The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: people/p/prutschi.manuel/zundel-affair/za-02

Subject: The Zundel Affair: A Report by Manuel Prutschi (2/11)

Trials and Appeals

Zundel, from the beginning, demonstrated a remarkable flair for
theatricality. He always arrived at court sporting a bullet-proof
vest, making himself even stockier and more portly in appearance: a
figure reminiscent of Mussolini rather than Hitler. His balding head
sported a blue hardhat with the motto "Freedom of Speech." His
entrances and exits were attended by a retinue of male followers with
yellow hardhats. 

Arriving to be sentenced after his first trial, he
appeared "with a blackened face (because whites cannot receive
justice in Canada) carrying a cross, like Jesus on his way to
Calgary. The cross bore the inscription 'Freedom of Speech'; not only
was Zundel, like Jesus, being crucified by an evil society, but
freedom of speech was being crucified as well."[7] All of this, of
course, was for the benefit of the television cameras. Since,
however, courts do not brook such antics, nor allow their proceedings
to be photographed or filmed, the Zundelists had to surrender their
props (and the cameramen their equipment) on entry.

As his defense counsel, Zundel retained the Victoria-based attorney
Douglas Christie, whom he met in 1984 during a brief visit to Alberta
to support James Keegstra during the latter's preliminary hearing.
Not only has Christie remained Zundel's lawyer, but he has emerged as
the perennial legal defender of Canadian antisemites, acting also for
the long-time Toronto Nazi, John Ross Taylor, and Imre Finta, a
Hungarian-born Toronto restaurateur charged with war crimes.[8] A
vigorous advocate of western separatism. Christie founded the Western
Canada Concept Party, and ran unsuccessfully as an independent twice
in federal elections.

Zundel's first trial lasted eight weeks. On February 28, 1985, the
jury delivered its verdict, acquitting him on the charge connected
with "The West, War and Islam," but finding him guilty of spreading
false news about the Holocaust. One can only speculate on the reasons
for the jury's acquittal on the first charge. Perhaps it was regarded
as less important, since scarcely any time was devoted to it during
the trial. Perhaps the jury reasoned that, since the letter at issue
was mailed abroad only (to 1200 addresses in the Middle East), it was
unlikely to have prejudiced a public interest in Canada. The
acquittal might also have been another example of the Canadian
penchant for compromise; having convicted Zundel on the second and
more significant charge, the jurors were able to afford some measure
of magnanimity. On March 25, he was sentenced to 15 months in prison,
but freed on bail pending an appeal.

To prove the Holocaust denial charge, the Crown had to establish the
falsity of the tract "Did Six Million Really Die?" To achieve this,
the truth of the Holocaust had to be established. For this reason,
Dr. Raul Hilberg of the University of Vermont, one of the world's
foremost authorities on the subject, was called as an expert witness,
as well as a number of survivors. 

In accordance with a practice
sometimes employed in judicial proceedings, the Crown also requested
that judicial notice of the Holocaust be taken. (In other words, the
court was asked to accept certain matters germane to the case without
actually having to prove them. Such judicial notice can be sought
when the facts are so well-known "in the community" that they cannot
"reasonably be questioned," or when the facts are capable of
determination by readily available evidence of indisputable
accuracy.)[9] The prosecutor requested judicial notice of the fact
that, between 1933 and 1945, millions of Jews were annihilated
deliberately by Nazi Germany, and that this annihilation was
accomplished by various means, including starvation, deprivation,
mass shootings and gassing. 

The prosecutor refrained from making this
request until after the conclusion of the case against Zundel, but
repeated it after the defense had called all its witnesses. On both
occasions, however, the presiding judge chose to reject the
application, believing that the taking of such notice would hinder a
proper defense, as well as lifting a burden off the prosecution. The
Crown also sought to convince the jury that Zundel did not believe
his own assertions about the falsity of the Holocaust. 

This was done by suggesting, particularly during cross-examination, that 
the defendant, far from being the disinterested researcher that he
claimed to be, was in fact an ardent neo-Nazi. Thus, Zundel simply
selected material that seemed to support his claims, dismissing the
massive evidence to the contrary. Holocaust denial was really a
scheme to rehabilitate the Third Reich. Finally, the Crown argued
that a campaign branding the Jews as liars and swindlers was not
conducive to social and racial harmony in Canada and was therefore
injurious to the public interest.

The defense chose to raise radical questions about the Holocaust
itself. Christie engaged in brutal cross-examinations of survivor
witnesses, seeking to undermine their testimony, cast doubt on their
suffering and deprive their experiences of any real significance. The
defense also called 'expert' witnesses of its own in the form of
various notorious Holocaust deniers, not unlike Zundel himself. The
media, in its coverage. tended to focus on the sensational and
provocative suggestions of the defense counsel, as well as on the
testimony of his witnesses. The Holocaust itself was not news;
however, the suggestion that the murders were a hoax was news. 

Hence, the front-page headline in The Globe and Mail of January 12, 1985,
read: "Lawyer Challenges Crematoria Theory." Christie also tried to
establish that Zundel honestly believed the Holocaust denial views
that he promoted. If the jury could be convinced of his sincerity, it
was bound to find him innocent under the law. The jury, however, was
not convinced, returning a verdict of guilty. Zundel was defiant and
unrepentant. At what has been described as "an impromptu press
conference held from the prisoner's dock in the courtroom,"[10] he
declared that the trial had gained him "one million dollars worth of
publicity."[11] However, this bold claim was without foundation. In
fact, the only change of public attitude as a result of the trial was
one of greater sympathy for the Jewish community.[12] Ironically, the
sector of the population most sympathetic to antisemitism was also
the sector least responsive to media reports; even the converted did
not listen.

The defendant launched an appeal, which was heard in September 1986,
by a panel of five judges of the Ontario Court of Appeal. His lawyer
argued that the "false news" law was unconstitutional, violating the
freedom of expression provisions of the Charter of Rights and
Freedoms. He also argued that the Judge had made numerous errors,
depriving his client of a fair trial. The Appeal Court rendered its
decision in January 1987. It found the law constitutional, declaring
that certain modes of expression. e.g., "spreading falsehoods
knowingly," were not protected by Charter guarantees of free speech.
It also declared that social and racial tolerance constituted a
paramount public interest. However, the court ordered a new trial,
agreeing that fundamental errors had been committed during the

The defense counsel, for example, should have been allowed
to question prospective jurors. The court acknowledged that some of
the questions that Christie sought to ask were improper, but felt
that the judge should have allowed him to formulate more acceptable
questions. More importantly, the court found that the judge had
equated Zundel's "knowledge" of the falsity of the pamphlet "Did Six
Million Really Die?" with "an absence of honest belief in the truth
of its claims."[13] However, the false news law demands proof beyond
a reasonable doubt of "guilty knowledge" on the part of the accused -
a standard that is one significant notch higher than absence of
honest belief. This confusion, together with the jury selection
errors, warranted a retrial. The Crown unsuccessfully sought leave to
appeal the court's decision to the Supreme Court of Canada. Zundel's
second trial began on January 11, 1988, almost three years later.

The second trial was in many ways a replay of the first, but with
some significant differences. The Crown found a new expert, Professor
Christopher Browning, a prominent Holocaust historian at Pacific
Lutheran University. No survivors were called. Moreover, judicial
notice of the Holocaust was obtained. This "bare bones" (as the Crown
later referred to it) judicial recognition of the historical
character of the mass murders still permitted the defense to raise
questions regarding the intent of Nazi policy, the means employed and
the number of victims. As a consequence, the rights of the accused
were protected. 

The defense strategy was unchanged, although Zundel
did not take the stand this time. Some new faces were added to the
roster of witnesses, the most significant being that of the
ultra-nationalistic English historian, David lrving. Irving had not
denied the historicity of the Holocaust initially but, in his book
Hitler's War, had suggested that the murders were not Hitler's
personal work. Indeed, he had once offered a L1000 reward to anyone
who could produce a written order from the Fuehrer for the
destruction of European Jewry. More and more willing to associate
openly with Holocaust deniers, he chose to identify himself publicly
with their position at Zundel's second trial. Another difference
between the two trials lay in the more sensitive and restrained
nature of the media coverage. The camera footage rarely, if ever,
appeared on the television news, so that Zundel's antics passed
unnoticed as far as the public was concerned.

The defendant was found guilty again by a jury of his peers and
sentenced to nine months in prison. His appeal was heard by a three
judge panel of the Ontario Court of Appeal in September 1989. In
February 1990, the court upheld both the conviction and the sentence.
At the time of writing, his legal fate remains unresolved, pending a
final appeal to the Supreme Court of Canada.

[Transcriptor's Note:  The Supreme Court later decided that the
"false news" statute, with which Zundel was charged, was not
Constitutional.  Only the statute was specifically addressed by the
Supreme Court, not the two earlier convictions under that statute.
Effectively, it was declared legal for Zundel and other Canadians to
knowingly lie.  Zundel incorrectly refers to this as "acquittal." ]


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