With a long and drawn-out legal "crossing of the swords" around the Zundelsite coming to its tortuous conclusion, with final verbal submissions to be completed during March 5-8, 2001, it is fitting that I bring you a summary. It will be in six parts. It was written by Mark Weber, Director of the Institute for Historical Review [www.ihr.org] and an expert witness for Ernst Zundel.
This summary has also been published in the September/October issue of the Journal for Historical Review - for the historical record. (!)
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Before the "Human Rights Tribunal"’
The Importance of the Zundel Hearing in Toronto
Mark Weber
Now into its fourth year, a little-known legal dispute in Canada with important international implications for Internet freedom of speech, is quietly being fought out before a "Human Rights Commission" Tribunal in downtown Toronto.
A "Human Rights Commission," responding to Jewish complaints, charges that Ernst Zundel, the controversial German-born Holocaust revisionist publisher and civil rights activist, has been promoting "hatred or contempt" against Jews through the "Zundelsite" Internet web site. Lined up against him before the Tribunal are lawyers representing Canada's major Jewish organizations, including the Simon Wiesenthal Center, the Canadian Jewish Congress, the Canadian Holocaust Remembrance Association, and the League for Human Rights of B'nai B'rith (counterpart of the Anti-Defamation League in the US), along with Sabina Citron (a Jewish community figure), the Toronto Mayor's Committee on Community and Race Relations, and the Canadian Human Rights Commission.
Zundel is charged with violating Section 13(1) of the Canadian Human Rights Act, which reads:
» It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of [Canada's] Parliament, any matter that is likely to expose a person of persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground for discrimination [that is, by race, ethnicity, religion, and so forth]. «
This code section, drafted before the Internet was in wide use, was originally meant to prohibit telephone answering machine "hate messages" that callers might access. Given that all of the allegedly offensive Zundelsite Internet postings are written communications, it is a stretch to call them "telephonic." In spite of its name, the web site is run by Ingrid Rimland, not Ernst Zundel. Moreover, it has always been based in the United States, and therefore only very dubiously comes "within the legislative authority of [Canada’s] Parliament."
Probably the slippriest term in this "Hate Messages" code section is "likely," because determining what is "likely" to expose someone to "hatred or contempt" is unavoidably subjective.
Zundel is probably best known as the defiantly outspoken defendant in two high-profile "Holocaust trials." For having published an edition of an early revisionist booklet, Did Six Million Really Die?, he was charged and brought to trial, defending himself tenaciously in two costly and drawn-out Toronto courtroom battles, 1985 and 1988. In August 1992 Canada's Supreme Court overturned his conviction, declaring the archaic "false news" law under which he had been prosecuted to be unconstitutional. This was therefore not only a vindication for Zundel, but a victory for the rights of all Canadians.
Zundel's main attorney in the current "Human Rights" case has been Doug Christie, who also ably represented him in the 1985 and 1988 trials. Working closely with Zundel and Christie has been Barbara Kulaszka, an attorney who was part of the defense team in the 1988 trial, and is the editor/compiler of a valuable 562-page documentary work on the case.
Also on the Zundel side in this case is Paul Fromm, director of the Canadian Association for Free Expression (CAFE), which has been involved as an "intervenor" throughout the Tribunal proceedings. He regards this case an important battle for free speech.
Despite its name, the Human Rights Tribunal is not a court. The two persons who preside over the proceedings of this quasi-judicial body, Claude Pensa and Reva Devins, are "Commissioners," not judges. (One of the original Commissioners resigned months ago, reportedly because the proceedings had dragged on so long.) If they find Zundel guilty, they have authority only to issue a "cease and desist" order.
This case has been expensive. In addition to the fees for the attorneys of the various Jewish "intervenor" groups in the case, as of late May 1999 the Canadian Human Rights Commission had spent $420,561 of Canadian taxpayers money going after Ernst Zundel. For their role services as Commissioners, Pensa and Devins receive more than $500 per day, plus travel and expenses.
Truth is No Defense
Amazingly, "truth is no defense" in this bizarre proceeding. Neither the truthfulness (factuality) of a "complained of" writing, nor the motive of the writer, may be considered in determining if it is "likely"to expose persons to "hatred or contempt." As Chairman Pensa bluntly put it: "It is the finding of this Tribunal that truth is not an issue before us. Parliament has spoken. The use of telephone messages for purposes prohibited by section 13 of the Act cannot be justified by asserting that such messages are truthful. The sole issue is whether such communications are likely to expose a person or persons to hatred or contempt." Observes CAFE director Fromm: "This mad hatter's tea party has decided that 'truth is no defense' that truth doesn't matter. It's only the feelings of the aggrieved minority that determines whether a statement is 'likely’ to expose them to hatred or contempt'."
Many of the three dozen "complained of" Zudelsite documents specifically cited by Canadian authorities were not written by Zundel. Several are from the Institute for Historical Review, including Fred Leuchter's essay, "Inside the Auschwitz Gas Chambers," based on his address at the 1989 IHR Conference, Theodore O'Keefe's essay on "The Liberation of the Camps," and two essays by me, "Jewish Soap," from the Summer 1991 IHR Journal, and one that has been published for years by the IHR as a leaflet entitled "The Holocaust: Let's Hear Both Sides."
What Jewish groups were unable to achieve through the regular courts in the 1980s, they are now trying to achieve through this quasi-judicial body. They seek to ban writings posted on the Internet that, when published in Canada in printed form, are perfectly legal. Probably the most striking example of this is the booklet Did Six Million Really Die?, which Jewish groups and Canadian authorities were unable to criminalize in their costly and drawn-out 1980s legal battle against Zundel. Now this same booklet is the first of the "complained of" documents in this Human Rights Commission action.
With the passage of time, it is ever more difficult, even absurd, to argue that the "complained of" paragraphs from the vast Zundelsite are somehow socially dangerous. During the past two years, Zundel's "case" has become stronger, given that several books and numerous articles and reviews have appeared during this period, both in Canada and in periodicals and web sites around the world, that parallel the supposedly hate-promoting Zundelsite documents cited by the Human Rights Commission. In that sense, Ernst Zundel's "sin" is that he is a man ahead of his time.
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Tomorrow: Restrictions on Testimony
Comments: -- Mark Weber / weber@ihr.org
Thought for the Day:
"History with its flickering lamp stumbles along the trail of the past, trying to reconstruct its scenes, to revive its echoes, and kindle with pale gleams the passions of former days. What is the worth of all this? The only guide to a man is his conscience; the only shield to his memory is the rectitude and sincerity of his actions. It is very imprudent to walk through life without this shield because we are so often mocked by the failure of our hopes and the upsetting of our calculations; but with this shield, however the fates may play, we march always in the ranks of honor."
(Speech in the House of Commons, November 12, 1940)