[Police officers Luby and Williams were the first and second witnesses called by the Crown. They testified on February 3 and 4, 1988.]
Luby was a sergeant with the Metropolitan Toronto Police Force with 27 years' experience. In 1984, Luby had been assigned to provide investigative assistance to the Crown in the case of Ernst Zündel. Zündel had initially been charged by a private citizen but the charge was later taken over by a Crown Attorney, Peter Griffiths. Williams was also a sergeant with the Metropolitan Toronto Police Force and had been with the Force for 26 years.
Sgt. Luby testified that he attended at Zündel's house at 206 Carlton St., Toronto, on May 29, 1984, at about 7:10 p.m., together with his partner Sgt. Williams. They were sent there by the Crown to ask Zündel specific questions and record the answers. Luby knew that a charge had been laid against Zündel.(Luby, 8-1534 to 1537)
The questions requested by Crown counsel Griffiths to be asked were: (1) whether or not Mr. Zündel was the person who had signed two publications which Sgt. Luby had in his possession during the visit, namely, Did Six Million Really Die? and The West, War and Islam; and (2) whether he was the same person (Christof Friedrich) named as one of the authors of the book The Hitler We Loved and Why. (Luby, 8 1535, 1536)
The officers were welcomed into the rear side door of the house by Zündel, who said to Sgt. Luby: "I've been expecting you. My lawyer called me." (Luby, 8-1574; Williams, 8-1580) Luby stated he knew Zündel's lawyer was contacted, although he could not recall who actually contacted her. (Luby, 8-1576)
After being taken into the front room, Sgt. Luby asked Zündel whether or not he would mind answering a few questions that the Crown Attorney wanted answered to clear up a few matters. Zündel replied that his lawyer had told him not to give a statement to the police or to sign one, but that he would be glad to talk with the officers. Sgt. Luby held up the pamphlet Did Six Million Really Die? and asked: "Are you the publisher of this pamphlet?" and Zündel answered: "Yes, I published it, but it's the work of a professor from England. I did the opening and closing pages, but this is being distributed all over the world." He spoke extensively on its distribution. (Williams, 8-1580, 1581)
Luby put another question to him: "Are you the same person named on the publication The Hitler We Loved and Why, Christof Friedrich'?," and Zündel replied: "Yes, they are my middle names, but everybody knows that. I've been writing these things for twenty-five years." Zündel said he was the president of Samisdat Publishers Ltd. and had signed both publications. Luby said, "That's all the questions I have," and the officers had some casual, light, jovial conversation with Zündel. Zündel mentioned that he had requested guidelines on 'hate' literature from the Attorney General's office but had not received any. (Williams, 8-1581 to 1585)
Williams stated that only two publications were shown to Zündel, Did Six Million Really Die? and The West, War and Islam. Luby testified that he "believed" he had The Hitler We Loved & Why in his briefcase but did not know whether he took the book out of the briefcase or not. (Luby, 8-1535, 1536) Zündel was not asked whether he wrote the text of The Hitler We Loved and Why, or whether he was the publisher. (Luby, 8-1542; Williams, 8-1584 to 1586)
Although Luby could remember Zündel telling him that he had sent the publication Did Six Million Really Die? to Attorneys General, lawyers and Members of Parliament, he could remember very little else about the visit with certainty, except that he and Zündel had a friendly conversation, talking and laughing about flying saucers. (8-1542, 1543) Zündel spoke about his theories concerning flying saucers being developed towards the end of the Second World War by the Germans and that they were flying out of South America. (Luby, 7-1220)
Luby admitted that in speaking with Zündel he may have surrounded the questions with casual conversation that made it appear he was there for no particular reason. (Luby, 8-1538) In his notes concerning the visit, Luby recorded the answers to the particular questions he had been sent to ask, while the rest of the conversation with Zündel he summarized as being general, friendly conversation. (8-1540, 1541)
The Hitler We Loved and Why dealt with the reasons people had loved and admired Adolf Hitler. It contained no information on the issues raised by Did Six Million Really Die? concerning the Holocaust. Nevertheless, over objections of defence counsel (7-1231 to 8-1438) the entire book was shown page by page to the jury on an overhead projector and read by Crown attorney John Pearson and witness Luby. (7-1231 to 8-1438)1
"As It Happens"
Luby testified that as a result of information received, he attended at the CBC radio archives at 90 Sumach St. on the 6th floor on January 4, 1988 and there listened to a master tape of the programme "As It Happens" aired on February 27, 1975, tape number 750227-2 which featured an interview between hostess Barbara Frum and a male person referred to as "Christof Friedrich." (8-1439 to 1446).
Luby returned on January 7, 1988 and obtained, pursuant to a search warrant, two duplicate copies of the "As It Happens" programme he had earlier listened to. (8 1441)
Luby was not aware of any previous conversation Barbara Frum may have had with Zündel prior to the programme indicating what she might like in the way of response or entertainment. Nor was he aware of whether or not the interview as broadcast had been edited down. In a conversation with Barbara Frum, Luby did not ask how long the original interview with Zündel had been or whether the CBC edited the interview by picking the most sensational parts for broadcast. (8-1529 to 1534)
The tape, which dealt with the subject of UFO's developed by the Nazis, was played in full to the jury as part of the Crown's case. Luby identified the voice on the tape as that of Ernst Zündel (8-1445, 1446).
UFO's: Nazi Secret Weapon?
Sergeant Luby testified that Samisdat Publishers Ltd., the publisher of the book UFO's: Nazi Secret Weapon?, was owned by Zündel. Using the overhead projector, Luby and Crown counsel John Pearson projected and read to the jury the first 16 pages of the book as well as its front and back covers. These portions of the book dealt with the National Socialist party programme. (8-1447 to 1489)
Judge Thomas reminded the jury that, as with the book The Hitler We Loved and Why, Zündel was not on trial for publishing the book UFO's: Nazi Secret Weapon?, but that they could use the books and the As It Happens tape as "evidence with respect to the issue of knowledge of alleged falsity of the publication." (8-1489, 1490)
On cross-examination, Luby testified that he could not remember whether or not Zündel had shown him any other books or materials, including a letter dated November 10, 1983 from Zündel to Roy McMurtry [then Attorney General for Ontario] in which he asked for guidelines on hate literature. (8-1559-1541)
Christie pointed out to Luby that the title UFO's: Nazi Secret Weapon? ended with a question mark. Luby agreed that a question mark in a title suggested that it was not a statement of fact. Luby also agreed that the UFO book specifically stated that the authors had distributed their findings "as a basis for discussion and further study" and agreed that it was "possible" that this indicated that the book was meant to put forward a tentative opinion for consideration. (8- 1544-45)
Christie asked Luby to read the remaining part of the Introduction from Did Six Million Really Die? which was not previously read to the jury. Asked if this purported to be a historical opinion, Luby replied that it "purports to be a historical opinion under the signature of Richard E. Harwood." (8-1552)
Christie read out the introductory and closing pages of Did Six Million Really Die? which Zündel himself had written. (Luby, 8, 1556-1575)
In these pages, Zündel had written as follows:
TO ALL CANADIAN LAWYERS AND MEDIA REPRESENTATIVES:
This booklet is the type of material that the Attorney General of British Columbia considers 'racist'. The Attorney General of Ontario, at the behest of his B.C. colleague, is purportedly conducting an investigation of Samisdat Publishers preparatory to the laying of a criminal charge of "promoting hatred against an identifiable group."
Samisdat intends to use this opportunity, however unwelcome, to test the definition and hence, the validity of the so-called 'Hate Law' section of the Canadian Criminal Code. What is now becoming clear to all of us, even to those who enacted the so called 'Hate Law', is that we enacted not so much an instrument against hate as an instrument against truth.
Canada was a civilised country before the passage of the 'Hate Law'. We already had laws against the incitement to riot, to murder, to arson, to the commission of assault and bodily harm. Our laws protected and still protect every citizen from libel, slander and defamation. But the outlawing of 'hate' does not thereby abolish feelings of hate, as we all know. To prohibit expressions of hatred may even cause such feelings to go unvented until they become explosive and take the form of violence. Prior to the 'Hate Law', we Canadians behaved with mature composure when encountering hateful expressions. We simply shunned the haters and left them to spew out their ire, unsupported and alone. In most cases, a cold dose of healthy public ridicule would quench the more volcanic vituperators and reason would be restored. But something happened to us, for as we have grown older as a country, we have become less mature and less secure. Our passage of the 'Hate Law' was a grave reflection upon ourselves. It revealed a sudden loss of confidence in our own wisdom and judgement and in the wisdom and judgement of the great majority of Canadian voters and citizens. Suddenly, we had to be protected from ourselves and just as suddenly, we became refugees from freedom. No democracy that so distrusts the majority can long remain a democracy; it becomes a police state in the worst tradition of police states.
Unfortunately, only a few clearsighted and courageous individuals protested the enactment of the 'Hate Law'. So thick were the clouds of hysteria and half-truth over the matter that only these few perceived the dangers inherent in a statute which could be used at the discretion of a public official to suppress the freedom of enquiry and discussion in regard to relevant public issues. Among these few protesters, I proudly number myself, for I spoke out then and I speak out now, on behalf of our basic freedom to act as thinking human beings.
As we stumble along the road to the 1984 of George Orwell, we sometimes receive a taste of his dismal future-fantasy well ahead of schedule. Pernicious 'thought-crime' legislation like the 'Hate Law' has brought us 1984 already. It has not outlawed hate, but it has outlawed truth on behalf of those predatory vested interests whose archenemy is truth!
This booklet has been sent to you free of charge as a public service. After reading it, you are perfectly free to agree or to disagree with its content. You may even ignore it and leave it unread. Truth has no need of coercion. Those who choose to ignore the truth are not punished by law--they punish themselves. We of Samisdat Publishers do not believe that you should be forced to read something, any more than we believe that you should be forced not to read something. Obviously, we have much more faith in your soundness of mind and good judgement than do the enactors and enforcers of the 'Hate Law'! Whether you agree or disagree with the facts presented in this booklet, we invite you to assist us in reclaiming and safeguarding the freedoms we have all so long enjoyed, until now, in Canada.
Help us remove this shameful stain of tyranny from our otherwise bright and shining land. Help us strike the terrible sword of censorship from the hands of those who would slay truth in pursuit of their dubious aims. Without freedom of enquiry and freedom of access to information we cannot have freedom of thought and without freedom of thought, we cannot be a free people. The matter is urgent. Can you help us restore and protect the freedom of all Canadians?
You can help decisively by sending your contribution to the Samisdat Legal Defense Fund. Legal fees are costly in the extreme. We anticipate daily expenditures of $1,000.00 in attorneys' fees and in the reimbursement of witnesses who must be flown in from Australia, Israel, Europe and from both American continents. Whatever help you can provide will make 1984 a much better year for your children and grandchildren -- a year in which freedom of thought will not be a memory, but a beautiful reality!
(Signature) Ernst Zundel, Publisher SAMISDAT PUBLISHERS LTD.
On the back two pages of Did Six Million Really Die?, Zündel had reproduced the following newspaper article from the Toronto Sun newspaper:
Firm 'aiding race hatred'
British Columbia Attorney-General Garde Gardom is asking Roy McMurtry, his Ontario counterpart, to consider laying charges under the Criminal Code against a Toronto publishing company.
The complaint concerns pamphlets stating that "Hitler was the fairest, most honorable arbiter of boundaries in the history of Europe," that the television movie Holocaust was "a Zionist hoax" and that Auschwitz was "a clean and happy agricultural work camp," a spokesman for Gardom said yesterday.
"Ontario has been asked to consider charges of promoting hatred against an identifiable group," the spokesman said.
The request comes after Gardom received material published by Samisdat Publishers Ltd., of Toronto.
A spokesman for McMurtry told the Sun yesterday the attorney-general had not yet received Gardom's request and knew nothing of the details of Gardom's complaints.
Zündel had written the following concerning the article:
ATTORNEY GENERAL ATTEMPTS COVER-UP AND CENSORSHIP Prejudice and Bigotry in Power? SAMISDAT FIGHTS BACK!
An Appeal to the People of Canada
The above article which casts aspersions on my publishing firm of Samisdat appeared in the Toronto Sun on November 22, 1979. Similar articles appeared in other major daily newspapers across Canada. The article attributes statements allegedly made by Mr. Garde Gardom, Attorney General of British Columbia, to the effect that literature, pamphlets or other material was received from Samisdat Publishers which promoted "hatred against an identifiable group". The only material which Mr. Gardom could have received from Samisdat was sent to all Attorney Generals in Canada, all members of Federal and Provincial Parliaments, all media representatives, all clergymen and to some 8000 Canadians in all walks of life. The result of this mailing has been worthwhile in terms of fruitful correspondence with numerous members of Parliament of the three major parties as well as several newsmedia interviews. If thousands of responsible Canadian citizens, clergymen, media representatives and members of Parliament have not objected to my materials, I would like to know what Mr. Gardom has found to be so objectionable and 'hateful' in the enclosed material. In the interests of Freedom of Speech and Human Rights, I now ask you to evaluate this information for yourself, before your right to be informed is denied you through official action.
HAVE WE GERMANS NO RIGHT TO DEFEND OURSELVES?
My name is Ernst Zundel. I am a Toronto businessman of German descent and I earn my living as a commercial artist. By avocation I write books and give lectures on general topics of historical interest. In the political field I have been involved with the issues of civil and human rights on behalf of German-Canadians for over 20 years. In 1968, on this basis, I ran for the post of Leader of the Liberal Party of Canada (which meant the post of Prime Minister) as the youngest candidate and only immigrant ever to attempt such a feat.
Since that time I have devoted increasing research, study and effort into illuminating the events of German and world history, particularly in the 1933-1945 period, with the view toward defending Germans and German-Canadians against the hateful lies surrounding the alleged gassing of six million Jews by the Nazi Government of Germany. In order to satisfy my own curiosity and to resolve my own doubts on the subject, I have travelled throughout the world, interviewed surviving inmates, guards, officials, etc. in connection with the 'six million' story. I have studied the many relevant documents, books, eyewitness accounts of both sides. My conclusion, after I had originally believed the dogma of the 'holocaust', is that no such extermination programme ever existed and that it is war time hate propaganda masquerading as history. This viewpoint is shared by such notable experts, historians and researchers from around the world as:
Prof. Faurisson, an expert historical analyst of ancient documents and artifacts at Lyon University in France. His 4-year study at the Jewish Documentation Centre in Paris drew him to conclude thusly;
J.G. Burg, a German-Jewish author and former inmate of several German concentration camps;
Dr. Bernhard Kautsky, the noted Austrian-Jewish man of letters;
Dr. W. Stäglich, retired judge and author of several books on the subject. Dr. Stäglich is a German of Hamburg;
Mr. David Irving, English historian and author of many well-known books about the 2nd World War. He offers a sizable reward for any document signed by Hitler which orders the extermination of Jews;
Dr. David Hoggan, American professor of history and author of several extensive volumes on World War II history;
Prof. Arthur Butz, American researcher and author of the controversial book, The Hoax of the 20th Century;
Prof. A.J. App of the U.S., a well-known writer and lecturer on the topic of Hitler and the Jews;
Prof. Rassinier, former inmate of several German concentration camps and member of the French National Assembly, the author of several books about the Jews in wartime Europe;
Prof. Udo Walendy, German political science lecturer and historian;
Thies Christophersen, German poet and journalist who worked at Auschwitz and who has written several books and articles about Auschwitz and the gas chamber myth;
Felderer of Sweden who personally visited postwar Auschwitz in order to prove that 'gas chambers' had been constructed by the Communists after the war;
Attorney Bennett of Australia whose research was prompted by his work in the Civil Rights Section of the Australian Attorney General's Office.
There are hundreds of names of authorities on this topic, all of whom I have met, interviewed, corresponded with or whose works I have read. Most of these persons are willing to attend any trial or court proceedings on this subject in the capacity of witnesses.
ZIONISTS DOMINATE MEDIA. GERMANS ARE DENIED EQUAL TIME!
As I see it, this matter is one of Freedom of Thought and Expression on the one hand and the Suppression of Freedom and Enquiry on the other. To seek officially to quell legitimate controversy through the use of smear-words like 'hate' and 'racism' is neither just nor relevant to the issue. Zionism is a political movement, not a racial movement. Zionists like Elisabeth Taylor, Sammy Davis Jr., Pat Boone, Billy Graham and Attorney General of Ontario McMurtry are not Jews nor Semites; therefore any criticism of Zionist policy cannot be 'racism'. When Jews disagree as I do with the official Zionist version of Auschwitz, are they accused of 'racism' or 'hate'?
Many Jews are totally opposed to political, that is worldly, Zionism and I am proud to number such outstanding figures as these among my friends and supporters: Rabbi Elmer Berger, former president of the American Council for Judaism; Haviv Schieber, former mayor of Beer Scheeba and comrade-in-arms of Menachem Begin and Moise Dayan who is now living as a refugee from Israeli persecution in Washington D.C.; Benjamin Freedman, former secretary to Henry Morgenthau Sr. who witnessed at firsthand the Zionist machinations of the First and Second World Wars. In addition to these individual Jewish authorities, there are the thousands of Hasidic Jews who protest against Zionism and the State of Israel as being "the work of the Devil". There are the Jews who demonstrated against Menachem Begin as a leading proponent of Zionism. In brief, not all Zionists are Jews and not all Jews are Zionists. Once again, how can any criticism of Zionist tenets be construed as 'racism'? Because no Zionist is "a member of an identifiable group" under the Criminal Code, any more than Liberals or Conservatives, can such criticism constitute 'hate' under the Criminal Code?
I believe that Zionists and their sympathisers are using the letter of the law to defy the spirit of the law; that they are using words like "hate" and "racism" to conceal their very real attempt to suppress the truth. I do not believe that the so-called 'Hate Law' section of the Criminal Code was intended to be an instrument for the suppression of free enquiry and discussion. The 'Hate Law' was adopted by the Canadian Parliament as a result of almost exclusively Jewish-Zionist agitation. Now it appears that it is being invoked to prevent the exposure of the biggest money raising racket of all time, namely the Holocaust Lie. The real issues in this matter are not 'anti-semitism', 'racism' or 'hate', but Truth, Freedom of Speech and Press, Freedom of Enquiry and ultimately, Justice. Help us safeguard these precious freedoms now!
EXERCISE YOUR RIGHTS AND DUTIES AS FREE CITIZENS WHILE THERE IS STILL TIME BY GIVING THIS ISSUE MAXIMUM ATTENTION AND PUBLICITY! CONTACT ME FOR FURTHER INFORMATION, INTERVIEWS AND ARRANGEMENTS FOR PUBLIC SPEAKING APPEARANCES:
(signature) Ernst Zündel, 206 Carlton Street Toronto, Ontario M5A 2L1 Tel. (416) 922-9850
Luby agreed that what Zündel had written appeared to be his opinion. (Luby, 8, 1556- 1575)
1 In a voir dire to determine the admissibility of The Hitler We Loved and Why Zündel had testified that he had no connection with the book other than providing some of the photographs. He wrote none of the text (some of which he disagreed with) and never published it. The name "Christof Friedrich" had been used without his permission. Thomas nevertheless admitted the book into evidence. He later instructed the jury that if they concluded on the basis of the "As It Happens" interview, UFO's: Nazi Secret Weapon? and The Hitler We Loved and Why that Zündel was a believer in National Socialism, they could infer that he would knowingly publish falsehoods (i.e. Did Six Million Really Die?) "to foster and protect those beliefs."