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Annual 6 Chapter 7 Part 1

The Trial of Emst Zundel:
Revisionism and the Law in Canada
by Leonidas E. Hill

In 1985 a 46-year-old German citizen Ernst Zundel, who has "landed immigrant" status in Canada,1 was tried in Toronto for publishing falsehoods about the extermination of the Jews by the Nazi regime during World War II- that is, for denying the factuality of the Holocaust. His publications were pamphlets entitled Did Six Million Really Die?2 and The West, War, and Islam. The Crown prosecuted because of Zundel's alleged "injury or mischief to a public interest,"3 in this case to members of the Canadian Jewish community who had survived the Holocaust, or whose relatives had experienced it or died in it. Also, the state desired to prevent the dissemination of propaganda that stimulates hatred of Jews, or antisemitism.


The son of a lumberjack who served as a medic during World War li, Ernst Zundel was born on a farm held by his family for over 300 years in the Black Forest region of West Germany. He claims that his parents were apolitical. A sister is a Christian missionary in Africa, his brother a lawyer in the United States. In 1958 Zundel came to Canada in order to avoid the peacetime conscription of West Germany, but he has remained a German citizen and holds landed immigrant status in Canada. However, in 1982 the Federal Republic of Germany refused to renew his passport because of his denunciation of the government for being full of "toadying Quislings." After working at Simpson Sears as a commercial artist in his first years, he soon became "the best photo retoucher in Toronto" with some valuable contracts, such as for the covers of Maclean's magazine. He lost much of this work, as well as his French- Canadian wife, because of his efforts to rehabilitate the historical reputation of Nazi Germany.

A believer in an international Jewish conspiracy, Zundel spreads his views through the publications of his Samisdat Publishing Ltd., which proclaims that Adolf Hitler was a great man, that "nobody was gassed in any German concentration camps-no Jews, no gypsies, no murderers, no Communists, etc., nobody," and that "the Holocaust is a hoax, a money-making Zionist hoax." Each year he sends "tens of thousands" of his antisemitic and neo- Nazi letters and pamphlets to "decision makers," historians, government prosecutors, politicians, and high school and university students in dozens of countries, especially the United States and West Germany. He also makes movies, holds meetings, and gives lectures. He finances these efforts with approximately $50,000 per year in donations as well as $100,000 from sales of his materials, including "Nazi secret weapons art posters" and belt buckles with SS symbols on them.4

The lawyer for the defensse was Douglas Christie, a maverick from Victoria, British Columbia, and the son of a former tail gunner in World War II. Born in Winnipeg, he was raised in modest circumstances near the Assiniboine River and obtained his law degree at the University of British Columbia in 1970. He is combative, abrasive, and eccentric-a passionate opponent of the state's encroachments on the individual and a denouncer of the federal government's policies for bilingualism,5 the metric system,6 and the replacement of the Union Jack with the Maple Leaf flag.7 He founded a political party, the separatist Western Canada Concept,8 and is often on the road speaking on its behalf and organizing branches in electoral districts in the western provinces. His law office is a "bizarre-looking parking attendant's shack in the middle of the lot across from Victoria's courthouse." He lives on a 12-hectare property north of Victoria 9 amid goats and ducks, and chops wood for exercise. He regularly lives in his van or with his client, as in Zundel's fortified Toronto home during this trial. Some observers underestimate him as "a complete dolt," but others perceive a solid lawyer; and at the end of the Zundel trial the prosecutor admitted his surprise at the depth of Christie's preparation.10

The 36-year-old prosecutor, Peter Griffiths, had 15 years of experience as a practicing attorney: nine years in private practice and six years as a Crown counsel. While carrying his usual workload, he prepared for a year for the Zundel trial, but would have liked more time. A law professor who observed the trial closely believed that at least two prosecutors should have been assigned to it and that the Crown should have been better prepared. Mr. Christie supposedly told Mr. Griffiths that "he didn't want to (wage a book war)"; consequently, Mr. Griffiths said at the beginning of the trial there would be no "battle of libraries." But Christie then introduced more than 100 books, although limited by the judge to works in English,11 to which Griffiths had to respond. He found support from historians in Toronto's academic community and eventually brought a historian to his table in the courtroom.12 The transcripts of his questioning of witnesses, of his arguments, and of the judge's rulings show that Griffiths was astute and successful on most issues; this achievement was not appreciated by the press and other observers during or immediately after the trial.13


Ernst Zundel's efforts have aroused intense antipathy; he has gained notice internationally as well as across Canada. In 1980 Simon Wiesenthal wrote Canada's Solicitor General, Robert Kaplan, that many of Zundel's anti- Jewish and neo-Nazi leaflets and circular letters were circulating in Europe.14 In May 1981 five Jewish groups in Toronto marched on Zundel's home and denounced him.15 In 1983 he was mentioned in the House of the Ontario legislature "as one of the world's biggest purveyors of Nazi propaganda"; and the Ontario Attorney General told the same body that if the government had "a reasonable chance of a successful prosecution" of Zundel, it would "encourage the laying of charges."16 In 1981 the Holocaust Remembrance Association, an activist Jewish group that had broken from the Canadian Jewish Congress in 1978 because of its reluctance to press on such matters, asked Andr6 Ouellet, the Liberal Postmaster General, to revoke Zundel's mailing privilege. The Canadian Post Office did this for a time even though the Canadian Civil Liberties Association had argued that the minister should not have such power under the Post Office Act. Zundel appealed to a three- member federal review board, which advised Mr. Ouellet to lift the suspension, partly because Zundel had not been prosecuted or convicted for his publications. In October 1982 his mailing privileges were restored.

The revocation of his privileges did cripple his operation, and recovery was slow. 17

Then their attorney, Robert McGee, suggested that the Holocaust Remembrance Association lay a charge privately on the basis of Section 177. This they did, but the Attorney General of Ontario, Roy McMurty, intervened and directed that a Crown attorney prosecute the case because it was in the public interest that Zundel be prosecuted. The Crown had hesitated to lay charges under Section 281, the hate-literature section in the Criminal Code under which James Keegstra was subsequently prosecuted in Alberta, because the chances of winning such a case appeared so slight, but decided to proceed under Section 177.18

During 1985 there were two trials in Canada of deniers of the Holocaust: Ernst Zundel in Toronto, Ontario, under Section 177 of the Canadian Criminal Code, and James Keegstra in Red Deer, Alberta, under Section 281.2. In both cases, the corollary of denial of the Holocaust was antisemitism, and thus promotion of hatred. Because the Crown had not often prosecuted on the basis of those laws, there were few precedents. However, because of the timing of different parts of the proceedings, the two cases provided support for one another, especially on the important question of whether the laws were compatible with the Charter of Rights of 1982.19 Some background on recent efforts to frame legislation for the prosecution of such cases and knowledge of the texts of the relevant laws are essential.

The first demands in Canada for legislation that would prevent the dissemination of hate propaganda date from 1953, when a joint committee of the House of Commons and the Senate was preparing a revised Criminal Code. In 1965, a special commission, the Cohen Committee, was appointed to examine the problem; it reported in 1966 that the amended Criminal Code should include sections on genocide and hate propaganda. 20 This was consonant with the fact that Canada was a party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and in 1966 signed, with ratification in 1970, the International Convention on the Elimination of All Forms of Racial Discrimination, Article 4 of which "requires the member states to prohibit, by their criminal law, the dissemination of hate propaganda and all organizations that incite real discrimination."21 In an attempt to harmonize their legislation with the two international conventions, to act on the Cohen Committee's recommendations, and to abide by the Canadian Bill of Rights of 1970, Parliament added three new sections to the Criminal Code in 1970, and retained a fourth to combat hate propaganda, Section 177, which was used to prosecute Zundel.

The first of the new sections was 281.1, against "every one who advocates or promotes genocide." Section 281.2 contains two parts: 281.2(l) against "every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace"; and 281.2(2) against "every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group." This second offense is different from the first "because it does not require that the activity be likely to bring about a breach of the peace." So that this law would not be employed frivolously, Parliament provided in 281.2(6) that prosecution for this offence would not be undertaken without the consent of the Attorney General. Furthermore, Parliament worried that freedom of expression might be unacceptably restricted by excessively zealous prosecution under these clauses and in a subsequent subsection, 281.2(3), provided defenses for the accused. Thus the accused would not be convicted

(a) if he establishes that the statements communicated were true;

(b) if, in good faith, he expressed or attempted to establish by argument an opinion upon a religious subject;

(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred towards an identifiable group in Canada.22

These requirements also influenced the argument about guilt and innocence in the Zunclel trial under Section 177. As will become apparent, an Alberta judge had already ruled in the pretrial decision of R. v. Keegstra 23 on a challenge to the constitutional compatibility of Section 281 with the Charter of Rights. This decision provided a persuasive authority for the ruling in Zundel's trial.

A fourth and already existing section of the Criminal Code, Section 177, could also be used against someone accused of promoting hatred, such as Zundel. According to this law, "everyone who wilfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offense and is liable to imprisonment for two years."24 Thus the Crown had to prove that Zundel had known that what he was saying was false, that he had indeed written and published the material, and that he did so willfully-that is, intentionally, knowing that it could cause injury or mischief. However, the section is obviously vague insofar as it does not specify that the "statement, tale or news" be hate propaganda, which the state wanted to prosecute in the Zuridel case, and insofar as the nature of the "injury or mischief" and the meaning of "public interest" are not clear. No doubt this vagueness helps to account for the fact that Section 177 had been the basis for only four prosecutions, one of which was successful in 1907 but provided no precedent for the prosecution of Zundel.25


Almost immediately after 60 potential jurors assembled on 9 January 1985, Douglas Christie, Zundel's lawyer, asked for a ruling from Judge Hugh Locke as to whether Section 177 was compatible with the Charter of Rights. Christie and the Crown counsel, Peter Griffiths, then engaged in what they called the "Charter argument," which is likely to be a frequent occurrence at trials during the next few years. This requires some explanation.

The Canadian judicial system, which derives from the British, has been based on common law; but in an important series of decisions in the 1950s, the Supreme Court of Canada adumbrated principles that have frequently been viewed as the equivalent of a Bill of Rights. In 1960 the Diefenbaker government enacted a Canadian Bill of Rights in a federal statute, which applied only to the federal government and not to the provinces. However, by November 1981 nine of the 10 provinces had agreed to the enactment of the Constitution Act (1982), which included the Canadian Charter of Rights and Freedoms. The Charter is somewhat similar to the Bill of Rights in the United States and applies to both the federal and the provincial governments.26

Because of decisions in the 1950s and the 1960 federal Bill of Rights, the recent Charter does not create an entirely new situation. Nevertheless, lawyers now seek rulings on the constitutionality and applicability of older laws, such as Section 177 of the Criminal Code, under which the Crown was prosecuting Zundel, with respect to the new Charter rather than the principles of the 1950s or the 1960 statute.

Christie first quoted the United Nations Declaration of Human Rights, Article 19, then the rights or freedoms enshrined in the Canadian Charter, and argued that Section 177 restricted freedom of speech unreasonably. According to Section 177, the injury caused by the "statement, tale or news" had to be to a "public interest," wording that, Christie argued, was "vague, imprecise and confusing"27 (160). He asked, "Who can know with any specificity what is in the public interest?" If people did not know, they would feel "great apprehension and fear of speaking out on controversial matters" (12), not so much out of fear of conviction as of prosecution. Furthermore, through this section the courts "will be put in an absolutely impossible position of having to decide what is true or false about something that happened forty years ago in which there's differences [sic] of opinion even today, and it is my submission [that] the section is not really legally enforceable" (13). No one could say a priori what was true or false "until we go to Court and find out what the jury decides is the truth" (26).

By quoting the entirety of Articles 19 and 20 of the International Covenant, Mr. Griffiths demonstrated that a number of clauses ignored by Christie did recognize limits to the freedom of speech. A recent decision of Justice Quigley of the Alberta Queen's Bench on a pretrial motion in R. v. Keegstra argued the compatibility of Section 281.1 of the Criminal Code with the Charter (17-22) and made clear that a small and proportionate limit on free speech was allowed by the careful wording of the International Covenant, the Charter of Rights in Canada, and the Bill of Rights in conjunction with a number of court cases in the United States. News, he thought, could also be taken to mean "tale" or "story" or "history." The writer or publisher would not only have to know that what he wrote or published was false and then willfully publish it, but also thereby "cause some damage to the public interest" (24).

Much of Mr. Griffiths's, and hence Justice Quigley's, argument was adopted by Justice Locke in his ruling. Justice Quigley had cited a decision by the Supreme Court of Canada "which made it illegal to propagate communism or bolshevism as ultra vires the provincial government" (164).28 In this case Justice Rand noted that during the past 150 years in the United Kingdom and Canada the

steady removal of restraints on this freedom [had stopped] only at perimeters where the foundation of the freedom itself is threatened. Apart from sedition, obscene writings and criminal libels, the public law leaves the literarv, discursive and polemic use of language, in the broadest sense, free (164).
In another case from Alberta in 1938,29 justice Duff named a number of restrictions on the right of public discussion such as "considerations of decency and public order" and "public interests with which ... the laws of defamation, and sedition are concerned" (165). Furthermore, Chief justice Rinfret of the Supreme Court of Canada had written in 1951 "that to interpret freedom as license is a dangerous fallacy."30 The Supreme Court did not accept "that persons subject to Canadian jurisdiction 'can insist on their alleged unrestricted right to say what they please and when they please, utterly irrespective of the civil results which are often inevitable' " (166). In his Keegstra opinion, Justice Quigley observed that freedom of speech is not absolute in the United States, where there are restrictions on "obscenity or libelous and insulting words" (166). He cited a number of cases accepting restrictions when "such utterances are no essential part of any exposition of ideas and are of slight social value as a step to truth so that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality" (166). Like Griffiths, Judge Locke also noted that Article 19 of the International Covenant on Civil and Political Rights, signed by Canada, allows some limits (166-67).

In his view Section 177, used at the Zunclel trial, and Section 281.2, which was applied to Keegstra, had the same purpose. "Those sections seek to prohibit the wilful promotion of ideas that are designed to cause injury or mischief to a public interest, or to promote hatred." For that reason the conclusion of Keegstra could be applied in the Zundel case, "and Section 177 should be found to be valid legislation" (167).

Contrary to Christie's argument, which was also expressed by other lawyers quoted in the press, Judge Locke did not find Section 177 vague or imprecise:

The section applies only to statements that are known to be false andthat cause or are likely to cause injury or mischief to a public interest. A "well-intentioned citizen" could consider the criteria established by the section and determine whether his or her behaviour is unlawful (167).
Of course, a higher Canadian court might find that Section 177 did infringe the right of freedom of expression guaranteed in the Charter; so Judge Locke had to consider whether the denial or limit was reasonable, whether it was a "demonstrably clear point of view," and whether it was justified. Section I in the Charter "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" (168). Whichever party claimed the benefit of the section-in this case, the Crown-had to bear the burden of proof.

In re Germany (Federal Republic) and Rauca, Chief justice Evans stated that the judge must determine whether a "limit" as found in legislation is reasonable or unreasonable. The question is not whether the judge agrees with the limitation but whether he considers that there is a rational basis for ita basis that would be regarded as being within the bounds of reason by fair-minded people accustomed to the norms of a free and democratic society.31

In order to determine the reasonableness of the legislation, Judge Locke examined three factors: "rationality, proportionality, and comparison to other free and democratic societies." The rational basis seemed self-evident: "ordinary Canadians" want "to control the mischief and injury caused by the spreading of false information" and "find the dissemination of this type of material offensive. Furthermore, recent history has shown the danger of permitting an unlimited right of freedom of expression" (169). Without offering any examples from recent history, Judge Locke examined proportionality. He was convinced that "the Code has a very minimal effect on the overall right of freedom of expression. It limits only those expressions that are wilfully published by a person who knows they are false, and that are statements that cause or are likely to cause injury." Regarding the comparison to other democratic societies, he quoted the Ontario Court of Appeal's view that ultimately only the facts of Canadian society can answer the question "whether the limit imposed on the particular guaranteed freedom has been demonstrably justified as a reasonable one, having balanced the perceived purpose and objectives of the limiting legislation, in light of all relevant considerations, against the freedom or right allegedly infringed" (170). He concluded "that the limitation imposed by Section 177 on freedom of expression as guaranteed by Section 2(b) of the Charter is reasonable, is prescribed by law, and is demonstrably justified in a free and democratic society" (171). Hence he dismissed the motion and proceeded to another ruling on the right of the accused to challenge for cause, that is, because of evidence concerning pretrial publicity about Zundel and prejudice of particular groups against him.


For the defense Christie wanted to ask each prospective juror some questions: whether he or she had "any moral, religious or other beliefs relating to Jews or the Holocaust" or Freemasons "such that you would convict or acquit regardless of the law or evidence"; whether he or she believed "that the Jews of today are God's chosen people or especially favoured by God" (173-74); whether he or she believed in the extermination of Jews and the existence of gas chambers during World War II, or could consider the matter only on the evidence presented in court; and whether he or she had "any abiding prejudices against German people." He also asked Judge Locke to exclude Jews and Freemasons as potential jurors because such jurors were bound to be biased (175-76). Moreover, Christie wanted to inquire whether Jews or Freemasons were among the relatives, friends, or employers of prospective jurors.

Griffiths argued against challenge for cause with Christie's questions, which would disenfranchise citizens. Hitler's criteria could not be used to define a Jewish person. What criteria could be applied? And how could Freemasons be defined? The gas chambers and the Holocaust had been the subjects of thousands of books, which had demonstrated that they were as true as the answer to the question, who had won World War II.

Christie denied that he was trying to apply Hitler's principles but insisted that "if a group happens to be involved very closely in the issue of fact to be tried, yes, they are not qualified-I don't care who they are-to judge their own cause" (146). Freemasons on the jury would be in that position. About judicial notice he said only, "I don't think we should take judicial notice of all the facts referred to in the [Zundel's] brochure" (149). Judge Locke did not address the issue aside from mentioning two standard works that examine judicial notice (212). At this point in the trial, Griffiths did not seek a ruling, and Judge Locke did not invite argument on judicial notice.

To support his motion by demonstrating that most jurors would already have formed an opinion about the case, Christie submitted over 20 exhibits. Most of them were copies of articles in newspapers; but there were also some recordings of telephone calls and threats to Zundel, as well as videotapes of television news broadcasts that featured Zundel and his followers clashing with the Jewish Defense League, and Zundel testifying about the encounters. Griffiths asked questions suggesting that Zundel sought publicity and was deliberately provocative. In his ruling Judge Locke observed that both sides were organized, disciplined, protected by hard hats and bulletproof vests, and carried walking sticks or wooden shafts for placards that would be and were used as clubs: "Each group accepts and understands that when they intentionally confront one another, physical violence will be the expected result" (177). Zundel always appeared calm, smiling, well dressed, and coherent, had "time for the appropriate quotation in clear language for the press," and gave "the authentic Nazi salute ... near the end of each confrontation." The films did not, however, as the Crown had made clear, "disclose the existence of provocative banners strung against the outside walls of Mr. Zundel's home," banners which "displayed for all to see the written message that the Holocaust was a hoax and six million Jews did not die in it, or words to that effect" (178-79). The banners also carried Zundel's telephone number, a practice that encouraged threatening calls. Thus Judge Locke clearly thought that Zundel had desired and provoked the clashes and had wanted to make the news that he now pretended to fear would prejudice the jurors.

The judge accepted that there had "been a heavy, persistent and recent dissemination of the subject matter of this case to the public at large" (180). Hence he thought "it would be quite impossible to select twelve jurors about whom one could be sure that none had heard about these charges against Mr. Zundel." This situation did "not necessarily make a juror unfit to serve" (182). He would not allow Christie to ask his questions because to do so would allow the "disenfranchising [of] a substantial segment of our society in this community from the right and duty to sit as a juror in a court of criminal jurisdiction in a democratic country." He bore in mind the presumption expressed in R. v. Hubbert "that a juror not disqualified by the statute under which he is selected, will perform his duties in accordance with his oath.32 Furthermore, "challenge for cause is not for the purpose of finding out what kind of juror that, person called is likely to be-his personality, beliefs, prejudices, likes or dislikes." They did not want to emulate American practices in this regard.

Judge Locke found that all the questions offended the principles set out in this case:

There is no evidentiary connection between the attracted notoriety and the reasonable prospect that any prospective juror, regardless of his or her racial origin or religious belief, or for any other reason, would be unable to impartially return a verdict in this trial based solely and only upon the evidence led thereat (187).
Zundel had elected trial by jury despite the public notoriety he had attracted to himself, and his decision did not "entitle him to use any of these questions to challenge his prospective jurors for cause in order to tailor his own jury to suit him." Hence he dismissed the application. After these rulings, the selection of jurors took place quickly. The defense rejected three of them, one less than allowed. Ten men and two women, most middle-aged or elderly, were swiftly selected.


The strategy of the Crown, conducted by Peter Griffiths, was relatively simple. Through its witnesses, the Crown had to demonstrate in the terms of Section 177 that Zundel's writings were false and caused "injury or mischief to a public interest." In order to accomplish this objective, the Crown brought to the stand Professor Raul Hilberg to testify at enormous length as an expert witness about the manifest falsity of Zundel's chief contentions (629-1243). Professor Hilberg is an eminent historian of the Holocaust familiar with the documentary evidence.33 A number of survivors of concentration and extermination camps, particularly Professor Rudolf Vrba (1244-1638), author of a book about his own escape from Auschwitz,34 testified about what they themselves had experienced of pain and privation and what they had observed or heard or smelled concerning the fate of their fellow prisoners. The Crown also brought to the stand some witnesses to contradict Zundel's assertions about conspiracies by contemporary Freemasonry and Jews to manipulate the Canadian and international banking systems (232-304, 505-83, 1844-1929). The Crown also had to demonstrate that Zundel had known his views were false, and attempted to accomplish this by questioning him.

In the first part of the trial, the strategy of the defense was to cast as much doubt as possible through cross-examination on the testimony of Professor Hilberg and the survivors; and in the second part of the trial, to prove that Zundel's writings were true. In its own half of the trial, the defense, conducted by Douglas Christie, introduced in evidence an enormous list of books in order to demonstrate that Zundel had read widely in his research and had quoted properly from many sources in his published writings. Then Christie tried to qualify a number of defense witnesses as experts comparable to Raul Hilberg, and succeeded with a few. Their testimony was followed by the lengthy testimony of Zundel himself.

How did these strategies work? Professor Hilberg offered restrained and balanced testimony, based on massive written evidence to which he could only refer, about Zundel's claims regarding the Holocaust, which in Hilberg's opinion were "concoction, contradiction and untruth mixed with half-truths" (691). He was clearly enormously learned and almost unshakable in the face of Christie's aggressive cross-examination. He rarely showed irritation and explained patiently what kinds of evidence were missing, or were available and supported certain conclusions, or had to be rejected as implausible. In response to the questioning of Mr. Griffiths, the survivors related their experiences in harrowing detail, experiences that constituted a refutation of some of Zundel's chief beliefs. Mr. Griffiths drew out these witnesses very ably and built a strong case in support of the Crown's contention that Zundel's writings were false. He also implicitly suggested to the jury that anyone inquiring fairly about the Holocaust would have to examine carefully the materials handled by Hilberg and hear the survivors, or else he could hardly claim any credibility.

In cross-examination Christie tried to cast doubt on Professor Hilberg's testimony as well as on the recollections and observations of the survivors in such a bullying fashion that he angered Professor Vrba (1534, 1582-83) and distressed a number of the others. Christie's behavior toward the witnesses of the Crown probably damaged his own case in the eyes of the jury. At the same time, it was clear from his questioning of Hilberg and the survivors that Christie knew much more than anyone had expected about the Holocaust and could ask questions to which there were no easy answers because the remaining evidence was minimal or because little genuinely scholarly work had been done to answer them.

Christie won one part of the book war in that he extracted from Griffiths the concession that Zundel had in most instances quoted properly (3466), and the jury must have been struck by the number of sources that apparently supported one aspect or another of his argument. Although Griffiths could cast doubt on a source, it was simply impossible to refute or examine each source in the courtroom so as to demonstrate that what Zundel had accurately quoted was nevertheless false or had been manipulated in combination with other sources to provide a false picture of something larger than any one of them. He had to forego such an effort in favor of relentless questioning of the defense witnesses.

Christie surely made a mistake when he stated in his opening address that he would demonstrate that Zundel's claims in his booklet Did Six Million Really Die? were true, above all that millions of Jews had not been killed in gas chambers in extermination camps (2349). He could attempt to cast doubt on the numbers attributed to the Holocaust, but he could not prove Zundel's claim for the best of all reasons: because it was and is not true. If he had merely introduced Zundel's books and witnesses who shared Zundel's views and claimed expertise, Christie might have saved his client from conviction on the ground that he had relied on such authorities in good faith and never realized the falsity of his views (2340). But Christie almost certainly lost favor with the jury when he suggested that the survivors were imagining things or suffering from hysteria, and when he tried to prove that millions of Jews had not been killed in the gas chambers.

The defense witnesses were a bizarre lot with checkered careers. There were three university professors and one secondary school teacher who had lost their teaching positions because of their claims that the Holocaust was a hoax: Robert Faurisson, a suspended professor of French literature at the University of Lyon-11 (2353-2890);35 Gary Botting, professor of English at Red Deer College in Alberta and author of an academic book (3571-3632);36 Charles Weber, who had taught German and German literature at the University of Tulsa (3351-95); and the former Alberta schoolteacher James Keegstra (3487-3512). Other outlandish witnesses included Ditlieb Felderer, an apparently deranged 42-year-old Swede, a frequent visitor to the concentration and extermination camps with an enormous collection of slides of them, whose satirical treatment of the Holocaust was macabre and offensive (3157-3275);37 Dr. William Lindsay, a chemist with a doctorate from the University of Indiana, who demonstrably warped his testimony about gas chambers (3043-3155);38 and Udo Walendy 39 and Thies Christopherson,40 two elderly German authors of notoriously deficient books about the origins of World War II and Auschwitz, both of whom have been prosecuted more than once in the Federal Republic of Germany and who made very little sense in English. More reputable witnesses were not much better: for example, the journalist Doug Collins 41 from Vancouver (3637-82); and Reverend Ronald Marr, a Baptist minister and publisher of the Christian Inquirer in Niagara Falls, New York, speaking in favor of free speech (3472-86); or the pathetic Frank Walus,42 a locomotive fitter who had been misidentified as a Gestapo agent and prosecuted in Chicago (3409-19). During his lengthy testimony, Zundel confessed to being a disciple of the Quebec Fascist Adrian Arcand43 (4287-88) and unwisely tried to persuade the jury that Hitler had possessed many admirable qualities (68, 4270-71).

Christie's strategy also included discussion of mass hysteria and free speech. Some of his witnesses testified to hysteria during and after the war that led to the Nuremberg trials and other trials, as well as to the "myth" of gas chambers and the Holocaust, and to the hysteria that in our day results in witch hunts against the people like Walus, Keegstra, and Zundel (2892-2976, 3513-67).44 The testimony on hysteria contained some valid points, but not enough to disqualify the evidence for many millions of murdered Jews and others, which clearly had nothing whatsoever to do with hysteria. The argument about the necessity for free speech was advanced by reasonable witnesses, but without much philosophical depth. Thus these two points probably did not have great impact on the jury.

In cross-examination Griffiths emphasized the criminal records and dubious academic status of some defense witnesses, as well as the association of many of them with the notorious Institute for Historical Review in Torrance, California.45 He demonstrated the ignorance or falsity or warped nature of at least some testimony of each of Christie's major witnesses who was qualified as a kind of expert, and he carefully avoided dispute over matters where the Crown was unlikely to win any notable advantage. One of his most surprising and successful moves was the introduction late in the trial of further writings of Zundel (4216, 4221). Christie tried but could not prevent this (4222-26). These writings made clear Zundel's antisemitism, his admiration for Hitler, and his advocacy of revolution in the Federal Republic of Germany (4351-58), thus his cynicism, his conscious use of falsehoods in propaganda, and his intent to cause public mischief by them. His ultimate purposes were exposed. This exposure probably convinced the jury that Zundel was dangerous and that his denial of the Holocaust, not the Holocaust itself, was the hoax.


The Crown was also very effective in that most of Judge Locke's rulings, with the exception of the one on judicial notice, followed the arguments of Griffiths. Some of these deserve further examination.

After the trial the newspapers quoted an observer who criticized Griffiths because he had supposedly attempted to obtain judicial notice of the Holocaust only late in the trial and was for that reason unsuccessful. The criticism was unjust. At the beginning of the trial, Griffiths suggested to Judge Locke that judicial notice of the Holocaust was appropriate: "It had been done before in a court of law in California in 1981."46 The case was Mel Mermelstein v. The Institute Of Historical Review; the Institute had offered a $50,000 reward for proof of the existence of the gas chambers. Mermelstein offered proofs, but the Institute rejected them and refused the reward. Mermelstein sued for $1.7 million. When the case came before the Superior Court of California in 1981, Judge Thomas Henderson took judicial notice of the Holocaust.47

But in the trial of Zundel, Judge Locke promised consideration of the question only after the nature of the trial was clearer. Thus approximately halfway through the trial, and after the prosecution had presented its witnesses, Judge Locke temporarily dismissed the jury and heard arguments on judicial notice as well as on presentation of a gruesome film of the concentration camps.

Judicial notice is an evidentiary technique for clearing a trial of argument about matters that are indisputable.48 Matters in the field of judicial notice are not subject to attack by evidence, and whatever is covered by such judicial notice is "an exception to the general rule that a judge or jury may consider only evidence which has been tendered in court" (2096). Judicial notice may be taken "of any fact or matter which is so generally known or accepted that it cannot reasonably be questioned, or any fact or matter which can readily be determined or verified by resort to sources whose accuracy cannot reasonably be questioned" (2097). Such knowledge "tends to be general, rather than particular, or notorious, rather than obscure or technical. . . . Although the scope of judicial notice is constantly enlarging, it lags very far behind the advance of expert scientific knowledge" (2095). At the same time it is not necessary that the judge or the jury actually know what is being judicially noticed. It is enough that the matter is in the realm of what would be considered common knowledge.

Judge Locke asked Mr. Griffiths what would be left for the jury if he took judicial notice of the Holocaust. Griffiths answered that the jury could still consider the issue of whether or not Zundel genuinely believed that the Holocaust had not taken place and whether or not his pamphlets created a mischief to the public interest. He argued that a great deal was still open to dispute and that a full and complete defense was still available on a number of issues (2093-94).

Mr. Griffiths asked how one determines what kinds of matters should be given judicial notice, and answered by quoting another ruling: "It is not reasonably subject to dispute and it is capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. It is simply a fact" (2100). Thus the "first test was ... whether the facts are indisputable by a reasonable man by resort to common knowledge, and the second test would be whether it is a fact that is easily ascertainable by resort to different sources" (2103). Rather than use the term Holocaust, Griffiths preferred the more precise description "annihilation of European Jewry between 1933 and 1945 by reasons of deliberate policy of Nazi Germany" (2103)49 for the fact that he wanted judicially noticed. He then proceeded to provide lengthy references to a series of postwar trials that, he contended, had established this fact beyond questioning (2104-11).

Christie argued that the books and articles submitted by the Crown were nothing more than opinions, that the Crown was asking the Court to decide one of the main issues that the jury was to decide, and that the Crown should not be allowed to impose its views upon the jury by the Court until both sides of the case had been heard. He argued that "other learned authors" had written accounts contradicting those cited by the Crown (2186). Hence the defense wanted to present its evidence and let the jury decide the issues. According to Christie, never before in Canadian judicial history had a court been asked to take judicial notice of an event of history that was the subject of the contest between the Crown and the defense. Christie also asserted that if Judge Locke "took judicial notice of the existence of the Holocaust the result would be that writers of the future [would be] prohibited from freely expressing their views should they take a contrary position" (2187). Finally, it was not clear and proven that there were plans to annihilate the Jews. If there had been such plans, there should have been "tangible evidence of an identified order emanating from Hitler" (2187). For all of these reasons, the defense thought judicial notice was inappropriate.

Judge Locke's ruling accepted Mr. Griffiths's arguments in everything but the legal issue. The judge resorted to dictionaries, cited the transcripts of the Mermelstein trial, said that at the Nuremberg trials "just and proper punishment was handed out in which I regard as a proper judicial, fair and democratic manner, after lengthy trials" (2185), and accepted that there had been massive documentation of the annihilation in numerous other trials as well as in various documentary collections:

It would appear to me, on what I have read and heard, that there exists wide and highly regarded opinion that the Holocaust did occur. The issue now revolves on whether or not, in the light of the circumstances of this particular trial, it is judicially prudent on my part to grant the Crown's motion (2188).
Thus he did not refuse judicial notice because he thought there was any doubt about the attempted annihilation of the Jews as policy of the Nazi state. Rather, he believed that
to grant this motion, . . . would have the effect, in the eyes of the public, as well as perhaps in the eyes of the jury and the accused, of not providing the defence and the accused with full answer and defence. It would have the effect of substantially eliminating a portion of the duty incumbent on the Crown insofar as the guilt of this accused is concerned (2191).


In the absence of the jury, the Crown and the defense also argued before the judge for a ruling on the showing of a film. Griffiths wanted the film Nazi Concentration Camps admitted as evidence in response to the portions of the booklet published by Zundel, Did Six Million Really Die?, under the headings "Humane Conditions" and "Unavoidable Chaos," including a photograph of alleged concentration camp inmates beaming at the camera with the caption "Healthy and cheerful inmates released from Dachau" (2289).50 As Judge Locke explained in his ruling, the purport of this section of Zundel's booklet is

very definitely to the effect that the S.S. in Germany during the Second World War punished its own for unnecessary brutality to civilian prisoners in concentration camps, that the alleged inhumane conditions in the camp are gross exaggerations, that the camp itself was clean, and that the inmates thereof were kept in a reasonably healthy state, both physically and, as I read it, from an emotional or mental point of view (2189).
The film was composed of 6,000 out of 80,000 feet of film taken of Nazi concentration camps by members of the American armed forces as they liberated the camps during April and May 1945, before the war had ended (2198). An anonymous voice narrated the film, which had been an exhibit at the International Military Tribunal at Nuremberg in 1945 (2195).51

Mr. Griffiths argued for an exception to the rule excluding hearsay. He cited three authorities, the first two in the Canada Evidence Act (Sections 30[l] and 25) and the third in common law (2241-56, 2290). Christie argued against admission of the film on many grounds: its contents were inflammatory and would unduly influence the jury; no cross-examination of it was possible, and one could not "ascertain whether the situations depicted [were] true or false"; it contained judgmental and hearsay portions; it was untrustworthy because it was "not prepared by a person being soliely objective in the exercise of a public duty to create that film" (it was prepared for the prosecution at Nuremberg); "there was no evidence of the narrator having been present when the film was recorded"; "very little of the film dealt with matters raised in Zundel's booklet" (2204); and the film attacked things that the booklet did not defend.

Judge Locke viewed the film and in his ruling remarked that if he ruled to admit the film, the "exhibit showing the state of inmates in these camps as depicted would provide the jury with a good deal of evidence which, if believed, would permit the jury to certainly come to an opposite conclusion than the conclusion that is stated on the pages of" Zundel's booklet (2290). But he was persuaded that the film was a public document and thus could be admitted because "public documents in common law are admitted as an exception to the hearsay rule. They relate to documents made by a public official in the discharge of a public function with a view to making a permanent record, and to which the public has access" (2295-96). The testimony about the film by William T. Murphy, a Records Officer in the audiovisual section of the United States National Archives, and the accompanying documentation made clear that the conditions of making and preserving the film satisfied the tests a trial judge should put to a public document according to the Ontario Court of Appeals in R. v. Kaipiainen (2297).

The liberation of a number of concentration camps had been recorded by the Signal Corps of the U.S. Army in accordance with orders from the Supreme Allied Command Headquarters under General Eisenhower (2293-94). Affidavits from officers associated with the original filming verified the circumstances and time, and other documents confirmed the transfer of the films from one department of government to another until their registration in the National Archives. The public had access to the film as well as to the documents confirming "the authenticity, the fidelity and the continuity" of the film. The original films from which the documentary footage had been selected were unaltered, but "Mr. Murphy was not able to say that the narrator was present when the film was made initially" (2292). Thus the film was a record made by public officials under the orders of a superior officer and was a permanent record open to the public. It had been demonstrated "that the record came from the proper custody and emanated from a proper, legal environment to make it admissible" (2298). Judge Locke ruled that the film should be admitted.

This gruesome one-hour film of Thekla near Leipzig, Penig, Ohrdruf, Hadamar, Breendonck, Arnstadt, Mauthausen, Buchenwald, Dachau, and Bergen-Belsen52 showed close-ups of torture devices; shower heads which, according to the narrator, had poured cyanide gas onto inmates; starved, skinny, and nearly immobile survivors; stacks of dessicated, rotting corpses; fly-covered faces in death stares; exhibits of lampshades and paintings made with human skin; and the filmed testimony of a woman prisoner with medical training who recounted how fellow inmates had been sterilized or had died hideously after being injected with benzine. Hardly anyone in the courtroom could have remained unaffected by the viewing. After the film the Crown counsel Peter Griffiths rose and said, "That is the case for the Crown, your honor," thus ending the first half of the trial.

When Christie presented his witnesses during the second half of the trial, he attempted to qualify them as experts and to introduce their evidence which, he said, had not only influenced Zundel but also supported Zundel's argument that there had been no Holocaust. Thus he repeatedly argued for acceptance of some of Faurisson's and Felderer's slides of concentration and extermination camps (2671-78, 3178-3232, 3542-64) and of Lindsay's photographs of American gas chambers for the execution of criminals (2609). Griffiths argued against their admission on the ground that photographs of camps and of American gas chambers taken long after the war would distort rather than clarify the issues. In all these instances and in another concerning a model of Auschwitz, Judge Locke ruled against admission (2546, 2552-54, 2699, 2710-11, 3110-12, 3228-32). As we will see, the appeal court thought some of these rulings were mistaken. However, it is here appropriate to return to the two main issues of the trial itself: the Crown's effort to demonstrate that Zundel's claims of conspiracy and his denial of the Holocaust constituted false news.


The charges of false news related to two of Zundel's publications, Did Six Million Really Die? and The West, War, and Islam. The prosecution presented its case from January 11 until February 2 through witnesses who were called to show the falsity of Zundel's contentions about the existence of a contemporary conspiracy by Freemasons, Jews, and bankers, and about a hoax to persuade the world that the Nazi regime had killed some six million Jews during World War II, many of them by gassing. Zundel said that he had written The West, War, and Islam after reading an advertisement in a German newspaper placed by four Jewish survivors of concentration camps who also belonged to a Masonic lodge (4092, 4405). The advertisement suggested a link between Adolf Hitler and Yasser Arafat, leader of the Palestine Liberation Organization, and predicted a new Holocaust. Articles in the New York Times and Washington Post that Zundel found inflammatory and anti-Islamic revealed their "Zionist ownership." Clearly the Zionists, Freemasons, and Communists wanted to provoke a war with the Islamic world, and Zundel wanted to prevent it by mailing his booklet to influential "Islamics" in countries such as Morocco and Pakistan. He proposed to use the money that he solicited from them in order to undermine "Islamic stereotypes" and work against Zionist propaganda in North America.

During his testimony at the end of the trial, Zundel elaborated on his explanation of modern history. Throughout its history Freemasonry was anti- Christian (4201) and under Jewish influence (4190, 4201), as is evident in the way it draws on the kabala (4198). Freemasonry is connected with Satanism and Communism (4105), and was often a moving force in revolutions. George Washington had hatched a plot of the Masonic lodges against the British government (4196), and for this reason Washington's picture appears on the American one-dollar bill in conjunction with Masonic symbols (4104). Freemasons had played a major part in triggering the French Revolution in 1789 (4105) and had apparently attempted a revolution by engineering Lincoln's assassination (4213); international financial circles, especially Jacob Schiff, had financed the Russian Revolution. Zundel referred to Ludendorff's claims about Jewish influence (4102), presumably in the "stab-in-the-back" that he was certain had caused Germany's defeat in 1918. As more recent evidences of the influence of Freemasonry, he cited the P2 Lodge Scandal involving financial manipulations in Italy, Switzerland, and Argentina (4101, 4198), which terminated inexplicably and mysteriously after one of the chief figures, Galli, was found hanged under a London bridge (4199). This phantasmagoric panorama of modern history was the backdrop to the claims of his pamphlet concerning Islam and the West.

In his pamphlet Zundel referred to "Freemasonry and all its cover organizations like the Kiwanis, Rotary, Lions, etc." He claimed that "most Western decision-makers, politicians, economists, and military officers are either members of a secret society or are dominated by such members." According to Zundel, the fact "that most Freemasons are unaware of the directors and direction of their secret organization does not preclude their blind, unthinking support of this organization and their obedience to its directives."

To dispute these contentions, the Crown called two policemen who were Freemasons.53 As might have been expected, the witnesses explained that they had sworn on the Bible not to tell the secrets which pertained only "to signs, symbols and words." At his level of membership, one of them was unaware of the conspiracy postulated by Zundel; but the other, whose rank was much higher, said that Freemasonry is a philanthropic organization and that it was ridiculous to suggest the society promoted conspiracies. However, he agreed with Christie that he would not be privy to secrets known by his superiors. The witness also knew nothing about arcana mentioned by Christie (and Zundel): the Star of David on Masonic emblems; symbols of Freemasonry on U.S. currency;54 the presidents of the United States, such as George Washington, who had been Freemasons; the Christian sects that condemn the order; or Benjamin Franklin's membership in the Hellfire Club in London, a group supposedly known to practice Satanism (527). Nor did he know about any connection of Freemasonry with the P2 Scandals in Italy, with the 52 police forces in London in 1981 (545), or with Roger Hollis, the Mason who was the general director of M15 from 1956 to 1965 (549). Christie used an article as the basis for his questioning, and Judge Locke eventually admonished him to stop reading from the article and indirectly using it as evidence (549).

Later in the trial, John Barnett, a senior vice-president of the Royal Bank of Canada, denied categorically that his employer was one of "the dark forces arrayed against all mankind, for their control of the world's wealth directs and determines largely what is done or not done in the world and whether what is done is good or evil," as Zundel's pamphlet claimed. Christie attempted to show the reasonableness of Zundel's statements: that the banks made loans to other countries without a backing of cash reserves, that they attempted to dictate economic and social policy in other countries through the International Monetary Fund, and that international bankers dealt more readily with communist countries than many democracies because a state-run economy would be more reliable about repayments. The witness said that the Canadian government encourages lending to countries such as Poland, Romania, and Yugoslavia in accordance with trade agreements benefiting Canadian firms.

This testimony obviously was not clear proof that the claims advanced in Zundel's pamphlet The West, War, and Islain constituted false news, nor did the cross-examination of the witnesses demonstrate that Zundel's claims were true. The courtroom was not the place to achieve either objective. At the same time most reasonable people have concluded that the world works in other ways; only a minority of true believers find relief in claims like Zundel's. At the end of the trial, the jury did not find Zundel guilty on the charge involving this pamphlet, even though its content was insidiously antisernitic. Most of the testimony at the trial was concerned with the Holocaust, for which the evidence was much more solid.


In his writings Zundel denied the Holocaust for a number of reasons; his lawyer and those who testified for him found additional ones. Thus a number of categories of denial can be discerned in the thousands of pages of testimony, and some of these positions have apparently gained wider acceptance by the public.55 After an examination of the claims by Zunclel and his supporters will follow a summary of the refutation contained in hundreds of pages of testimony at the Zundel trial.

One of the most complicated arguments advanced by the deniers of the Holocaust concerns the numbers of Jews who died. The deniers would reduce the number to such a low figure that the term Holocaust would no longer be appropriate. They play with the numbers of Jews in Central and Eastern Europe and in the Soviet Union in 1939 and after the war-insofar as we know them-and at the time of the next census, so as to support their claim that most of the Jews must have fled from Germany or Eastern Europe into the Soviet Union or other countries in such great numbers that the claims of numbers killed in the Holocaust cannot be correct (3448-56).56

They also argue aggressively to defend Nazi Germany against the claim that it wanted to exterminate the Jews. In this effort they assert that Anne Frank's diary is fraudulent (2385, 3209)57 and that there is not a single document showing that Germany intended the deliberate murder of the Jews. They do not believe that there was either a written or an oral order for the murder of the Jews from Hitler or anyone else (835, 1181, 1203).58 They deny that the Nazis devised a special language of concealment for the extermination of the Jews. Thus the terms Endlosung (final solution) and Sonderbehandlung (special treatment) mean nothing more for them than their most obvious and superficial translation (854, 984, 986-87, 1061, 1064).59 They claim that Germany wanted to resettle the Jews, provided them with oneway tickets to transfer camps (2173), the concentration camps, and then dispatched them to the settlements in large numbers by truck or on foot. Their baggage was not confiscated from them but sent on to their destinations. The "final solution" was this resettlement of the Jews.

The deniers of the Holocaust will not accept that the Einsatzgruppen killed millions of Jews in Russia. They believe that the reports have been faked and that the Einsatzgruppen were troops for defense against guerrilla activity in the occupied territory after the invasion of Russia. Thus the execution of those Jews was justified in their view, and the large numbers from the reports on Einsatzgruppen activities can be ignored (699-722, 2714-15).60


This article is a revised version of a paper presented on 6 April 1987 at the Sixth Annual Conference on the Holocaust at Millersville University in Millersville, Pennsylvania. I would like to thank Sol Littman and the Simon Wiesenthal Center of Toronto for the opportunity to read the entire transcript of the first Zundel trial, and the Social Sciences Humanities Research Council of Canada for financial support. At the University of British Columbia, my colleagues Professor Elizabeth Edinger, Law School, Al Siroka, Law School Library, and Professor Richard Menkis, Religious Studies Department, have kindly provided me with materials and helpful advice. David Morrison did some very able initial research on legal aspects of the trial. Nancy Hill has made completion of the manuscript possible. This article is belatedly dedicated to Donald E. Emerson on the occasion of his retirement in 1988 from the History Department of the University of Washington in Seattle.

1. See The Annotated Immigration Act of Canada 1986, ed. by Frank N. Marrocco (Toronto, 1986), pp. 46-54.

2. Zundel wrote an introduction for this 26-page pamphlet, as well as published and distributed it. The author of the pamphlet wrote under the pseudonym of Richard Harwood but was apparently Richard Varrall, the editor of Spearhead, the magazine of an English racist organization, the National Front. Zundel entitled the pamphlet Did Six Million Really Die?; it was published earlier in England as Six Million Lost and Found. The pagination is different (two pages more in Zundel's version), but each page is almost exactly the same with the exception of some small changes on three pages. The references in this article are to Zundel's publication. Harwood based his work on The Myth of the Six Million, a 119-page book published in 1969 by the Noontide Press of Willis A. Carlo's Liberty Lobby. This book was almost certainly written by David L. Hoggan, because he subsequently sued Noontide Press for damages and stopped publication for four years. The suit was dismissed, and the tract was reissued in 1973. Hoggan is well-known for his writings that remove responsibility for World War Il from Hitler and Nazi Germany. See Lucy S. Dawidowicz, "Lies About the Holocaust," Commentary (Dec. 1980): 31-77; and Frank P. Mintz, The Liberty Lobby and the American Right: Race, Conspiracy, and Culture, Contributions in Political Science, No. 121 (Westport, CT, and London, 1985), pp. 120-25.

3. These are the words of Section 177 of the Criminal Code.

4. All this information is found in newspaper and magazine articles introduced as evidence by the Crown at the beginning of the trial.

5. In 1963 the government of Prime Minister Lester B. Pearson appointed a Royal Commission on Bilingualism and Biculturalism, which reported in six volumes (1967-1970). In 1969 Parliament passed the federal Official Languages Act, which gave French and English equal status in Parliament and departments of the federal government and also established an Office of the Commissioner of Official Languages. In the following decade, some of the provinces introduced their own legislation-including Quebec in 1974, which made French its sole official language. However, the Canadian Charter of Rights and Freedoms in 1982 entrenched minority language education rights in Canada.

6. The introduction of the metric system began with a White Paper on Metric Conversion in Jan. 1970. In 1971 Parliament amended the Weights and Measures Act, passed a Consumer Packaging and Labelling Act, and appointed a Preparatory Commission for conversion, which was followed by the establishment of 100 Sector Committees in 1973 and commencement of a four-phase program beginning in 1975. Conversion began with temperatures in 1975, continued with road signs in 1977 and service stations in 1979, and will be completed by the end of the 1980s.

7. Since Confederation in 1867, Great Britain's "Red Ensign," the Union Jack, had been the Canadian flag, but in 1963 Prime Minister Pearson proposed a new flag with three maple leaves. After 33 days of debate and 252 speeches, Parliament approved a new flag with one maple leaf in December 1964, and the Queen subsequently signed a proclamation making the new flag official on 15 Feb. 1965.

8. The party was formed in 1980 as a protest against a number of federal policies, such as freight rates, tariff barriers, oil pricing, and bilingual- ism. The founders believed that such policies resulted in injustices to Western Canada, that is, the provinces of Manitoba, Saskatchewan, Alberta, and British Columbia. One candidate won a seat in the Alberta legislature in a by-election in Feb. 1982, but he was defeated in the next election. The party has not elected a candidate since then.

9. Victoria (pop. 65,000) is the capital of British Columbia. Situated on Vancouver Island, it is reached from the mainland and Vancouver by a long ferry ride.

10. Globe and Mail (Toronto), 1 Mar. 1985.

11. This limitation emerges in the judgment of the Appeals Court.

12. Professors Michael Kater of York University and Michael Marrus of the University of Toronto often provided scholarly advice, and Richard Minkus, then at the University of Toronto but now at the University of British Columbia, helped in and out of the courtroom.

13. Globe and Mail, 1 Mar. 1985.

14. Ibid., 12 June 1983.

15. Ibid.

16. Ibid.

17. Ibid., 12 June 1983; 28 Feb. 1985; 9 Mar. 1985.

18. Ibid., 1 Mar. 1985.

19. Peter W. Hogg, Constitutional Law of Canada, 2nd ed. (Toronto, 1985), chap. 29: "Canadian Bill of Rights"; chap. 30: "Charter of Rights."

20. Report to the Minister of Justice of the Special Committee on Hate Propaganda in Canada, Maxwell Cohen, Chairman (Ottawa, 1966).

21. Law Reform Commission of Canada, Working Paper 50, Hate Propaganda (Ottawa, 1986), p. 17.

22. Quoted and discussed, ibid., p. 9. See the Criminal Code, s.281.2(3).

23. R. v. Keegstra (1984), 19 C.C.C. (3d) 254, 14 W.C.B. 112. For a descrip- tion of the background and the trial, with some documentation, see David Bercuson and Douglas Wertheimer, A Trust Betrayed: Tile Keegstra Affair (Toronto, 1985); S. Mertl and J. Ward, Keegstra: The Trial, the Issues, the Consequences (Saskatoon, 1985); and Stanley R. Barrett, Is God a Racist? The Right Wing in Canada (Toronto, 1987), chap. 9.

24. See Hate Propaganda, p. 12.

25. R. v. Hoaglin (1907), 12 C.C.C. 226 (Alta, S.C.).

26. Hogg, Constitutional Law of Canada, pp. 629, 661; W. R. McKercher, ed., The U.S. Bill of Rights and the Canadian Charter of Rights and Freedoms (Toronto, 1983).

27. The numbers in parentheses in the text of this article refer to pages in the text of the transcript of the Zundel trial. The Law Reform Commission concluded that Section 177 is anachronis- tic and too vague becaue it catches any statement which the publisher knows is false, if likely to cause "mischief to a public interest." But what is "mischief to a public interest"? While this phrase may appear to catch only harmful conduct, the appearance is decep- tive. Unfortunately, the reputed prosecutions under this offence, save for the Zundel case, seem unwarranted.

They concluded that Section 177 was inappropriate for the prosecution of Zundel, whose "denials of the Holocaust should be dealt with for what they are-a form of hate propaganda." The Commission recom- mended that Section 177 be abolished. Hate Propaganda, pp. 29-30.

28. Switzman v. Elbling, [1957] S.C.R. 285, 117 C.C.C. 129, 7 D.L.R. (2d) 337 [Que.].

29. Re Alberta Legislation, [19381 S.C.R. 100, [193812 D.L.R. 81.

30. Boucherv. R., [1951] S.C.R, 265, 11 C.R. 85,99C.C.C. 1, [195112D.L.R. 369 [Que.].

31. Re Germany (Federal Republic) and Rauca (1982), 38 O.R. (2d) 705, 30 C.R. (3d) 97, 70 C.C.C. (2d) 416, 141 D.L.R. (3d) 412, 2 C.R.R. 131 (H.C.); and Re Germany (Federal Republic) and Rauca (1983), 41 O.R. (2d) 225, 34 C.R. (3d) 97 (sub. nom. R. v. Rauca), 4 C.C.C. (3d) 385, 145 D.L.R. (3d) 638, 4 C.R.R. 42 (C.A.).

32. R. v. Hubbert (1975), 11 O.R. (2d) 464, 31 C.R.N.S. 27, 29 C.C.C. (2d) 279, affirmed [ 197712 S. C. R. 267, 15 0. R. (2d) 324, 38 C. R. N. S. 381, 33 C.C.C. (2d) 207, 15 N.R. 139.

33. Hilberg's chief work is The Destruction of the European Jews (Chicago, 1961; rev. ed. in 3 vols., New York, 1985). See also his Sonderzuge nach Auschwitz (Mainz, 1981).

34. Dr. Vrba is currently Associate Professor of Pharmacology at the University of British Columbia. He was in Auschwitz from June 1942 to 7 Apr. 1944, when he escaped. See Rudolf Vrba and Alan Bestic, Escape from Auschwitz: I Cannot Forgive (New York, 1964, reprint 1986); and John S. Conway, "Friihe Augenzeugenberichte aus Auschwitz: Glaubwclrdigkeit und Wirkungsgeschichte," Vierteliahrshefte fur Zeitgeschichtc 27 (1979): 260-84.

35. Zundel advertises and distributes a 60-minute film in English entitled Faurisson im Samisdat Hauptquartier, in which Faurisson discusses his struggles in the French courts, where he was convicted in July 1981 of incitement to racial hatred and for racial defamation. A court of appeal later cleared him of inciting racial hatred but made him pay a fine to the court and to the eminent historian Leon Poliakov for libel.

36. Gary Botting and Heather Botting, The Orwellian World of Jehovah's Witnesses (Toronto, 1984).

37. Felderer had spent some time in a mental institution and in 1982 had been sentenced to ten months in prison for inciting racial hatred in Sweden.

38. Zundel advertises a 35-minute film entitled Dr. Lindsay in Dachau and Mauthausen, which purports to show what is "technically false" in the buildings and their facilities.

39. Udo Walendy has written Wahrheit ffir Deutschland: Die Schuldfrage des Zweiten Weltkrieges (Vlotho/Weser, 1965), translated as Truth for Germany: The Guilt Question of the Second World War (Torrance, CA, 1981), and edited Auschwitz im IG-Farben-Prozess: Holocaust-Dokumcnte? (Vlotho/Weser, 1981).

40. Thies Christopherson has long been a prominent Neo-Nazi as leader of the Bauern- und Biirgerinitiative in the Federal Republic of Germany. In Oct. 1981 he fled after his conviction for Volksverhetzung. When he returned in Aug. 1983, he was captured and sentenced to nine months' imprisonment. He is the author of Die Auschwitz-Lage (1973), which Harwood (pseud.) relies upon for his argument that Auschwitz was an industrial concentration camp, not an extermination center (Did Six Million Really Die?, p. 17). On Christopherson, see Wolfgang Benz, ed., Rechtsextremismus in der Bundesrepublik: Voraussetzungen, Zusammenhfinge, Wirkungen (Frankfurt, 1984).

41. Doug Collins is a journalist, formerly employed by the Canadian Broadcasting Company, then the Vancouver Sun, now by a local Vancouver newspaper called the North Shore News, in which he supported the claims of Holocaust-deniers such as Arthur Butz and Zundel. See the collection of his columns, some concerned with this subject, in Tile Best and Worst of Doug Collins (Vancouver, 1987).

42. On Walus, see Allan A. Ryan, Quiet Neighbors: Prosecuting Nazi War Criminals in America (San Diego, 1984), chap. 6. Zundel distributes an 80minute videocassette entitled Frank Walus: Die Jagd auf einen Nazi, which shows an interview with Walus and photographs from his life. The advertisement for the film claims that it reveals the corruption of U.S. politics and the politicization of U.S. justice.

43. Adrian Arcand (1899-1967) was a professional journalist, antisemite, admirer of Hitler, and founder of the national Unity Party of Fascists in 1938 in Canada. See Litz-Rose Betcherman, The Swastika and tile MapleLeaf. Fascist Movements in Canada in the Thirties (Toronto, 1975).

44. Dr. Russell Barton was with the International Red Cross at the liberation of Bergen-Belsen and subsequently held faculty appointments at the New York School of Psychiatry and the University of Rochester. His views are cited by Harwood (pseud.), Did Six Million Really Die?, p. 25. He testified that bombing by the Allies at the end of the war had disrupted the supplies of food and water to the concentration camps and that the Russian army had driven large numbers of prisoners into Bergen-Belsen. He thought that hysteria had contributed to the belief that the Nazis had deliberately killed the large number of Jews, but he did not dispute that six million Jews had died. Jerome Brentar, who was born in 1922 in Cleveland, had been in the U.S. Army in 1945. He had studied social work and sociology at Michigan State and Western Reserve, and had been a screening officer of the International Refugee Organization, an arm of the United Nations, working in Germany in 1946. He believed that a large number of the Jews who had died in the Holocaust had actually escaped to the Soviet Union, and he testified for the defense at the deportation trial of Demjanjuk on the issue of his identification. He thought Demjanjuk's case to be one of mistaken identity, like that of Walus. On Demjanjuk see Ryan, Quiet Neighbors, chap. 4.

45. The Institute for Historical Review, located in Torrance, CA, held conferences and published a journal, The Journal of Historical Review, to promote the denial of the Holocaust, the Nazi attempt to exterminate the Jews. The Institute and its journal were subsidized by Willis Carto and the Liberty Lobby. See Mintz, Liberty Lobby, p. 125. The Institute's library and offices were destroyed by fire on 4 July 1984, and the Institute had to pay punitive financial damage from its loss of the case against Mel Mermelstein (see note 47 below). Many of the members of its board of directors testified for Zundel. There has been less evidence of its efforts and activities in the past few years.

46. Some observers of the Zundel trial criticized Mr. Griffiths for not having attempted to obtain judicial notice for the Holocaust, but the transcript of the trial shows that he was aware of the possibility and of the precedent in California, and that he raised the matter early in the trial. A number of lawyers told me that the judge could not have taken judicial notice of so central a part of the trial even if Mr. Griffiths had attempted to obtain it at the very beginning. My impression from reading Judge Locke's opinions in the transcript is that he would not have taken judicial notice at any time. The judge in the second trial did take judicial notice of the Holocaust. See Section XIII for the second trial.

47. On p. 2098 of the Zundel transcript, Mr. Griffiths mentioned the judicial notice of the Holocaust taken by Justice Thomas T. Johnson, Judge of the Superior Court, County -of Los Angeles, California, on 9 Oct. 1981, in the trial of Mel Mermelstein v. the Institute for Historical Review. justice Locke referred to the California trial in his decision on judicial notice, p. 2183 of the transcript.

48. See Sir Rupert Cross and Colin Tepper, Cross on Evidence, 6th ed. (London, 1985), pp. 62-72; Archbold, Pleading, Evidence and Practice in Criminal Cases, ed. Steven Mitchell, 41st ed. (London, 1982), pp. 335-37 Sect. 4-262; and Peter K. McWilliams, Canadian Criminal Evidence, 2nd ed. (Aurora, Ont., 1984), p. 637.

49. See Section XIII for the definition used in judicial notice in the second trial.

50. Harwood (pseud.), Did Six Million Really Die? p. 25.

51. Trial of the Major War Criminals before the International Military Tribunal. Nuremberg 14 November 1945-1 October 1946 [Blue Series], 42 vols. (Nuremberg, 1947-1949), 30:462-72.

52. For some photographs and information on the liberation of these concentration camps, see Robert H. Abzug, Inside the Vicious Heart: Americans and the Liberation of Nazi Concentration Camps (New York, 1985).

53. Ron Williams (pp. 232-304), Roy Basset (pp. 505ff.).

54. President Roosevelt's Secretary of Agriculture, Henry Wallace, was an admirer of Nicholas Roerich (1874-1947), the designer of sets and costumes, painter, and mystic. Under his influence Wallace "persuaded the Treasury to engrave the Great Seal's mystic pyramid on new dollar bills." New York Times, 22 Jan. 1988.

55. Gabriel Weimann and Conrad Winn, Hate on Trial: The Zundel Affair, the Media, Public Opinion in Canada (Oakville, NY, and London, 1986) believe on the basis of their survey of public opinion that the publicity from his trial did not win wider acceptance for Zundel's theses.

56. See Harwood (pseud.), Did Six Million Really Die? pp. 7-9.

57. Zundel advertises and distributes a 30-minute film entitled Der Anne Frank Schwindel, which purports to destroy this "chief pillar of the antiGerman witch hunt" with the record of a conversation of Ditlieb Felderer, an American journalist named Eric Thomson, and Zundel. Richard Harwood (pseud.), Six Million Lost and Found, p. 19, and Robert Faurisson, "Is the Diary of Anne Frank Genuine?" Journal of Historical Review 3, no. 2 (Summer 1982): 147-202, insist that Anne Frank's diary is a hoax, a view shared by many right-wing Canadian organizations. See Barrett, Is God a Racist? pp. 94, 99, 210, 266.

58. See also Harwood (pseud.), Did Six Million Really Die? pp. 11, 13.

59. See the same argument, ibid., pp. 10-11.

60. See ibid., pp. 13-14.

Chap 8

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