The Nizkor Project: Remembering the Holocaust (Shoah)

Supreme Court of Canada: 1992 Zündel Judgement


In the 1970's and 1980's, the appellant published and distributed white supremacist literature, videos and paraphernalia through the auspices of his Toronto publishing house, Samisdat Publishers Ltd. He was charged with two counts of spreading false news in contravention of what is now s. 181 of the Code for publishing two pamphlets. He was acquitted at trial on the count relating to the publication of the pamphlet, The West, War and Islam!, but was convicted on the count relating to a pamphlet entitled, Did Six Million Really Die? It is this conviction which he appeals to this Court.

Because much of the reasoning in this case turns on whether the expression in question purports to be a statement of fact or of mere opinion, and because it is difficult to comprehend fully the significance of harmful speech in the abstract, the pamphlet warrants more than a general reference in order to make clear the precise nature of the publication at issue.

The pamphlet is part of the genre of anti-Semitic literature known euphemistically as "revisionist history". The pamphlet indicates the author is "Richard Harwood... a writer and specialist in political and diplomatic aspects of the Second World War. At present he is with the University of London". However, the piece appears to have actually been produced in England by Richard Verral, editor of the neo-nazi British National Front newspaper in 1977. The appellant has added a preface and afterword to the original document, entitled Historical Facts No. 1, Did Six Million Really Die?

Truth at Last Exposed.

The basic gist of the piece is that the Holocaust perpetrated by the German National Socialists against the Jews of Europe during the Second World War never occurred. According to the appellant, there was no concerted plan to exterminate European Jewry, along with assorted others of racial extraction, religious persuasion, national origin or sexual orientation of which the Nazis did not approve. By pointing to what he alleges to be new evidence, the appellant submits that some Jews died, as people will in war time, but that the "Final Solution to the Jewish Question" was never anything more than a plan to facilitate emigration to Madagascar. He states that the Holocaust is a myth fabricated by an immensely powerful Jewish-Zionist conspiracy to win lucrative war reparations from the Germans, to make them feel ashamed and a pariah in the eyes of other nations, and to win political and economic support for the State of Israel.

While the appellant argues that his purpose in preparing and disseminating the publication was to provide a novel analysis of historical documents, Richard Verral makes clear the true import of the "revisionist" project. In the aftermath of the Holocaust, the international community has cast a jaundiced eye on all forms of racism and has bonded together to reject and obliterate it. The author alleges that "the Anglo-Saxon world" is falling into decline because of the presence of non-Aryans and that the lessons of the horrors of the Holocaust prevent "rational" debate about this trend. Under the heading "The Race Problem Suppressed", the pamphlet states:

Thus the accusation of the Six Million is not only used to undermine the principle of nationhood and national pride, but it threatens the survival of the Race itself.... Many countries of the Anglo-Saxon world, notably Britain and America, are today facing the gravest danger in their history, the danger posed by the alien races in their midst. Unless something is done in Britain to halt the immigration and assimilation of Africans and Asians into our country, we are faced in the near future, quite apart from the bloodshed of racial conflict, with the biological alteration and destruction of the British people as they have existed here since the coming of the Saxons. In short, we are threatened with the irrecoverable loss of our European culture and racial heritage. But what happens if a man dares to speak of the race problem, of its biological and political implications? He is branded as that most heinous of creatures, a "racialist". And what is racialism, of course, but the very hallmark of the Nazi! They (so everyone is told, anyway) murdered Six Million Jews because of racialism, so it must be a very evil thing indeed.

Presumably in order to quell the abhorrence with which people of good will respond to racism, the premise of the pamphlet was that the brutal realization in the Holocaust must be denied. To this end, the pamphlet makes numerous false allegations of fact. It will suffice to point to only a few.

The pamphlet alleges that:

- the Nazi concentration camps were only work camps; that gas chambers were built by the Russians after the War; that the millions who disappeared through the chimneys of the crematoria at Auschwitz, Sobibor, Majdanek and elsewhere actually moved to the United States and changed their names;

- The Diary of Anne Frank is a work of fiction;

- the emaciated living and dead found by liberation forces died of starvation and typhus;

- the films and photographs are clever forgeries;

- there are no witnesses to or survivors of the slaughter and every perpetrator who later revealed his complicity was coerced.

The appellant was convicted after a lengthy trial of spreading false news contrary to s. 181. On appeal to the Ontario Court of Appeal, his conviction was upheld on constitutional grounds but struck down for errors in the admission of evidence and the charge to the jury. The matter was sent back for a new trial: (1987), 58 O.R. (2d) 128, 35 D.L.R. (4th) 338, 56 C.R. (3d) 1, 29 C.R.R. 349, 31 C.C.C. (3d) 97. The appellant was again convicted after a trial before Judge Thomas and a jury. His second appeal to the Ontario Court of Appeal was denied unanimously: (1990), 37 O.A.C. 354, 53 C.C.C. (3d) 161. He appeals to this court by leave on the constitutional issues alone, [1990] 2 S.C.R. xii.

The original plaintext version of this file is available via ftp.

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