I now continue with the 4-part summary series on the conclusion of the Human Rights Tribunal hearings around the Zundelsite. Next in the line-up of hatred for the German, Ernst Zündel, is the Jewish activist, Sabina Citron who has harassed him with lawsuits and various shenanigans for something like two decades:
Sabina Citron:
Sabina Citron had a long record of harassing Zundel with unsubstantiated complaints to postal authorities, Crown prosecutors, and the Attorney General of Ontario. In all cases, the complaints and charges laid against Zundel by Citron were found to be without merit, based on insufficient or no evidence, or a violation of Zundel's constitutional rights.
In 1981, Citron complained to Canada Post Corporation that Zundel was using the mails to distribute hate propaganda within the meaning of the Criminal Code. As a result of these complaints, Zundel's mailing rights were suspended from November 13, 1981 to November 15, 1982. They were restored by André Ouellet, Minister responsible for Canada Post Corporation, on the recommendation of a Board of Review which held after a lengthy postal hearing that Zundel's publications did not constitute hate propaganda under the Criminal Code.
In the early 1980s, Citron lobbied as spokeswoman for the Canadian Holocaust Remembrance Association to have Zundel charged under the criminal hate laws. Attorney General Roy McMurtry refused to lay charges.
In 1983, Citron privately charged Zundel with two counts of spreading false news in the publications "Did Six Million Really Die?" and "The West, War and Islam." The charges were taken over by the Crown and Zundel underwent two lengthy trials in 1985 and 1988. He was acquitted at trial in 1985 on the charge concerning "The West, War and Islam" and was acquitted on appeal to the Supreme Court of Canada in 1992 on the charge concerning "Did Six Million Really Die?" when the Supreme Court of Canada struck down the false news law as an unconstitutional violation of Charter guarantees to freedom of expression.
In 1987, Citron laid a private charge against Zundel of spreading false news on a CBC radio talk show. The charge was withdrawn by the Crown on the grounds Zundel's statements did not fall within the purview of the offence.
In 1995, Citron laid a private criminal charge against Zundel of defamatory libel of named Jewish persons. The charges were withdrawn by the Crown on the grounds there was insufficient evidence.
In 1995, Citron laid a private criminal charge against Zundel of conspiracy to incite hatred. The charges were withdrawn by the Crown on the grounds there was insufficient evidence.
In 1996, Citron commenced an action for damages of $3.5 million for defamation against Zundel for statements published on the World Wide Web Zundelsite. Zundel counterclaimed for damages of $8.5 million for malicious prosecution.
The Case Against Ernst Zundel and His Reply
Jurisdiction Over the Internet:
Zundel argued from the outset that the website, being in the United States, was beyond the jurisdiction of the Canadian Human Rights Commission. He argued that the section covered only communications using a telephone and did not cover computer network communications.
When the hearing into the complaints began, he attempted to call Ingrid Rimland as a witness to establish that she was the sole operator of the site and that he had no control over it. The Tribunal refused to hear her evidence notwithstanding that Rimland had travelled from California and was present in the courtroom. It held that Zundel would have to go through the entire hearing before it would determine the issues of jurisdiction and control.
The Commission's case that section 13(1) of the Canadian Human Rights Act applied to computer networks rested completely on the word "telephonically" in the English version of the statute which provided:
13(1) 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 Parliament, any matter that is likely to expose a person or 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 of discrimination.
The French language version provided:
13(1) Constitue un acte discriminatoire le fait, pour une personne ou un groupe de personnes agissant d'un commun accord, d'utiliser ou de faire utiliser un tÈlÈphone de facon rÈpÈtÈe en recourant ou en faisant recourir aux services d'une entreprise de tÈlÈcommunication relevant de la compÈtence du Parlement pour aborder ou faire aborder des questions susceptibles d'exposer a la haine ou au mÈpris des personnes appartenant a un groupe identifiable sur la base des criteres ÈnoncÈs a l'article 3.
The Commission's position was succinctly stated in paragraph 91 of its Memorandum of Law. It relied on the evidence of its expert witness, Ian Angus, and stated: "The Commission submits that 'to communicate telephonically' means to communicate by means of the telephone network."
Unfortunately for the Commission, Canada is a bilingual country and the Canadian Human Rights Act has two official versions, one in English and one in French. The Commission studiously avoided referring to the French version of the statute for good reason. It did not use the word "telephonically." It used the word "un tÈtephone."
A certified English translation of the French version of the Act provided as follows:
"The act, by an individual or a group of people acting by mutual agreement, of repeatedly using or having someone use a telephone, and resorting to, or having someone resort to the services of a telecommunications entity within the jurisdiction of Parliament, in order to take up, or having someone take up matters subject to exposing people belonging to a recognisable group, to hatred or contempt, based on the criteria set out in section 3, is considered to be a discriminatory act."
The French version of section 13 was completely unambiguous: "a telephone" must be the device used to communicate the discriminatory messages. A computer was not a telephone and a person could not call the "Zundelsite" and talk to it. (Pierre-AndrÈ CotÈ , ìThe Interpretation of Legislation in Canada,î 2nd ed., p. 275-276; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038)
"Telephone" was defined in the Shorter Oxford English Dictionary, 3rd ed., as follows:
"an instrument, apparatus or device for conveying sound to a distance; An apparatus for reproducing sound, esp. that of the voice, at a great distance, by means of electricity; consisting, like the electric telegraph, of transmitting and receiving instruments connected by a line or wire which conveys the electric current."
"to convey sound to a distance by or as by a telephone; especially to send a message or communicate by speaking through a telephone."
The word "telephonic" was defined as follows:
Webster's Third New International Dictionary (1993) which defined "telephonic" as "conveying sound to a distance"; "of or relating to the telephone: carried or conveyed by telephone."
The Shorter Oxford English Dictionary on Historical Principles (3rd ed., Clarendon Press) which defined "telephonic" as "Transmitting, or relating to the transmission of, sound to a distance; of, pertaining to, of the nature of, or conveyed by a telephone. Hence Telephonically adv. In the manner of or by means of a telephone."
The patent for the telephone held by Alexander Graham Bell, its inventor, was described in "The Telephone Casesî (1887), 126 U.S. 1 at page 2 as:
"the art or process of transferring to, or impressing upon, a continuous current of electricity in a closed circuit, by gradually changing its intensity, the vibrations of air produced by the human voice in articulate speech, in a way to cause the speech to be carried to and received by a listener at a distance on the line of the current."
Alexander Graham Bell described the process in an affidavit filed in the "Telephone Cases" over a century ago as a method of, and apparatus for, transmitting vocal or other sounds telegraphically by causing electrical undulations, similar in form to the vibrations of the air accompanying the said vocal or other sounds. ("The Telephone Cases" (1887), 126 U.S. 1 at page 13-14)
In contrast, the word "telecommunications" has a much broader meaning as it is defined in the Interpretation Act, R.S.C. 1985, I-21, section 35 as follows:
"telecommunications" means the emission, transmission or reception of signs, signals, writing, images, sounds or intelligence of any nature by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system.
In the Telecommunications Act, 1993, c. 38, s. 2, "telecommunications" and the word "intelligence" are defined as follows:
"telecommunications" means the emission, transmission or reception of intelligence by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system.
"intelligence" means signs, signals, writing, images, sounds or intelligence of any nature.
The Federal Court of Canada had previously held that the word "telephone" related only to the transmission of sounds and voices and did not extend to electronic devices such as modems used in conjunction with computer systems. (IBM Canada Ltd. v. Canada (National Revenue), [1992] 1 F.C. 663 (C.A.) citing the cases of: R. v. Gignac, [1934] O.R. 195 (H.C.) Attorney General v. The Edison Telephone Company of London (1880), 6 Q.B. 244 (Ex.D.) The King v. Brislan; Ex parte Williams, [1935] 54 C.L.R. 262 (H.C.))
In IBM Canada Ltd. v. Canada (Deputy Minister of National Revenue, Customs and Excise - MNR), [1992] 1 F.C. 663, the Federal Court of Appeal held:
"...in concluding that 'components' of the 'telephone system' are 'telephone apparatus' even when these components transmit data in addition to voices, the majority of the Board ignored the case law [see The King v. Brislan; Ex parte Williams, [1935]54 C.L.R. 262 at 270 (H.C. of Australia), Latham C.J.; Rex v. Gignac, [1934] O.R. 195 at 204 (H.C.) Armour J.; The Attorney General v. The Edison Telephone Company of London (1880), 6 Q.B. 244 at 245 (Ex.D.), Stephen J.], and the definition in ordinary and technical dictionaries of the word 'telephone' which unanimously relate 'telephone' to transmission of sounds or voices only."
That section 13 applied only to messages on a "telephone" was recognized by the Supreme Court of Canada in the decision of Canada (Canadian Human Rights Commission) v. Taylor, [1990] 3 SCR 892 where Dickson J. held:
"To begin with, it is self-evident that this activity conveys or attempts to convey a meaning, the medium in issue to my mind being susceptible to no other use. Indeed, I find it impossible to conceive of an instance where the 'telephonic communication of matter' to paraphrase the language of s. 13(1)) could not be said to involve a conveyance of meaning....it is clear that Parliament's aim in passing s. 13(1) is to constrain expression communicated by telephone, for the section operates to prohibit directly messages likely to expose certain persons or groups of persons to hatred or contempt."
The legislative history of section 13 made it clear that the provision was meant to target a very specific activity, that of a telephone message service whereby any member of the public used a telephone to listen to a pre-recorded message which played repeatedly. The legislation was enacted specifically to target John Ross Taylor and the Western Guard Party and the taped telephone messages they made available in Toronto. (Commons Debates, February 11, 1977, page 2976; Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, May 18 and 19, 1977)
The word "telephone" had a precise technical and common usage meaning which had been accepted for decades by the courts. The meaning of words could not be changed simply because they appeared in human rights statutes. The Supreme Court of Canada cautioned the courts on this matter in the case of University of British Columbia v. Berg, which dealt with the interpretation of section 3 of the British Columbia Human Rights Act. The majority of the Court stated:
"This Court has repeatedly stressed that a broad, liberal and purposive approach is appropriate to human rights legislation, and that such legislation, according to La Forest J. in Robichaud, at p. 89, 'must be so interpreted as to advance the broad policy considerations underlying it.' These comments serve to underline the importance of the mandate of s. 12 of the Interpretation Act, R.S.C., 1985, c. I-21, which directs that [e]very enactment shall be deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
This interpretative approach does not give a board or court license to ignore the words of the Act in order to prevent discrimination wherever it is found. While this may be a laudable goal, the legislature has stated, through the limiting words in s. 3, that some relationships will not be subject to scrutiny under human rights legislation. It is the duty of boards and courts to give s. 3 a liberal and purposive construction, without reading the limiting words out of the Act or otherwise circumventing the intention of the legislature." University of British Columbia v. Berg, [1993] 2 S.C.R. 353
In summary, Zundel argued that the ambit of section 13(1) was restricted to communications using a telephone, or "un téléphone," and that "telephone" must be given its ordinary, common usage definition as a device for voice communications. This could not include communication using a computer transmitting the text documents on the World Wide Web which were the subject of the complaints.
Did the Zundelsite Expose Jews to Hatred?
The Canadian Human Rights Commission opened its case against Ernst Zundel on October 14, 1997 with an opening statement by its counsel, Ian Binnie. Binnie would shortly after be appointed to the Supreme Court of Canada.
Binnie filed a large binder of documents downloaded from the Zundelsite with the Tribunal which he stated were examples of "hate propaganda." Some of these documents were Zundel's Power newsletters. Some were Ingrid Rimlandís copyrighted Zgrams. Some were well-known essays written by historian Mark Weber including "Jewish Soap" (which chronicled the development of the false story that the Germans manufactured soap from the bodies of their victims), "Different Views on the Holocaust" (which explained the revisionist view of the fate of the Jews during World War II) and "Auschwitz: Myth and Facts" (which alleged that the known facts about Auschwitz could not be reconciled with the position that it was an extermination centre using gas chambers.) Also included was a short essay by American execution equipment expert Fred A. Leuchter, Jr., entitled "Inside the Auschwitz Gas Chambers" in which Leuchter described his investigations of the alleged gas chamber sites.
Unbelievably, the binder of documents also included Richard Harwood's "Did Six Million Really Die?", the very publication that formed the subject of the ten year prosecution of Zundel under Canada's "false news" law which resulted in his acquittal in 1992 on the grounds that his constitutional rights to freedom of speech had been violated.
Binnie told that Tribunal that "what is set out in these [Zundelsite] documents is not a cultured, scholarly and respectable exchange, but is simply anti-Semitism and hate propaganda wrapped up in the flag of freedom of speech."
Binnie read various passages from some of the documents, telling the Tribunal: " you will see an example of why what we are dealing with here is hate propaganda, not an exercise of freedom of expression in any meaning of the term." He pointed the Tribunal to a passage from the Zundelsite that read:
"'The problem is, very simply, that the German oligarchy and the Jewish/Zionist/Marxist racketeers who have conned the Germans, the Americans and, for that matter, the whole world with their Holocaust extortion scheme -- "
"'Holocaust extortion scheme' is a repeated expression all through this material," Binnie told the Tribunal, citing the passage as an example of why the Zundelsite was "hate."
The complainant, Sabina Citron, did not testify and an attempt by the Canadian Association for Free Expression to subpoena her to give evidence was vehemently opposed by her counsel. The Tribunal refused to subpoena her.
Barbara Hall, then Mayor of Toronto, took the stand to prove the complaint against Zundel filed by the Toronto Mayor's Committee. Hall testified that she had looked at the Zundelsite for two hours before signing the complaint. Janice Dembo, her staff person, picked out the documents for her to look at. Hall had no idea how many documents were on the Zundelsite or whether what she had looked at was representative of the site. Asked what the terms of her oath of office were as Mayor, Hall couldn't remember although she vaguely recalled it did require her to be impartial. She admitted that prior to signing the complaint she never communicated with Zundel about it and never gave him an opportunity to defend himself. She stated she did not know in "any detail" that Dembo had previously lobbied to have Zundel charged under the Criminal Code hate provision but she didn't think Dembo had any axe to grind.
Hall testified that she was not aware of all that was said in the booklet "Did Six Million Really Die?". She said, "You see, the complaint is not related to the historical debate, per se. The complaint is related to the suggestion or the statement within these materials that is found in a number of places that an identifiable group of people, the Jewish people, have conspired for their own benefit, fraudulent benefit, of fund-raising or whatever to deceive or manipulate the world."
Pressed to read out the portions of Harwood's booklet that constituted "hate," Hall said, " I can't tell you exactly what I read on that day. I read enough to show me that it was appropriate for me to sign the Complaint." She admitted the material was "very dense."
Hall finally gave two examples of statements that alluded to sentiments elsewhere on the Zundelsite that she thought constituted "hate." It was two questions and answers found in the document "66 Questions and Answers on the Holocaust" that read as follows:
"21. How does the Holocaust story benefit Jews today? It helps protect Jews as a group from criticism. As a kind of secular religion, it provides an emotional bond between Jews and their leaders. It is a powerful tool in Jewish money-raising campaigns, and is used to justify US aid to Israel.
22. How does it benefit the State of Israel? It justifies the billions of dollars in 'reparations' Germany has paid to Israel and many individual 'survivors'. It is used by the Zionist/Israeli lobby to dictate a pro-Israel American foreign policy in the Middle East, and to force American taxpayer aid to Israel totalling billions of dollars per year."
She admitted that she did not consult with any groups from the German community about whether it was a fair thing to lay the complaint against Zundel. She wasn't sure if anyone of German background was represented on the Mayor's Committee but she knew that Marvin Kurz, the Committee member who suggested laying a complaint, was an active member of B'nai Brith.
To prove that the documents were "hate," the Canadian Human Rights Commission had to rely on two academic witnesses, Dr. Gary D. Prideaux, a professor of lingustics at the University of Alberta, and Dr. Frederick Schweitzer, a professor of history at Manhattan College in New York. It called no evidence from any ordinary Canadian saying that they had been subjected to contempt or hatred as a result of the documents appearing on the "Zundelsite."
The Commission studiously avoided any evidence of the real world where real debate and discussion took place. It refused to allow Zundel to call any evidence of the truth of the Zundelsite statements. In that larger world, namely, the United States, Europe and the Middle East, the discussion initiated by Zundel about the veracity of the "Holocaust" and the Holocaust Industry's financial blackmail and shakedown of Europe had been huge, controversial, passionate, angry, enraged, acrimonious, cautious, approving, admiring, laudatory. It had never been neutral.
Holocaust Revisionism - Is It "Hate"?
The Canadian Human Rights Commission included as one of the major documents in the case against Zundel the booklet of Richard Harwood, "Did Six Million Really Die?" Evidence of its "hatefulness" was given by Dr. Gary Prideaux. "This document," wrote Prideaux in his brief to the tribunal, "is simply the articulation of a Holocaust-denial position. It contains many familiar assertions found in Holocaust denial literature and serves to establish a well-defined position dealing with a view of the Holocaust which places blame on the victims of the Holocaust, while at the same time portraying the aggressors (the Nazis, sometimes equated with all Germans) as the real victims."
In Prideaux's opinion, "Did Six Million Really Die?" was one of the major documents providing a "context and frame of reference for the other documents." It established "a set of assertions, assumptions, presuppositions, and a general ontological framework in terms of which the other documents take much of their meaning."
"My overall summary," said Prideaux, "of the passages that I have referred to, the ones that I have submitted analyses of, is that there is a repeated pattern of the use of the strategy of targeting, specifying particular groups, Jews, sometimes labelled Zionists or the Jewish Holocaust industry or the Jewish Holocaust Promotion, or whatever, singling out this group and attributing to them a series of negative attributes, including things like criminality, manipulativeness, extortion, in some cases even making threats to them."
Douglas Christie, Zundel's counsel asked Prideaux on cross-examination (December 11, 1997) about the role of truth in his evidence. The following exchange took place:
Q. In the opinions you have expressed, what part does truth play?
A. I don't [know] how to answer that, Mr. Christie.
Q. Why not?
A. Perhaps, if we could have an example, we could address it. Truth is important to me. Truth is important in my analyses. I try not to be untruthful.
Q. What part does truth of what you are analyzing play in your analysis?
A. I am analyzing the texts, not their historical content.
Q. Let's say, for the sake of argument, that the content is true. Does that have any effect on your analysis?
A. If I know it is true or if I know it is not true, I presume it would have. But I wasn't analyzing the truth of the text; I was trying to analyze to texts.
Q. So, in effect, it has no effect on your opinion at all, then.
A. No, I didn't say that.
Q. Well, what effect does it have on your opinion? You said: If I believed it was true, it might; if I didn't, it wouldn't. What is your position?
A. I like the truth, I suppose. That is important to me, and I try to be truthful. I try to understand the texts as texts.
Q. But when they are descriptive of events, does truth have any part in your analysis of the effects or likely effects of these documents?
A. It may. I am sorry, Mr. Christie, I don't--
Q. Does it?
A. It may.
Q. Has it?
A. It has.
Q. Where?
A. When I look at the structure of an argument, looking at the premises and whether, if the premises are accepted, certain things follow from them, those are analytical truths, aren't they?
Q. You are saying, then, that analytical truths are what you deal with? I don't quite understand what you mean by that. What do you mean by that?
A. Analytical truths?
Q. Yes.
A. If a premise exists and something follows from that premise logically, that is called analytical truth.
Q. Is that what you mean by truth?
A. Not always; of course not. There are other kinds of truth, too; historical truth perhaps.
Q. What is the historical truth and what part does it play in your analysis?
A. It plays no part in my analysis so far as I am not a historian and I don't know the truth of these issues.
Dr. Frederick Schweitzer, who appeared as an expert witness against Zundel, testified that truth was the object of historical research and that the basis of his opinion that the Zundelsite was anti-Semitic was that the contents of the Zundelsite were untrue. He felt Jews had nothing to fear from the truth and that true statements could not constitute anti-Semitism.
In spite of this testimony, the tribunal refused to allow Zundel's counsel to cross-examine Schweitzer on the truth or falsity of the Zundelsite statements.
In the real world, of course, in the minds of most people, truth plays the primary role in the discussion of any historical event. In that world, the conclusions of "Did Six Million Really Die?" have increasingly been proven to be correct.
In an article entitled "Auschwitz: The Dangers of Distortion" (Jerusalem Post, Sept. 30, 1989), Jewish historian Yehuda Bauer admited that "There were never four million victims in Auschwitz." He warned against the manipulation of history for political purposes:
"By definition, a myth is an untruthful interpretation of reality. The fact that Israeli politicians and the media accept the four million figure with all its disastrous ramifications can perhaps be explained by the conscious or unconscious effort made in this country to create a Holocaust myth that is totally different from the reality it supposedly relates to. If two and a half million Jews were gassed at Auschwitz, that is 'better' for propaganda than the truth, as though the truth were not terrible enough."
Jewish historian Arno J. Mayer admitted that many of the essential questions concerning the fate of the Jews remain unanswered. He wrote in his book "Why Did the Heaven's Not Darken?'" (Pantheon Books, 1988) at page 362 :
"Sources for the study of the gas chambers are at once rare and unreliable."
And while Mayer believed that gas chambers did exist, he admitted that there was "no denying the many contradictions, ambiguities and errors in the existing sources." (p. 363)
Moreover, Mayer admitted that "many questions" about the camps and specifically Auschwitz , remain unanswered. He wrote:
"All in all, how many bodies were cremated in Auschwitz? How many died there all told? What was the national, religious and ethnic breakdown in this commonwealth of victims? How many of them were condemned to die a 'natural' death and how many were deliberately slaughtered? And what was the proportion of Jews among those murdered in cold blood - among these gassed? We have simply no answers to these questions at this time." (p. 366 of book)
Where evidence was "rare and unreliable" and there were "many contradictions" and "errors" in existing evidence, then it was not "hate" nor evidence of bad faith for other researchers to come to the conclusion that the evidence did not support the gas chamber claim. Mayer wrote with, apparently, no knowledge of the groundbreaking Leuchter Report on Auschwitz, Birkenau and Majdanek, commissioned by Zundel during his second trial in 1988 and his book was published before the subsequent reports of German chemist Germar Rudolf and Austrian engineer Walter Lüftl which concluded that no gas chambers existed at any of the alleged extermination camps.
[end]
Tomorrow: The Story of Fred A. Leuchter, Jr. - Is It "Hate"?
Thought for the Day:
"How any decent person can argue that Jews -- 50 years after the fact -- deserve compensation for property lost to the Nazi government but that Palestinian refugees, whose property was taken by the Israeli government, have no right to compensation, is beyond me."
(-Charley Reese, The Orlando Sentinel, October 5, 2000)