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ZGram: Where Truth is Destiny

April 5, 2000

Good Morning from the Zundelsite:

Last night, I was told that the scheduled two-day Court of Appeal sessions regarding the controversial "Truth is no defence" ruling of the Canadian Human Rights Tribunal in the Zundelsite case were done with in one day. The arguments below presented by the Zundel defense team were made short shrift of, and the atmosphere outside the court room was tense as in the court room itself. It was described as hostile, even rude.

Judgment is expected shortly, and it is not expected that it will be in Mr. Zundel's favor.

That will mean that the Canadian Human Rights Tribunal circus is going to go on.

It means that, in more than 3 years since this bizarre case started, a total of over 50 rulings were handed down by this Soviet-style Tribunal, ***not one of which was made in Mr. Zundel's favor.***

It also means that, unless Mr. Zundel chooses to fight this issue all the way up to the Supreme Court and wins his case there - how likely would that be? - the extra-legal or quasi-judicial rulings of an appointed Canadian Human Rights Tribunal - where the PC crowd and political cronies of the powerful hold sway and judge critics of the regime - ***supersede*** the Canadian Charter of Rights and Freedoms.

It means, to put it bluntly, that Truth is at the mercy of the shifting demands of Political Correctness.

Situational ethics are the order of the day in these proceedings.

In light of the above, please read the rest of the arguments that were made yesterday in the Court of Appeal in Toronto, as summarized in the what is called a Factum, the written and verbal arguments by Zundel Defense Attorney, Doug Christie. Perhaps you'll shed a tear or two.

(Truth) is a defense to section s.13(1) of the (Canadian Human Rights Act) to show that the statements complained of are true or substantially true. True statements are at the core of the freedom of expression guarantee and are accorded the highest protection. If a defendant's statements are true, they unquestionably contribute to the values of free expression and do not constitute hate propaganda. Any defendant must therefore have the right to prove the truth of his statements.

It cannot be assumed that in every case where complaints are laid under section 13 of the CHRA that in fact the statements are hate. ***The accusation would simply fuse with the conviction.*** (Emphasis added). Proof of the truth of the statements is far-reaching evidence that the expression is of a high value for society and for the benefit of the identifiable group involved and does not constitute hatred. Whether the statements in issue are true is a question of fact for the Tribunal hearing the case in its determination of whether they expose protected groups to hatred.

These submissions were supported by the appellant CHRC's own witness, Dr. Frederick Schweitzer, who testified that truth is not hatred. He testified repeatedly that truth was an important factor which he took into account in forming his opinion that the impugned statements constituted "lethal anti-Semitism" which could cause harm to Jews. He believed that the statements in the Zundelsite were false and therefore constituted part of an ongoing historical defamation of Jews. If the prosecution's own expert witness was of this opinion in defining anti-Semitism as he was qualified to do was right did the CHRC have to impugn the reliability of its own witness.

(Transcript of cross-examination)



Q. The essential nature of the judgments of anti-Semitism that you have made about the things you have looked at from history and from the Zundelsite, the essential ingredient of it, is its falsehood.

A. Yes, it is false.

# 2.

A. My understanding of anti-Semitism in the past and the present is that it is without foundation. When there are truthful elements, they are merely elements and they are used to make more plausible and compelling the accusation which is fundamentally false.

# 3.

Q. I hope we are ad idem on this, Doctor, that to make a proper assessment of any statement about history, to discern between hate propaganda and valid social or historical criticism, a historian needs to concern themselves (sic) with an investigation of the fact. Is that right?"

A. Correct.

# 4.

Q. In terms of truth, you have said yourself that, in order to discriminate between anti-Semitism and criticism, one has to make careful assessments of truth. Right?

A. Careful assessments of truth and of intentions and of context, and so on.

Q. Truth, intentions and context. Is that correct, sir?

A. Yes.

Notwithstanding Dr. Frederick Schweitzer's testimony that the Zundelsite materials were false and that this was the basis for his opinion that they constituted lethal anti-Semitism, ***the Tribunal ruled that the respondent's counsel could not cross-examine the witness on the truth of the Zundelsite materials***. (Emphasis added) By denying this right to cross-examination, the Tribunal denied the respondent the right to natural justice and a fair hearing. The Tribunal denied Mr. Zundel the right to test the credibility of the expert's assertion as to the basis of his opinion.

Dr. Schweitzer testified that true statements did not constitute anti-Semitism but were simply the truth. He did not believe that Jews had anything to fear from the truth. He testified that when he formed his opinion about the Zundelsite, he was "of course" concerned about the truth of what was contained in the writings "because historians are concerned with the truth. Truth is essential to the enterprise. Without that concern, all its other virtues and benefits are forfeit."

It is respectfully submitted that this statement by Dr. Schweitzer on the relationship between truth and hate propaganda reflects...the common values of Western society. Canadians expect to be able to tell the truth without fear of criminal proceedings or human rights tribunal proceedings in which they are charged with inciting hatred against other people. It is understood that often the truth will hurt and offend other people but it is nevertheless necessary and required in any stable, free and progressive society. What truth promotes is not hatred or contempt but justice, honesty and respect for authority. Its opposite has the adverse effect.

Truth is a defense to a criminal charge of hate propaganda (s.319(2); to criminal defamatory libel (s.309 and 311); and to civil actions for defamation. Moreover, the defences of fair comment and fair reporting of certain proceedings are available to these charges. Defamatory libel, defamation and publishing hate propaganda are closely related to the objects and wording in s.13. All attempt to stop hatred and contempt against individuals or groups. These laws all recognize that truth is a core right for all Canadians to speak.

It is respectfully submitted that ***the administration of justice will be brought into disrepute if true statements are made subject to hate laws***. (Emphasis added) It is a profound part of our morality in this society that truth is good and lies are evil. (...)

The Supreme Court of Canada held (...)

"The goal of the court process is truth seeking and, to that end, the evidence of all those involved in judicial proceedings must be given in a way that is most favorable to eliciting the truth." (...)

The discovery of truth in judicial proceedings is a principle of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada held (...)

"All parties agree that the right to a fair trial - one which permits the trier of fact to get at the truth and properly and fairly dispose of the case - is a principle of fundamental justice...It is fundamental to our system of justice that the rules of evidence should permit the judge and jury to get at the truth and properly determine the issue...***A law which prevents the trier of fact from getting the truth by excluding relevant evidence in the absence of a clear ground of policy or law justifying the exclusion runs afoul of our fundamental conceptions of justice and what constitutes a fair trial***." (Emphasis added) (...)

Alan Borovoy, counsel for the Canadian Civil Liberties Association, in a recent book entitled "The New Anti-Liberals" commented lucidly on the implications of disallowing truth as a defence in human rights cases and specifically gave warning to the appellant Canadian Jewish Congress of the implications of the position it was taking in this case. He wrote at page 50:

"...suppose a complaint were filed regarding Daniel Goldhagen's recent book, Hitler's Willing Executioners? Since the book argues that German people by the thousands participated eagerly in the Holocaust, might it not be said that the book is 'likely to expose' a whole generation of Germans to hatred or contempt? Indeed, considering how much anti-semitism existed in Nazi-occupied Europe during the war, these human statutes might render it unlawful simply to tell the truth about the Holocaust.'"

Words spoken to the wind?

I asked Ernst Zundel to comment on this latest in a long string of human rights denials and abuses by Canadian authorities inflicted on him - he who is hammering into the transcripts and court records of Canada a dismal record of the ruling oligarchy! - Mr. Zundel had this to say:

"The behavior I saw unfold before my eyes in today's proceedings were bizarre and reflected a judicial mind set which I can only call frightening. It does not bode well for democratic rights or intellectual freedom in Canada.

"If the judges adopt some of the statements made today as being right and proper, then Canadians can get ready for more repressive actions and tribunal hearings against an ever wider circle of dissidents.

"The oft-belaboured Niemöller quote comes to mind: 'First they came to Communists, but I was not a Communist...' Ernst Zundel is merely the one for whom they came first."

And not-too-incidentally, if he gets stuck with the costs of all the opposition lawyers assessed against him (if he loses) the bill might well be $40,000 plus.

What price freedom?



Thought for the Day:

"Driven from every other corner of the earth, freedom of thought and the right of private judgment in matters of conscience direct their course to this happy country as their last asylum."

(Speech about America by Samuel Adams, August 1, 1776)

Back to Table of Contents of the April 2000 ZGrams