in that class. Can you imagine that? That was when people were high on National Socialism. There was a real baby boom. Children were coming out of our ears. Ninety-six kids in my class, and I could only remember the name of one of them. I can tell you, I was embarrassed. They all knew who I am, of course, because they'd read about me in the papers. It made me think about those Jews who say they can remember everything that happened during World War II. A Jew can identify a German he saw one time fifty years ago at a distance of 500 yards. Remarkable, eh? Out of 96 of my classmates, I could only identify one.

I can still be brought up on hate charges. They had that option at the beginning and decided against it. I don't know what the Jews are going to do now. Rest assured they will compound their errors. If they convince the government to take me to court again, I'll use that opportunity to define what they are. Jews in Canada are blinded by hatred. Spite and hate are very poor advisors. Very poor advisors.

My friends here are the true heroes of what I have accomplished. It would have been impossible without them. They were the thin line between terrorism and censorship on one hand and liberty on the other. It's that simple.

The media must have been surprised by how many young people were here with me during the press conference. Twenty-five clean cut, healthy, well dressed young Canadian men and women. They don't drink and they don't smoke, at least not here in the bunker. You know how young people are. Not one reporter insulted me or asked a hostile question. They know how they've behaved these nine hard years. They sat there with their tails between their legs. And then when it was over, my supporters all stood up and gave the victory salute and cried out "Sieg Heil!" Hail victory. That's what it means. Hail victory.

When I told my lawyer about the saluting, he sounded worried. But I'm going to do what I want to do. I'm going to say what I believe is true, and I'm going to say it the way I believe it should be said. Nobody ever again is going to tell me what to say or how to say it. Never again!

Additional information about this document
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Author(s): Ernst Zündel , Bradley R. Smith
Title: Judges Quash Zundel Guilty Verdict
Sources: Smith's Report, no. 11, September/October 1992, pp. 4-6.
Published: 1992-10-01
First posted on CODOH: Aug. 30, 2015, 2:32 p.m.
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