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In 1985 a 46-year-old German citizen Ernst Zundel, who has "landed immigrant" status in Canada,1 was tried in Toronto for publishing falsehoods about the extermination of the Jews by the Nazi regime during World War II- that is, for denying the factuality of the Holocaust. His publications were pamphlets entitled Did Six Million Really Die?2 and The West, War, and Islam. The Crown prosecuted because of Zundel's alleged "injury or mischief to a public interest,"3 in this case to members of the Canadian Jewish community who had survived the Holocaust, or whose relatives had experienced it or died in it. Also, the state desired to prevent the dissemination of propaganda that stimulates hatred of Jews, or antisemitism.
The son of a lumberjack who served as a medic during World War li, Ernst Zundel was born on a farm held by his family for over 300 years in the Black Forest region of West Germany. He claims that his parents were apolitical. A sister is a Christian missionary in Africa, his brother a lawyer in the United States. In 1958 Zundel came to Canada in order to avoid the peacetime conscription of West Germany, but he has remained a German citizen and holds landed immigrant status in Canada. However, in 1982 the Federal Republic of Germany refused to renew his passport because of his denunciation of the government for being full of "toadying Quislings." After working at Simpson Sears as a commercial artist in his first years, he soon became "the best photo retoucher in Toronto" with some valuable contracts, such as for the covers of Maclean's magazine. He lost much of this work, as well as his French- Canadian wife, because of his efforts to rehabilitate the historical reputation of Nazi Germany.
A believer in an international Jewish conspiracy, Zundel spreads his views through the publications of his Samisdat Publishing Ltd., which proclaims that Adolf Hitler was a great man, that "nobody was gassed in any German concentration camps-no Jews, no gypsies, no murderers, no Communists, etc., nobody," and that "the Holocaust is a hoax, a money-making Zionist hoax." Each year he sends "tens of thousands" of his antisemitic and neo- Nazi letters and pamphlets to "decision makers," historians, government prosecutors, politicians, and high school and university students in dozens of countries, especially the United States and West Germany. He also makes movies, holds meetings, and gives lectures. He finances these efforts with approximately $50,000 per year in donations as well as $100,000 from sales of his materials, including "Nazi secret weapons art posters" and belt buckles with SS symbols on them.4
The lawyer for the defensse was Douglas Christie, a maverick from Victoria, British Columbia, and the son of a former tail gunner in World War II. Born in Winnipeg, he was raised in modest circumstances near the Assiniboine River and obtained his law degree at the University of British Columbia in 1970. He is combative, abrasive, and eccentric-a passionate opponent of the state's encroachments on the individual and a denouncer of the federal government's policies for bilingualism,5 the metric system,6 and the replacement of the Union Jack with the Maple Leaf flag.7 He founded a political party, the separatist Western Canada Concept,8 and is often on the road speaking on its behalf and organizing branches in electoral districts in the western provinces. His law office is a "bizarre-looking parking attendant's shack in the middle of the lot across from Victoria's courthouse." He lives on a 12-hectare property north of Victoria 9 amid goats and ducks, and chops wood for exercise. He regularly lives in his van or with his client, as in Zundel's fortified Toronto home during this trial. Some observers underestimate him as "a complete dolt," but others perceive a solid lawyer; and at the end of the Zundel trial the prosecutor admitted his surprise at the depth of Christie's preparation.10
The 36-year-old prosecutor, Peter Griffiths, had 15 years of experience as a practicing attorney: nine years in private practice and six years as a Crown counsel. While carrying his usual workload, he prepared for a year for the Zundel trial, but would have liked more time. A law professor who observed the trial closely believed that at least two prosecutors should have been assigned to it and that the Crown should have been better prepared. Mr. Christie supposedly told Mr. Griffiths that "he didn't want to (wage a book war)"; consequently, Mr. Griffiths said at the beginning of the trial there would be no "battle of libraries." But Christie then introduced more than 100 books, although limited by the judge to works in English,11 to which Griffiths had to respond. He found support from historians in Toronto's academic community and eventually brought a historian to his table in the courtroom.12 The transcripts of his questioning of witnesses, of his arguments, and of the judge's rulings show that Griffiths was astute and successful on most issues; this achievement was not appreciated by the press and other observers during or immediately after the trial.13
Ernst Zundel's efforts have aroused intense antipathy; he has gained notice internationally as well as across Canada. In 1980 Simon Wiesenthal wrote Canada's Solicitor General, Robert Kaplan, that many of Zundel's anti- Jewish and neo-Nazi leaflets and circular letters were circulating in Europe.14 In May 1981 five Jewish groups in Toronto marched on Zundel's home and denounced him.15 In 1983 he was mentioned in the House of the Ontario legislature "as one of the world's biggest purveyors of Nazi propaganda"; and the Ontario Attorney General told the same body that if the government had "a reasonable chance of a successful prosecution" of Zundel, it would "encourage the laying of charges."16 In 1981 the Holocaust Remembrance Association, an activist Jewish group that had broken from the Canadian Jewish Congress in 1978 because of its reluctance to press on such matters, asked Andr6 Ouellet, the Liberal Postmaster General, to revoke Zundel's mailing privilege. The Canadian Post Office did this for a time even though the Canadian Civil Liberties Association had argued that the minister should not have such power under the Post Office Act. Zundel appealed to a three- member federal review board, which advised Mr. Ouellet to lift the suspension, partly because Zundel had not been prosecuted or convicted for his publications. In October 1982 his mailing privileges were restored.
The revocation of his privileges did cripple his operation, and recovery was slow. 17
Then their attorney, Robert McGee, suggested that the Holocaust Remembrance Association lay a charge privately on the basis of Section 177. This they did, but the Attorney General of Ontario, Roy McMurty, intervened and directed that a Crown attorney prosecute the case because it was in the public interest that Zundel be prosecuted. The Crown had hesitated to lay charges under Section 281, the hate-literature section in the Criminal Code under which James Keegstra was subsequently prosecuted in Alberta, because the chances of winning such a case appeared so slight, but decided to proceed under Section 177.18
During 1985 there were two trials in Canada of deniers of the Holocaust: Ernst Zundel in Toronto, Ontario, under Section 177 of the Canadian Criminal Code, and James Keegstra in Red Deer, Alberta, under Section 281.2. In both cases, the corollary of denial of the Holocaust was antisemitism, and thus promotion of hatred. Because the Crown had not often prosecuted on the basis of those laws, there were few precedents. However, because of the timing of different parts of the proceedings, the two cases provided support for one another, especially on the important question of whether the laws were compatible with the Charter of Rights of 1982.19 Some background on recent efforts to frame legislation for the prosecution of such cases and knowledge of the texts of the relevant laws are essential.
The first demands in Canada for legislation that would prevent the dissemination of hate propaganda date from 1953, when a joint committee of the House of Commons and the Senate was preparing a revised Criminal Code. In 1965, a special commission, the Cohen Committee, was appointed to examine the problem; it reported in 1966 that the amended Criminal Code should include sections on genocide and hate propaganda. 20 This was consonant with the fact that Canada was a party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and in 1966 signed, with ratification in 1970, the International Convention on the Elimination of All Forms of Racial Discrimination, Article 4 of which "requires the member states to prohibit, by their criminal law, the dissemination of hate propaganda and all organizations that incite real discrimination."21 In an attempt to harmonize their legislation with the two international conventions, to act on the Cohen Committee's recommendations, and to abide by the Canadian Bill of Rights of 1970, Parliament added three new sections to the Criminal Code in 1970, and retained a fourth to combat hate propaganda, Section 177, which was used to prosecute Zundel.
The first of the new sections was 281.1, against "every one who advocates or promotes genocide." Section 281.2 contains two parts: 281.2(l) against "every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace"; and 281.2(2) against "every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group." This second offense is different from the first "because it does not require that the activity be likely to bring about a breach of the peace." So that this law would not be employed frivolously, Parliament provided in 281.2(6) that prosecution for this offence would not be undertaken without the consent of the Attorney General. Furthermore, Parliament worried that freedom of expression might be unacceptably restricted by excessively zealous prosecution under these clauses and in a subsequent subsection, 281.2(3), provided defenses for the accused. Thus the accused would not be convicted
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, he expressed or attempted to establish by argument an opinion upon a religious subject;
(c) 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; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred towards an identifiable group in Canada.22
These requirements also influenced the argument about guilt and innocence in the Zunclel trial under Section 177. As will become apparent, an Alberta judge had already ruled in the pretrial decision of R. v. Keegstra 23 on a challenge to the constitutional compatibility of Section 281 with the Charter of Rights. This decision provided a persuasive authority for the ruling in Zundel's trial.
A fourth and already existing section of the Criminal Code, Section 177, could also be used against someone accused of promoting hatred, such as Zundel. According to this law, "everyone 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 offense and is liable to imprisonment for two years."24 Thus the Crown had to prove that Zundel had known that what he was saying was false, that he had indeed written and published the material, and that he did so willfully-that is, intentionally, knowing that it could cause injury or mischief. However, the section is obviously vague insofar as it does not specify that the "statement, tale or news" be hate propaganda, which the state wanted to prosecute in the Zuridel case, and insofar as the nature of the "injury or mischief" and the meaning of "public interest" are not clear. No doubt this vagueness helps to account for the fact that Section 177 had been the basis for only four prosecutions, one of which was successful in 1907 but provided no precedent for the prosecution of Zundel.25
Almost immediately after 60 potential jurors assembled on 9 January 1985, Douglas Christie, Zundel's lawyer, asked for a ruling from Judge Hugh Locke as to whether Section 177 was compatible with the Charter of Rights. Christie and the Crown counsel, Peter Griffiths, then engaged in what they called the "Charter argument," which is likely to be a frequent occurrence at trials during the next few years. This requires some explanation.
The Canadian judicial system, which derives from the British, has been based on common law; but in an important series of decisions in the 1950s, the Supreme Court of Canada adumbrated principles that have frequently been viewed as the equivalent of a Bill of Rights. In 1960 the Diefenbaker government enacted a Canadian Bill of Rights in a federal statute, which applied only to the federal government and not to the provinces. However, by November 1981 nine of the 10 provinces had agreed to the enactment of the Constitution Act (1982), which included the Canadian Charter of Rights and Freedoms. The Charter is somewhat similar to the Bill of Rights in the United States and applies to both the federal and the provincial governments.26
Because of decisions in the 1950s and the 1960 federal Bill of Rights, the recent Charter does not create an entirely new situation. Nevertheless, lawyers now seek rulings on the constitutionality and applicability of older laws, such as Section 177 of the Criminal Code, under which the Crown was prosecuting Zundel, with respect to the new Charter rather than the principles of the 1950s or the 1960 statute.
Christie first quoted the United Nations Declaration of Human Rights, Article 19, then the rights or freedoms enshrined in the Canadian Charter, and argued that Section 177 restricted freedom of speech unreasonably. According to Section 177, the injury caused by the "statement, tale or news" had to be to a "public interest," wording that, Christie argued, was "vague, imprecise and confusing"27 (160). He asked, "Who can know with any specificity what is in the public interest?" If people did not know, they would feel "great apprehension and fear of speaking out on controversial matters" (12), not so much out of fear of conviction as of prosecution. Furthermore, through this section the courts "will be put in an absolutely impossible position of having to decide what is true or false about something that happened forty years ago in which there's differences [sic] of opinion even today, and it is my submission [that] the section is not really legally enforceable" (13). No one could say a priori what was true or false "until we go to Court and find out what the jury decides is the truth" (26).
By quoting the entirety of Articles 19 and 20 of the International Covenant, Mr. Griffiths demonstrated that a number of clauses ignored by Christie did recognize limits to the freedom of speech. A recent decision of Justice Quigley of the Alberta Queen's Bench on a pretrial motion in R. v. Keegstra argued the compatibility of Section 281.1 of the Criminal Code with the Charter (17-22) and made clear that a small and proportionate limit on free speech was allowed by the careful wording of the International Covenant, the Charter of Rights in Canada, and the Bill of Rights in conjunction with a number of court cases in the United States. News, he thought, could also be taken to mean "tale" or "story" or "history." The writer or publisher would not only have to know that what he wrote or published was false and then willfully publish it, but also thereby "cause some damage to the public interest" (24).
Much of Mr. Griffiths's, and hence Justice Quigley's, argument was adopted by Justice Locke in his ruling. Justice Quigley had cited a decision by the Supreme Court of Canada "which made it illegal to propagate communism or bolshevism as ultra vires the provincial government" (164).28 In this case Justice Rand noted that during the past 150 years in the United Kingdom and Canada the
steady removal of restraints on this freedom [had stopped] only at perimeters where the foundation of the freedom itself is threatened. Apart from sedition, obscene writings and criminal libels, the public law leaves the literarv, discursive and polemic use of language, in the broadest sense, free (164).
In another case from Alberta in 1938,29 justice Duff named a number of restrictions on the right of public discussion such as "considerations of decency and public order" and "public interests with which ... the laws of defamation, and sedition are concerned" (165). Furthermore, Chief justice Rinfret of the Supreme Court of Canada had written in 1951 "that to interpret freedom as license is a dangerous fallacy."30 The Supreme Court did not accept "that persons subject to Canadian jurisdiction 'can insist on their alleged unrestricted right to say what they please and when they please, utterly irrespective of the civil results which are often inevitable' " (166). In his Keegstra opinion, Justice Quigley observed that freedom of speech is not absolute in the United States, where there are restrictions on "obscenity or libelous and insulting words" (166). He cited a number of cases accepting restrictions when "such utterances are no essential part of any exposition of ideas and are of slight social value as a step to truth so that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality" (166). Like Griffiths, Judge Locke also noted that Article 19 of the International Covenant on Civil and Political Rights, signed by Canada, allows some limits (166-67).
In his view Section 177, used at the Zunclel trial, and Section 281.2, which was applied to Keegstra, had the same purpose. "Those sections seek to prohibit the wilful promotion of ideas that are designed to cause injury or mischief to a public interest, or to promote hatred." For that reason the conclusion of Keegstra could be applied in the Zundel case, "and Section 177 should be found to be valid legislation" (167).
Contrary to Christie's argument, which was also expressed by other lawyers quoted in the press, Judge Locke did not find Section 177 vague or imprecise:
The section applies only to statements that are known to be false andthat cause or are likely to cause injury or mischief to a public interest. A "well-intentioned citizen" could consider the criteria established by the section and determine whether his or her behaviour is unlawful (167).
Of course, a higher Canadian court might find that Section 177 did infringe the right of freedom of expression guaranteed in the Charter; so Judge Locke had to consider whether the denial or limit was reasonable, whether it was a "demonstrably clear point of view," and whether it was justified. Section I in the Charter "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" (168). Whichever party claimed the benefit of the section-in this case, the Crown-had to bear the burden of proof.
In re Germany (Federal Republic) and Rauca, Chief justice Evans stated that the judge must determine whether a "limit" as found in legislation is reasonable or unreasonable. The question is not whether the judge agrees with the limitation but whether he considers that there is a rational basis for ita basis that would be regarded as being within the bounds of reason by fair-minded people accustomed to the norms of a free and democratic society.31
In order to determine the reasonableness of the legislation, Judge Locke examined three factors: "rationality, proportionality, and comparison to other free and democratic societies." The rational basis seemed self-evident: "ordinary Canadians" want "to control the mischief and injury caused by the spreading of false information" and "find the dissemination of this type of material offensive. Furthermore, recent history has shown the danger of permitting an unlimited right of freedom of expression" (169). Without offering any examples from recent history, Judge Locke examined proportionality. He was convinced that "the Code has a very minimal effect on the overall right of freedom of expression. It limits only those expressions that are wilfully published by a person who knows they are false, and that are statements that cause or are likely to cause injury." Regarding the comparison to other democratic societies, he quoted the Ontario Court of Appeal's view that ultimately only the facts of Canadian society can answer the question "whether the limit imposed on the particular guaranteed freedom has been demonstrably justified as a reasonable one, having balanced the perceived purpose and objectives of the limiting legislation, in light of all relevant considerations, against the freedom or right allegedly infringed" (170). He concluded "that the limitation imposed by Section 177 on freedom of expression as guaranteed by Section 2(b) of the Charter is reasonable, is prescribed by law, and is demonstrably justified in a free and democratic society" (171). Hence he dismissed the motion and proceeded to another ruling on the right of the accused to challenge for cause, that is, because of evidence concerning pretrial publicity about Zundel and prejudice of particular groups against him.
For the defense Christie wanted to ask each prospective juror some questions: whether he or she had "any moral, religious or other beliefs relating to Jews or the Holocaust" or Freemasons "such that you would convict or acquit regardless of the law or evidence"; whether he or she believed "that the Jews of today are God's chosen people or especially favoured by God" (173-74); whether he or she believed in the extermination of Jews and the existence of gas chambers during World War II, or could consider the matter only on the evidence presented in court; and whether he or she had "any abiding prejudices against German people." He also asked Judge Locke to exclude Jews and Freemasons as potential jurors because such jurors were bound to be biased (175-76). Moreover, Christie wanted to inquire whether Jews or Freemasons were among the relatives, friends, or employers of prospective jurors.
Griffiths argued against challenge for cause with Christie's questions, which would disenfranchise citizens. Hitler's criteria could not be used to define a Jewish person. What criteria could be applied? And how could Freemasons be defined? The gas chambers and the Holocaust had been the subjects of thousands of books, which had demonstrated that they were as true as the answer to the question, who had won World War II.
Christie denied that he was trying to apply Hitler's principles but insisted that "if a group happens to be involved very closely in the issue of fact to be tried, yes, they are not qualified-I don't care who they are-to judge their own cause" (146). Freemasons on the jury would be in that position. About judicial notice he said only, "I don't think we should take judicial notice of all the facts referred to in the [Zundel's] brochure" (149). Judge Locke did not address the issue aside from mentioning two standard works that examine judicial notice (212). At this point in the trial, Griffiths did not seek a ruling, and Judge Locke did not invite argument on judicial notice.
To support his motion by demonstrating that most jurors would already have formed an opinion about the case, Christie submitted over 20 exhibits. Most of them were copies of articles in newspapers; but there were also some recordings of telephone calls and threats to Zundel, as well as videotapes of television news broadcasts that featured Zundel and his followers clashing with the Jewish Defense League, and Zundel testifying about the encounters. Griffiths asked questions suggesting that Zundel sought publicity and was deliberately provocative. In his ruling Judge Locke observed that both sides were organized, disciplined, protected by hard hats and bulletproof vests, and carried walking sticks or wooden shafts for placards that would be and were used as clubs: "Each group accepts and understands that when they intentionally confront one another, physical violence will be the expected result" (177). Zundel always appeared calm, smiling, well dressed, and coherent, had "time for the appropriate quotation in clear language for the press," and gave "the authentic Nazi salute ... near the end of each confrontation." The films did not, however, as the Crown had made clear, "disclose the existence of provocative banners strung against the outside walls of Mr. Zundel's home," banners which "displayed for all to see the written message that the Holocaust was a hoax and six million Jews did not die in it, or words to that effect" (178-79). The banners also carried Zundel's telephone number, a practice that encouraged threatening calls. Thus Judge Locke clearly thought that Zundel had desired and provoked the clashes and had wanted to make the news that he now pretended to fear would prejudice the jurors.
The judge accepted that there had "been a heavy, persistent and recent dissemination of the subject matter of this case to the public at large" (180). Hence he thought "it would be quite impossible to select twelve jurors about whom one could be sure that none had heard about these charges against Mr. Zundel." This situation did "not necessarily make a juror unfit to serve" (182). He would not allow Christie to ask his questions because to do so would allow the "disenfranchising [of] a substantial segment of our society in this community from the right and duty to sit as a juror in a court of criminal jurisdiction in a democratic country." He bore in mind the presumption expressed in R. v. Hubbert "that a juror not disqualified by the statute under which he is selected, will perform his duties in accordance with his oath.32 Furthermore, "challenge for cause is not for the purpose of finding out what kind of juror that, person called is likely to be-his personality, beliefs, prejudices, likes or dislikes." They did not want to emulate American practices in this regard.
Judge Locke found that all the questions offended the principles set out in this case:
There is no evidentiary connection between the attracted notoriety and the reasonable prospect that any prospective juror, regardless of his or her racial origin or religious belief, or for any other reason, would be unable to impartially return a verdict in this trial based solely and only upon the evidence led thereat (187).
Zundel had elected trial by jury despite the public notoriety he had attracted to himself, and his decision did not "entitle him to use any of these questions to challenge his prospective jurors for cause in order to tailor his own jury to suit him." Hence he dismissed the application. After these rulings, the selection of jurors took place quickly. The defense rejected three of them, one less than allowed. Ten men and two women, most middle-aged or elderly, were swiftly selected.
The strategy of the Crown, conducted by Peter Griffiths, was relatively simple. Through its witnesses, the Crown had to demonstrate in the terms of Section 177 that Zundel's writings were false and caused "injury or mischief to a public interest." In order to accomplish this objective, the Crown brought to the stand Professor Raul Hilberg to testify at enormous length as an expert witness about the manifest falsity of Zundel's chief contentions (629-1243). Professor Hilberg is an eminent historian of the Holocaust familiar with the documentary evidence.33 A number of survivors of concentration and extermination camps, particularly Professor Rudolf Vrba (1244-1638), author of a book about his own escape from Auschwitz,34 testified about what they themselves had experienced of pain and privation and what they had observed or heard or smelled concerning the fate of their fellow prisoners. The Crown also brought to the stand some witnesses to contradict Zundel's assertions about conspiracies by contemporary Freemasonry and Jews to manipulate the Canadian and international banking systems (232-304, 505-83, 1844-1929). The Crown also had to demonstrate that Zundel had known his views were false, and attempted to accomplish this by questioning him.
In the first part of the trial, the strategy of the defense was to cast as much doubt as possible through cross-examination on the testimony of Professor Hilberg and the survivors; and in the second part of the trial, to prove that Zundel's writings were true. In its own half of the trial, the defense, conducted by Douglas Christie, introduced in evidence an enormous list of books in order to demonstrate that Zundel had read widely in his research and had quoted properly from many sources in his published writings. Then Christie tried to qualify a number of defense witnesses as experts comparable to Raul Hilberg, and succeeded with a few. Their testimony was followed by the lengthy testimony of Zundel himself.
How did these strategies work? Professor Hilberg offered restrained and balanced testimony, based on massive written evidence to which he could only refer, about Zundel's claims regarding the Holocaust, which in Hilberg's opinion were "concoction, contradiction and untruth mixed with half-truths" (691). He was clearly enormously learned and almost unshakable in the face of Christie's aggressive cross-examination. He rarely showed irritation and explained patiently what kinds of evidence were missing, or were available and supported certain conclusions, or had to be rejected as implausible. In response to the questioning of Mr. Griffiths, the survivors related their experiences in harrowing detail, experiences that constituted a refutation of some of Zundel's chief beliefs. Mr. Griffiths drew out these witnesses very ably and built a strong case in support of the Crown's contention that Zundel's writings were false. He also implicitly suggested to the jury that anyone inquiring fairly about the Holocaust would have to examine carefully the materials handled by Hilberg and hear the survivors, or else he could hardly claim any credibility.
In cross-examination Christie tried to cast doubt on Professor Hilberg's testimony as well as on the recollections and observations of the survivors in such a bullying fashion that he angered Professor Vrba (1534, 1582-83) and distressed a number of the others. Christie's behavior toward the witnesses of the Crown probably damaged his own case in the eyes of the jury. At the same time, it was clear from his questioning of Hilberg and the survivors that Christie knew much more than anyone had expected about the Holocaust and could ask questions to which there were no easy answers because the remaining evidence was minimal or because little genuinely scholarly work had been done to answer them.
Christie won one part of the book war in that he extracted from Griffiths the concession that Zundel had in most instances quoted properly (3466), and the jury must have been struck by the number of sources that apparently supported one aspect or another of his argument. Although Griffiths could cast doubt on a source, it was simply impossible to refute or examine each source in the courtroom so as to demonstrate that what Zundel had accurately quoted was nevertheless false or had been manipulated in combination with other sources to provide a false picture of something larger than any one of them. He had to forego such an effort in favor of relentless questioning of the defense witnesses.
Christie surely made a mistake when he stated in his opening address that he would demonstrate that Zundel's claims in his booklet Did Six Million Really Die? were true, above all that millions of Jews had not been killed in gas chambers in extermination camps (2349). He could attempt to cast doubt on the numbers attributed to the Holocaust, but he could not prove Zundel's claim for the best of all reasons: because it was and is not true. If he had merely introduced Zundel's books and witnesses who shared Zundel's views and claimed expertise, Christie might have saved his client from conviction on the ground that he had relied on such authorities in good faith and never realized the falsity of his views (2340). But Christie almost certainly lost favor with the jury when he suggested that the survivors were imagining things or suffering from hysteria, and when he tried to prove that millions of Jews had not been killed in the gas chambers.
The defense witnesses were a bizarre lot with checkered careers. There were three university professors and one secondary school teacher who had lost their teaching positions because of their claims that the Holocaust was a hoax: Robert Faurisson, a suspended professor of French literature at the University of Lyon-11 (2353-2890);35 Gary Botting, professor of English at Red Deer College in Alberta and author of an academic book (3571-3632);36 Charles Weber, who had taught German and German literature at the University of Tulsa (3351-95); and the former Alberta schoolteacher James Keegstra (3487-3512). Other outlandish witnesses included Ditlieb Felderer, an apparently deranged 42-year-old Swede, a frequent visitor to the concentration and extermination camps with an enormous collection of slides of them, whose satirical treatment of the Holocaust was macabre and offensive (3157-3275);37 Dr. William Lindsay, a chemist with a doctorate from the University of Indiana, who demonstrably warped his testimony about gas chambers (3043-3155);38 and Udo Walendy 39 and Thies Christopherson,40 two elderly German authors of notoriously deficient books about the origins of World War II and Auschwitz, both of whom have been prosecuted more than once in the Federal Republic of Germany and who made very little sense in English. More reputable witnesses were not much better: for example, the journalist Doug Collins 41 from Vancouver (3637-82); and Reverend Ronald Marr, a Baptist minister and publisher of the Christian Inquirer in Niagara Falls, New York, speaking in favor of free speech (3472-86); or the pathetic Frank Walus,42 a locomotive fitter who had been misidentified as a Gestapo agent and prosecuted in Chicago (3409-19). During his lengthy testimony, Zundel confessed to being a disciple of the Quebec Fascist Adrian Arcand43 (4287-88) and unwisely tried to persuade the jury that Hitler had possessed many admirable qualities (68, 4270-71).
Christie's strategy also included discussion of mass hysteria and free speech. Some of his witnesses testified to hysteria during and after the war that led to the Nuremberg trials and other trials, as well as to the "myth" of gas chambers and the Holocaust, and to the hysteria that in our day results in witch hunts against the people like Walus, Keegstra, and Zundel (2892-2976, 3513-67).44 The testimony on hysteria contained some valid points, but not enough to disqualify the evidence for many millions of murdered Jews and others, which clearly had nothing whatsoever to do with hysteria. The argument about the necessity for free speech was advanced by reasonable witnesses, but without much philosophical depth. Thus these two points probably did not have great impact on the jury.
In cross-examination Griffiths emphasized the criminal records and dubious academic status of some defense witnesses, as well as the association of many of them with the notorious Institute for Historical Review in Torrance, California.45 He demonstrated the ignorance or falsity or warped nature of at least some testimony of each of Christie's major witnesses who was qualified as a kind of expert, and he carefully avoided dispute over matters where the Crown was unlikely to win any notable advantage. One of his most surprising and successful moves was the introduction late in the trial of further writings of Zundel (4216, 4221). Christie tried but could not prevent this (4222-26). These writings made clear Zundel's antisemitism, his admiration for Hitler, and his advocacy of revolution in the Federal Republic of Germany (4351-58), thus his cynicism, his conscious use of falsehoods in propaganda, and his intent to cause public mischief by them. His ultimate purposes were exposed. This exposure probably convinced the jury that Zundel was dangerous and that his denial of the Holocaust, not the Holocaust itself, was the hoax.
The Crown was also very effective in that most of Judge Locke's rulings, with the exception of the one on judicial notice, followed the arguments of Griffiths. Some of these deserve further examination.
After the trial the newspapers quoted an observer who criticized Griffiths because he had supposedly attempted to obtain judicial notice of the Holocaust only late in the trial and was for that reason unsuccessful. The criticism was unjust. At the beginning of the trial, Griffiths suggested to Judge Locke that judicial notice of the Holocaust was appropriate: "It had been done before in a court of law in California in 1981."46 The case was Mel Mermelstein v. The Institute Of Historical Review; the Institute had offered a $50,000 reward for proof of the existence of the gas chambers. Mermelstein offered proofs, but the Institute rejected them and refused the reward. Mermelstein sued for $1.7 million. When the case came before the Superior Court of California in 1981, Judge Thomas Henderson took judicial notice of the Holocaust.47
But in the trial of Zundel, Judge Locke promised consideration of the question only after the nature of the trial was clearer. Thus approximately halfway through the trial, and after the prosecution had presented its witnesses, Judge Locke temporarily dismissed the jury and heard arguments on judicial notice as well as on presentation of a gruesome film of the concentration camps.
Judicial notice is an evidentiary technique for clearing a trial of argument about matters that are indisputable.48 Matters in the field of judicial notice are not subject to attack by evidence, and whatever is covered by such judicial notice is "an exception to the general rule that a judge or jury may consider only evidence which has been tendered in court" (2096). Judicial notice may be taken "of any fact or matter which is so generally known or accepted that it cannot reasonably be questioned, or any fact or matter which can readily be determined or verified by resort to sources whose accuracy cannot reasonably be questioned" (2097). Such knowledge "tends to be general, rather than particular, or notorious, rather than obscure or technical. . . . Although the scope of judicial notice is constantly enlarging, it lags very far behind the advance of expert scientific knowledge" (2095). At the same time it is not necessary that the judge or the jury actually know what is being judicially noticed. It is enough that the matter is in the realm of what would be considered common knowledge.
Judge Locke asked Mr. Griffiths what would be left for the jury if he took judicial notice of the Holocaust. Griffiths answered that the jury could still consider the issue of whether or not Zundel genuinely believed that the Holocaust had not taken place and whether or not his pamphlets created a mischief to the public interest. He argued that a great deal was still open to dispute and that a full and complete defense was still available on a number of issues (2093-94).
Mr. Griffiths asked how one determines what kinds of matters should be given judicial notice, and answered by quoting another ruling: "It is not reasonably subject to dispute and it is capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. It is simply a fact" (2100). Thus the "first test was ... whether the facts are indisputable by a reasonable man by resort to common knowledge, and the second test would be whether it is a fact that is easily ascertainable by resort to different sources" (2103). Rather than use the term Holocaust, Griffiths preferred the more precise description "annihilation of European Jewry between 1933 and 1945 by reasons of deliberate policy of Nazi Germany" (2103)49 for the fact that he wanted judicially noticed. He then proceeded to provide lengthy references to a series of postwar trials that, he contended, had established this fact beyond questioning (2104-11).
Christie argued that the books and articles submitted by the Crown were nothing more than opinions, that the Crown was asking the Court to decide one of the main issues that the jury was to decide, and that the Crown should not be allowed to impose its views upon the jury by the Court until both sides of the case had been heard. He argued that "other learned authors" had written accounts contradicting those cited by the Crown (2186). Hence the defense wanted to present its evidence and let the jury decide the issues. According to Christie, never before in Canadian judicial history had a court been asked to take judicial notice of an event of history that was the subject of the contest between the Crown and the defense. Christie also asserted that if Judge Locke "took judicial notice of the existence of the Holocaust the result would be that writers of the future [would be] prohibited from freely expressing their views should they take a contrary position" (2187). Finally, it was not clear and proven that there were plans to annihilate the Jews. If there had been such plans, there should have been "tangible evidence of an identified order emanating from Hitler" (2187). For all of these reasons, the defense thought judicial notice was inappropriate.
Judge Locke's ruling accepted Mr. Griffiths's arguments in everything but the legal issue. The judge resorted to dictionaries, cited the transcripts of the Mermelstein trial, said that at the Nuremberg trials "just and proper punishment was handed out in which I regard as a proper judicial, fair and democratic manner, after lengthy trials" (2185), and accepted that there had been massive documentation of the annihilation in numerous other trials as well as in various documentary collections:
It would appear to me, on what I have read and heard, that there exists wide and highly regarded opinion that the Holocaust did occur. The issue now revolves on whether or not, in the light of the circumstances of this particular trial, it is judicially prudent on my part to grant the Crown's motion (2188).
Thus he did not refuse judicial notice because he thought there was any doubt about the attempted annihilation of the Jews as policy of the Nazi state. Rather, he believed that
to grant this motion, . . . would have the effect, in the eyes of the public, as well as perhaps in the eyes of the jury and the accused, of not providing the defence and the accused with full answer and defence. It would have the effect of substantially eliminating a portion of the duty incumbent on the Crown insofar as the guilt of this accused is concerned (2191).
In the absence of the jury, the Crown and the defense also argued before the judge for a ruling on the showing of a film. Griffiths wanted the film Nazi Concentration Camps admitted as evidence in response to the portions of the booklet published by Zundel, Did Six Million Really Die?, under the headings "Humane Conditions" and "Unavoidable Chaos," including a photograph of alleged concentration camp inmates beaming at the camera with the caption "Healthy and cheerful inmates released from Dachau" (2289).50 As Judge Locke explained in his ruling, the purport of this section of Zundel's booklet is
very definitely to the effect that the S.S. in Germany during the Second World War punished its own for unnecessary brutality to civilian prisoners in concentration camps, that the alleged inhumane conditions in the camp are gross exaggerations, that the camp itself was clean, and that the inmates thereof were kept in a reasonably healthy state, both physically and, as I read it, from an emotional or mental point of view (2189).
The film was composed of 6,000 out of 80,000 feet of film taken of Nazi concentration camps by members of the American armed forces as they liberated the camps during April and May 1945, before the war had ended (2198). An anonymous voice narrated the film, which had been an exhibit at the International Military Tribunal at Nuremberg in 1945 (2195).51
Mr. Griffiths argued for an exception to the rule excluding hearsay. He cited three authorities, the first two in the Canada Evidence Act (Sections 30[l] and 25) and the third in common law (2241-56, 2290). Christie argued against admission of the film on many grounds: its contents were inflammatory and would unduly influence the jury; no cross-examination of it was possible, and one could not "ascertain whether the situations depicted [were] true or false"; it contained judgmental and hearsay portions; it was untrustworthy because it was "not prepared by a person being soliely objective in the exercise of a public duty to create that film" (it was prepared for the prosecution at Nuremberg); "there was no evidence of the narrator having been present when the film was recorded"; "very little of the film dealt with matters raised in Zundel's booklet" (2204); and the film attacked things that the booklet did not defend.
Judge Locke viewed the film and in his ruling remarked that if he ruled to admit the film, the "exhibit showing the state of inmates in these camps as depicted would provide the jury with a good deal of evidence which, if believed, would permit the jury to certainly come to an opposite conclusion than the conclusion that is stated on the pages of" Zundel's booklet (2290). But he was persuaded that the film was a public document and thus could be admitted because "public documents in common law are admitted as an exception to the hearsay rule. They relate to documents made by a public official in the discharge of a public function with a view to making a permanent record, and to which the public has access" (2295-96). The testimony about the film by William T. Murphy, a Records Officer in the audiovisual section of the United States National Archives, and the accompanying documentation made clear that the conditions of making and preserving the film satisfied the tests a trial judge should put to a public document according to the Ontario Court of Appeals in R. v. Kaipiainen (2297).
The liberation of a number of concentration camps had been recorded by the Signal Corps of the U.S. Army in accordance with orders from the Supreme Allied Command Headquarters under General Eisenhower (2293-94). Affidavits from officers associated with the original filming verified the circumstances and time, and other documents confirmed the transfer of the films from one department of government to another until their registration in the National Archives. The public had access to the film as well as to the documents confirming "the authenticity, the fidelity and the continuity" of the film. The original films from which the documentary footage had been selected were unaltered, but "Mr. Murphy was not able to say that the narrator was present when the film was made initially" (2292). Thus the film was a record made by public officials under the orders of a superior officer and was a permanent record open to the public. It had been demonstrated "that the record came from the proper custody and emanated from a proper, legal environment to make it admissible" (2298). Judge Locke ruled that the film should be admitted.
This gruesome one-hour film of Thekla near Leipzig, Penig, Ohrdruf, Hadamar, Breendonck, Arnstadt, Mauthausen, Buchenwald, Dachau, and Bergen-Belsen52 showed close-ups of torture devices; shower heads which, according to the narrator, had poured cyanide gas onto inmates; starved, skinny, and nearly immobile survivors; stacks of dessicated, rotting corpses; fly-covered faces in death stares; exhibits of lampshades and paintings made with human skin; and the filmed testimony of a woman prisoner with medical training who recounted how fellow inmates had been sterilized or had died hideously after being injected with benzine. Hardly anyone in the courtroom could have remained unaffected by the viewing. After the film the Crown counsel Peter Griffiths rose and said, "That is the case for the Crown, your honor," thus ending the first half of the trial.
When Christie presented his witnesses during the second half of the trial, he attempted to qualify them as experts and to introduce their evidence which, he said, had not only influenced Zundel but also supported Zundel's argument that there had been no Holocaust. Thus he repeatedly argued for acceptance of some of Faurisson's and Felderer's slides of concentration and extermination camps (2671-78, 3178-3232, 3542-64) and of Lindsay's photographs of American gas chambers for the execution of criminals (2609). Griffiths argued against their admission on the ground that photographs of camps and of American gas chambers taken long after the war would distort rather than clarify the issues. In all these instances and in another concerning a model of Auschwitz, Judge Locke ruled against admission (2546, 2552-54, 2699, 2710-11, 3110-12, 3228-32). As we will see, the appeal court thought some of these rulings were mistaken. However, it is here appropriate to return to the two main issues of the trial itself: the Crown's effort to demonstrate that Zundel's claims of conspiracy and his denial of the Holocaust constituted false news.
The charges of false news related to two of Zundel's publications, Did Six Million Really Die? and The West, War, and Islam. The prosecution presented its case from January 11 until February 2 through witnesses who were called to show the falsity of Zundel's contentions about the existence of a contemporary conspiracy by Freemasons, Jews, and bankers, and about a hoax to persuade the world that the Nazi regime had killed some six million Jews during World War II, many of them by gassing. Zundel said that he had written The West, War, and Islam after reading an advertisement in a German newspaper placed by four Jewish survivors of concentration camps who also belonged to a Masonic lodge (4092, 4405). The advertisement suggested a link between Adolf Hitler and Yasser Arafat, leader of the Palestine Liberation Organization, and predicted a new Holocaust. Articles in the New York Times and Washington Post that Zundel found inflammatory and anti-Islamic revealed their "Zionist ownership." Clearly the Zionists, Freemasons, and Communists wanted to provoke a war with the Islamic world, and Zundel wanted to prevent it by mailing his booklet to influential "Islamics" in countries such as Morocco and Pakistan. He proposed to use the money that he solicited from them in order to undermine "Islamic stereotypes" and work against Zionist propaganda in North America.
During his testimony at the end of the trial, Zundel elaborated on his explanation of modern history. Throughout its history Freemasonry was anti- Christian (4201) and under Jewish influence (4190, 4201), as is evident in the way it draws on the kabala (4198). Freemasonry is connected with Satanism and Communism (4105), and was often a moving force in revolutions. George Washington had hatched a plot of the Masonic lodges against the British government (4196), and for this reason Washington's picture appears on the American one-dollar bill in conjunction with Masonic symbols (4104). Freemasons had played a major part in triggering the French Revolution in 1789 (4105) and had apparently attempted a revolution by engineering Lincoln's assassination (4213); international financial circles, especially Jacob Schiff, had financed the Russian Revolution. Zundel referred to Ludendorff's claims about Jewish influence (4102), presumably in the "stab-in-the-back" that he was certain had caused Germany's defeat in 1918. As more recent evidences of the influence of Freemasonry, he cited the P2 Lodge Scandal involving financial manipulations in Italy, Switzerland, and Argentina (4101, 4198), which terminated inexplicably and mysteriously after one of the chief figures, Galli, was found hanged under a London bridge (4199). This phantasmagoric panorama of modern history was the backdrop to the claims of his pamphlet concerning Islam and the West.
In his pamphlet Zundel referred to "Freemasonry and all its cover organizations like the Kiwanis, Rotary, Lions, etc." He claimed that "most Western decision-makers, politicians, economists, and military officers are either members of a secret society or are dominated by such members." According to Zundel, the fact "that most Freemasons are unaware of the directors and direction of their secret organization does not preclude their blind, unthinking support of this organization and their obedience to its directives."
To dispute these contentions, the Crown called two policemen who were Freemasons.53 As might have been expected, the witnesses explained that they had sworn on the Bible not to tell the secrets which pertained only "to signs, symbols and words." At his level of membership, one of them was unaware of the conspiracy postulated by Zundel; but the other, whose rank was much higher, said that Freemasonry is a philanthropic organization and that it was ridiculous to suggest the society promoted conspiracies. However, he agreed with Christie that he would not be privy to secrets known by his superiors. The witness also knew nothing about arcana mentioned by Christie (and Zundel): the Star of David on Masonic emblems; symbols of Freemasonry on U.S. currency;54 the presidents of the United States, such as George Washington, who had been Freemasons; the Christian sects that condemn the order; or Benjamin Franklin's membership in the Hellfire Club in London, a group supposedly known to practice Satanism (527). Nor did he know about any connection of Freemasonry with the P2 Scandals in Italy, with the 52 police forces in London in 1981 (545), or with Roger Hollis, the Mason who was the general director of M15 from 1956 to 1965 (549). Christie used an article as the basis for his questioning, and Judge Locke eventually admonished him to stop reading from the article and indirectly using it as evidence (549).
Later in the trial, John Barnett, a senior vice-president of the Royal Bank of Canada, denied categorically that his employer was one of "the dark forces arrayed against all mankind, for their control of the world's wealth directs and determines largely what is done or not done in the world and whether what is done is good or evil," as Zundel's pamphlet claimed. Christie attempted to show the reasonableness of Zundel's statements: that the banks made loans to other countries without a backing of cash reserves, that they attempted to dictate economic and social policy in other countries through the International Monetary Fund, and that international bankers dealt more readily with communist countries than many democracies because a state-run economy would be more reliable about repayments. The witness said that the Canadian government encourages lending to countries such as Poland, Romania, and Yugoslavia in accordance with trade agreements benefiting Canadian firms.
This testimony obviously was not clear proof that the claims advanced in Zundel's pamphlet The West, War, and Islain constituted false news, nor did the cross-examination of the witnesses demonstrate that Zundel's claims were true. The courtroom was not the place to achieve either objective. At the same time most reasonable people have concluded that the world works in other ways; only a minority of true believers find relief in claims like Zundel's. At the end of the trial, the jury did not find Zundel guilty on the charge involving this pamphlet, even though its content was insidiously antisernitic. Most of the testimony at the trial was concerned with the Holocaust, for which the evidence was much more solid.
In his writings Zundel denied the Holocaust for a number of reasons; his lawyer and those who testified for him found additional ones. Thus a number of categories of denial can be discerned in the thousands of pages of testimony, and some of these positions have apparently gained wider acceptance by the public.55 After an examination of the claims by Zunclel and his supporters will follow a summary of the refutation contained in hundreds of pages of testimony at the Zundel trial.
One of the most complicated arguments advanced by the deniers of the Holocaust concerns the numbers of Jews who died. The deniers would reduce the number to such a low figure that the term Holocaust would no longer be appropriate. They play with the numbers of Jews in Central and Eastern Europe and in the Soviet Union in 1939 and after the war-insofar as we know them-and at the time of the next census, so as to support their claim that most of the Jews must have fled from Germany or Eastern Europe into the Soviet Union or other countries in such great numbers that the claims of numbers killed in the Holocaust cannot be correct (3448-56).56
They also argue aggressively to defend Nazi Germany against the claim that it wanted to exterminate the Jews. In this effort they assert that Anne Frank's diary is fraudulent (2385, 3209)57 and that there is not a single document showing that Germany intended the deliberate murder of the Jews. They do not believe that there was either a written or an oral order for the murder of the Jews from Hitler or anyone else (835, 1181, 1203).58 They deny that the Nazis devised a special language of concealment for the extermination of the Jews. Thus the terms Endlosung (final solution) and Sonderbehandlung (special treatment) mean nothing more for them than their most obvious and superficial translation (854, 984, 986-87, 1061, 1064).59 They claim that Germany wanted to resettle the Jews, provided them with oneway tickets to transfer camps (2173), the concentration camps, and then dispatched them to the settlements in large numbers by truck or on foot. Their baggage was not confiscated from them but sent on to their destinations. The "final solution" was this resettlement of the Jews.
The deniers of the Holocaust will not accept that the Einsatzgruppen killed millions of Jews in Russia. They believe that the reports have been faked and that the Einsatzgruppen were troops for defense against guerrilla activity in the occupied territory after the invasion of Russia. Thus the execution of those Jews was justified in their view, and the large numbers from the reports on Einsatzgruppen activities can be ignored (699-722, 2714-15).60
The defense denied that the extermination camps existed and made a number of claims about the nature of the concentration camps whose existence they admitted. They declared that there were a number of discrepancies between the physical facilities, such as buildings, and maps of the camps as described by the survivors, and what we know from contemporary documents or can see today (1482, 1608-9, 1614). They assert that the separation that took place upon arrival in the camps was not between the strong and the weak so that the latter could be killed, but only of the weak when they were suffering from typhus. They insist that the accounts of inhumane conditions are gross exaggerations and that the camps were reasonably clean and the inmates mainly healthy (2189, 2289); like Harwood, they misquote a postwar Red Cross report in support of this claim. They attribute the large numbers of deaths in the camps to disease and lack of food, both of which affected the camps only in the last stages of the war because of the disruption of the transportation system by Allied bombings.61 They admit to some delinquencies on the part of the personnel running the camps but insist that the SS punished those who violated the guidelines for administration (2189).62
Deniers of the Holocaust claim that there were no extermination camps because the Red Cross never reported them (2576) and because the existence of the gas chambers has never been proved (968, 2506). They point to the instances after the war when it was believed that there were gas chambers in such camps as Dachau and cite wellknown historians who have later admitted that there were no gas chambers in Dachau (2498, 2502, 3113-3113[al). They insist that the same is true of the other camps.63 They admit that ZykIon-B was used in the camps, but only for delousing (933, 1616); and they argue that it could not have been used for killing Jews partly because it would have been impossible to obtain enough for the large numbers supposedly being killed, partly because of the technical problems involved in using the gas (2342). The gas would supposedly have impregnated the walls of the gas chambers (3096, 3117) and the people gassed. Hence, it would have been impossible to remove the dead without being overcome by the gas on the walls and the corpses (3075, 3174-75). Furthermore, the gas could not have been evacuated from the chambers fast enough to use them frequently so as to kill the large numbers of dead attributed to this method of murder. In their view no "scientific proof" of the gassing of the Jews has been offered or found (968).
The large numbers that witnesses claimed were in the chambers could not have fit, but unless such large numbers had been forced in, the total accepted by most historians would have been impossible (916-18, 2567, 3913-14). When other Jews heard screaming, it could not have been Jews who realized what their fate was going to be in a gas chamber; it might have been Jews who were being disciplined by their fellow prisoners. Those who deny the Holocaust assert that the stories related by several authors of Jews singing their national anthems before they died in the chambers are apocryphal and have been repeated rather than witnessed by the different individuals who tell them (1138, 1142, 1235-36). They believe that if the large numbers claimed by those who believe in the Holocaust had been killed in the gas chambers, it would have been impossible to haul them out of the chambers and dispose of them afterward so as to bring in the next contingent (3085, 3116, 3913-14). They insist that there could not have been enough gas chambers to kill such large numbers and enough crematoria to dispose of the corpses.
Furthermore, they claim that the recollections of the survivors and the existing documentation do not allow for enough crematoria to have burnt all the bodies supposedly killed in the gas chambers (1553-54). The crematoria were not large enough and could not have operated swiftly enough to burn all the bodies brought to them (1524). Burning so many bodies would have been exceptionally difficult because the human body is composed of such a high content of water; most of the burning must have been done with coal, although there is little evidence of the presence of coal in the camps. An enormous amount of coal would have been necessary, so piles of coal should have loomed large in the memories of the survivors. Crematoria have to be sturdily constructed, but the facilities to be seen in the concentration camps today are so deficient in their construction, especially their roofs (2342), that it would appear to have been impossible to use them for that purpose.64
Deniers of the Holocaust do not believe that the smoke remembered by the survivors can have come from corpses, and they are even more insistent that burning bodies cannot have generated flames. These they attribute to the vivid imaginations of the survivors, even to mass hallucinations (4261-62). They claim that the smell of burning human flesh must have been another odor, perhaps from iron foundries in the camp. Such crematoria as did exist- and they admit that there were some-were used for a limited number of bodies, predominantly victims of typhus (1549). The other buildings that the survivors believed were crematoria must have been something else; it was presumptuous of them to have labeled them crematoria.
According to the deniers of the Holocaust, many of the stories about the concentration camps, the gassings, and the exterminations were generated after the war in a widespread hysteria (3470). The supposedly false stories of atrocities during World War I surfaced again after World War II, warmed- over, dramatized, more vividly imagined (4078).65 They say that some of the most dramatic accounts derive from obvious psychopaths, such as Kurt Gerstein, whose notes are not completely reliable even in the view of those who find some of what he said reliable (919, 2567, 2575). Other accounts, such as the autobiography of Hoss, the commandant of Auschwitz, are the result of torture by his captors, first the British and then the Poles, who executed him (956, 966,1079,1084).66 The Nuremberg trials were not fair and involved much torture, so the evidence from them is wholly unreliable (4311, 4325-27). The most vicious kind of torture was used at the trials of the members of the Einsatzgruppen or at the Malmedy massacre trial (1015). Since stories of gas chambers at some camps, such as Dachau, turned out to be false, we can expect the other stories to be false too, especially because the other camps were behind the Iron Curtain after the war and were reconstructed by the Bolshevik-Zionists so as to deceive the world about the Holocaust (3913-14).
The hysteria affected the survivor-witnesses, but they began to have an interest in maintaining their story. Their vested interest in maligning Germany and condemning it to division was complemented by their interest in providing a foundation for the state of Israel. The myth of the Holocaust provided a moral basis for the claim to a state of Israel, and the reparations paid by Germany provided the financial support (2398, 2432). Thus all the Jewish witnesses can be disqualified in their general claim as well as in all the specifics of their recollections. These were the arguments of the deniers of the Holocaust. They are radical skeptics, and they have a political purpose, which still must be exposed in this paper. But first we must summarize the response at the trial from Professor Hilberg and the survivors, a response that is confirmed by a vast literature, including the evidence of many other trials in other countries, especially the Federal Republic of Germany.
Douglas Christie said a number of times at the trial of his client that the courtroom was not the place to establish historical truth (657). He was right, and Raul Hilberg confirmed this when he said that he could not bring his documents to court or discuss them in the way that they deserved (1064). Anyone who wishes to discuss these serious matters should demonstrate a concern for the truth and a willingness to pursue it into the best sources available. The sources are vast for the central phenomenon, the Holocaust, which did indeed take place and should disturb the conscience of every one of us.
The deniers of the Holocaust invariably manipulate and distort the population figures in 1939, 1945, and 1954, the first and third dates being those of census data, so as to undermine the other figures, derived from counts of those deported or executed or confined to ghettos. Accurate figures from either census combined with reasonable projections of comparable populations of other nationalities in the same areas and in turn collated with the statistics of Nazi Germany's own tabulators (the Korherr reports 67 and the Einsatzgruppen reports 68 sustain a figure of over five million Jews dead from one cause or another in the Holocaust.69 The work on this subject continues and will yield more exact results. No honest scholar has even approached a figure below a million as the deniers of the Holocaust do.
Although there is dispute in the ranks of scholars about the intentions of Nazi Germany in the 1930s, there is less about the period of the war; and that discussion does not hinge on the policy of concealment of intention through covering terms. There is no doubt that Endlosung meant extermination and Sonderbehandlung meant murder too 70 Anne Frank's diary has survived the most exact examination. 71 Some quite reputable historians do still maintain that Hitler did not order the murder of the Jews and was ignorant of much that was done by his subordinates, but these historians do not deny the Holocaust itself (1181 ).72 There is agreement about the work of the Ein- satzgruppen. The documentation is full and survives every test of authenticity.73
There is also no doubt about the miserable conditions in the concentration camps as well as the extermination camps.74 The misuse and misquotation of the postwar Red Cross report in Harwood's pamphlet was easy to demonstrate (1930-2071). The evidence for mass murder in the gas chambers in the extermination camps is absolutely overwhelming. The most recent scholarly work concludes that there were some gassings in a number of concentration camps, too, including Dachau. 75 Survivors, guards, and other personnel have testified in a number of ways, in trials (1234), interviews, and a variety of publications over many years in different countries, so that there can be no doubt that they were relating what they knew rather than what they had been told they should say in some incredible conspiracy. The killing has been investigated in first-rate books and articles by reliable scholars, who in time will establish with greater precision the numbers killed in various ways and a more exact chronology of burial, burning on pyres, and construction of crematoria for the macabre task at hand.76 There is also abundant evidence to show that psychiatric disability, torture, and coercion were not important in the documents left by Gerstein 77 or Hoss 78 or the accused at the war crimes trials from Nuremberg to Malmedy 79 to the later Auschwitz trial in Frankfurt 80 or the trial of Eichmann in Jerusalem. 81
The historians have carried their inquiries ever further, and the results always refute the Holocaust deniers. The Holocaust took place. Nazi Germany attempted to exterminate the Jews of Europe. The prosecution helped make this truth clear in the face of the preposterous claims of Zundel and his supporters.
Some additional aspects of Zundel's beliefs, activities, and employment, all of which became clear at his trial, deserve notice. He believes that the "white race's" position in the world has deteriorated because of the successes of the international conspiracy of Zionists, Communists, and fellow travelers. Furthermore, "political and religious Zionism play[s] a disproportionately large role in the west because of Zionists' domination of the mass media of information, education and entertainment, the banking system, the secret societies and the world communist conspiracy" (4410). The philosophical foundations of the democratic and communist systems also converge:
Democracy certainly is a materialist concept, and communism is called dialectical materialism, because it really does deny the spirit. And so, therefore, anything that is materialist in philosophy, as far as I am concerned, has the potential of being communist (4427).
Consequently Zundel seeks to undermine the governments of Israel and the Federal Republic of Germany. In a 1981 letter entitled "The Bankruptcy of the Bonn Moguls," he attacked the legitimacy of the government of the Federal Republic of Germany, which he characterizes as an "occupation regime supported by American bayonets and Israeli secret service organizations (4355). Israel is a "terrorist state," is "financially and morally bankrupt," is being deserted by "tens of thousands of Jews" every year. But nevertheless, the Zionists manipulate the moguls in Bonn, who with their "henchmen of the occupation forces are at the end of their wisdom." The "Bonn traitors" perpetrated "Willy Brandt-Frahm's genuflection in Warsaw and the present system's DM 500 billion indebtedness to the international financial mafia" (4354).82 The Bonn government's own bankruptcy is evident in their "judicial and police chicanery against ideas" (4353). Zundel, however, insisted that
no police or judicial chicanery can silence us forever. Neither confiscations nor the seizure of donated funds will stop the flow of information material, tape recordings or demonstrations. On the contrary, these infamous and insidious maneuvers will only strengthen us in our goal. Ideas cannot be conquered with handcuffs, jail terms or searches.
The fact that "thousands of German police officers, state attorneys, judges and journalists will now have to deal extensively in detail and officially with our publicity material" would be beneficial. They constituted "a readership which our material would have never reached otherwise" (4356). Success for Zundel's efforts was certain, and there would be a reckoning: "Well, we have been dealing with these traitors for years, and they may as well know that every one of them has long been recorded, and that all of them, every single one of them, will be made accountable this time" (4354). Eventually Zundel and his "Aryans" would mete out justice to their tormentors "in the words of Mao Tse Tung: 'Justice will be dispensed from the barrel of a gun' " (4355). When shown this letter at his trial, Zundel still claimed to be a pacifist. Only "after proper court proceedings" would gun-barrel justice be employed: "What I appealed for was, and said, that one day the quislings of Germany will suffer the same fate that the quislings of other occupied countries, like in the Second World War, suffered" (4359).
His letter had been seized by West German police along with much other material in what Zundel claimed was "the largest raid in German history," involving a search of 2,000 homes for material from his Samisdat Press and the use of 10,000 policemen, 300 prosecutors, and 50 judges (4348). This claim was characteristic exaggeration. A reliable German source states that the raid on 24 March 1981 involved search and seizure in approximately 450 homes of antisernitic material from Canada and the United States.83
The writing, printing, and distribution of leaflets and booklets provide Zundel with employment and income. He sells belt buckles that look suspiciously like an SS and have the letter Z on them. He also sold a tape recording on which he discussed "his world view and battle plans for the achievement of our glorious future" and issued "his stirring approach to global action, the only cure of Zionism, the only salvation from Zionist enslavement" (4245-52). He advocated the formation of Samisdat/Kampfgruppen, or battle groups. By his own admission the notoriety he gained through his earlier activities won him appearances on 150 to 170 radio shows and 20 to 30 television shows per year (4417-18), despite what he claimed was Zionist domination of the media. These appearances seemed to be tokenism to him, given the total number of programs; and some people, such as Sol Littman 84 in Toronto, refused to appear with him so he was bumped from a few programs (4419). Toward the end of his testimony, he said that the trial would cost him $100,000 and had ruined his reputation in Canada (4375). But it seems obvious that he believed the increased fame after the trial would result in yet more invitations. Thus Zundel is ambitious, is genuinely if ineffectually subversive, and lives off his publications, films, bric-a-brac, and appearances, although it is not clear whether he obtains his earnings in the market or through the subsidies of wealthy men and larger organizations, such as Willis Carto and his Liberty Lobby.85
In his five-hour-long concluding address for the defense, Douglas Christie emphasized the dangers for freedom of thought and speech if his client was convicted. Zundel was a heretic in the tradition of Galileo, proclaiming his truth in the face of a hostile public opinion. Society itself suffers if supposed truths are shielded from scrutiny:
History is controversy, today is controversy, yesterday is controversy, and tomorrow will be controversy, but so what? Nobody is going to be able to write the history of the world until God does.86
Meanwhile, every man should have the right to say and write whatever he wants:
The accused stands in the place of anyone who desires to speak his mind. Even if you don't approve or agree with what he says, you must take it as a sacred responsibility not to allow the suppression of some one's honest beliefs.87
The necessity for such freedom was a lesson of history. A verdict of guilty would demonstrate that the lesson had been forgotten.
Do we have to learn the same lessons all over again every generation? Do we never entrench and understand from one generation to the next the right to differ? Do we always have to refight these battles time and again? I guess we do.88
A conviction of Zundel would result in witch hunts across the land; people would denounce their enemies and take them to court. Politicians and pressure groups would victimize their opponents by forcing them to the prisoner's box where Zundel sat. Such pressure groups with "the big newspapers and big radio stations and big politicians" had political power and had put Zundel there, a man without political power. Those same powers did not want the population to know the truth about the Holocaust. Christie asked rhetorically how a "group of people the size of Toronto [could have] died [in Auschwitz] without any direct evidence remaining." Zundel's booklets revealed the truth despite their flaws, which were no greater than one would find in quotations in the newspapers every day. His voice roaring at the end of his oration, Christie fulminated about the persecution Zundel and his witnesses would endure for having testified. Crown lawyer Peter Griffiths presented a long review of the evidence, above all the testimony of the survivors, and insisted on the accuracy of their recollections, the obscene nature of the concentration camps, the verifiability of the gas chambers, and the colossal numbers of Jews murdered by the Nazis.
The memory of those millions demands the truth of this era forever prevail.... Such an article spits on the memories of their loved ones and denies them ever again the personal dignity of their grief (4667).
Clearly Zundel hoped to make his readers, who "would see all Jews as world- destructors [sic] bent on chaos," hate Jews. He also obviously intended to rehabilitate the Nazi Party, and the "major stumbling block" to such rehabilitation was the Holocaust:
So long as the greatest inhumanity man has ever done to man exists as a historical [sic] accepted fact in the mind of man, the Nazis can never be rehabilitated. He must get rid of it. So he publishes this pamphlet replete with lies in order to get rid of it (4660).
Zundel is a dangerous Nazi sympathizer, "a racist who is a determined defamer of the Jewish people" (4657), who thought of himself as living in exile and working to bring down the government of West Germany so as to gain power some day. His witnesses were "as pathetic a band of crazies and misfits, frustrated men, as have ever graced a courtroom" (4655). The witnesses for the prosecution had the horror of their experiences written on their faces and had spoken the truth.
A guilty verdict would not threaten freedom of speech, since "a man can publish deliberate lies and, if there's no harm to the public interest . . . , then no prosecution can hold up." Any Canadian can publish his opinion, whether true or false. Such publications must be hindered only so that
we, as a civilization, never go down that terrible road again. Today, it's the Jews who are slandered. Well, it could be the Catholics, the Frenchmen, or the blacks, or me. We can't hide our heads and hope the problem of racism and intolerance in our society will go away. We have to meet the challenge squarely. . . . We have to have the courage to convict. I ask you to convict Ernst Zundel on both counts. (4667-68.)
In his charge to the jury, Judge Hugh Locke summarized the testimony of each witness and the major issues, as well as restated the charge. There was no such thing as absolute freedom of speech, and freedom of speech was not an issue in the trial. Section 177 of the Criminal Code was a reasonable limitation on free speech, compatible with the Charter of Rights. After conclusion of his charge, the jury deliberated a while and then requested a restatement by the judge of the legal interpretation of Section 177. The judge made clear that the Crown had to prove that Zundel had published the pamphlets, that the contents were essentially false, and that Zundel had known this when he published them. Locke twice emphasized the importance of proof by the Crown that Zundel "did not have an honest belief in the essential truth" of each pamphlet, without also stating that the Crown had to prove that Zundel knew the material was false when he published it.
The jury deliberated ten hours before finding Zundel guilty of the charges regarding Did Six Million Really Die?, the Holocaust pamphlet, but not the other pamphlet, The West, War, and Islam. Zundel proclaimed that he had lost $40,000 worth of work because of the trial, which would also cost him $100,00, but that he had gained "a million dollars worth of publicity for my cause." He would appeal the verdict and "carry on the struggle against the monstrous lie that is the Holocaust." He continued, "I keep my pain to myself. We consider it manly and, may I say, Aryan. Now there's a headline for you." He thought that he had "put up a good struggle" and "wouldn't have missed a second." One of his strongest supporters said that their work would continue: "I can safely say that if they think this sentencing is going to put us out of commission, they are sadly mistaken."89
The Jewish community and its leading organizations initially disagreed about the value of a trial; but once the trial began, they all supported it and at the end welcomed the verdict. B'nai B'rith and the Canadian Jewish Congress said more prosecutions would follow:
We are confident that this judgement will be the first of a number of judgements which will serve effectively to deter hatemongers from pursuing their aim of dividing Canadian society and turning some of us against our fellow citizens.90
Sabina Citron, the head of the Canadian Holocaust Remembrance Association, deplored the "galut" mentality of those who had been afraid to expose Zundel: "This is Nazi hate propaganda and we don't have to tolerate it."91
Others, however, had been sickened by the rude questionings by Christie and ordeals of recollection to which the survivors had been subjected; by the treatment of the trial in the press, which had reported the claims of Zunclel and his supporters from day to day without refutation and as though the Holocaust might indeed have been a hoax; and by whatever legitimacy Zundel and his followers and their beliefs had been given by their appearance in court, not to speak of the publicity given their views. The extermination numbers game, the debate about whether six million or 300 ' 000 Jews had been exterminated, trivialized the other forms of suffering. But those who had wanted prosecution agreed that the Holocaust deniers had to be confronted and that it was better to do so while survivors were alive to testify.92 While some thought the publicity for the trial an ob- scenity, others, such as Dr. Rudolf Vrba, said the publicity did not bother him: "It's inevitable that any crook gets publicity when justice catches up to him. That's the price of freedom." He and many others had never doubted that the jury would convict Zundel, and had their faith in Canada and the Canadian system of justice confirmed.93
On March 25 Zundel arrived at the courthouse for sentencing in a Rent-A- Wreck vehicle and carried a huge cross with Freedom of Speech printed on it to the courthouse doors. He put down the cross and handed his red hard hat to his successor at Samisclat Publications before entering to hear his sentence. Judge Hugh Locke sentenced Zundel to fifteen months' imprisonment and said that for three years he must not
publish in writing or by speaking in public by word of mouth, directly or indirectly, in his name or in any other name, corporate or personal, anything on the subject of the Holocaust or any subject directly or indirectly related to it.
Judge Locke referred to Zundel as a well-heeled racist who had
chosen as his propaganda specialty the perpetration of the Big Lie in the tradition of the now-deceased subhuman monsters, Adolf Hitler and Joseph Goebbels.... Unfortunately his stated visions of revived Aryan Nazi grandeur combine with his robust ego to prevent civilized behaviour in our Canadian multicultural society.
Furthermore, the sentence imposed on Zundel was a reflection of the outrage of all Canadians and not Jews alone:
He published not for the purpose of honest public debate, but rather with the fixed intention of destabilizing the Canadian community. Mr. Zundel has slandered the memory of innocent murdered human beings.
The Canadian descendants of those murdered should not have to suffer the "crude, unacceptable intrusions of Mr. Zundel and those of his ilk."94
The prohibition against Zundel to publish or speak publicly for three years on the Holocaust "or any subject directly or indirectly related to it" would obviously hinder his free speech, editorialized the Globe and Mail. Thus Section 177 was being used against free speech, despite Judge Locke's earlier denial and his statement that the section did not prohibit "legitimate debate." The truth would emerge only from unfettered debate; Zundel should be "confronted in the court of public opinion daily."95 The sentence would surely offer further grounds for an appeal.
Immediately following the trial, a number of leading Canadian politicians called for Zundel's deportation. If he was sentenced to six months or more in prison, a deportation hearing would automatically be in order. Zundel said that if he were deported it would be like returning to paradise, that is, to the old family farm, where there were "comforts, money and supporters." He also suggested that his pursuers would regret having taken him on. Some of his supporters would be angered by the decision and they would not have his "soft temperament and artistic sensibility." Indeed, right-wingers in the United States might react, and they would be less pleasant than he was: "They tend to shoot first and ask questions later."96
There was no violence. The defense paid for a complete transcript of the trial, and Christie prepared an appeal, which was heard by the Ontario Supreme Court (Court of Appeal) from 22 to 26 September 1986. The Court rendered judgment on 23 January 1987. 97 it concluded that Judge Locke had ruled properly on three important matters which were a part of the appeal. They accepted his ruling that Section 177 of the Criminal Code did not violate freedom of expression as guaranteed by the Canadian Charter of Rights and Freedoms. They confirmed his ruling that Professor Hilberg could testify as an expert witness as an exception to the usual refusal to admit such evidence because it constituted hearsay. Finally, in their "view, the judge exercised his discretion judicially in refusing to take judicial notice of the Holocaust."98
But they found that the judge had erred in five rulings. Because there had been so much publicity about Zundel, the judge should have allowed the defense challenge for cause in the selection of the jurors and should have advised Christie of the possibility of rephrasing the questions he wished to ask the prospective jurors. The judge erred in permitting the showing of the film about the concentration camps as an exception to the hearsay rule because the provenance of the narration was uncertain and because it contained assertions that went well beyond what could be seen in the film itself.99 He also should not have allowed an excerpt from a document by the International Committee of the Red Cross to be read into evidence because the document had been written after the war and not during "the usual and ordinary course of business" and because the witness knew nothing about the provenance of the document. Yet the Court also concluded that three kinds of evidence Ditlieb Felderer's photographs of Auschwitz, Zundel's models of the crematoria at Auschwitz, and Zundel's books in German-should have been admitted as evidence because they were relevant to Zundel's claims about the honesty of his beliefs. Finally, the judge had erred seriously in his instructions to the jury. He had not made clear that the Crown had to prove Zundel's "actual knowledge of the falsity of the statements" in his pamphlets, that is, that the "wilful blindness" in the language of Section 177 was "the equivalent of actual knowledge." Because of these deficiencies, the Crown would have to decide whether it wanted to prosecute again in a new trial. The Crown decided to do so, and the second trial commenced early in 1988.
The second trial lasted from mid-January until early May 1988, with two one- week breaks, the first at the end of February and the other in mid-March. During the first three weeks, Ronald Thomas, the district court judge, forbade reportage of the trial. Thereafter, with the exception of regular reports in the Toronto Daily Star and the weekly Canadian Jewish News,100 the press only occasionally took notice of it. Thus Zundel and his supporters did not obtain the publicity that they had so greatly relished during the first trial.101
Thirty-three people were questioned before a jury of six men and six women was chosen. In view of the appeal judgment, Christie was allowed to ask each potential juror five questions concerning deportation to or internment in Nazi concentration camps, service in the German or Allied forces, and membership in the Canadian Holocaust Remembrance Association, the Canadian Jewish Congress, or B'nai Writh. Despite the approval by the appeal judgment for Judge Locke's refusal of judicial notice of the Holocaust in the first trial, Judge Thomas did take such notice at the very beginning of the second trial; that is, he directed the jury to accept that "the mass murder and extermination of Jews in Europe by the Nazis during the Second World War is so notorious as not to be the subject of dispute." The careful wording left open the question of the number of Jews killed, the means (such as gas chambers) by which they were killed, and the role of official government policy. Nevertheless judicial notice made testimony from survivors unnecessary and greatly changed the shape of the second trial.
The chief counsel for the Crown, John Pearson, began by reading to the jury and thus into the transcript, the entire 120-page text of The Hitler We Love and Why by Christof Friedrich (pseudonym for Zundel) and Eric Thomson, as well as the text of UFOs: Nazi Secret Weapons? He also played the tape of an interview with Zundel on the Canadian Broadcasting Corporation radio show "As It Happens" in 1975. Thus, more than in the first trial, the Crown emphasized Zundei's Nazi allegiance in order to strengthen the argument about his intentions in publishing the pamphlet for which he was on trial. In addition, Pearson read into the record the entire testimony from the first trial by Professor Hilberg, who refused to reappear because of scholarly commitments and his dislike of the rude questioning he had endured from Christie.
This time the chief witness for the Crown was Professor Christopher Browning, a historian from Pacific Lutheran University in Tacoma, Washington, who took Hilberg's place and testified for five days, the last three a difficult cross-examination by Christie. Pearson led Browning through a careful explication of major errors and falsehoods in Zundel's pamphlet. During cross-examination Christie attempted to undermine Browning's credibility because he had never visited the extermination camps and did not have firsthand knowledge of the physical evidence, had not assessed the plans and designs of the camps, had not checked the originals of all the documents supporting his contentions, and had read few of the articles and books cited by Zundel and his supporters. Moreover, since Browning had obtained financial support from Israel for his research and writing and had published in the Simon Wiesenthal Center Annual, Christie suggested that he was a paid agent of the Jews. But Browning's familiarity with the documentation and considerable presence carried him through his surprisingly tough ordeal.102
A second effective, but less important, witness for the Crown was Charles Biedermann, Swiss-born director of the International Tracing Service of the International Red Cross, who stated that the Red Cross could function in prisoner-of-war camps only when they had the names of prisoners and that they had no access to extermination camps. He demonstrated the illegitimate use made of the two-volume postwar Red Cross report in the pamphlet published by Zundel. In obvious response to the appeal judgment, the Crown did not show the movie of the liberated concentration camps at the end of the war.
On 2 March Christie commenced with his 23 defense witnesses, a number of whom had appeared at the first trial: Robert Faurisson, Ditlieb Felderer, Mark Weber, Udo Walendy, Gary Botting, Thies Christopherson, and Russell Barton. The second trial was different in that some of the defense witnesses- for example, Udo Walendy and Mark Weber-who did not qualify as experts, nevertheless testified at length, providing "opinion evidence." In accordance with the appeal judgment, Felderer was allowed to show over 300 slides he had taken of facilities in extermination camps, including the supposed swimming pool, dance hall, and concert auditorium at Auschwitz.
The testimony by the defense witnesses apparently differed little from that of the first trial.103 As before, they tried to disqualify and challenge the Crown's testimony and evidence. Walendy claimed that some crucial documents, such as the minutes of the Wannsee Conference, were forgeries. Under cross-examination by Pearson, Walendy admitted that he had'sent Zundel a copy of his 1979 response to Suzman's and Diamond's pamphlet Six Million Did Die (1976) and had talked with Zundel about it at a meeting in 1979. Pearson then suggested that Zundel was probably aware of the errors and falsehoods in Did Six Million Really Die? before he published it, although the Crown could not establish when Zundel's undated version first appeared. Still, this testimony strengthened the case for his having deliberately published a pamphlet he knew was riddled with provocative falsehoods, a central point that the Crown sought to prove.
Weber admitted the error of the claim that Anne Frank's diary is a fake, whereas Faurisson still insisted that at least the parts reportedly written in a ballpoint pen were postwar fabrications. Faurisson described Hilberg's prodigious book as a "fable" and "metaphysical" because the workings of gas chambers were not examined. He again denied the existence of the gas chambers and the extermination of the Jews. In this trial Christie illustrated the differences between the views of Faurisson and "exterminationist" historians with slides on an overhead projector. Like Christie in his opening address, Botting emphasized that the pamphlet Zundel had published was a polemical argument and was not presented as entirely factual, indeed that the denial of a Nazi policy to exterminate the Jews was opinion rather than fact, or an opinion based on facts. Yet some of the less subtle defense witnesses insisted that Zundel's central contentions were true; Christopherson said that the Holocaust was a hoax and swindle. In this trial the witnesses more readily acknowledged mistakes in the pamphlet, but claimed they were honest and not malicious.
Among the new witnesses for the defense, who covered much the same ground as their counterparts in the first trial, was a consultant on gas- chamber construction without academic degrees in engineering or chemistry. Fred Leuchter, who had toured three death camps in February 1988, tried to demonstrate not only that the physical facilities at extermination camps had been inadequate for their tasks, but also that there could have been no gas chambers because there were no traces of gas in buildings over forty years after the war, some of which he had not known were reconstructions. He was also unaware of records showing that large quantities of lethal gas had been delivered to the death camps. A photogrammetric engineer, Ken Wilson, analyzed Allied aerial photographs of Auschwitz from 1944. Eighty-year-old ex-Nazi soldier Joseph Burg's rambling testimony included the claim that World War Il was a Zionist plot; and because such statements only helped the Crown's case, Pearson did not even bother to cross-examine him. A Missouri prison warden, Bill Armontrout, testified about gas chambers for executions in the United States and claimed that the chambers at Auschwitz had inadequate ventilation. A Calgary funeral director, Ivan Lagace, said that it took 90 minutes to cremate a corpse and that the crematoria at Auschwitz could not have cremated the enormous number of bodies brought to them daily, a claim also advanced by Mark Weber.
The sensation of the trial, the man who stimulated a number of Canadian newspapers to reportage, was the English historian David Irving, veteran of well-publicized lawsuits over his publications, some of which academic historians cannot simply dismiss. During one day he reportedly testified 13 times that he rejected various parts of his book Hitler's War (1977) and now accepted Zundel's central claims. Relishing the role of iconoclast, he thought that in any case it was always good when someone like Zundel attacked established opinion and establishment historians. Irving agreed with Pearson's suggestion that his own views of Churchill in his recent biography were close to Hitler's view of his great English enemy. During his cross- examination of these witnesses, Pearson was repeatedly successful in revealing their errors and ignorance on historical and technical matters, and he related their efforts to Zundel's recent advocacy of antisemitism, hostility to Israel, NeoNazism, and white power.
In his nine-hour concluding address, Christie insisted that Zundel had honestly believed what he published and that the chief theses of the pamphlet-that the Holocaust was a hoax, that the Nazis had no policy to exterminate the Jews, that there were no gas chambers, and that far fewer than six million Jews had died-were debatable opinions rather than facts. The defense witnesses, he contended, had "scientifically" proved that the Holocaust did not occur, or at the very least that they had given the jury good reason to doubt the accepted views of the Holocaust. The law allowed the expression of opinions, did not require that they be proved true or false in a court of law, and should not punish for errors in such a pamphlet. Zundel had not knowingly published false statements. Christie maintained that there was no evidence Zundel's pamphlet had adversely affected tolerance or caused disturbances in Canada.
In his four-hour closing address for the Crown, John Pearson argued that Zundel's own books The Hitler We Loved and Why and UFOs: Nazi Secret Weapons? exposed him as a follower of Hitler. Moreover, in his publishing and other activities, Zundel used Nazi propaganda techniques and denied the Holocaust in order to propagate Nazi dogma, especially racism. Pearson summarized the Crown's case as well as the deficiencies of the testimony by the defense witnesses. He claimed that the Crown had proved that Zundel had knowingly published false statements which were likely to undermine social and racial tolerance.
Judge Ronald Thomas instructed the jury for three and one-half hours. He summarized the course of the trial, the cases of Crown and defense, and the law. He emphasized again his judicial notice of the Holocaust and said that the jury had to decide beyond a reasonable doubt not only that the pamphlet was false but also that Zundel knew it when he published it. The jury had heard the contents of Zundel's two books and the pamphlet he had published; they might conclude that he believed in National Socialism, but Zundel was not on trial for his beliefs. Freedom of expression was not an issue in the trial, but spreading falsehoods knowingly was; and that was "the antithesis of seeking the truth through the free exchange of ideas."
After 17 hours of deliberation, the jury found Zundel guilty. The following day Judge Thomas sentenced him to nine months in prison and said that the jury viewed him as "a bigot, guilty of spreading hatred in the community," although "there was no evidence any specific parts of the community were tainted by this venom." Furthermore, "it was not the Holocaust that was a fraud; Ernst Zundel is a fraud." John Pearson told reporters that any jail sentence was a sufficient basis for deportation hearings. But Zundel applied for bail, and an appeal was automatic on a point of law. The appeal decision had not yet been handed down early in 1989.
Zundel's trial revealed much about a part of an international effort by well- organized and well-financed groups that deny the Holocaust, promote antisemitism, and attempt to rehabilitate the reputation of Nazi Germany for contemporary purposes.104 They attempt to foment unrest in their own countries in the free Western world so as to undermine the governments and prepare the way for their own bid for power, Aryan power. They are particularly intent on challenging the legitimacy of the state of Israel and weakening support for it, whether by terminating payments by West Germany or altering American foreign policy. If Israel were no longer supported, the Arab countries could presumably crush it, and Hitler's Holocaust would be completed. Rewriting the history of the origins and course of World War II, particularly the Holocaust, removes the justification for the punishment and partition of Germany, thus paving the way for reunification and a final assault on the bastion of "BolshevikJudaism," Soviet Russia. The denial of the Holocaust is indissolubly related to a much larger lunatic vision, the outlines of which we will do well to recognize.
Other aspects of the trial are much closer to a familiar reality. Through copious testimony we can become familiar with the views of a number of true believers whose simple, crude, and vicious minds have become obsessed with the hoary myth of international Jewish conspiracy, of which the Communist conspiracy is an arm. These conspiracies supposedly control the government, the economy, financial institutions, and the media. There is no limit to their power; the common man is a pawn to them. Whoever believes in such fantasies can explain his powerlessness by them. The fantasies are an expression of the paranoia of people who cannot account for their own fates by the interplay of more conventional, less mysterious, and less malign forces.
Such explanations do not, however, suffice. Paranoia is usually an affliction of scapegoats; but in these cases the scapegoats were the Jews, whose prodigious powers-at least to people like Zundel and his supporters- accounted for the upheavals and development toward one world, a more secular society, a modern and open culture.
Such people fear every form of modernism and want to attack some group as its authors: the Jews are their scapegoat.
At the same time, these people proclaim their superiority and Christianity. There is nothing new about the hostility of Christianity to Judaism; but the "racism," the utterly unscientific claim that Jews are a race, the new term antisemitism,105 is a late nineteenth century phenomenon, as is the proclamation of the "racial" superiority of their own group. They are now in contact with other advocates of racial superiority, whether in the form of white or Aryan power,106 and with some radical Christian organizations worldwide through computer listings, the new resource of the New Right. As a consequence, their power may be greater than ever before in modern history.
Scholars have recently disputed whether there is anything new about contemporary antisemitism and whether it is now more widespread. Whatever the answer may be, it is clear that some groups will not submit to antisernitic abuse and that they will resort to laws to protect themselves. In a number of countries religious, cultural, and racial minorities have long sought protection in the courts from a number of different kinds of persecution, in recent times with greater success where legislatures and the state respond to their demands. This process has, of course, been facilitated in some countries by their becoming signatories of international conventions that require some measure of action to prevent racism and genocide. Laws were drafted and set in place to provide this protection in Canada after many other nations, mainly in Europe, had already done so. The philosophic and legal argument for this action has been deepened recently by a book on the Nazis in Skokie, Illinois, which agrees that the community should be protected from the efforts of people like Zundel.107 Only recently have governments in Canada prosecuted individuals under these laws for their efforts to stimulate hatred of definable minorities.
The groups demanding prosecution certainly had the right to do so, and the accused seemed to have courted and then welcomed that prosecution. Many observers have argued that purveyors of "hate propaganda" would languish in obscurity if they were not given prominence by the publicity of a trial. This is partly wishful thinking; they had already obtained much publicity. It is also the same as telling those who believe they suffer an injustice for which there is a remedy in the law that they should remain silent or struggle with their attackers in other ways outside the courts. Anyone persuaded by this argument should also accept its logic, which is that laws for the prosecution of propagators of hatred do not belong in the criminal code. Some of those who are indignant at defamation refuse to remain silent, and resort to the law because they have found other reactions unsatisfactory. Thus they wanted Zundel tried in Ontario and Keegstra in Alberta, and the laws were tested.
There is no doubt about the deplorable content of Zundel's publications and no doubt that they violate the truth, disturb a part of the population, and intend further mischief, even violence and subversion. Zundel's denial of the Holocaust, countered by the Crown's affirmation of its historicity, was central to both trials, although in a somewhat different form in the second trial because of judge Thomas's judicial notice. The Crown wanted to prove that it was the policy of the Nazi government to exterminate the European Jews and that the Nazis murdered between five and six million of them, many in gas chambers. However, it became clear that the courtroom was not suited to establish the full truth of historical occurrences. Witnesses could tell about a part of it, but much of our account of the Holocaust is dependent on documents and other kinds of testimony on earlier occasions and sometimes in different courtrooms. Such evidence, which is available in enormous quantity and in a number of other languages, cannot always be introduced in court under the rules of evidence and cannot readily be sorted out there by testimony and cross-examination.
Nevertheless, the Crown's presentation was credible and persuaded the jury; that of the defense was not credible and was unpersuasive. This result was miiinly due to the nature of the evidence, which held up on the Crown's side and kept collapsing on the side of the defense. The quality of the witnesses was also obviously much higher on the one side than the other. Thus not only was a rough approximation of the truth about the historical episode reached, but it was also obvious that Zundel and his supporters reveled in deliberately denying that truth, in spreading falsehoods. Their denial had other grounds, their deep prejudices and fanatical beliefs, and served other purposes, such as attracting supporters and money, as well as stimulating hatred. The juries were persuaded that Zundel and his supporters intended "to cause injury or mischief" to the Jews.
Did the law then limit free speech unacceptably when used by the Crown to prosecute denial of the Holocaust? The transcripts and judgments in both trials made clear that the court believed some restrictions on speech were justified by law, the Charter, precedent, international agreement, and the needs of a democratic society striving for equality of all its citizens, a goal that meant protection against deliberately promoted hatred. Apparently the philosophical and legal arguments against restrictions on speech and publication have not been as powerfully or as persuasively expressed within this corpus of materials as have been those in favor of restraints. But those arguments against such restrictions, barely touched upon in this article, should trouble those of us who applaud the successful convictions of Zundel and Keegstra.
The laws are vague,108 and there is always a danger of misjudgments about their use, that is, of excessive prosecutorial zeal. There are also ramifications for the confiscatory practices of the police and customs officials. On one occasion the RCMP reportedly seized Arthur Butz's The Hoax of the Twentieth Century from the library of the University of Calgary; on another, they confiscated the same book from the bookstore of Red Deer College, where Botting wanted to use it as a text for a course. The book is banned, and Canada Customs will seize it upon entry at the border. Thus connected with the prosecutions and trials, of which we are all aware, is an infrastructure of administrative law and police power that is difficult to penetrate and has implications for free speech that are too seldom examined. Furthermore, part of the sentence in the first trial was a three-year ban on Zundel's right to talk about the Holocaust or anything related to it. He could not talk about those matters even if he stopped spreading false news.109 This obviously violated his right of free speech. However, there was no similar ban in his sentence after his second trial.
There is no conclusive way to measure the effects of the trials on a wider population, although a recent book claims that the publicity for the first trial did not result in increased acceptance of Zundel's views.110 An unobserved result of concern about ignorance of the Holocaust or skepticism about it has, of course, been a considerable effort to educate students in the schools. This quietly effective work antedates the trials. Certainly the Jewish community was fragmented and distressed by disagreement about the value of the trials. The survivors and their relatives suffered, especially the survivors who testified at Zundel's first trial and had to endure the indignity of questioning by Douglas Christie. Some commentators suggested that this distress might have been avoided if the judge had taken judicial notice of the Holocaust as was done in the Mermelstein case in the United States. Others insisted that the judge could hardly have taken judicial notice of a key element in a criminal offense and noted that the Mermelstein case was a civil one where the considerations were different. But in the second trial the judge took judicial notice of a very broad definition of the Holocaust, and thus left crucial questions to be answered during the trial; and the Crown did not call survivors to answer them, but instead relied on its experts, mainly the historians.
Each day during the first trial, the newspapers simply reported some of whatever was said at the trial, however false or ludicrous it was, and without correction. In some instances the corrections eventually appeared in a subsequent article, but casual and ignorant readers may have viewed the articles as merely one claim balanced against another.111 The newspapers in their summaries at the end of the trial did make value judgments about the substance of the arguments. They confirmed that the Holocaust was a fact after publishing reports for months that read as though they were not sure. Zundel was probably right in his claim that he obtained a million dollars' worth of publicity, but some of it was bad publicity, which should not be forgotten. During the second trial most newspapers virtually suppressed news of the trial, leaving interested citizens uninformed about a matter of public and educational interest to a democratic society. The contrast makes clear that support for or opposition to such a law and prosecutions because of the behavior of the news media one way or the other is an intellectually weak position.
It is certain that the debate about the law and the value of the trials will continue. The laws have been criticized by the Law Reform Commission as well as by some judges in recent trials. Indeed, a recent appeals judgment in the Keegstra case in Alberta found the law (Section 281.2) under which he was prosecuted unconstitutional.112 The Attorney General of Alberta will appeal that decision to the Supreme Court of Canada. The same law and Section 177 have been found constitutional by appeals courts in Ontario.113 Obviously the Supreme Court must resolve the questions raised by the contrasting judgments. In the meantime, more Canadians than before surely know that the Holocaust is a fact and cannot be denied, and also that it is a fact of direct importance to them and their neighbors because of the legal issues.
This article is a revised version of a paper presented on 6 April 1987 at the Sixth Annual Conference on the Holocaust at Millersville University in Millersville, Pennsylvania. I would like to thank Sol Littman and the Simon Wiesenthal Center of Toronto for the opportunity to read the entire transcript of the first Zundel trial, and the Social Sciences Humanities Research Council of Canada for financial support. At the University of British Columbia, my colleagues Professor Elizabeth Edinger, Law School, Al Siroka, Law School Library, and Professor Richard Menkis, Religious Studies Department, have kindly provided me with materials and helpful advice. David Morrison did some very able initial research on legal aspects of the trial. Nancy Hill has made completion of the manuscript possible. This article is belatedly dedicated to Donald E. Emerson on the occasion of his retirement in 1988 from the History Department of the University of Washington in Seattle.
2. Zundel wrote an introduction for this 26-page pamphlet, as well as published and distributed it. The author of the pamphlet wrote under the pseudonym of Richard Harwood but was apparently Richard Varrall, the editor of Spearhead, the magazine of an English racist organization, the National Front. Zundel entitled the pamphlet Did Six Million Really Die?; it was published earlier in England as Six Million Lost and Found. The pagination is different (two pages more in Zundel's version), but each page is almost exactly the same with the exception of some small changes on three pages. The references in this article are to Zundel's publication. Harwood based his work on The Myth of the Six Million, a 119-page book published in 1969 by the Noontide Press of Willis A. Carlo's Liberty Lobby. This book was almost certainly written by David L. Hoggan, because he subsequently sued Noontide Press for damages and stopped publication for four years. The suit was dismissed, and the tract was reissued in 1973. Hoggan is well-known for his writings that remove responsibility for World War Il from Hitler and Nazi Germany. See Lucy S. Dawidowicz, "Lies About the Holocaust," Commentary (Dec. 1980): 31-77; and Frank P. Mintz, The Liberty Lobby and the American Right: Race, Conspiracy, and Culture, Contributions in Political Science, No. 121 (Westport, CT, and London, 1985), pp. 120-25.
5. In 1963 the government of Prime Minister Lester B. Pearson appointed a Royal Commission on Bilingualism and Biculturalism, which reported in six volumes (1967-1970). In 1969 Parliament passed the federal Official Languages Act, which gave French and English equal status in Parliament and departments of the federal government and also established an Office of the Commissioner of Official Languages. In the following decade, some of the provinces introduced their own legislation-including Quebec in 1974, which made French its sole official language. However, the Canadian Charter of Rights and Freedoms in 1982 entrenched minority language education rights in Canada.
6. The introduction of the metric system began with a White Paper on Metric Conversion in Jan. 1970. In 1971 Parliament amended the Weights and Measures Act, passed a Consumer Packaging and Labelling Act, and appointed a Preparatory Commission for conversion, which was followed by the establishment of 100 Sector Committees in 1973 and commencement of a four-phase program beginning in 1975. Conversion began with temperatures in 1975, continued with road signs in 1977 and service stations in 1979, and will be completed by the end of the 1980s.
7. Since Confederation in 1867, Great Britain's "Red Ensign," the Union Jack, had been the Canadian flag, but in 1963 Prime Minister Pearson proposed a new flag with three maple leaves. After 33 days of debate and 252 speeches, Parliament approved a new flag with one maple leaf in December 1964, and the Queen subsequently signed a proclamation making the new flag official on 15 Feb. 1965.
8. The party was formed in 1980 as a protest against a number of federal policies, such as freight rates, tariff barriers, oil pricing, and bilingual- ism. The founders believed that such policies resulted in injustices to Western Canada, that is, the provinces of Manitoba, Saskatchewan, Alberta, and British Columbia. One candidate won a seat in the Alberta legislature in a by-election in Feb. 1982, but he was defeated in the next election. The party has not elected a candidate since then.
12. Professors Michael Kater of York University and Michael Marrus of the University of Toronto often provided scholarly advice, and Richard Minkus, then at the University of Toronto but now at the University of British Columbia, helped in and out of the courtroom.
23. R. v. Keegstra (1984), 19 C.C.C. (3d) 254, 14 W.C.B. 112. For a descrip- tion of the background and the trial, with some documentation, see David Bercuson and Douglas Wertheimer, A Trust Betrayed: Tile Keegstra Affair (Toronto, 1985); S. Mertl and J. Ward, Keegstra: The Trial, the Issues, the Consequences (Saskatoon, 1985); and Stanley R. Barrett, Is God a Racist? The Right Wing in Canada (Toronto, 1987), chap. 9.
27. The numbers in parentheses in the text of this article refer to pages in the text of the transcript of the Zundel trial. The Law Reform Commission concluded that Section 177 is anachronis- tic and too vague becaue it catches any statement which the publisher knows is false, if likely to cause "mischief to a public interest." But what is "mischief to a public interest"? While this phrase may appear to catch only harmful conduct, the appearance is decep- tive. Unfortunately, the reputed prosecutions under this offence, save for the Zundel case, seem unwarranted.
They concluded that Section 177 was inappropriate for the prosecution of Zundel, whose "denials of the Holocaust should be dealt with for what they are-a form of hate propaganda." The Commission recom- mended that Section 177 be abolished. Hate Propaganda, pp. 29-30.
31. Re Germany (Federal Republic) and Rauca (1982), 38 O.R. (2d) 705, 30 C.R. (3d) 97, 70 C.C.C. (2d) 416, 141 D.L.R. (3d) 412, 2 C.R.R. 131 (H.C.); and Re Germany (Federal Republic) and Rauca (1983), 41 O.R. (2d) 225, 34 C.R. (3d) 97 (sub. nom. R. v. Rauca), 4 C.C.C. (3d) 385, 145 D.L.R. (3d) 638, 4 C.R.R. 42 (C.A.).
34. Dr. Vrba is currently Associate Professor of Pharmacology at the University of British Columbia. He was in Auschwitz from June 1942 to 7 Apr. 1944, when he escaped. See Rudolf Vrba and Alan Bestic, Escape from Auschwitz: I Cannot Forgive (New York, 1964, reprint 1986); and John S. Conway, "Friihe Augenzeugenberichte aus Auschwitz: Glaubwclrdigkeit und Wirkungsgeschichte," Vierteliahrshefte fur Zeitgeschichtc 27 (1979): 260-84.
35. Zundel advertises and distributes a 60-minute film in English entitled Faurisson im Samisdat Hauptquartier, in which Faurisson discusses his struggles in the French courts, where he was convicted in July 1981 of incitement to racial hatred and for racial defamation. A court of appeal later cleared him of inciting racial hatred but made him pay a fine to the court and to the eminent historian Leon Poliakov for libel.
39. Udo Walendy has written Wahrheit ffir Deutschland: Die Schuldfrage des Zweiten Weltkrieges (Vlotho/Weser, 1965), translated as Truth for Germany: The Guilt Question of the Second World War (Torrance, CA, 1981), and edited Auschwitz im IG-Farben-Prozess: Holocaust-Dokumcnte? (Vlotho/Weser, 1981).
40. Thies Christopherson has long been a prominent Neo-Nazi as leader of the Bauern- und Biirgerinitiative in the Federal Republic of Germany. In Oct. 1981 he fled after his conviction for Volksverhetzung. When he returned in Aug. 1983, he was captured and sentenced to nine months' imprisonment. He is the author of Die Auschwitz-Lage (1973), which Harwood (pseud.) relies upon for his argument that Auschwitz was an industrial concentration camp, not an extermination center (Did Six Million Really Die?, p. 17). On Christopherson, see Wolfgang Benz, ed., Rechtsextremismus in der Bundesrepublik: Voraussetzungen, Zusammenhfinge, Wirkungen (Frankfurt, 1984).
41. Doug Collins is a journalist, formerly employed by the Canadian Broadcasting Company, then the Vancouver Sun, now by a local Vancouver newspaper called the North Shore News, in which he supported the claims of Holocaust-deniers such as Arthur Butz and Zundel. See the collection of his columns, some concerned with this subject, in Tile Best and Worst of Doug Collins (Vancouver, 1987).
42. On Walus, see Allan A. Ryan, Quiet Neighbors: Prosecuting Nazi War Criminals in America (San Diego, 1984), chap. 6. Zundel distributes an 80minute videocassette entitled Frank Walus: Die Jagd auf einen Nazi, which shows an interview with Walus and photographs from his life. The advertisement for the film claims that it reveals the corruption of U.S. politics and the politicization of U.S. justice.
43. Adrian Arcand (1899-1967) was a professional journalist, antisemite, admirer of Hitler, and founder of the national Unity Party of Fascists in 1938 in Canada. See Litz-Rose Betcherman, The Swastika and tile MapleLeaf. Fascist Movements in Canada in the Thirties (Toronto, 1975).
44. Dr. Russell Barton was with the International Red Cross at the liberation of Bergen-Belsen and subsequently held faculty appointments at the New York School of Psychiatry and the University of Rochester. His views are cited by Harwood (pseud.), Did Six Million Really Die?, p. 25. He testified that bombing by the Allies at the end of the war had disrupted the supplies of food and water to the concentration camps and that the Russian army had driven large numbers of prisoners into Bergen-Belsen. He thought that hysteria had contributed to the belief that the Nazis had deliberately killed the large number of Jews, but he did not dispute that six million Jews had died. Jerome Brentar, who was born in 1922 in Cleveland, had been in the U.S. Army in 1945. He had studied social work and sociology at Michigan State and Western Reserve, and had been a screening officer of the International Refugee Organization, an arm of the United Nations, working in Germany in 1946. He believed that a large number of the Jews who had died in the Holocaust had actually escaped to the Soviet Union, and he testified for the defense at the deportation trial of Demjanjuk on the issue of his identification. He thought Demjanjuk's case to be one of mistaken identity, like that of Walus. On Demjanjuk see Ryan, Quiet Neighbors, chap. 4.
45. The Institute for Historical Review, located in Torrance, CA, held conferences and published a journal, The Journal of Historical Review, to promote the denial of the Holocaust, the Nazi attempt to exterminate the Jews. The Institute and its journal were subsidized by Willis Carto and the Liberty Lobby. See Mintz, Liberty Lobby, p. 125. The Institute's library and offices were destroyed by fire on 4 July 1984, and the Institute had to pay punitive financial damage from its loss of the case against Mel Mermelstein (see note 47 below). Many of the members of its board of directors testified for Zundel. There has been less evidence of its efforts and activities in the past few years.
46. Some observers of the Zundel trial criticized Mr. Griffiths for not having attempted to obtain judicial notice for the Holocaust, but the transcript of the trial shows that he was aware of the possibility and of the precedent in California, and that he raised the matter early in the trial. A number of lawyers told me that the judge could not have taken judicial notice of so central a part of the trial even if Mr. Griffiths had attempted to obtain it at the very beginning. My impression from reading Judge Locke's opinions in the transcript is that he would not have taken judicial notice at any time. The judge in the second trial did take judicial notice of the Holocaust. See Section XIII for the second trial.
47. On p. 2098 of the Zundel transcript, Mr. Griffiths mentioned the judicial notice of the Holocaust taken by Justice Thomas T. Johnson, Judge of the Superior Court, County -of Los Angeles, California, on 9 Oct. 1981, in the trial of Mel Mermelstein v. the Institute for Historical Review. justice Locke referred to the California trial in his decision on judicial notice, p. 2183 of the transcript.
48. See Sir Rupert Cross and Colin Tepper, Cross on Evidence, 6th ed. (London, 1985), pp. 62-72; Archbold, Pleading, Evidence and Practice in Criminal Cases, ed. Steven Mitchell, 41st ed. (London, 1982), pp. 335-37 Sect. 4-262; and Peter K. McWilliams, Canadian Criminal Evidence, 2nd ed. (Aurora, Ont., 1984), p. 637.
52. For some photographs and information on the liberation of these concentration camps, see Robert H. Abzug, Inside the Vicious Heart: Americans and the Liberation of Nazi Concentration Camps (New York, 1985).
54. President Roosevelt's Secretary of Agriculture, Henry Wallace, was an admirer of Nicholas Roerich (1874-1947), the designer of sets and costumes, painter, and mystic. Under his influence Wallace "persuaded the Treasury to engrave the Great Seal's mystic pyramid on new dollar bills." New York Times, 22 Jan. 1988.
55. Gabriel Weimann and Conrad Winn, Hate on Trial: The Zundel Affair, the Media, Public Opinion in Canada (Oakville, NY, and London, 1986) believe on the basis of their survey of public opinion that the publicity from his trial did not win wider acceptance for Zundel's theses.
57. Zundel advertises and distributes a 30-minute film entitled Der Anne Frank Schwindel, which purports to destroy this "chief pillar of the antiGerman witch hunt" with the record of a conversation of Ditlieb Felderer, an American journalist named Eric Thomson, and Zundel. Richard Harwood (pseud.), Six Million Lost and Found, p. 19, and Robert Faurisson, "Is the Diary of Anne Frank Genuine?" Journal of Historical Review 3, no. 2 (Summer 1982): 147-202, insist that Anne Frank's diary is a hoax, a view shared by many right-wing Canadian organizations. See Barrett, Is God a Racist? pp. 94, 99, 210, 266.
62. See ibid., pp. 15, 24. For a historian's examination of this subject, about which the Crown's witnesses were not well-informed, see James J. Weingartner, "Law and justice in the Nazi SS: The Case of Konrad Morgen," Central European History 16 (1983): 276-94. Faurisson testified about Morgen in order to disqualify his evidence about the number of Jews killed (2718-27).
66. Ibid., pp. 19-20. Harwood claims not only that Hoss was tortured and "brainwashed" but also that Polish Communists forged his memoirs. Robert Faurisson, "How the British Obtained the Confessions of Rudolf Hoss," Journal of Historical Review 7, no. 4 (Winter 1986-87): 389-401, emphasizes the torture and does not mention forgery.
69. See Georges Wellers, "The Number of Victims of the 'Final Solution' and the Korherr Report," in Holocaust and Neo-Nazi Mythomania, pp. 139-61; Raul Hilberg, "Le bilan d6mographique du genocide," in L'Allemagne nazie et le ginocide juif, colloque de 1'ecole des hautes etudes en sciences sociale (Paris, 1985), pp. 262-82.
71. The complete text of Anne Frank's original diary with an introduction summarizing the results of a comparison with the text edited by her father and of a laboratory investigation of the ink, paper, handwriting, etc., was prepared by the Rijksinstituut voor Oorlogsdocumentatie. See De dagboeken van Anne Frank ' introduction by Harry Paape, Gerrold van der Stroom, and David Barnouw, summary of the report from the Justice Laboratory by H. J. J. Hardy (Amsterdam, 1986). An English edition appeared in 1989.
72. See Eberhard Jdckel and Jargen Rohwer, eds., Der Mord an den Juden im Zweiten Weltkrieg (Stuttgart, 1985); and Christopher R. Browning, "La decision concernant la solution finale," in L'Allemagne nazie et la genocide juif, pp. 190- 216.
74. An early classic account is Eugen Kogon, Der SS-Staat (Stockholm, 1947), trans. by Heinz Norden as The Theory and Practice of Hell (1950, and many editions); see also Kormilyn G. Feig, Hitler's Death Camps: The Sanity of Madness (New York and London, 1981); Yitzhak Arad, Belzec, Sobibor, Treblinka: The Operation Reinhard Death Camps (Bloomington, IN, 1987).
75. See Georges Wellers, "The Existence of Gas Chambers," in Holocaust and Neo- Nazi Mythomania, pp. 109-38; idem, Les chambrcs a gaz ont exist~: Des documents, des timoignages, des chiffres (Paris, 1981); Uwe D. Adam, "Les chambres A gaz," in L'Allemagne nazie et le genocide juif, pp. 236-61; and Nationalsozialistischc Massentotungen durch Giftgas: Eine Dokumentation, ed. Eugen Kogon, Hermann Langbein, and Adalbert Mickerl (Frankfurt, 1986).
76. Arad, Belzec, Sobibor, Treblinka, pp. 170-78, describes the months-long Nazi exhumation of the thousands of bodies in these camps, and their cremation on pyres laid on railroad rails, after which the ashes and bones were ground into dust and mixed with the earth. The camps were destroyed so as to leave no traces after the German evacuation.
77. Saul Friedlander, Kurt Gerstein: The Ambiguity of Good, trans. Charles Fullman (New York, 1969); and Pierre Joffroy, A Spy for God: The Ordeal of Kurt Gerstein, trans. Norman Denny (New York, 1970).
78. Rudolf Hoess, Commandant of Auschwitz: The Autobiography of Rudolf Hoess, trans. Konstantine Fitzgibbon (London, 1959).
80. Hermann Langbein, Der Auschwitz Prozep: Eine Dokumentation, 2 vols. (Frankfurt, 1965); Bernd Naumann, Auschwitz: A Report on the Proceedings Against Robert Karl Ludwig Mulka and Others Before the Court at Frankfurt, trans. Jean Steinberg (New York, 1966).
81. Dov. B. Schmorak, ed., Der Prozep Eichmann, dargestellt an Hand der in Nurnberg und Jerusalem vorgelegten Dokumente sowie der Gerichtsprotokolle (Vienna, 1964); Schmorak, ed., Sieben sagen aus: Zeugen im EichmannProzep (Berlin, 1962); Jochen von Lang, ed., Eichmann Interrogated: Transcripts from the Archives of the Israeli Police, trans. Ralph Manheim (New York, 1983); and Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York, 1964).
82. The reference is to the occasion on which Chancellor Willy Brandt of the Federal Republic of Germany knelt before a monument to the victims of the uprising in the Warsaw Ghetto during his visit to Warsaw in order to sign the treaty normalizing German-Polish relations, that is, above all recognizing the Oder- Neisse boundary, on 7 Dec. 1970.
100. These two newspapers are the chief sources for my short description of the second trial, but I have not provided daily citations for each state- ment. I confirmed some important points in telephone conversations with the Crown counsels, John Pearson and Catherine White, on 8 Feb. 1989 and thank them for their helpfulness.
101. Nevertheless at the end of the trial, Zundel insisted that he again had obtained a million dollars' worth of publicity. One columnist protested that in their desire to prevent publicity for Zundel the newspapers had failed their responsibility to their readers. George Bain, "The Public's Right to Know," Maclean's, 23 May 1988, p. 45.
109. Zundel and his associates have a mailing address in Niagara Falls, New York, from which they have sent propaganda in German from his Samisclat Press to the Federal Republic of Germany since his conviction and the ban on his spreading false news.
110. In their Hate on Trial, Weimann and Winn present the evidence from their poll that the reports on the trial in the news media did not sway Canadians to increased support for Zundel's beliefs, but I am not convinced that such a poll is a conclusive measure of the effects.