II. JUDGMENTS BELOW

A. Trial

(1) Judicial Notice

At trial, Judge Thomas took judicial notice of the fact that Jews were murdered by the Nazis but did not take judicial notice of the facts alleged in the appellant's pamphlet:

The mass murder and extermination of Jews in Europe by the Nazi regime during the Second World War is so generally known and accepted that it could not reasonably be questioned by reasonable persons. I directed you then and I direct you now that you will accept that as a fact. The Crown was not required to prove it. It was in the light of that direction that you should examine the evidence in this case and the issues before you.

Accordingly, it was not open to the appellant to argue that no Jews died during the Second World War, and indeed, as noted above, this was not his thesis. In his final address to the jury, defence counsel analyzed the relationship between the judicial notice and the appellant's work:

His Honour will tell you what he says is reasonable for reasonable men to contest. But it won't include the six million, it won't include the gas chambers and it won't include an official plan. That's basically what this book is all about.

That is not to dispute the Jewish tragedy of mass murder of some Jews by some Nazis during World War II which His Honour will tell you is a fact. The Judicial ruling goes no further than that. And if two Jews were killed by some Nazis, that wouldn't be a mass murder. It would certainly be a tragedy. It would be wrong. But it wouldn't necessarily be what is portrayed as the Holocaust. [Emphasis added.]

The appellant was fully able to defend the specific allegations out of which he built his argument as to the motive, intention, mechanisms, scope, and impact of the slaughter. He was fully able to put forth his argument that "the Holocaust", writ large as an historical icon, was a fabrication. The court explicitly did not take away from the jury the possibility of accepting evidence in support of Zundel's fundamental premise that there was no systematic plan of genocide and thus that racism was not as dangerous as supposed. The trial judge also made it clear in his instruction to the jury that they were to find that some Jews died but must be satisfied beyond a reasonable doubt that these deaths amounted to the historical cataclysm known as the Holocaust. In his charge to the jury, Judge Thomas summarized the position of the defence:

The publication considered in its essence puts forward the thesis six million Jews were not killed during the war, there was no official plan or policy by the National Socialist regime of Adolf Hitler to exterminate the Jews, and there were no homicidal gas chambers.

(2) Elements of the Offence

Judge Thomas defined the elements of the offence which the Crown had to prove as:

(a) wilful publication (b) of a statement of fact rather than of opinion (the onus of differentiating fact from opinion lying with the Crown); (c) which the accused knew to be false when he published it; and (d) which falsehood is likely to cause mischief to the public interest (in this case, the interest in racial and social tolerance).

(i) Wilful Publication

While the appellant conceded publication, the Crown adduced the evidence of Sergeant Luby of the Metropolitan Toronto Police that, in the course of investigating the complaint against him, the appellant confirmed that he had written the preface and conclusion, had published the amended version of Richard Verral's work and had distributed it within and beyond Canadian borders. Indeed, the afterward of the pamphlet itself enumerates the appellant's distribution efforts in Canada. The jury was instructed that, if they accepted the evidence of the officer and admission by counsel for the appellant, they could find that he had wilfully published it. Judge Thomas noted that the date of publication was key in determining the most important issue of knowledge of falsity at publication date. The Crown had alleged that the publication occurred in 1981. The trial judge summarized the evidence on this point as suggesting that it was produced at some point between early 1979 and Sgt. Luby's attendance at the appellant's home on May 29, 1984.

(ii) Statement of Fact Rather than of Opinion

The appellant argued that the pamphlet was only an expression of opinion and, in the alternative, that if found to be an assertion of fact, it was verifiable as truth. Judge Thomas held that the issue of whether the pamphlet conveyed an assertion of fact or mere opinion was to be determined by the jury. He pointed to the defence expert, Dr. Fann, who asserted that a factual claim may be distinguished from an expression of opinion by virtue of its capacity to be tested and verified, while expressions of opinion are merely subjective and thus cannot be proved or disproved. The defence expert Dr. Botting had testified that the pamphlet was two thirds fact and one third opinion but that he would characterize it as an expression of opinion. The trial judge left it to the jury to determine whether to accept this submission or to accept the Crown's argument, paraphrased as:

Do you think his view was influenced by his contention that there is no such thing as a fact, that everything is opinion? The Crown asks, in the real world, don't we have to distinguish between fact and opinion on a daily basis?

The defence expert witness, Mr. Felderer, a publisher of Holocaust denial literature, also testified that the pamphlet was important because it contained allegations of fact. Judge Thomas instructed the jury:

Although there are individual items or passages in the pamphlet which, considered separately might be characterized as opinions, I direct you that it is open to you to find that the pamphlet, considered as a whole, asserted as a fact that Jews were not exterminated as a result of government policy during the Nazi regime, that the Holocaust did not occur and it is an invention or a hoax to enable Israel and Jews to collect huge reparation payments from Germany.

It was left to the jury to consider whether the Crown had satisfied them beyond a reasonable doubt of the verifiable falsity of the factual assertions contained in the pamphlet and whether the cumulative effect of these errors rendered the pamphlet as a whole a false statement or tale.

(iii) Falsity of the Factual Allegations

The appellant's allegations of fact in the pamphlet were divided into 85 extracts and rebutted one by one. The trial judge summarized this material at length for the jury but it will suffice here to point only to some of the more egregious examples. The pamphlet alleged that a memorandum from Joseph Goebbels revealed that the Final Solution was never more than a plan to evacuate Jews to Madagascar. It was shown that there was no such memorandum but that the reference was to Goebbels' diary entry of March 7, 1942. This diary extract was adduced and shown to state nothing of the kind. The Crown went on to point out that the entry for March 27, 1942 made clear that the Final Solution was, in fact, genocide:

Not much will remain of the Jews. On the whole, it can be said that about 60 per cent of them will have to be liquidated, whereas only about 40 per cent can be used for forced labor....

The pamphlet alleges that no documentary evidence exists of the Nazi plan to exterminate the Jews. The Crown adduced speeches by Heinrich Himmler, head of the SS, made on October 4, 1943 to his troops in Posen in which he refers to the program of extermination of the Jews. Himmler stated:

I also want to talk to you, quite frankly, on a very grave matter. Among ourselves it should be mentioned quite frankly, and yet we will never speak of it publicly....

I mean the clearing out of the Jews, the extermination of the Jewish race....

The appellant argued that the term "exterminate" used in this passage really meant "deport". It was left to the jury to consider whether they accepted that this was a possible interpretation.

The Crown also adduced the December 9, 1942 entry in the diary of Hans Frank, SS officer in charge of Poland, describing the annihilation of 3.5 million Jews in the general government and numerous documents adduced at the Nuremberg trials, including the daily reports of the Einsatzgruppen (action groups) enumerating the death tolls of Jews in the USSR. In a report to Hitler of December 20, 1942, Himmler indicates that the Einsatzgruppen had executed 363, 211 Jews between August and November, 1942.

The pamphlet alleged, purportedly relying on a Red Cross report, that all concentration camps were really humane work camps. Mr. Biedermann, a delegate of the International Committee of the Red Cross, testified that the Red Cross Report pertained exclusively to prisoner of war camps as the Red Cross personnel had not been inside any camps in which civilians were detained. The Crown adduced evidence from Professor Hilberg that while some camps had labour facilities annexed to them, Belzec, Treblinka, Sobibor and Chelmno were exclusively "killing factories" and that gas chambers were in operation at Auschwitz-Birkenau and Majdanek. The numbers of Jews slaughtered was verifiable from railway records showing the payments per person made by the Gestapo for transport to the camps. These numbers were compared with those having left the camps or who were found there after liberation.

On and on, the Crown showed that the appellant misrepresented the work of historians, misquoted witnesses, fabricated evidence, and cited non-existent authorities.

(iv) Appellant's Knowledge of Falsity

The trial judge made it clear that this was the most important element of the offence and that the onus lay on the Crown to prove beyond a reasonable doubt that the appellant knew that these assertions of fact were false when he published them. The Crown alleged publication in 1981. Evidence was heard from defence witnesses that the appellant was extremely familiar with the history of the Holocaust and that he was aware of the overwhelming evidence produced by orthodox Holocaust historians that the Holocaust did occur.

The Crown adduced evidence that the appellant was committed to white supremacist and anti-Semitic causes and was a fan of Adolph Hitler and of the Nazi regime. The Crown adduced a radio interview with the CBC and two pamphlets allegedly written and distributed by the appellant under his pen name, Christof Friedrich (his middle names), entitled The Hitler We Loved and Why and UFO's: Nazi Secret Weapon. It was open to the jury to find that evidence of motive drawn from these materials was relevant to knowledge of falsity. Judge Thomas stated:

It is true that the accused man is not on trial for his beliefs, and he is not on trial for publishing Exhibits 2 and 3. However, it is open to you to find that if the accused believed in National Socialism, it is open to you to conclude that he knowingly would publish falsehoods to foster and protect those beliefs. In other words, that is the limited use that you can make of Exhibits 2, 3 and 5 combined.

Sgt. Luby testified that the appellant stated to him that he had been writing "those things" for twenty-five years.

Defence witnesses who shared the appellant's views testified that, as far as back as 1969, the appellant had believed the Holocaust was a myth. Mr. Smith, a representative from the "revisionist history" group, the Institute for Historical Review, and Mr. Faurisson, a "revisionist historian" convicted on charges arising out of his Holocaust denial publications in France, testified that in 1979, the appellant attended a conference of the Institute in which participants undertook to launch a campaign against the Holocaust. Mr. Walendy, another participant at the Conference, testified that he discussed the pamphlet with the appellant at that time and made him aware of objections and criticisms levelled against the publication elsewhere. It was left to the jury to conclude whether the appellant had no knowledge of the falsity of the materials or whether, despite the fact that he knew they were false, he was prepared to publish falsehoods in order to win converts to his cause.

Judge Thomas instructed the jury that while the unreasonableness of the appellant's belief was a relevant factor in determining whether he truly held such a belief, it was by no means conclusive of the matter. Consistent with the jurisprudence of this Court on the role of unreasonableness of beliefs in, for example, the defence of mistake of fact, in Pappajohn v. The Queen, [1980] 2 S.C.R. 120, at p. 156, Judge Thomas stated that:

If you find that the accused honestly believed that the pamphlet was true, or you are left with a reasonable doubt on this point, you must acquit. Now, it is not necessary for that belief, held honestly, to be reasonable. The unreasonable nature of the belief is only one factor to be considered. In other words, it is only one item of the evidence to support an inference that the belief is not honestly held.

(v) Mischief to a Public Interest

The public interest identified was racial and social tolerance. The Crown argued that an attack on one segment of society harmed all of society. The trial judge told the jury that they had to be satisfied beyond a reasonable doubt that the publication of Did Six Million Really Die? was a threat to this interest. The Crown submitted that the pamphlet fostered hatred and contempt for Jews. It did so insidiously because it disguised itself as an academic work, relying upon appeals to authority. It did so in a particularly vicious manner because the objects of the fabrication are themselves characterized as diabolical liars such that their attempts to clarify and rebut the allegations would not be believed. Perhaps most importantly, the Crown alleged that the pamphlet makes tolerance for religious minorities "a dirty word" and the game of dupes.

The appellant submitted that no harm had been proved to have resulted from the publication and that public debate of provocative views enhanced social and racial tolerance. He submitted that it was an insult to Canadians to suggest that they were not capable of discerning truth from falsity. The trial judge instructed the jury that deliberate lies were not protected by s. 2(b) of the Charter but left the final issue of harm to the jury as well. They returned with a verdict of guilty.

B. Ontario Court of Appeal No. 1 (1987), 31 C.C.C. (3d) 97

Although this is an appeal from the second trial, it is useful to note briefly the fate of the appellant on his first appearance before the Ontario Court of Appeal. In a decision rendered on behalf of the full court, the Ontario Court of Appeal affirmed the essential elements of the offence as they were described by the trial judge at the second trial and set out earlier.

The decision was rendered quite early in the development of Charter jurisprudence and the court noted that there was little precedent to guide them. They addressed themselves to the proper scope of the right under s. 2(b) and concluded that deliberate lies likely to produce racial and social intolerance did not fall within its embrace.

In doing this, they placed great reliance on the United States approach to defining a limit to freedom of expression which excludes obscene, libellous and knowingly false speech. After considering the various justifications provided in the American jurisprudence for limiting expression, they concluded (at pp. 123-24):

Spreading falsehoods knowingly is the antithesis of seeking truth through the free exchange of ideas. It would appear to have no social or moral value which would merit constitutional protection. Nor would it aid the working of parliamentary democracy or further self-fulfilment. In our opinion an offence falling within the ambit of s. 177 [now s. 181] lies within the permissibly regulated area which is not constitutionally protected. It does not come within the residue which comprises freedom of expression guaranteed by s. 2(b) of the Charter.

After assuming for the sake of argument that they were wrong and the provision was a violation of s. 2(b), the Court of Appeal considered the presence in the Criminal Code of Canada and those of other commonwealth jurisdictions of the offence of defamatory libel in determining that the section was important and demonstrably justified in free and democratic societies. They thus found the provision to be justified under s. 1.

The court then considered the appellant's submission that the provision was unconstitutional because it violated s. 7 by being void for vagueness or overbreadth. The court considered that the only element of the offence in s. 177 (now s. 181) open to challenge was the category of "public interests" to which injury might accrue. They considered that criminal law is always aimed at preserving some public interest and found that the preservation of racial harmony was certainly such an interest. They therefore found no violation of s. 7.

However, the Court of Appeal went on to find that some of the appellant's objections to the conduct of the trial judge did have merit. They found these technical errors too numerous to justify the exercise of s. 686(1)(b)(iii) and ordered the new trial which was referred to earlier.

C. Ontario Court of Appeal No. 2 (1990), 53 C.C.C. (3d) 161

The appellant appealed this second conviction, raising 47 grounds of appeal, most of which were found to be utterly without merit and were not dealt with. The Court did consider the issues of judicial notice, various elements of the charge to the jury, admissibility of evidence read into the record, questioning of the appellant about his belief in Nazi policies, and production of his other anti-Semitic publications. The Court of Appeal considered at length allegations of actual and apparent bias in the trial judge and rejected them. The only finding which has relevance to the constitutional issue in this appeal is the court's approval at p. 196 of the trial judge's characterization of the promotion of racism as a practice contrary to a public interest.

[I]t is not in the public interest to have one segment of the community racially or religiously intolerant against another segment of the community. An attack on one segment of the community is, in reality, an attack on the whole community. If one segment is not protected from criminal defamation and libel, accusations of criminal wrongdoing, criminal fraud, the whole community is vulnerable because the next segment is fair game, and then the next segment is fair game, until you have destroyed the entire community.

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