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R v. Zundel – In Depth Case Analysis Essay

Thesis Statement:

The Dictionary of Canadian Law defines the term “freedom of expression” as “Permitting free expression to the end of promoting truth, political or social participation, and self-fulfilment. That purpose extends to the protection of minority beliefs which the majority regard as wrong or false.” R. v. Zundel.

It was fair Unlawful

Profile of the Law:

Criminal Code of Canada

Spreading False News

Section 181

Every one 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 offence and liable to imprisonment for a term not exceeding two years.

Annotations: This section violates the guarantee to freedom of expression under s. 2(b) of the Charter and is of no force and effect.

Canadian Charter of Rights and Freedoms

Guarantee of Rights and Freedoms

1. The Canadian Charter of Rights and Freedoms 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.

Fundamental Freedoms

2. Everyone has the following fundamental freedoms:

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

“Section 2(b): Freedom of expression / Interpretation – Section 2(b) protects all forms of expression, whether oral, written, pictorial, sculpture, music, dance or film. The freedom of expression referred to, moveover, extends to those engaged in expression for profit and those who wish to express the ideas of others, and to the recipients as well as to the originators of communications.”

General Summary.

The Dictionary of Canadian Law defines the term “freedom of expression” as “Permitting free expression to the end of promoting truth, political or social participation, and self-fulfilment. That purpose extends to the protection of minority beliefs which the majority regard as wrong or false. It is one of the fundamental concepts that has formed the basis for historical development of the political, social and educational institutions of western society.” Ernst Zundel has been charged under Section 181 for having knowingly published false news that was likely to be injurious to the public.

The charge arose out of the accused’s publication of a pamphlet entitled Did Six Million Really Die? The accused had added a preface and afterword to an original document, which had previously been published by others in the United States and England. The pamphlet, part of a genre of literature known as “revisionist history”, suggests, inter alia, that it has not been established that six million Jews were killed before and during World War II and that the Holocaust was a myth perpetrated by a worldwide Jewish conspiracy. The accused was convicted after a lengthy trial.

The charge arises out of the publication by the appellant of a 32-page booklet seemingly entitled “Did Six Million Really Die?”, which had previously been published by others in the United States and England. The bulk of the booklet, excepting the foreword and postscript authored by the appellant, purports to review certain publications in a critical fashion. On the basis of this review, it suggests, inter alia, that it has not been established that six million Jewish people were killed before and during World War II and that the Holocaust is a myth perpetrated by a worldwide Jewish conspiracy.

Because much of the reasoning in this case turns on whether the expression in question purports to be a statement of fact or of mere opinion, and because it is difficult to comprehend fully the significance of harmful speech in the abstract, the pamphlet warrants more than a general reference in order to make clear the precise nature of the publication at issue.

The pamphlet is part of the genre of anti-Semitic literature known euphemistically as “revisionist history”. The pamphlet indicates the author is “Richard Harwood . . . a writer and specialist in political and diplomatic aspects of the Second World War. At present he is with the University of London”. However, the piece appears to have actually been produced in England by Richard Verral, editor of the neo-nazi British National Front newspaper in 1977. The appellant has added a preface and afterword to the original document, entitled Historical Fact No. 1, Did Six Million Really Die? Truth at Last Exposed.

The basic gist of the piece is that the Holocaust perpetrated by the German National Socialists against the Jews of Europe during the Second World War never occurred. According to the appellant, there was no concerted plan to exterminate European Jewry, along with assorted others of racial extraction, religious persuasion, national origin or sexual orientation of which the Nazis did not approve.

By pointing to what he alleges to be new evidence, the appellant submits that some Jews died, as people will in war time, but that the “Final Solution to the Jewish Question” was never anything more than a plan to facilitate emigration to Madagascar. He states that the Holocaust is a myth fabricated by an immensely powerful Jewish-Zionist conspiracy to win lucrative war reparations from the Germans, to make them feel ashamed and a pariah in the eyes of other nations, and to win political and economic support for the State of Israel.

While the appellant argues that his purpose in preparing and disseminating the publication was to provide a novel analysis of historical documents, Richard Verral makes clear the true import of the “revisionist” project. In the aftermath of the Holocaust, the international community has cast a jaundiced eye on all forms of racism and has bonded together to reject and obliterate it. The author alleges that “the Anglo-Saxon world” is falling into decline because of the presence of non-Aryans and that the lessons of the horrors of the Holocaust prevent “rational” debate about this trend. Under the heading “The Race Problem Suppressed”, the pamphlet states:

Thus the accusation of the Six Million is not only used to undermine the principle of nationhood and national pride, but it threatens the survival of the Race itself. . . . Many countries of the Anglo-Saxon world, notably Britain and America, are today facing the gravest danger in their history, the danger posed by the alien races in their midst. Unless something is done in Britain to halt the immigration and assimilation of Africans and Asians into our country, we are faced in the near future, quite apart from the bloodshed of racial conflict, with the biological alteration and destruction of the British people as they have existed here since the coming of the Saxons.

In short, we are threatened with the irrecoverable loss of our European culture and racial heritage. But what happens if a man dares to speak of the race problem, of its biological and political implications? He is branded as that most heinous of creatures, a “racialist”. And what is racialism, of course, but the very hallmark of the Nazi! They (so everyone is told, anyway) murdered Six Million Jews because of racialism, so it must be a very evil thing indeed. Presumably in order to quell the abhorrence with which people of good will respond to racism, the premise of the pamphlet was that the brutal realization in the Holocaust must be denied. To this end, the pamphlet makes numerous false allegations of fact. It will suffice to point to only a few.

The pamphlet alleges that:

– the Nazi concentration camps were only work camps; that gas chambers were built by the Russians after the War; that the millions who disappeared through the chimneys of the crematoria at Auschwitz, Sobibor, Maidanek and elsewhere actually moved to the United States and changed their names;

– The Diary of Anne Frank is a work of fiction;

– the emaciated living and dead found by liberation forces died of starvation and typhus;

– the films and photographs are clever forgeries;

– there are no witnesses to or survivors of the slaughter and every perpetrator who later revealed his complicity was coerced.


The case comes to this Court after two trials, each of which resulted in a conviction. Although the first conviction was overturned, the Ontario Court of Appeal rejected the appellant’s submission that s. 181 violated the Charter and sent the matter back for a new trial. This appeal is brought from the conviction on the second trial. Leave to appeal to this Court was granted on the general Charter issue only — the constitutionality of s. 181 of the Criminal Code.

At trial, Judge Thomas took judicial notice of the fact that Jews were murdered by the Nazis but did not take judicial notice of the facts alleged in the appellant’s pamphlet:

The mass murder and extermination of Jews in Europe by the Nazi regime during the Second World War is so generally known and accepted that it could not reasonably be questioned by reasonable persons. I directed you then and I direct you now that you will accept that as a fact. The Crown was not required to prove it. It was in the light of that direction that you should examine the evidence in this case and the issues before you.Accordingly, it was not open to the appellant to argue that no Jews died during the Second World War, and indeed, as noted above, this was not his thesis. In his final address to the jury, defence counsel analyzed the relationship between the judicial notice and the appellant’s work:

His Honour will tell you what he says is reasonable for reasonable men to contest. But it won’t include the six million, it won’t include the gas chambers and it won’t include an official plan. That’s basically what this book is all about. That is not to dispute the Jewish tragedy of mass murder of some Jews by some Nazis during World War II which His Honour will tell you is a fact. The Judicial ruling goes no further than that. And if two Jews were killed by some Nazis, that wouldn’t be a mass murder. It would certainly be a tragedy. It would be wrong. But it wouldn’t necessarily be what is portrayed as the Holocaust.

The appellant was fully able to defend the specific allegations out of which he built his argument as to the motive, intention, mechanisms, scope, and impact of the slaughter. He was fully able to put forth his argument that “the Holocaust”, writ large as an historical icon, was a fabrication. The court explicitly did not take away from the jury the possibility of accepting evidence in support of Zundel’s fundamental premise that there was no systematic plan of genocide and thus that racism was not as dangerous as supposed. The trial judge also made it clear in his instruction to the jury that they were to find that some Jews died but must be satisfied beyond a reasonable doubt that these deaths amounted to the historical cataclysm known as the Holocaust. In his charge to the jury, Judge Thomas summarized the position of the defence.

The Crown had proved:

(a) wilful publication

(b) of a statement of fact rather than of opinion (the onus of
differentiating fact from opinion lying with the Crown);

(c) which the accused knew to be false when he published it; and

(d) which falsehood is likely to cause mischief to the public interest (in this case, the interest in racial and social tolerance).

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