After nine years, two trials, four appeals and millions of dollars in legal costs, there are still no clear victors in the bitterly contested case of Toronto publisher Ernst Zundel. Ruling on an appeal by Zundel, the Supreme Court of Canada last week struck down his 1988 conviction for knowingly spreading false news about the Holocaust. In a 4-3 decision, the court found that section 181 of the Criminal Code, which
prohibits the spreading of false news, is unconstitutional because it is an unjustifiable limit on the right to freedom of expression contained in the Charter of Rights and Freedoms. A few hours after the ruling, Zundel, 53, was proclaiming that historical accounts of the Holocaust, in which an estimated six million Jews died at the hands of Germany’s Second World War Nazi rulers, were a hoax perpetrated by a Jewish conspiracy. In response, the Canadian Jewish Congress called on Ontario Attorney General Howard Hampton to charge Zundel under section 319 of the Code, which prohibits spreading hate against identifiable groups.
Writing the court’s majority decision, Madam Justice Beverley McLachlin noted that, in
ruling on the case, the content of the communication under consideration—that is, Zundel’s Holocaust fraud claims—was not relevant. She said that the Charter’s free-speech provision included protection of minority beliefs which the majority (of society) regards as wrong or false. Added McLachlin, “The view of the majority has no need of constitutional protection; it is tolerated in any event.”
It remained unclear last week whether the
German-bom Zundel, who came to Canada in 1958, would face new charges. The Supreme Court judgment noted that another section of the Criminal Code, prohibiting the promotion of hatred against an identifiable group, could combat hate propaganda more fairly and effectively. In 1983, Holocaust survivor Sabina Citron asked then-Attomey General Roy McMurtry to charge Zundel under the antihate section. When he refused, apparently because he was not convinced that his department could win, she laid a private complaint under the false news section. (The anti-hate section does not provide for private charges.) The attorney general then decided to let the prosecution proceed. For his part, Douglas
Christie, the Victoria-based lawyer who argued Zundel’s appeal before the Supreme Court, said that further proceedings against Zundel would amount to “an abuse of process.” Zundel had been convicted twice under the false-news law. The first time was in Toronto in 1985, when he was sentenced to 15 months in jail for publishing a pamphlet which claimed that the Holocaust was a myth perpetrated by an international Jewish conspiracy. The Ontario Court of Appeal overturned that conviction, but ordered a new trial on the grounds that the judge had made mistakes. Convicted again in May, 1988, and sentenced to nine months in jail, Zundel went free on $10,000 bail while appealing his case to the Ontario Court of Appeal.
Last week, Christie said that he hoped to soon be back in Ottawa arguing before the Supreme Court on behalf of another client who claims that the Holocaust did not happen: James Keegstra, a former school teacher and onetime mayor of Eckville, a small farming community in central Alberta. In 1985, Keegstra, who taught students that the Holocaust was a Jewish hoax, was convicted in Red Deer, under the Criminal Code’s prohibition of promoting hatred against an identifiable group. The Alberta Court of Appeal overturned the conviction, but it was reinstated by the Supreme Court, which held that the section was a justifiable limitation on Canadians’ right to free speech. The Alberta Court of Appeal then ordered a new trial, partly on the ground that pretrial publicity had prejudiced Keegstra’s first trial. In July, the Alberta Court of Queen’s Bench again convicted Keegstra of the same offence. Now Christie is waiting to see if the Supreme Court will hear another appeal, on grounds that Christie said may include incorrect directions to the jury by the trial judge, and the constitutionality of section 319.
„ Ultimately, Ottawa may have to enact new legislation to control the dissemination of some kinds of hate literature. In Toronto, Hampton said that officials of his ministry will meet a with their federal counterparts “to discuss drafting a Charter-proof section of the Code” to deal with cases like Zundel’s. Added Hampton: “We don’t yet know if that is possible.” For his part, Alan Borovoy, Toronto-based general counsel for the Canadian Civil Liberties Association, said that he agreed with the Supreme Court’s decision because the law posed a threat to legitimate forms of free speech. But he said that no one should interpret the court’s decision as “vindicating the malevolent obscenities of a creep like Zundel.” In the end, the Zundel ruling pointed to lawmakers’ unresolved dilemma: how to guarantee freedom of expression while protecting groups of citizens from the slurs of their opponents.
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