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
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I. BACKGROUND: THE PAMPHLET IN QUESTION