The Zündel Affair

Manuel Prutschi

Trials and Appeals

Zündel, 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 Zündel, 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 Zündelists had to surrender their props (and the cameramen their equipment) on entry.

As his defense counsel, Zündel 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 Zündel'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.

Zündel'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 Zündel 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 Zündel, 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 Zündel 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, Zündel 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 Zündel 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 Zündel 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. Zündel 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 proceeding.

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 Zündel'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. Zündel'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 Zündel 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 Zündel'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 Zündel'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.

[Transcription note: The Supreme Court of Canada later decided that the "false news" statute, with which Zündel 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 Zündel and other Canadians to knowingly lie. Zündel incorrectly refers to this as "acquittal." knm, 1996/04/23]

[Notes]

[Continued]

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