A Stunning Decision: Ontario Court Reverses Conviction of an Anti-semitic Propagandist

The Ontario Court of Appeals, in a move that stunned Jews and civil libertarians in Canada, has unanimously reversed the conviction of German-born anti-Semitic propagandist Ernst Zundel, who was sentenced in 1985 to 15 months’ imprisonment for distributing a booklet entitled “Did Six Million Really Die?” a denial that the Holocaust occurred.

The court overturned the conviction on technical grounds but upheld Section 177 of the Canadian Criminal Code under which he was convicted — “spreading false news” — and allowed that a new trial may be ordered. The Attorney General has 21 days to challenge the Appeals Court ruling. He may appeal to the Supreme Court, order a new trial or drop the charges.

A new trial would give Zundel another public forum from which to promulgate his racist views and denial of the Holocaust and, as he made clear in an interview with the Toronto Globe and Mail, that is exactly what he had hoped for.

‘THE WORST OF BOTH WORLDS’

Charles Zaionz, chairperson of the Canadian Jewish Congress’ Ontario chapter, and Rose Wolfe, chairperson of its Joint Community Relations Committee, said that while it was gratifying that the Appeals Court upheld Section 177, “one recoils at the possibility of a second trial which would grant the accused a renewed opportunity to stage-manage a circus.”

Alan Borovoy, speaking for the Canadian Civil Liberties Association, said the decision was “the worst of both worlds.” Not only “must Jews and (Holocaust) survivors be put through the agony of another trial, but Canada is stuck with a law that could have a chilling effect on ordinary citizens who might have opinions that run contrary to conventional wisdom,” he said.

Zundel was not charged under Canada’s anti-hate law, passed in 1970, but under an older statute which originated in English Common Law and was incorporated in the Canadian Criminal Code in 1892. It states that anyone “who wilfully publishes a statement, tale or news that he knows is false and that … is likely to cause or causes injury or mischief to a public interest” is guilty of an offense punishable by two years in jail.

VIEW OF APPEALS COURT PANEL

The panel of five judges of the Appeals Court agreed that the “maintenance of racial and religious harmony is certainly a matter of public interest” requiring protection.

They found that Judge Hugh Locke, who tried the case, did not err when he rejected a defense request that all Jews and Freemasons be excluded from the jury. But he was in error when he failed to advise Zundel’s lawyer that he could re-phrase his questions to prospective jurors.

“There is a denial of a fundamental right to a fair and proper trial where the accused is not allowed to challenge any number of jurors for cause … Zundel was deprived of his right to have a jury … whose impartiality or appearance of impartiality could not be impugned,” the panel stated in its ruling.

It also found Judge Locke to have been in error when he intimated to the jury that Zundel could be convicted if they decided he did not honestly believe his publications. In reality, the court said, the jury had to decide that he actually knew the booklet to be false in order to convict.

Zundel, 47, was elated by the court’s decision. Comparing himself in “leadership” and “charisma” with his idol, Adolf Hitler, he told the Globe and Mail that he intends to enter Canadian politics because “if any time is ripe, it’s now.” He also boasted to a reporter that he had “enticed the establishment” into giving him a new platform and is delighted with his success. He said he has invested $50,000 in new machinery to publish his propaganda.