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Just search freemason in Canadian courts ...very interesting


http://www.canlii.org/bc/cas/bcpc/2006/2006bcpc210.html

just search freemason, freemasonry


Court of Appeal for Ontario

R. v. Zundel

Date: 19870123



BY THE COURT:-The appellant Ernst Zundel was charged with the
commission of two offences contrary to s. 177 of the Criminal Code,
R.S.C. 1970, c. C-34. The indictment read as follows:

1. ERNST ZUNDEL stands charged that he, during the year 1981, at the
Munic­ipality of Metropolitan Toronto in the Judicial District of
York, did publish a statement or tale that he knows is false, namely
the article "The West, War, and Islam", and the said article is likely
to cause mischief to the public interest in social and racial
tolerance, contrary to the Criminal Code.

2. ERNST ZUNDEL stands further charged that he, in or about the year
1981, at the Municipality of Metropolitan Toronto in the Judicial
District of York, did publish a statement or tale, namely "Did Six
Million Really Die?" that he knows is false and that is likely to cause
mischief to the public interest in social and racial tolerance,
contrary to the Criminal Code.

After a seven-and-one-half week trial before the Honourable Judge Locke
and a general sessions jury, the appellant was acquitted on count 1 but
convicted on count 2. On March 25, 1985, he was sentenced to 15 months'
imprisonment together with three years' probation. It was a term of the
probation order that he would not publish, directly or indirectly,
anything on the subject of the Holocaust or any subject related to the
Holocaust. The appellant is appealing both conviction and sentence.

Although, as will be seen from our reasons, we are of the opinion that
the Honourable Judge Locke committed some errors during the course of
the trial and in his charge to the jury, we believe fairness requires
that we should acknowledge at the outset that this was a difficult and
complex trial. There was little case-law to guide the learned judge in
the interpretation and appli­cation of s. 177. In addition, he was
required almost daily to make rulings on difficult and involved
questions of law. For instance, the trial began with a challenge by
counsel for the accused to the validity of s. 177 on the ground that it
was inconsistent with s. 2(b) of the Canadian Charter of Rights and
Freedoms. This was followed immediately by an application by counsel
for the accused to have certain questions put by the trial judge to the
jury panel at large and to permit counsel to challenge prospective
jurors for cause by asking them a list of questions which he had
prepared. In all instances, the trial judge made his rulings promptly,
giving full and detailed reasons. While we do not always agree with his
rulings, the way in which he made them has greatly assisted us in the
determination of this appeal.

Since Crown counsel attached some significance to the appel­lant's
acquittal on count 1 of the indictment, we believe that before turning
to count 2, we should say a few words about the pamphlet that formed
the subject-matter of the first count. In 1981, the appellant wrote and
distributed a rambling, diffuse, four-page pamphlet entitled, "The
West, War and Islam!". In essence, the pamphlet alleged that a
conspiracy existed among International Zionists, International Secret
Societies (particularly Freemasonry), International Bankers, and
International Commu­nists to use their control of Western media "to
misinform, to miseducate and to instill hatred against the Islamic
peoples". The pamphlet appealed to the Islamic nations to rectify the
situation by assisting in the creation "of an independent, worldwide
inform­ation network capable of countering the now unopposed Zionist
disinformation and hate propaganda". It ended with an indirect appeal
to the Islamic world to contribute money to the appellant and his
organization so that they could commence a public inform­ation
campaign immediately. The appellant mailed the pamphlet to people
outside Canada from Morocco to Pakistan. It was not distributed in
Canada.

Count 2 of the indictment on which the appellant was convicted related
to the publication by the appellant of a 32-page pamphlet entitled,
"Did Six Million Really Die? Truth At Last Exposed:". The appellant
gave evidence at his trial. The following is a brief outline of the
background facts as related by him which led up to the publication of
the pamphlet.

The appellant was born in 1939 in the Black Forest region of Germany.
His father was a soldier in the German army in World War II, and except
for sporadic visits, was away from home until 1948. The appellant
related in detail the hardships that he experi­enced as a boy during
and after the war in Germany.

After finishing school in Germany, the appellant in 1958 decided to
immigrate to Canada. He chose Canada because it had a volunteer army
and the appellant did not wish to be drafted. On arrival in Canada, he
obtained employment as a graphic artist. He swore that up until 1960,
he firmly believed that the Germans had killed six million Jews during
World War II.

In 1959 the appellant married a French-Canadian girl. There were two
children of the marriage: Pierre, born in 1960, and Hans, born in 1967.
Shortly after the birth of Pierre, he and his wife moved to Montreal
where the appellant started his own business. He lived in Montreal for
nine years. He testified that he had a thriving business in Montreal,
and the business did so well that he was able to take off several
months each year and travel. In the course of his travels, he went all
over Europe, Canada and the United States making investigations
concerning German conduct during the Second World War. Gradually he
became more and more interested in the story that six million Jews had
been killed by the Germans during the war. By 1977, he said that his
interest in the subject had become "overwhelming",

The appellant outlined for the jury the elaborate and detailed
investigations he made into the truth of the allegation that six
million Jews were killed by the Germans during World War II, commencing
with his discussions in the 1960s in West Germany with Joseph Ginsburg,
the author of a German book called Schuld and Schicksal. As a result of
his investigations, the appellant said that he intended to write a book
to set the record straight. He gave the following testimony concerning
how he heard of the pamphlet, "Did Six Million Really Die?":

I had been involved in a study of this topic for a long time, and I had
planned to write something on this topic, but always held back because
it's such a distasteful subject to me. And I just couldn't get myself
to write it, and then I heard of a booklet in Europe called, "Did Six
Million Really Die?" out of England. I wrote to the publisher, got a
copy of the booklet in English. Then I received one in French, in
Dutch, in Flemish. There were later editions in Swedish, in Finnish, in
German I already said. I think there is one in Hungarian, and one in
Rumanian. I saw at that time before I ever thought of publishing it
four or five different languages of this booklet, so I naturally read
through this booklet and I thought that it was in a nice condensed form
virtually what I had intended to write myself, because I thought
something like that should be written. Most of the revisionist
literature of the day, like Rassinier, fairly thick tomes, and I have
learned one thing being in the graphic arts, that people like to read
less and less, especially serious stuff. So I felt this was a good
vehicle, of the best that I had seen. And Dr. App with whom I was at
that time working and had been selling some of his publica­tions, "The
Six Million Swindle", for instance, and another booklet called, "A
Straight Look at the Third Reich", and Christopherson's booklet, "The
Auschwitz Lie", I thought that the Harwood booklet was superior to all
the three or four which I was selling at the time.

In the beginning, the appellant imported the pamphlet from England and
distributed it in Canada; however, this did not prove satisfactory as
the English publisher did not package it properly. He then obtained an
American source for the pamphlet and made arrangements for the printing
of a Canadian edition. He added to the title the words, "Truth At Last
Exposed", and he wrote a foreword and a postscript. The publisher would
not, however, permit him to make any change in the format or in the
contents of the pamphlet.

Although the appellant's evidence as to when he published the pamphlet
is rather vague, and although the indictment states that it was "in or
about the year 1981", counsel for the appellant at the commencement of
the trial admitted, in response to a request from Crown counsel to
avoid the calling of a witness, that "Mr. Zundel published the article
and wrote a foreword and postscript to that article and distributed it
in Canada in 1983". The trial proceeded on this basis.

The appellant testified that he sold some copies of the pamphlet. He
said that he also sent copies free of charge to every member of
Parliament, to every Catholic priest in Ontario and Quebec, to every
Protestant minister in Ontario, to all radio stations, television
stations and newspaper editors in Ontario, and to every high school
history teacher in Ontario.

The pamphlet purports to be written by one Richard Harwood. At the end
of the pamphlet, the following description is given of Harwood:

RICHARD HARWOOD is a writer and specialist in political and diplomatic
aspects of the Second World War. At present he is with the University
of London. Mr. Harwood turned to the vexed subject of war crimes under
the influence of Professor Paul Rassinier, to whose monumental work
this little volume is greatly indebted. The author is now working on a
sequel in this series on the Main Nuremberg Trial, 1945-46.

Zundel testified that he discovered in 1982 or 1983 that Richard
Harwood was a pseudonym and that the author's real name was Richard
Verrai. Zundel said that, according to his information, Verrai was a
graduate student of one of London's universities in history. Zundel
tried to get Verrai to give evidence at the trial, but Verral refused
as he had married a Jewish girl and had given up political work.

In addition to printed material, the pamphlet contains some photographs
and a map showing the location of German concen­tration camps during
World War II. The general theme of the pamphlet is summed up in the
following passages from the intro­duction:

In the following chapters the author has, he believes, brought together
irrefutable evidence that the allegation that 6 million Jews died
during the Second World War, as a direct result of official German
policy of extermina­tion, is utterly unfounded. This conclusion,
admittedly an unpopular one, resulted from an inquiry which was begun
with no pre-conceived opinions, beyond a general notion that the
statistical possibility of such huge casualties was perhaps open to
doubt, as well as an awareness that political capital was being made
from the implications of this alleged atrocity. A great deal of careful
research into this question, however, has now convinced me beyond any
doubt that the allegation is not merely an exaggeration but an
invention of post-war propaganda.

.....

So far as the Jewish people themsleves [sic] are concerned, the
deception has been an incalculable benefit. Every conceivable race and
nationality had its share of suffering in the Second World War, but
none has so successfully elaborated it and turned it to such great
advantage. The alleged extent of their persecution quickly advised
sympathy for the Jewish national homeland they had sought for so long;
after the War the British Government did little to prevent Jewish
emigration to Palestine which they had declared illegal, and it was not
long afterwards that the Zionists wrested from the Government the land
of Palestine and created their haven from persecution, the State of
Israel. Indeed, it is a remarkable fact that the Jewish people emerged
from the Second World War as nothing less than a triumphant minority.
Dr. Max Nussbaum, the former chief rabbi of the Jewish community in
Berlin, stated on April 11, 1953: "The position the Jewish people
occupy today in the world - despite the enormous losses - is ten
times stonger [sic] than what it was twenty years ago." It should be
added, if one is to be honest, that this strength has been much
consolidated financially by the supposed massacre of the Six Million,
undoubtedly the most profitable atrocity allegation of all time. To
date, the staggering figure of six thousand million pounds has been
paid out in compensation by the Federal Government of West Germany,
mostly to the State of Israel (which did not even exist during the
Second World War), as well as to individual Jewish claimants.

The pamphlet proceeds to discuss these issues under the following
headings:

German Policy Towards the Jews Prior to the War

German Policy Towards the Jews After the Outbreak of War Population and
Emigration

The Six Million: Documentary Evidence

The Nuremberg Trials

Auschwitz and Polish Jewry

Some Concentration Camp Memoirs

The Nature & Condition of War-time Concentration Camps

The Jews and the Concentration Camps: A Factual Appraisal By the Red
Cross

The Truth At Last: The Work of Paul Rassinier

Under the subheading, "Enormous Fraud", the author of the pamphlet
quotes the following passage from Professor Paul Rassi­nier's book, Le
Drame des Juifs européen [sic]:

Perhaps I may be allowed to recall here that the State of Israel was
only founded in May 1948 and that the Jews were nationals of all states
with the exception of Israel, in order to underline the dimensions of a
fraud which defies description in any language; on the one hand Germany
pays to Israel sums which are calculated on six million dead, and on
the other, since at least four-fifths of these six million were
decidedly alive at the end of the war, she is paying substantial sums
by way of reparation to the victims of Hitler's Germany to those who
are still alive in countries all over the world other than Israel and
to the rightful claimants of those who have since deceased, which means
that for the former (I. e. the six million), or in other words, for the
vast majority, she is paying twice.

The author concludes the pamphlet in this way:

The question most pertinent to the extermination legend is, of course:
how many of the 3 million European Jews under German control survived
after 1945? The Jewish Joint Distribution Committee estimated the
number of survivors in Europe to be only one and a half million, but
such a figure is now totally unacceptable. This is proved by the
growing number of Jews claiming compensation from the West German
Government for having allegedly suffered between 1939 and 1945. By
1965, the number of these claimants registered with the West German
Government had tripled in ten years and reached 3,375,000 (Aufbau, June
30th, 1965). Nothing could be a more devas­tating proof of the brazen
fantasy of the Six Million. Most of these claimants are Jews, so there
can be no doubt that the majority of the 3 million Jews who experienced
the Nazi occupation of Europe are, in fact, very much alive. It is a
resounding confirmation of the fact that Jewish casualties during the
Second World War can only be estimated at a figure in thousands. Surely
this is enough grief for the Jewish people? Who has the right to
compound it with vast imaginary slaughter, marking with eternal shame a
great European nation, as well as wringing fraudulent monetary
compensation from them?

Zundel conceded that there were some errors in the pamphlet. For
example, the pamphlet states that Meyer Levin wrote the dialogue of The
Diary of Anne Frank. Zundel admitted that this was not correct. Levin
only wrote a stage adaption of The Diary. Otto Frank, the father of
Anne Frank, was dissatisfied with Levin's work and employed someone
else to do it. Zundel acknowl­edged that there were also some sloppy
errors in the Red Cross report. Zundel swore that he was not aware of
the errors until after he had published the pamphlet. However, he said
that 99% of the pamphlet was accurate, and he stood behind it.

The witnesses called by the Crown were principally directed to the
issue of whether or not six million Jews had died during the Second
World War as a direct result of official German policy of
extermination. A number of witnesses were called who had been
incarcerated in German concentration camps, such as Birkenau,
Auschwitz, and Maidenek; they testified about what they had seen and
what their experiences had been in the camps. The Crown also called Dr.
Raul Hilberg as an expert witness to testify on the subject of the
systematic destruction of Jews by the Germans during World War II. We
will be dealing with Dr. Hilberg's evidence in greater detail later in
these reasons. No direct evidence appears to have been called by the
Crown as to the appellant's knowledge that the statements in the
pamphlets were false.

The appellant's defence at the trial was that he had an honest belief
in the truth of what was written in the pamphlet. He produced a large
number of articles, letters and books which he had read prior to the
publication of the pamphlet and which he claimed accorded with what was
contained in the pamphlet. In addition, the defence called a number of
witnesses, some of whom were qualified to a limited extent as experts,
to prove the truth of the contents of the pamphlet. The appellant swore
that he had read material written by some of these witnesses in
arriving at his belief that the contents of the pamphlet were true.
Finally, the defence called a number of character witnesses to testify
to the good reputation of the appellant in the community.

Although counsel for the appellant advanced a number of grounds of
error, we believe that the following are the only ones that warrant
consideration by this court:

I Constitutional validity of s. 177 of the Criminal Code

The first ground of appeal raised by the appellant is that s. 177 of
the Criminal Code, which provides for the offence of "spreading false
news", is unconstitutional because it infringes the fundamental
"freedom of expression" guaranteed by the Canadian Charter of Rights
and Freedoms. Section 2(b) of the Charter provides:

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;

A. History of s. 177

Before turning to consider the Charter, it is necessary to examine the
history of the offence of "spreading false news", and the essential
nature of the offence created by s. 177. The present s. 177 reads as
follows:

177. 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 is liable
to imprisonment for two years.

The offence of "spreading false news" had a very ancient origin in the
statutes concerning scandalum magnatum, the earliest of which is a
provision of the first Statute of Westminster, 1275, 3 Edw. I, c. 34,
which reads as follows:

Forasmuch as there have been oftentimes found in the Country Devisors
of Tales, whereby Discord, or Occasion of Discord, hath many times
arisen between the King and his People, or great Men of the Realm; For
the Damage that hath and may thereof ensue, it is commanded, That from
hence­forth, none be so hardy to tell or publish any false News or
Tales, whereby Discord or Occasion of Discord or Slander may grow
between the King and his People, or the great Men of the Realm; and he
that doth so, shall be taken and kept in Prison, until he hath brought
him into the Court, which was the first Author of the Tale.

This and subsequent amending statutes were primarily designed to
protect the peers and other great men against slanderous lies which
might imperil or cause mischief to the public if the perpe­trator were
not punished. Bishop in his text on Criminal Law, 5th ed. (1872), vol.
1, para. 473, states that the statute of Edward I provided a means
whereby the perpetrator could be brought to justice for an offence well
understood by the common law. There is authority that quite apart from
these statutes the common law recognized the publication of false news
to the public detriment as an offence: see Scott, "Publishing False
News", 30 Can. Bar Rev. 37 at p. 40 (1952).

The statute of 3 Edw. I, and the other amending statutes were finally
repealed in 1888. Prior to this time, Stephen had embodied in his
Digest of the Criminal Law, 1st ed. (1877), p. 57, art. 95, which
stated:

Spreading False News

Every one commits a misdemeanor who cites or publishes any false news
or tales whereby discord or occasion of discord or slander may grow
between the Queen and her people or the great men of the realm (or
which may produce other mischiefs)

The words in brackets at the end of this article are significant in
view of the words "injury or mischief to any public interest" in the
present s. 177 of the Code.

As the late Professor Scott pointed out in his learned article,
"Publishing False News", op. cit. at p. 39:

... the Canadian Criminal Code was based on Stephen's Digest and on the
Draft Code he prepared for the British Parliament in 1879. Burbridge,
the draftsman of the Canadian Code of 1892, himself published a Digest
of the Criminal Law of Canada in 1890, founded on Stephen's, and in
article 125 repeats the latter's article 95 verbatim, including the
comment that "The definition is very vague and the doctrine exceedingly
doubtful". Through Burbridge the doctrine, despite its vagueness,
entered our Code, the element of "false news or tales" remaining from
scandalum magnatum and the notion of "discord and slander between the
Queen and her people or the great men of the realm" being generalized
into "injury or mischief" to "any public interest".

The Criminal Code, 1892 (Can.), c. 29, included s. 126 in "Part VII:
Seditious Offences", which was under "Title II: Offences Against Public
Order, Internal and External". Section 126 provided as follows:

126. Every one is guilty of an indictable offence and liable to one
year's imprisonment who wilfully and knowingly publishes any false news
or tale whereby injury or mischief is or is likely to be occasioned to
any public interest.

In the statutory revisions of 1906 (R.S.C. 1906, c. 146) and of 1927
(R.S.C. 1927, c. 36), the provision appeared as s. 136 under the same
general heading and subheading. In the revision of the Criminal Code in
1953-54 (Can.), c. 51, the word "statement" was inserted before the
words "tale or news" and the section was designated as s. 166 and was
reworded as the present wording of s. 177. However, s. 166 appeared in
"Part IV: Sexual Offences, Public Morals and Disorderly Conduct" under
the subheading "Nuisances". The reclassification of the offence from
the category of seditious offences to the category of nuisances may be
of signifi­cance in viewing it as an offence with less serious
potential consequences. In the 1970 revision (R.S.C. 1970, c. C-34),
the provision was renumbered as s. 177 under the same heading and
subheading but there was no change in wording.

The essential ingredients of an offence under s. 177 are:

(a) wilful publication, and

(b) the publication must be of a statement, tale or news.

(It is not necessary in this appeal to go into the precise difference
in meaning between a statement, tale and news. Counsel for the
respondent conceded that an assertion of fact must be proved which is
capable of being false. The assertion of an opinion is not sufficient.)

(c) The assertion of fact must be false to the knowledge of the person
who publishes it;

(d) it does not have to be proved that the false assertion of fact
actually caused injury or mischief to a public interest. It is
sufficient if it is proved that it was likely to cause such injury or
mischief.

In this appeal the charge specifies that the public interest in
question is the public interest in racial and social tolerance.

There are extremely few reported decisions on s. 177. In R. y. Hoaglin
(1907), 12 C.C.C. 226, the accused published a placard in connection
with a closing-out sale stating he had decided to leave Canada and that
settlers from the United States were not wanted in Canada. This was
done at a time when great efforts were being made to induce settlers
from the United States to come to Canada. He was convicted under a
predecessor of s. 177, the court holding that the publication was
contrary to the public interest.

In R. v. Kirby (1970), 1 C.C.C. (2d) 286, 13 Crim. L.Q. 128, an
underground newspaper published an edition in Montreal parodying the
Gazette and containing a false story that the mayor had been "shot by
[a] dope-crazed hippie". The Quebec Court of Appeal set aside the
conviction of the appellant. It considered that while the night city
editor of the Gazette might have been incon­venienced by the 50 or so
calls received at the Gazette switchboard, there was no injury or
mischief to a public interest. It was not "reasonably sure to cause
trouble and insecurity" (p. 289),

B. Procedure in determining constitutionality of s. 177

With this background it is now necessary to consider whether s. 177 is
unconstitutional because it infringes s. 2(b) of the Charter, the
fundamental freedom of expression. In considering the
consti­tutionality of impugned legislation under the Charter, both the
purpose and the effect of the legislation are relevant. No
funda­mental freedoms are more basic to our democratic way of life,
and more highly prized than the freedoms guaranteed under s. 2(b) of
the Charter. It is the freedom of "expression" with which we are
primarily concerned in this appeal. There is a twofold aspect to this
inquiry:

(a) Is the fundamental freedom of expression an absolute freedom, or is
it a qualified freedom which must give way to certain restrictions in
the interest of society as a whole? If it is a qualified freedom, then
the exact limits of that freedom must be determined.

(b) Once the limits of the freedom of expression have been
deter­mined, then a decision can be made whether those limits have
been breached. If so, then s. 1 of the Charter comes into operation in
order to decide whether the limitations imposed on the freedom are a
reasonable limit which is demonstrably justified in a free and
democratic society.

C. Limits of freedom of expression

It is essential at the outset to consider just exactly what is the
"freedom of expression" which is constitutionally protected. The words
are extremely broad. They are not like rights proscribed under some
other sections of the Charter such as ss. 10, 11(f) and (i). There the
limits of the rights protected are much clearer, and a breach is more
readily apparent and, if a breach has occurred, can be tested under s.
1 of the Charter.

Freedom of expression must necessarily have regard to the corresponding
rights and freedoms of other persons. It contem­plates the existence
of a social order in which other persons must not be denied similar
rights. A simplistic example, which is often given, is that a person is
not at liberty to shout "fire!" in a crowded theatre.

As Dickson C.J.C. stated when delivering the judgment of the Supreme
Court of Canada in R. v. Big M Drug Mart Ltd. 1985 CanLII 69 (S.C.C.),
(1985), 18 C.C.C. (3d) 385 at p. 418, 18 D.L.R. (4th) 321 at p. 354,
[1985] 1 S.C.R. 295:

Freedom means that, subject to such limitations as are necessary to
protect public safety, order, health, or morals or the fundamental
rights and freedoms of others, no one is to be forced to act in a way
contrary to his beliefs or his conscience.

(Emphasis added.) (See also his dicta to the same effect at p. 425
C.C.C., p. 361 D.L.R.) In that case Chief Justice Dickson was, of
course, addressing his remarks to the limits of the fundamental freedom
of religion under s. 2(a) of the Charter but his remarks are, in our
opinion, apposite for "freedom of expression".

In this appeal it is not necessary to give an all-embracing definition
of "freedom of expression", but merely to decide whether "spreading
false news" within s. 177 of the Code is encompassed within that
fundamental freedom.

When considering the interpretation of the Charter, it is important to
bear in mind the admonition of Chief Justice Dickson in Hunter et al.
v. Southam Inc. 1984 CanLII 33 (S.C.C.), (1984), 14 C.C.C. (3d) 97 at
p. 106, 11 D.L.R. (4th) 641 at p. 650, 2 C.P.R. (3d) 1 at p. 10, [1984]
2 S.C.R. 145 at p. 156, that the proper approach to the definition of
the rights and freedoms guaranteed by the Charter is a purposive one:
"Its purpose is to guarantee and to protect, within the limits of
reason, the enjoyment of the rights and freedoms it enshrines."

In R. v. Big M Drug Mart Ltd., supra, at pp. 423-4 C.C.C., pp. 359-60
D.L.R., Dickson C.J.C. elaborated on his views as follows:

The meaning of a right or freedom guaranteed by the Charter was to be
ascertained by an analysis of the purpose of such a guarantee; it was
to be understood, in other words, in the light of the interests it was
meant to protect.

In my view, this analysis is to be undertaken, and the purpose of the
right or freedom in question is to be sought by reference to the
character and the larger objects of the Charter itself, to the language
chosen to articulate the specific right or freedom, to the historical
origins of the concepts enshrined, and where applicable, to the meaning
and purpose of the other specific rights and freedoms with which it is
associated within the text of the Charter. The interpretation should
be, as the judgment in Southam emphasizes, a generous rather than a
legalistic one, aimed at fulfilling the purpose of the guarantee and
securing for individuals the full benefit of the Charter's protection.
At the same time it is important not to overshoot the actual purpose of
the right or freedom in question, but to recall that the Charter was
not enacted in a vacuum, and must therefore, as this Court's decision
in Law Society of Upper Canada v. Skapinker 1984 CanLII 3 (S.C.C.),
(1984), 11 C.C.C. (3d) 481, 9 D.L.R. (4th) 161, [1984] 1 S.C.R. 357,
illustrates, be placed in its proper linguistic, philosophic and
historical contexts.

Differing reasons have been expressed as to why freedom of expression
should be guaranteed. Some have based it on the theory that the best
way to obtain truth is through the free exchange of ideas. Others have
based it on the theory that free expression of opinion is essential to
the working of a parlia­mentary democracy. A third rationale is that
it furthers self-fulfilment, what Professor Tribe in his American
Constitutional Law (1978), at p. 578, refers to as "the evolution,
definition and proclamation of individual and group identity".

The Supreme Court of Canada appears to have adopted the rationale that
freedom of expression is essential to the working of a parliamentary
democracy.

The historical roots of "freedom of expression" were carefully examined
by McIntyre J. in giving the reasons of the majority of the Supreme
Court of Canada in Retail, Wholesale & Department Store Union, Local
580 et al. v. Dolphin Delivery Ltd. et al., December 18, 1986
(unreported [since reported 1986 CanLII 5 (S.C.C.), [1987] 1 W.W.R.
577]). There the court had to consider whether secondary picketing of a
third party not involved in a labour dispute by members of a trade
union infringed the freedom of expression secured under s. 2(b) of the
Charter. McIntyre J., for a unanimous court on this point, considered
that freedom of expression was not created by the Charter but had been
recognized since early times. He cited in support the works of John
Milton and John Stuart Mill. He was of the opinion that freedom of
expression lay at the roots of parliamentary democracy. At p. 9 [p. 585
W.W.R.] he stated:

It is one of the fundamental concepts that has formed the basis for the
historical development of the political, social and educational
institutions of western society. Representative democracy, as we know
it today, which is in great part the product of free expression and
discussion of varying ideas, depends upon its maintenance and
protection.

He cited in support dicta of Holmes J. in Abrams v. United States
(1919), 250 U.S. 616 at p. 630; of Rand J. in Boucher v. The King, 1950
CanLII 2 (S.C.C.), [1950] 1 D.L.R. 657 at p. 682, [1951] S.C.R. 265 at
p. 288; and Rand J. and Abbott J. respectively in Switzman v. Ealing
and A.-G. Que. 1957 CanLII 2 (S.C.C.), (1957), 117 C.C.C. 129 at pp.
151 and 164, 7 D.L.R. (2d) 337 at pp. 357 and 369, [1957] S.C.R. 285 at
pp. 306 and 326. There Abbott J. had referred to the dicta of Duff
C.J.C. in Re Alberta Legislation, 1938 CanLII 1 (S.C.C.), [1938] 2
D.L.R. 81 at pp. 106-7, [1938] S.C.R. 100 sub nom. Reference re Alberta
Statutes, at pp. 132-3, as strongly supporting what could almost be
described as a constitu­tional position for the concept of freedom of
speech and expression in Canadian law, and then said at p. 166 C.C.C.,
p. 371 D.L.R., p. 328 S.C.R.: "... I am also of opinion that as our
constitutional Act now stands, Parliament itself could not abrogate
this right of discussion and debate".

McIntyre J. concluded that any question as to the constitutional status
of "freedom of expression" had been settled by the decla­ration in s.
2(b) of the Charter that it was now a fundamental freedom.

Historically, freedom of expression has not been an absolute freedom
which gives an unrestricted right of speech or expression. In Re
Alberta Legislation, supra, Sir Lyman P. Duff C.J.C. considered the
constitutionality of a bill of the Alberta Legisla­ture, "to Ensure
the Publication of Accurate News and Information". He stated at p. 107
D.L.R., p. 133 S.C.R.:

The right of public discussion is, of course, subject to legal
restrictions; those based upon considerations of decency and public
order, and others conceived for the protection of various private and
public interests with which, for example, the laws of defamation and
sedition are concerned. In a word, freedom of discussion means, to
quote the words of Lord Wright in James v. Commonwealth of Australia,
[1936] A.C. at p. 627, "freedom governed by law."

In Boucher v. The King, Rinfret C.J.C., when considering an appeal from
a conviction for seditious libel stated in a dissenting opinion at p.
666 D.L.R., p. 277 S.C.R.:

... to interpret freedom as license is a dangerous fallacy. Obviously
pure criti­cism, or expression of opinion, however severe or extreme,
is, I might almost say, to be invited. But, as was said elsewhere,
"there must be a point where restriction on individual freedom of
expression is justified and required on the grounds of reason, or on
the ground of the democratic process and the neces­sities of the
present situation".

In Switzman v. Elbling, Rand J. recognized that freedom of expression
was limited and not absolute when he stated at p. 150 C.C.C., p. 356
D.L.R., pp. 304-5 S.C.R., that:

For the past century and a half in both the United Kingdom and Canada,
there has been a steady removal of restraints on this freedom, stopping
only at perimeters where the foundation of the freedom itself is
threatened. Apart from sedition, obscene writings and criminal libels,
the public law leaves the literary, discursive and polemic use of
language, in the broadest sense, free.

The Canadian Bill of Rights, R. S.C. 1970, App. III, recognizes in s.
1(d) that freedom of speech has existed and shall continue to exist.
The preamble acknowledges the supremacy of God, and the dignity and
worth of the human person, and asserts that freedom can only be founded
upon respect for moral and spiritual values and the rule of law. This
would in turn confirm that freedom of expression which is guaranteed
under the Charter is not absolute.

More recently in Re Fraser and Public Service Staff Relations Board
1985 CanLII 14 (S.C.C.), (1985), 23 D.L.R. (4th) 122, [1985] 2 S.C.R.
455, 19 C.R.R. 152, in considering the extent to which a public servant
could openly criticize government policy, Dickson C.J.C. stated at p.
131 D.L.R., pp. 467-8 S.C.R.:

First, our democratic system is deeply rooted in, and thrives on, free
and robust public discussion of public issues. As a general rule, all
members of society should be permitted, indeed encouraged, to
participate in that discus­sion.

.....

On the other side, however, it is equally obvious that free speech or
expression is not an absolute, unqualified value. Other values must be
weighed with it. Sometimes these other values supplement, and build on,
the value of speech. But in other situations there is a collision. When
that happens the value of speech may be cut back if the competing value
is a powerful one. Thus, for example, we have laws dealing with libel
and slander, sedition and blasphemy. We also have laws imposing
restrictions on the press in the interests of, for example, ensuring a
fair trial or protecting the privacy of minors or victims of sexual
assaults.

[Emphasis added.]

When determining the limits of freedom of expression, a distinction
must be drawn at the outset between "rights" and "freedoms". A "right"
is defined positively as what one can do. A "freedom", on the other
hand, is defined by determining first the area which is regulated. The
freedom is then what exists in the unregulated area - a sphere of
activity within which all acts are permissible. It is a residual area
in which all acts are free of specific legal regulation and the
individual is free to choose. The regulated area will include
restrictions for purposes of decency and public order, and specifically
with respect to the freedom of expression, prohibitions concerning
criminal libel and sedition. It is what Rand J. described in Saumur v.
City of Quebec and A.-G. Que. 1953 CanLII 3 (S.C.C.), (1953), 106
C.C.C. 289 at p. 322, [1953] 4 D.L.R. 641 at p. 670, [1953] 2 S.C.R.
299 at p. 329, as "the residue inside the periphery". This is the
approach to rights and freedoms which was taken in the McRuer Report of
the Royal Commission Inquiry into Civil Rights, Report 2, vol. 4, pp.
1493-96 (1969), and was adopted by Bayda C.J.S. in Re Retail, Wholesale
& Department Store Union, Locals 54.4, 496, 635 & 955 et al. and
Government of Saskatchewan et al. 1985 CanLII 184 (SK C.A.), (1985), 19
D.L.R. (4th) 609 at pp. 616-8, [1985] 5 W.W.R. 97 at pp. 105-8, 39
Sask. R. 193. It is also the approach recently adopted by the Court of
Appeal of British Columbia in Re Cromer and British Columbia Teachers'
Federation et al., July 18, 1986 (unreported) at pp. 12-3 [since
reported 29 D.L.R. (4th) 641 at pp. 649-50, [1986] 5 W.W.R. 638, 4 B.
C. L. R. (2d) 273]. In our opinion it is the right approach.

D. Freedom of speech under the American Constitution

In considering the interpretation to be given to "freedom of
expression" in the Charter, it may be of assistance to examine the
corresponding provisions of the American Constitution and consider how
the American courts have dealt with them. At the outset it is
imperative to bear in mind that there are fundamental structural
differences between our Charter and the American Constitution, and
that, most importantly, the latter has no provision which corresponds
to s. 1 of the Canadian Charter.

The relevant provision of the American Constitution is the First
Amendment which provides in part that "Congress shall make no law ...
abridging the freedom of speech, or of the press ...". The rights of
freedom of speech and freedom of the press have also been held to be
fundamental personal rights and liberties which are protected by the
Fourteenth Amendment from invasion by state action: Chaplinsky v. State
of New Hampshire (1942), 315 U. S. 568. It will be noted that the words
"freedom of speech" rather than "freedom of expression" are used in the
American First Amendment. However, American courts have extended the
protection of the First Amendment to expressive conduct as "sym­bolic
speech", for example, the desecration of a flag: see Spence v.
Washington (1974), 418 U.S. 405.

In the Chaplinsky case, Chaplinsky was convicted of violating a New
Hampshire statute prohibiting the addressing of any offen­sive,
derisive or annoying word to any other person who is lawfully in any
street or other public place, or calling him by any offensive or
derisive name. The Supreme Court of the United States in upholding the
state legislation made it clear that the right of free speech was not
absolute and that the punishment of obscene, profane and libellous
utterances or insulting or fighting words did not raise a
constitutional problem. The interest of society in order and morality
outweighed any slight social value which such speech might have. As
Murphy J. stated at pp. 571-2 (footnotes omitted):

Allowing the broadest scope to the language and purpose of the
Fourteenth Amendment, it is well understood that the right of free
speech is not absolute at all times and under all circumstances. There
are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which has never been thought to raise any
Constitutional problems. These include the lewd and obscene, the
profane, the libelous, and the insulting or "fighting" words - those
which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. It has been well observed that such
utterances are no essential part of any exposition of ideas, and are of
such slight social value as a step to truth that any benefit that may
be derived from them is clearly outweighed by the social interest in
order and morality. "Resort to epithets or personal abuse is not in any
proper sense communication of information or opinion safeguarded by the
Constitution, and its punishment as a criminal act would raise no
question under that instrument." Cantwell y. Connecticut, 310 U.S. 296,
309, 310, 60 S. Ct. 900, 906, 84 L.Ed. 1213, 128 A.L.R. 1352.

Despite the broad language of the First Amendment, it has been held
that neither criminal libel nor obscenity is protected by it. In
Beauharnais v. People of State of Illinois (1952), 343 U.S. 250, 72 S.
Ct. 725, the accused was convicted under an Illinois criminal libel
statute for distributing a leaflet which attacked the Negro race. In
this case a group libel was involved rather than uttering offensive
words to an individual face-to-face as in Chaplinsky, supra. The
majority of the Supreme Court of the United States, in an opinion
delivered by Frankfurter J., relied on its earlier decision in
Chaplinsky and held that libellous utter­ances were not
constitutionally protected speech, and added at p. 266:

... it is unnecessary, either for us or for the State courts, to
consider the issues behind the phrase "clear and present danger".
Certainly no one would contend that obscene speech, for example, may be
punished only upon a showing of such circumstances. Libel, as we have
seen, is in the same class.

Justices Jackson, Douglas, Reed and Black dissented. Justice Douglas
expressed his view at pp. 284-5:

My view is that if in any case other public interests are to override
the plain command of the First Amendment, the peril of speech must be
clear and present, leaving no room for argument, raising no doubts as
to the necessity of curbing speech in order to prevent disaster.

Justice Jackson would have applied the "clear and present danger" test.
At p. 303 he stated:

Punishment of printed words, based on their tendency either to cause
breach of the peace or injury to persons or groups, in my opinion, is
justifiable only if the prosecution survives the "clear and present
danger" test. It is the most just and workable standard yet evolved for
determining criminality of words whose injurious or inciting tendencies
are not demonstrated by the event but are ascribed to them on the basis
of probabilities.

and at pp. 304-5:

Group libel statutes represent a commendable desire to reduce sinister
abuses of our freedoms of expression - abuses which I have had
occasion to learn can tear apart a society, brutalize its dominant
elements, and persecute, even to extermination, its minorities ...

...our guiding spirit should be that each freedom is balanced with a
responsi­bility, and every power of the State must be checked with
safeguards. Such is the spirit of our American law of criminal libel,
which concedes the power to the State, but only as a power restrained
by recognition of individual rights.

The leading cases that obscenity is not within the areas of
constitutionally protected speech or press are Roth v. United States
(1957), 354 U.S. 476, and Alberts v. State of California. In Roth the
primary constitutional question was whether the federal obscenity
statute in issue violated the First Amendment, whereas in Alberts the
primary constitutional question was whether the obscenity provisions of
the California Penal Code invaded the freedoms of speech and press as
they may be incorporated into the liberty protected from state action
by the due process clause of the Fourteenth Amendment.

Justice Brennan in delivering the opinion of the majority of the court
noted that while the law of obscenity was not so fully developed as the
law of libel, there was sufficient contemporary evidence to show that
obscenity, too, was outside the protection intended for speech and
press. From the history of the First Amendment, its unconditional
phrasing and the early existence of laws as to criminal libel,
blasphemy, profanity and obscenity, he concluded that the First
Amendment was not intended to protect every utterance. At pp. 484-5 he
stated (footnotes omitted):

All ideas having even the slightest redeeming social importance -
unorthodox ideas, controversial ideas, even ideas hateful to the
prevailing climate of opinion - have the full protection of the
guaranties, unless excludable because they encroach upon the limited
area of more important interests. But implicit in the history of the
First Amendment is the rejection of obscenity as utterly without
redeeming social importance. This rejection for that reason is mirrored
in the universal judgment that obscenity should be restrained,
reflected in the international agreement of over 50 nations, in the
obscenity laws of all of the 48 States, and in the 20 obscenity laws
enacted by the Congress from 1842 to 1956. This is the same judgment
expressed by this Court in Chaplinsky v. New Hampshire, 315 U.S. 568,
571-572, 62 S.Ct. 766, 769, 86 L.Ed. 1031... We hold that obscenity is
not within the area of constitutionally protected speech or press.

Justices Douglas and Black dissented and Justice Harlan dissented in
part as to the Roth case only.

The laws of civil and criminal libel in the United States were altered
in meaning and scope after the Beauharnais case with the decisions in
New York Times Co. v. Sullivan (1964), 376 U.S. 254, and Garrison y.
State of Louisiana (1964), 379 U. S. 64. A distinction was drawn
between public officials on the one hand and private individuals on the
other. In the New York Times case, Sullivan, one of the three elected
commissioners of. the City of Montgomery, Alabama, brought a civil
libel action against four individual critics of his official conduct
and the New York Times Company for an advertisement published in the
New York Times. The Supreme Court of the United States held that there
was an absolute immunity for the criticism of the way public officials
do their public duty. Accordingly, the judgment for libel could not be
sustained. The court held that a public official cannot recover unless
it is proven that the libellous statement was made with "actual malice"
- that is, with knowledge that it was false or with reckless
disregard whether it was false or not.

In Garrison v. State of Louisiana, the Supreme Court of the United
States decided that the same rule should apply in the case of a
criminal libel prosecution as in an action for civil libel. In this
case a New Orleans attorney was convicted of issuing a statement
disparaging the judicial conduct of eight judges. He was convicted of
criminal defamation under the Louisiana Criminal Defamation Statute and
his conviction was upheld on appeal. The appellant contended that his
right of expression had been abridged. On a further appeal to the
Supreme Court of the United States, his conviction was reversed. The
Supreme Court applied the same rule as in New York Times Co. v.
Sullivan, supra, that criticism of official conduct of public officials
was constitutionally protected unless it was made with actual malice.
The Louisiana Criminal Libel Statute imposed standards which were
constitutionally invalid as it directed punishment for true statements
which were made with actual malice. It was also unconstitutional
because it punished false statements against public officials if made
with ill will without regard to whether they were made with knowledge
of their falsity or in reckless disregard of whether they are true or
false, or not made in reasonable belief of their truth. Brennan J. in
delivering the opinion of the court stated at p. 73:

Moreover, even where the utterance is false, the great principles of
the Constitution which secure freedom of expression in this area
preclude attaching adverse consequences to any except the knowing or
reckless false­hood. Debate on public issues will not be uninhibited
if the speaker must run the risk that it will be proved in court that
he spoke out of hatred; even if he did speak out of hatred, utterances
honestly believed contribute to the free interchange of ideas and the
ascertainment of truth.

and at pp. 75-6:

Although honest utterance, even if inaccurate, may further the fruitful
exercise of the right of free speech, it does not follow that the lie,
knowingly and deliberately published about a public official, should
enjoy a like immunity ... Calculated falsehood falls into that class of
utterances which "are no essential part of any exposition of ideas, and
are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social
interest in order and morality ...". Chaplinsky v. New Hampshire, 315
U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031. Hence the knowingly
false statement and the false statement made with reckless disregard of
the truth, do not enjoy constitutional protection.

Accordingly, American constitutional cases support the position that
freedom of speech is not an absolute freedom, and that there are
certain well-defined and limited classes of speech such as the obscene
or libellous, or knowingly false statements, which are not
constitutionally protected because any slight social value as a step to
truth that they may entail, is clearly outweighed by the social
interest in order and morality.

E. Does s. 177 of the Code infringe freedom of expression under s. 2(b)
of the Charter

It is not necessary for the purpose of this appeal to define the limits
of the unregulated areas where freedom of expression is supreme. The
pertinent question is whether s. 177 of the Criminal Code properly
forms part of the permissibly regulated area. If it does, then it is
not necessary to consider s. 1 of the Charter. The nub of the offence
in s. 177 is the wilful publication of assertions of a fact or facts
which are false to the knowledge of the person who publishes them, and
which cause or are likely to cause injury or mischief to a public
interest. It is difficult to see how such conduct would fall within any
of the previously expressed rationales for guaranteeing freedom of
expression. Spreading falsehoods knowingly is the antithesis of seeking
truth through the free exchange of ideas. It would appear to have no
social or moral value which would merit constitutional protection. Nor
would it aid the working of parliamentary democracy or further
self-fulfilment. In our opinion an offence falling within the ambit of
s. 177 lies within the permissibly regulated area which is not
constitutionally protected. It does not come within the residue which
comprises freedom of expression guaranteed by s. 2(b) of the Charter.

F. Application of s. 1 of the Charter

If we are in error in concluding that s. 177, which is now classified
in the Criminal Code as a nuisance, properly forms part of the
permissibly regulated area of conduct, then s. 177 would constitute an
infringement of the guaranteed freedom of expression and we would have
to consider whether those limita­tions prescribed by law are
reasonable and demonstrably justified in a free and democratic society
under s. 1 of the Charter. In this connection the onus is on the Crown
as the party claiming that the requirements of s. 1 have been
satisfied.

The two central criteria to be satisfied in the application of s. 1 of
the Charter were laid down by Dickson C.J.C. when delivering the
judgment of the majority of the Supreme Court of Canada in R. v. Oakes
1986 CanLII 46 (S.C.C.), (1986), 24 C.C.C. (3d) 321 at pp. 348-9, 26
D.L.R. (4th) 200 at p. 227, {19861 1 S.C.R. 103. They may be
paraphrased as follows:

(1) The objective which the measures responsible for a limit on a
Charter right or freedom are designed to serve, must be of sufficient
importance to warrant overriding a constitutionally protected right or
freedom. The objective must relate to concerns which are pressing and
substantial in a free and democratic society.

(2) The party invoking s. 1 must show that the means chosen to achieve
a permissible objective are reasonable and demonstrably justified. This
involves a form of proportionality test which has three conjunctive
components:

(a) the measures adopted must be carefully designed to achieve the
objective in question. They must be rationally connected to the
objective;

(b) they should impair as little as possible the right or freedom in
question;

(c) there must be a proportionality between the effects of the measures
responsible for limiting the Charter right or freedom, and the
objective identified as of sufficient importance. The more serious the
deleterious effects of a measure, the more important the objective must
be.

The objective of s. 177 is to prohibit the wilful publication of false
statements which the person publishing them knows are false and which
cause, or are likely to cause, injury or mischief to the public
interest. Such an activity is the very opposite of free public
discussion. Stopping such publication by prosecution would seem not
only reasonable but important. Lesser measures would not appear to be
effective. As we have already pointed out, the statutory provision in
England comparable to s. 177 was repealed in 1888. Our attention was
not drawn by counsel to statutory provisions in other democratic
countries in similar terms to s. 177. Section 263 of the Criminal Code
sets forth the offence of publishing a defamatory libel and a higher
penalty is imposed by s. 264 where the person publishing the defamatory
libel knows that it is false. Section 330 of the Criminal Code provides
for the offence of conveying a false message knowing that it is false.
There are similar statutory provisions respecting defamatory libel in:

(a) England - Libel Act, 1843 (U. K.), c. 96, ss. 4 and 5.

(b) Victoria - The Wrongs Act 1958 (No. 6420), s. 10, as amended by
the Penalties and Sentences Amendment Act 1983 (No. 9945), s. 3(3).

(c) Western Australia - Criminal Code, 1913, No. 28 (4 Geo. V), s.
360.

(d) Queensland - The Criminal Code Act, 1899 (63 Viet. No. 9), s.
380.

(e) Ireland - Defamation Act, 1961 [No. 40], ss. 11 and 12.

Section 177 would appear to be a reasonable means of achieving the
objective of prohibiting the spread of false news which a person knows
to be false, and which causes or is likely to cause injury or mischief
to a public interest. It impairs freedom of expression as little as is
possible, and any impairment is propor­tionate to the objective to be
achieved. Accordingly, we have concluded that if s. 1 of the Charter is
applicable, s. 177 is a reasonable limit prescribed by law which can be
demonstrably justified in a free and democratic society.

G. Vagueness or overbreadth of s. 177

The final ground of appeal raised with respect to the
constitu­tionality of s. 177 is that it is too vague, or is overly
broad. Vagueness and overbreadth are two concepts. They can be applied
separately, or they may be closely interrelated. The intended effect of
a statute may be perfectly clear and thus not vague, and yet its
application may be overly broad. Alternatively, as an example of the
two concepts being closely interrelated, the wording of a statute may
be so vague that its effect is considered to be overbroad. Vagueness or
overbreadth, for the purpose of determining the permissibly regulated
area of conduct, and whether freedom of expression under s. 2(b) of the
Charter has been breached, may be different from vagueness or
overbreadth for the purpose of applying the criteria in Oakes as to the
appli­cation of s. 1 of the Charter.

This court in R. v. Morgentaler, Smoling and Scott 1985 CanLII 116 (ON
C.A.), (1985), 52 O.R. (2d) 353 at p. 388, 22 C.C.C. (3d) 353 at p.
388, 22 D.L.R. (4th) 641 at p. 676, adopted the principle in Village of
Hoffman Estates et al. y. Flipside, Hoffman Estates Inc. (1982), 455
U.S. 489 at p. 495, that if a person's conduct clearly falls within the
prescription of a statute, then that person cannot complain of the
vagueness of the statute as applied to others. To succeed on the basis
of vagueness, a person would have to show that the statute is vague in
all its applications as, for example, if there were no specified
standard of conduct.

When a freedom protected by the Charter is breached, then in applying
s. 1, the limits placed on that freedom must be reasonable limits
prescribed by law. The limits must be ascer­tainable and
understandable and articulated with some precision. They cannot be
vague, undefined and simply discretionary, at the whim of an official:
Re Ontario Film & Video Appreciation Society and Ontario Board of
Censors (1983), 41 O.R. (2d) 583 at p. 592, 147 D.L.R. (2d) 58 at p.
68, 34 C.R. (3d) 73; affirmed 45 O.R. (2d) 80n, 5 D.L.R. (4th) 766n, 38
C.R. (3d) 271 (Ont. C.A.).

In Re Luscher and Deputy Minister, Revenue Canada, Customs & Excise
reflex, (1985), 17 D.L.R. (4th) 503, [1985] 1 F.C. 85, 45 C.R. (3d) 81,
the Federal Court of Appeal allowed an appeal from a county court judge
upholding the decision of the Deputy Minister prohibiting the
importation of a book under a tariff item as immoral or indecent. As
Hugessen J. said in delivering the judgment of the court at p. 506
D.L.R., p. 85 C.R.:

In my opinion, one of the first characteristics of a reasonable limit
prescribed by law is that it should be expressed in terms sufficiently
clear to permit a determination of where and what the limit is. A limit
which is vague, ambiguous, uncertain, or subject to discretionary
determination is, by that fact alone, an unreasonable limit. If a
citizen cannot know with tolerable certainty the extent to which the
exercise of a guaranteed freedom may be restrained, he is likely to be
deterred from conduct which is, in fact, lawful and not prohibited.
Uncertainty and vagueness are constitutional vices when they are used
to restrain constitutionally protected rights and freedoms. While there
can never be absolute certainty, a limitation of a guaranteed right
must be such as to allow a very high degree of predictability to the
legal consequences.

The decision in Luscher would appear to involve a case of overbreadth
rather than vagueness.

In Re Information Retailers Ass'n of Metropolitan Toronto Inc. and
Municipality of Metropolitan Toronto reflex, (1985), 52 O.R. (2d) 449,
22 D.L.R. (4th) 161, 32 M. P. L. R. 49, this court considered a
municipal by-law which required persons selling adult books or
magazines to obtain a licence. Adult books or magazines included those
which appealed to erotic or sexual appetites or inclinations, but also
portrayed or depicted, as a principal feature or character­istic, one
or more specifically defined bodily areas. The court held that the
by-law was overly broad and that the infringement on the fundamental
freedom of expression was disproportionate to the objective of the
enactment which was to discourage or limit the exposure of children to
sexually-oriented pictorial material. At p. 472 O.R., p. 184 D.L.R.,
Robins J.A. stated:

In the case of this by-law, whether it be seen as overbroad or vague
(and an element of vagueness is intrinsic in overbroad legislation) the
vice is essen­tially the same: it lacks a definition proportionate to
its aim which would give those governed by it and those who administer
it a reasonable opportunity to know what is covered by it, and to act
accordingly.

Bearing in mind the above authorities, the terminology of s. 177 would
not appear to be vague or overly broad. It is conceded that it is
limited to a statement of fact or facts. This statement must be known
by the person publishing it to be false. It is not applicable to a
statement made honestly, negligently, or recklessly. The statement must
cause or be likely to cause injury or mischief. Causation or the
likelihood or probability of causation of injury or mischief are
concepts within the ambit of the criminal law. The only question then
is whether the fact that the injury or mischief must be to a "public
interest" makes the section too broad. There are a great many offences
in which one aspect or another of the public interest is central. The
definition of a crime in the judgment of Rand J. in Reference re
Validity of s. 5(a) of Dairy Industry Act, 1948 CanLII 2 (S.C.C.),
[1949] 1 D.L.R. 433 at pp. 472-3, [1949] S.C.R. 1 at pp. 49-50, is
pertinent in this respect:

A crime is an act which the law, with appropriate penal sanctions,
forbids; but as prohibitions are not enacted in a vacuum, we can
properly look for some evil or injurious or undesirable effect upon the
public against which the law is directed. That effect may be in
relation to social, economic or political inter­ests; and the
legislature has had in mind to suppress the evil or to safeguard the
interest threatened.

.....

Is the prohibition then enacted with a view to a public purpose which
can support it as being in relation to criminal law? Public peace,
order, security, health, morality: these are the ordinary though not
exclusive ends served by that law ...

In our opinion, the words "injury or mischief to a public inter­est"
are not vague or overly broad in their context bearing in mind that
they are used in relation to a statement known by the accused to be
false. The maintenance of racial and religious harmony is certainly a
matter of public interest in Canada. The accused and those who
administer the law would have a reasonable opportunity to know what was
covered by s. 177 and to act accordingly. Furthermore, the specific
charge which the accused faced was expressly limited to the public
interest in racial and social toler­ance, so he was left in no doubt
as to the alleged manner in which his conduct was offensive.

H. Conclusion on constitutional validity of s. 177

Accordingly, in our opinion, s. 177 of the Criminal Code is not
unconstitutional as infringing the fundamental freedom of expression in
s. 2(b) of the Charter on the grounds of vagueness or overbreadth.

II The challenge for cause

It is alleged that the trial judge erred by refusing the defence
application to challenge the potential jurors for cause, in view of
prejudicial pretrial publicity generated by the prosecution.

On a motion made by defence counsel following the appellant's
arraignment but before any plea was taken, the presiding judge
conducted a pretrial voir dire. In the course of the voir dire the
appellant was sworn and testified, as the sole witness, regarding the
pretrial publicity concerning him. Section 567(1)(b) of the Criminal
Code was invoked. It reads as follows:

567(1) A prosecutor or an accused is entitled to any number of
challenges on the ground that

.....

(b) a juror is not indifferent between the Queen and the accused ...

On the voir dire the appellant filed many articles published before the
trial in the Globe and Mail which identified the appellant as a
distributor of neo-Nazi, anti-Semitic hate literature. One such article
quoted political personalities describing the appellant as "one of the
world's big purveyors of Nazi propa­ganda" (Globe and Mail, June 15,
1983).

Other articles taken from the Toronto Sun and the Ottawa Citizen were
filed. They described action by the Postmaster-General to suspend the
appellant's mail privileges (later reinstated) and included comments by
the federal Minister of Justice on proposed legislation to curb hate
literature, with particular reference to the appellant.

Other materials filed included two articles reporting picketing by the
appellant and his group of the film "The Boys from Brazil", which is
said to describe the cloning of Hitler; and a number of articles in
different publications referring to large demonstrations by Jewish
groups at the appellant's home in Toronto and referring to the views of
a group known as the Canadian Holocaust Remem­brance Association which
focused on the appellant. The appellant described these materials as
standard Zionist rhetoric.

In addition, the appellant produced media reports of confronta­tions
between the appellant's group and hostile demonstrators at the earlier
court proceedings, and the explosion of a pipe bomb causing
considerable property damage near the appellant's garage in September,
1984. The appellant also produced on the voir dire a tape recording of
a CBC broadcast on the television programme the "National" which he
claims was a distortion of a press conference that he had given. There
was also evidence of a large demonstration of up to 2,000 people
outside of the appellant's home, and of demonstrations at the
court-house on the occasion of earlier appearances, which culminated in
a violent confrontation outside the Metropolitan court-house on the
first morning of the trial.

The evidence presented on the voir dire was meant to support the
appellant's endeavour to establish his right to question the
prospective jurors on their potential prejudice. The appellant's
purpose was to demonstrate that members of identifiable groups
entertained ill will towards him and therefore could not be
dispas­sionate and impartial jurors.

A. The questions

In his reasons for ruling, given orally after the first ruling on the
Charter, the learned trial judge summarized the evidence given by the
apellant on the voir dire and referred to the scenes of physical
violence between the appellant and his followers and members of the
Jewish Defence League. He quoted the questions which counsel for the
appellant proposed to ask of each juror:

1. Can you consider and will your mind allow consideration of the
question of whether there were gas chambers in Germany for the
extermination of Jews? Yes or no.

2. Can you impartially consider the question of gas chambers and the
Holocaust and remove from your mind the massive publicity of it to
decide the case on the evidence put before you in this court and only
on such evidence? Yes or no.

3. Do you believe that the Jews of today are God's chosen people or
especially favoured by God? Yes or no.

4. Do you believe the Holocaust happened as depicted by the media, and
would you be able to remove that idea from your mind and consider the
question solely on the evidence presented in court? Yes or no.

5. Do you have any moral, religious or other beliefs relating to Jews
or the Holocaust such that you would convict or acquit regardless of
the law or evidence? Yes or no.

6. Do you have any moral, religious or other beliefs relating to
Freemasons such that you would convict or acquit regardless of the law
or evidence? Yes or no.

7. Have you, because of religious or moral beliefs, or because of what
you have heard, read or seen in the media, formed any opinion as to the
guilt or innocence of the accused? Yes or no.

8. Despite any beliefs or opinions, would you be able to set aside
those beliefs or opinions and reach a verdict of guilty or not guilty
solely on the evidence and the law you receive in this courtroom? Yes
or no.

9. Do you have any abiding prejudices against German people?

In addition, counsel for the accused had asked the trial judge, in his
opening remarks to the jury panel, to excuse anyone from the jury panel
who:

(1) is a Jewish person or is employed by Jewish persons or is a close
relative of a Jewish person;

(2) is a Freemason or is employed by a Freemason or is a close friend
or relative of a Freemason;

(3) is personally acquainted with the accused in such a way that he
favours or dislikes the accused so much that he would be unable,
through preju­dice, to look impartially upon the accused or judge his
guilt or innocence solely on the evidence in court;

(4) speaks or understands some English, but has difficulty
understanding it fully.

After making reference to the decision of Osler J. in R. v. Crosby
(1979), 49 C.C.C. (2d) 255, the learned trial judge noted that there
had not been any "notorious episode in the community". In that case,
Osler J,, in refusing to permit counsel to challenge for cause on the
grounds of racial prejudice, said at p. 256:

It seems to me that, in the absence of any notorious episode in a
community of the type I have mentioned, to permit challenges of this
kind to go forward simply on the ground that man is prejudiced and that
black and white may frequently be prejudiced against each other is to
admit to a weakness in our nation and in our community which I do not
propose to acknowledge.

Should the fact that an accused belongs to a particular, even a highly
visible minority group lead automatically to a searching examination of
prospective jurors on their views there would be few criminal cases
today in which such challenges would not be justified.

The learned trial judge concluded that allowing the proposed questions
would prevent a substantial segment of the community from sitting as
jurors. After quoting excerpts from the leading case in this province
on the subject of challenge for cause, R. v. Hubbert (1975), 11 O. R.
(2d) 464, 29 C.C.C. (2d) 279, 31 C. R. N. S. 27; affirmed 15 O.R. (2d)
324n, 33 C.C.C. (2d) 207n, [1977] 2 S.C.R. 267, the learned trial judge
concluded as follows:

I conclude with the observation that the evidence I have heard and read
shows that the accused, perhaps through his own deliberate acts, has
attracted much publicity and notoriety upon himself. His positions on
sensi­tive, emotion-provoking subjects certainly achieved that result,
in my view. That alone, however, should not compel the exercise of my
judicial discretion to permit any of these questions to be put. Each
and every proposed question, I find, offends the principles set out in
R. v. Hubbert. There is no evidentiary connection between the attracted
notoriety and the reasonable prospect that any prospective juror,
regardless of his or her racial origin or religious belief, or for any
other reason, would be unable to impartially return a verdict in this
trial based solely and only upon the evidence led thereat.

.....

Mr. Zundel elected trial by jury. No one forced him to elect that mode
of trial. He has an absolute right to be tried by a jury of his peers.
Having so elected, the public notoriety he has attracted to himself
does not, of itself, in the absence of anything further, entitle him to
use any of these questions to challenge his prospective jurors for
cause in order to tailor his own jury to suit him.

Following the dismissal of his application the appellant was arraigned
and pleaded not guilty to the charges. In his opening remarks to the
panel the learned trial judge then gave the following caution:

If there is any prospective juror here who is a member of, or who is
related by blood or marriage to anyone else who is a member of any
group or organi­zation which uses violent confrontation in public
places in support of or in opposition to the ideas of other groups, and
if by the reason of that membership or your relationship you feel that
you would be unable to judge and act as a judge or as a juror who, as a
judge, impartially, and solely and only upon the evidence that you have
heard, then you will please so indicate in the same manner as I have
already indicated.

If there is anything that you have heard, seen or read about this case
that would prevent you from impartially deciding a verdict solely and
only upon the evidence led in this courtroom, then of course you don't
come to the case free of preconceived notions or prejudice, and you
will please so indicate.

Notwithstanding anything I have said, if there is any member of your
number who is a prospective juror whose present views concerning the
guilt or innocence of this accused are so strongly fixed that an
impartial assessment of the evidence heard only in this trial would be
impossible or difficult, if the answer to this question or to any of
the other questions I have posed is yes, if your name is called please
indicate that when you come to the book to be sworn.

It is clear, from the analysis made by this court in R. v. Hubbert,
supra, at pp. 476-7 O.R., pp. 291-2 C.C.C., that where the suggestion
is made that publicity concerning the alleged offence has been
widespread, there may be a danger that the mind of a prospective juror
may be influenced and biased in such a way that he would be unable to
give an impartial verdict.

There is no doubt, and the learned trial judge found as a fact in the
instant case, that there had been considerable pretrial publicity in
the media, generally adverse to the appellant. In our respectful view,
the learned trial judge erred in stressing the absence of a notorious
episode and elevating it as a sine qua non requirement to a successful
application to allow the proposed questions in the challenge for cause.
While a notorious episode would be a factor to be considered in an
application of this kind, we do not think that Osler J. ever intended
it to be an absolute requirement. In the present case, in any event,
the series of well-publicized confrontations continuing up to the time
of trial would, in our view, qualify as notorious episodes.

Similarly, the fact that the appellant's conduct attracted publicity
and notoriety upon himself is not sufficient to automati­cally
disallow certain questions to be put to the jury. The judge's
discretion must be exercised judicially. The real question is whether
the particular publicity and notoriety of the accused could potentially
have the effect of destroying the prospective juror's indifference
between the Crown and the accused. In this context indifference means
"absence of feeling for or against": the Shorter Oxford English
Dictionary, 3rd ed. The equivalent is a now rare expression
"indifferency" meaning "absence of bias, prejudice or favour ..."
(ibid.).

The reference in the judge's ruling to the absence of an eviden­tiary
connection between the publicity and notoriety and the challenge to the
prospective juror's lack of indifference is, with respect, based on a
misconception. It is not for the presiding judge to rule on the
"evidentiary connection" but for the trier selected for that purpose.
In addition, the trial judge's statement that the accused "would not be
allowed to tailor-make his own jury" was incorrect, inasmuch as any
challenge for cause by the defence would have been tried by the triers
selected from the jury panel pursuant to the provisions of s. 569(2) of
the Criminal Code.

Having recognized these errors, it is only fair to point out that
counsel for the appellant, in his recorded submissions and in framing
the questions, was in large part responsible for the adverse ruling. It
is apparent on the record that Crown counsel at trial was prepared to
concede that certain questions could properly be asked of each
prospective juror. In particular, Qq. 7 and 8, if the reference to
"religious or moral belief", or "opinions" had been deleted, would have
been appropriate questions in seeking to determine whether the pretrial
publicity and the accused's notoriety had made it impossible for the
prospective juror to render an impartial verdict. This near-agreement
was referred to by the trial judge in his ruling in the following
passage:

As I understand it, Crown counsel and defence counsel may well have
come close to agreement that subject to my order, Qq. 7 and 8 might be
permitted, but they have been totally unable to agree with respect to
the balance of the questions that I have just read.

It appears from his submissions and proposed questions that defence
counsel at trial was attempting to disqualify all Freemasons and Jewish
members of the panel as jurors in the case. The assumption that Jewish
people or Freemasons form part of a homogeneous group with an identity
of interest capable of subverting their impartiality in a criminal case
is unwarranted and formed the basis of proposed Qq. 3, 5 and 6 in the
first group of questions and grounds 1 and 2 in the proposed remarks to
the jury panel. It is contrary to established practice, in this
province, to attempt to challenge jurors for cause on general grounds
such as race, religion, political belief, or opinions: see R. v.
Hubbert, supra, at pp. 475-6 O.R., p. 290 C.C.C.. Similarly, a
challenge on the basis of membership in a minority group is not
permissible in Canada.

Mr. Christie, counsel for the appellant, defended the propriety of
these questions by referring to questions which were approved by the
then Associate Chief Justice of the High Court in the 1984 prosecution
against Dr. Henry Morgentaler and others: R. v. Morgentaler, October
15, 1984 (unreported). We were provided with a certified transcript of
the three main questions which were framed following a long discussion
in chambers and which were asked of each prospective juror in the case.
All three questions inquired of the prospective juror whether he or she
had any religious, moral or other beliefs or opinions relating to
abortion that would interfere with the juror's ability to render a true
verdict. Mr. Christie also relied on the ruling made by Ewaschuk J. in
R. v. Rowbotham et al. (1984), 12 C.C.C. (3d) 189, where prospective
jurors were asked first, by defence counsel, whether they had a strong
dislike for the narcotic marijuana or hashish. As a corollary to this
question the Crown then asked whether they had a strong view in favour
of the legalization or use of marijuana or hashish. In either case, the
jurors were asked whether their views would prevent them from rendering
a true verdict based on the evidence given at trial. The rationale for
the ruling was given at p. 192:

A general as opposed to a particular challenge may arise because of
extensive pretrial publicity or, as here, because of strong personal
views held by various members of the public on such controversial
matters as drugs, obscenity or abortion. The goal is to obtain a fair
trial for both sides based only on the evidence at trial and not on
jurors' personal prejudices.

Counsel for the appellant relied on the rulings in Morgentaler and
Rowbotham, made since the Hubbert decision, as supporting his proposed
set of questions on the challenge for cause. In partic­ular, he claims
to have framed his questions by reference to the questions allowed by
Parker A. C.J. H. C. in Morgentaler. There is some similarity in the
questions' reference to religious, moral or other beliefs. We must
point out, however, that the propriety of the questions used in the
challenge for cause in the Morgentaler case was never made an issue and
thus was not reviewed in the Crown appeal to this court.

In the present case, the defence motion was directed, in part, towards
the exclusion of Jewish people on the grounds that they would not
render a true verdict as to the occurrence of the Holocaust. The
majority of the proposed questions were improperly worded, and
therefore properly rejected by the learned trial judge. This rejection
should not have been the end of the matter, so as to foreclose any
challenge for cause.

In our view, although the presiding judge correctly refused the
questions as framed, he ought, in the circumstances, to have advised
counsel that he was not precluded from rephrasing certain of the
proposed questions in a manner which would have been in accordance with
the guidelines laid down in R. v. Hubbert.

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, when the grounds of challenge are properly specified in
accordance with s. 567(1)(b) of the Criminal Code and made before the
juror is sworn. We are concerned that the failure of the presiding
judge to advise counsel that he was at liberty to amend some of the
questions may have resulted in the denial of a fundamental right;
counsel was entitled to determine whether any potential juror was, by
reason of the pretrial publicity and the notoriety of the appellant,
sufficiently impartial. In our opinion the appellant was effectively
denied that fundamental right.

It was conceded by counsel, in the course of the argument, that the
challenge for cause was not repeated when each juror came forward to be
sworn, according to the correct practice. We agree, however, that once
the trial judge had refused the defence permission to ask any of the
proposed questions, and failed to give an opportunity to amend, the
defence was, in effect, prevented from exercising its right to
challenge for cause. A trial judge cannot, in the exercise of a
discretion which he undoubtedly possesses in the area of admitting
grounds of challenge for cause and settling the questions, effectively
curtail the statutory right to challenge for cause.

The warning later given by the trial judge, requesting that individual
members of the panel disqualify themselves under certain circumstances,
was insufficient to correct the erroneous denial of the statutory right
of challenge for cause. The issue of impartiality or indifference is
one that Parliament has entrusted to the two triers, not to the
conscience of the individual prospective juror.

We are all of the view that the appellant was deprived of his right to
have a jury selected according to law, whose impartiality or appearance
of impartiality could not be impugned. This error was compounded by the
judge's refusal to order a ban on the publication of both the
submissions made and of the ruling on the motion, as was done in R. v.
Keegstra, April 9, 1985 (unreported), which may have also prejudiced
the appellant's right to an impartial jury.

In our view this ground of appeal has merit and should be considered
with the other grounds in the disposition of the appeal.

III The admissibility of Dr. Hilberg's evidence

One of the principal grounds of appeal is that the opinion evidence of
Dr. Raul Hilberg to the effect that over five million Jews were
systematically annihilated by the Nazi government of Germany, was
inadmissible since Dr. Hilberg's evidence was based on hearsay.

With a view to establishing the systematic annihilation of millions of
Jews by the Nazi government of Germany, the Crown adduced the
eyewitness evidence of several survivors of Nazi concentration camps as
to what occurred in those camps, as well as the expert evidence of Dr.
Hilberg that over five million European Jews were killed, pursuant to
Nazi government policy.

It will be helpful to an understanding of Dr. Hilberg's evidence and
the legal issues that arise therefrom to outline that evidence briefly,
and to outline the nature of the eyewitness evidence. It is also
convenient to outline briefly at this time the evidence of Dr.
Faurisson who was permitted to give expert testimony for the defence on
the same basis upon which Dr. Hilberg was permitted to testify for the
Crown.

A. The eyewitness evidence

The eyewitness evidence, in the main, although not exclusively, related
to Auschwitz, which was a complex of camps. Auschwitz I was the main
camp. Auschwitz II, a subsidiary camp, was also known as Birkenau. The
evidence of several of the eyewitnesses essentially was that Jews were
collected at various places in Austria, Hungary, Poland and
Czechoslovakia and transported by cattle-car to Birkenau. At Birkenau
there was a wooden ramp about one-half mile long adjacent to the
railroad siding. When a train arrived carrying prisoners, members of
the SS ordered the prisoners to get out of the cars and to leave their
luggage behind. Some of the eyewitnesses testified that a selection
process, frequently conducted by Dr. Mengele, then began. The
able-bodied men and women were directed to one side in separate groups.
The old, the sick and the children were either marched off in the
direction of the crematoria at Birkenau or were loaded into lorries or
dump trucks which then left in the direction of Birkenau, returning in
a short time for another load. The men and the young women remained on
the ramp. One group of SS marched the men off to Auschwitz I and
another group of SS took the remaining women to the women's camp. There
were four crematoria in Birkenau. The gas chambers were adjacent to the
crematoria. After a transport of prisoners arrived, a buzzing sound
from the crematoria could be heard and smoke and flames could be seen
coming from the chimneys. The smoke and flames rarely stopped when
there was a great influx of prisoners. When the capacity of the
crematoria was exceeded the bodies were buried in pits.

Dr. Rudolf Vrba, one of the eyewitnesses, is an associate professor of
pharmacology at the University of British Columbia. He testified that
on June 20, 1942, he was put in a cattle truck and taken to Auschwitz
where he remained until 1944, when he escaped and returned to Slovakia.
For the first two months he was in Auschwitz I, where he worked at a
nearby construction site. The daily mortality rate at the construction
site was 5% to 10% of the total work-force. It is clear from his
evidence that the high mortality rate was due to privation and brutal
treatment. After about two months a typhus epidemic broke out and the
work was stopped. The prisoners were medically examined. Those who
failed the examination were loaded into lorries which left the camp,
and Dr. Vrba never saw them again.

He was then transferred to Birkenau. He said that he was assigned to a
work-force called the Kanada Kommando. This group would be sent to the
railroad siding when a transport was arriving. The job of the Kanada
Kommando was to sort the luggage and clean the cattle-cars after the
prisoners had been removed. Dr. Vrba testified that one of his jobs was
to load cannisters of Zyklon gas into a green military van with a large
red cross on the side prior to the arrival of a train. In December,
1942, in connection with his duties he was taken to Birkenau where he
saw pits containing burned bone fragments and the slightly burned heads
of children. He frequently visited a friend, Fred Wetzler, who was in
charge of the mortuary. From the mortuary he could see Crematorium II.
There were occasions when he saw several hundred people go into the
building. A corporal from the sanitation service would climb up to the
roof of a low structure or bunker, don a gas mask and empty one or two
tins of Zyklon into each vent in the roof. Dr. Vrba computed that
1,765,000 people were killed at Auschwitz while he was there and a
total of 2.5 million people were killed at Auschwitz during the war.

Dennis Urstein was born in Vienna. He was arrested and eventually taken
to Auschwitz. He also worked with the Kanada Kommando and met the
trains. He testified that in February, 1943, he and a group of
prisoners were driven to a building. A sergeant or a corporal donned a
gas mask and he heard a loud "hum" coming from the door of the building
they were facing. He knew this was a crematorium because of the smoke
stack. The corporal or sergeant then opened the door. Mr. Urstein and
the other prisoners were issued large hooks and ordered to remove the
bodies. They went through a small corridor to the gas chamber where he
saw a large number of bodies entangled with one another; the children,
generally, were on the bottom. They dragged the bodies out and then
they were ordered to wash the gas chamber.

Henry Leader was born in Poland. He testified that in 1941, several
thousand people were rounded up and transported to Maidanek
concentration camp. After several weeks he was assigned to assist in
carrying bodies from the gas chamber to the crematorium which at
Maidanek was about 350 yards from the gas chamber. The bodies would be
thrown from the gas chamber onto a ramp, loaded in wagons and taken to
the crematorium. The people inside the gas chamber dragging the bodies
out wore masks. The witness testified that in June, 1943, he was taken
from Maidanek to Birkenau. At Birkenau he could look through a wire
fence in the direction of the crematorium. He daily saw transports of
people arrive at the crematorium in dump trucks. On some days six or
seven trucks would arrive at a time. A truck would carry about 100
persons. The people were taken from the trucks to the gas chamber. He
never saw any of those people come out again. As the Russian Army
advanced, the prisoners were transported by cattle-car to Mauthausen in
Austria. He estimated that 35% of the prisoners perished en route.

Chester Tomaszewski was born in Poland. He was not Jewish. He was
arrested in October, 1939, and sent to Dachau concen­tration camp. He
was subsequently transferred to Mauthausen­Gussen in Austria. Gussen
is a satellite camp of Mauthausen. There were about 300 Jews in the
camp when he arrived. The entire Jewish population of the camp was
eliminated in a few weeks. One of the devices used by the guards was to
order a Jewish prisoner to pick up a stone outside the line of guards
and then to shoot him when he carried out the order.

B. Dr. Hilberg's evidence

The trial judge, as previously indicated, ruled after holding a voir
dire that Dr. Hilberg was qualified to testify as an expert witness on
the Holocaust. The judge expressly and immediately instructed the jury
that they were not bound to accept the opinion of an expert. He again
instructed the jury in his charge that they were free to accept or
reject the evidence of expert witnesses.

Dr. Hilberg is a professor at the University of Vermont where he
teaches courses in international relations, American foreign policy and
the Holocaust. He defined the Holocaust as the annihi­lation by
physical means of the Jews in Europe during the Nazi regime, 1933-1945.

He was appointed by the president of the United States to the United
States Holocaust Memorial Council and to the President's Commission on
The Holocaust. He testified that in his research he relied primarily on
documents and secondarily on the statements of witnesses who had direct
knowledge of the subject-matter.

During the war the United States seized a large part of the records of
the Nazi regime from 1933 to 1945. These records were physically kept
at the Federal Records Centre in Alexandria, Virginia. Dr. Hilberg was
employed for a time by the United States Government at the centre and
had direct access to these records. Many of the documents that he
examined were civil service or ministry documents. Some were military
documents, some were SS or party documents and some were industrial
documents. The documents used at the Nuremberg trials were taken from
this collection. He testified that, in addition, he has examined
documents in the archives of foreign countries where smaller
collections are available.

The major war criminals such as Goering were tried by the International
Military Tribunal established by a treaty to which about 20 countries
were parties. The judges were American, British, Russian and French.
Twelve subsequent trials involving high-ranking military officers, top
corporation executives, top members of the ministerial bureaucracy and
high-ranking SS personnel, were presided over by American judges. The
trials are referred to collectively as the Nuremberg trials; however,
the Nuremberg Trial refers to the trial before the International
Military Tribunal. Dr. Hilberg testified that he has read the
transcripts of the evidence and examined the documents intro­duced in
evidence at the Nuremberg Trial before the International Military
Tribunal and also the transcripts of the proceedings at the subsequent
Nuremberg trials before the American Military Tribunal. He commenced a
study of the Holocaust in 1948, and is the author of a book, "The
Destruction of The European Jews" which was first published in 1961; a
second and larger edition was expected to be published shortly.

Dr. Hilberg stated in cross-examination that he was of the opinion that
there was an oral order for the extermination of the Jews given by
Adolf Hitler in 1941. He testified that there was a plan within the
German high command for the "treatment of populations" in the territory
to be occupied in the U.S.S.R. This plan was submitted to Hitler who
indicated that he wished certain changes to be made. The changes were
made in April, 1941, and the directive was then resubmitted to Hitler.
According to the document written by General Jodl, and which is in the
West German Archives, Hitler said that he wanted the "Jewish-Bolshevik
Commissars" liquidated. Dr. Hilberg interpreted the order to mean that
Hitler wanted the Jewish people and the Bolshevik Commissars to be
liquidated.

When the German armies crossed the border into the Soviet Union they
were accompanied by battalion-size units of security police. These
units, called Einsatzgruppen, reported back on a daily basis, detailing
the number of people killed, of whom, according to the reports, 90% to
95% were Jews. Dr. Hilberg reasoned that one would not set up four
units of Einsatzgruppen aggregating 3,000 men to kill a handful of
Bolshevik Commissars, and therefore the clear intent of Hitler's oral
directive was that the Jews in the territory to be occupied should be
annihilated. Dr. Hilberg conceded that other historians take the view
that there was not a Hitler order.

It was Dr. Hilberg's opinion that the word "resettlement" became the
term used in the correspondence in World War II records to refer to the
process of deporting Jews to death camps. He characterized a death camp
as one set up for the specific purpose of killing people, Dr. Hilberg
said that Belzec, Treblinka, and Chelmno were used exclusively for
killing people. These camps were small and had no facilities of any
kind for production. Sobibor was also a death camp, but late in 1943, a
facility for making ammunition was established there.

Dr. Hilberg testified in cross-examination that Auschwitz was composed
of three camps - Auschwitz, Birkenau and Monowitz. The three camps
were also known as Auschwitz I, II and III. There was a gas chamber in
Auschwitz I. Two gas chambers were established in Birkenau in 1942. In
1943, four massive structures were built in Birkenau; these structures
contained gas chambers and crematoria. When the capacity of the
crematoria was exceeded the bodies were burned in pits outside the
building. There were, Dr. Hilberg testified, three gas chambers at
Maidanek. Belzec initially had three gas chambers but they were
expanded in 1942 to six. Chelmno was equipped with gas vans which used
carbon monoxide to kill prisoners. Treblinka had carbon monoxide gas
chambers.

Dr. Hilberg testified that he had also examined railroad schedules in
wartime Germany. They played an important role in his research. They
indicate, according to him, that the camps were located near places
where the Jewish population was the most dense. The Gestapo, as the
shipping agents, had to pay the German railways for each person
transported and, consequently, it was in the financial interest of the
Gestapo to make the trips as short as possible. The railway schedules
make clear that the transportees had to be counted because payment to
the railways had to be made for each person. It was highly significant
to Dr. Hilberg that suddenly there were hundreds of thousands of people
going to Treblinka and Sobibor which on the maps are small villages;
and of greater significance that the trains were returning empty.

Hoess, the commandant at Auschwitz, was a witness at Nuremberg and said
that 2,500,000 people were killed at Auschwitz. However, Dr. Hilberg
said that this figure was too high and he estimated that approximately
one million people were killed in the gas chambers at Auschwitz II
(Birkenau). According to Dr. Hilberg's estimate over five million Jews
were killed during the Nazi regime, of whom approximately three million
died in camps. The vast majority of those persons killed in camps were
killed in gas chambers, but several hundred thousand in those camps
were shot or died of deprivation or disease. In addition, approximately
1,300,000 or 1,400,000 Jews were shot in systematic operations such as
those conducted by the Einsatz­gruppen in the occupied U.S.S.R.,
Galicia and Serbia. The remainder, according to reports by the SS
statistician Korherr and the reports of Jewish councils in various
ghettos sent to German agencies, died from conditions in those ghettos.

Dr. Hilberg testified that of the Jewish population in Poland of
approximately 3,350,000 as of September, 1939, the death toll
attributable to the Holocaust was close to three million. His estimate
of the pre-war Jewish population in Poland appears to have been based
on the 1931 Polish census extrapolated to 1939. He testified in
cross-examination that of the pre-war population of approximately
3,350,000, there were only 50,000 Jews in Poland in 1945, excluding the
175,000 repatriates from the Soviet Union. He said there was a record
of those repatriated.

Dr. Hilberg testified that he found the pamphlet published by the
appellant to be a "concoction, contradiction, untruth mixed with
half-truths". He was asked by Crown counsel at the trial to comment on
various parts of the pamphlet and in substance he testified that those
parts contained misstatements and were false. In particular he said
that he never gave the figure of 896,892 Jews killed, attributed in the
pamphlet to the "Jewish statistician Raul Hilberg".

Dr. Hilberg was extensively cross-examined as to his reliance, in his
book, on one Gerstein, an SS officer. Dr. Hilberg agreed that some of
the statements made by Gerstein were not credible. He said, however,
that some parts of Gerstein's statements were credible and some were
corroborated. He said he used only those parts of his statements that
were credible, and that authors like himself develop a certain amount
of expertise in the use of material. Dr. Hilberg also testified that
the figure of 1.7 million Jews killed at Auschwitz contained in the War
Refugee Board Report, of which Dr. Vrba is a co-author, was too high.

C. Dr. Robert Faurisson
s***@gmail.com
2006-12-28 18:09:18 UTC
Permalink
Post by Teslacoils 2006
Just search freemason in Canadian courts ...very interesting
IDWTP
Ajajabar!
2006-12-28 22:17:58 UTC
Permalink
Post by Teslacoils 2006
Just search freemason in Canadian courts ...very interesting
IDWTP
Freemasons control the orbit of the Moon. We are their slaves!!!!
teslacoils2006
2006-12-28 23:27:30 UTC
Permalink
If this was true why not announce your ownership over the mass media!

How many people do you intend to fool with your crap!!
Post by Ajajabar!
Post by Teslacoils 2006
Just search freemason in Canadian courts ...very interesting
IDWTP
Freemasons control the orbit of the Moon. We are their slaves!!!!
Rab
2006-12-29 03:55:10 UTC
Permalink
I have issues with Freemasonry as well, but your posts certainly don't do
anything other than give these folks more credibility.

"Teslacoils 2006" <***@yahoo.co.uk> wrote in message news:***@79g2000cws.googlegroups.com...
Just search freemason in Canadian courts ...very interesting


http://www.canlii.org/bc/cas/bcpc/2006/2006bcpc210.html

just search freemason, freemasonry


Court of Appeal for Ontario

R. v. Zundel

Date: 19870123



BY THE COURT:-The appellant Ernst Zundel was charged with the
commission of two offences contrary to s. 177 of the Criminal Code,
R.S.C. 1970, c. C-34. The indictment read as follows:

1. ERNST ZUNDEL stands charged that he, during the year 1981, at the
Munic­ipality of Metropolitan Toronto in the Judicial District of
York, did publish a statement or tale that he knows is false, namely
the article "The West, War, and Islam", and the said article is likely
to cause mischief to the public interest in social and racial
tolerance, contrary to the Criminal Code.

2. ERNST ZUNDEL stands further charged that he, in or about the year
1981, at the Municipality of Metropolitan Toronto in the Judicial
District of York, did publish a statement or tale, namely "Did Six
Million Really Die?" that he knows is false and that is likely to cause
mischief to the public interest in social and racial tolerance,
contrary to the Criminal Code.

After a seven-and-one-half week trial before the Honourable Judge Locke
and a general sessions jury, the appellant was acquitted on count 1 but
convicted on count 2. On March 25, 1985, he was sentenced to 15 months'
imprisonment together with three years' probation. It was a term of the
probation order that he would not publish, directly or indirectly,
anything on the subject of the Holocaust or any subject related to the
Holocaust. The appellant is appealing both conviction and sentence.

Although, as will be seen from our reasons, we are of the opinion that
the Honourable Judge Locke committed some errors during the course of
the trial and in his charge to the jury, we believe fairness requires
that we should acknowledge at the outset that this was a difficult and
complex trial. There was little case-law to guide the learned judge in
the interpretation and appli­cation of s. 177. In addition, he was
required almost daily to make rulings on difficult and involved
questions of law. For instance, the trial began with a challenge by
counsel for the accused to the validity of s. 177 on the ground that it
was inconsistent with s. 2(b) of the Canadian Charter of Rights and
Freedoms. This was followed immediately by an application by counsel
for the accused to have certain questions put by the trial judge to the
jury panel at large and to permit counsel to challenge prospective
jurors for cause by asking them a list of questions which he had
prepared. In all instances, the trial judge made his rulings promptly,
giving full and detailed reasons. While we do not always agree with his
rulings, the way in which he made them has greatly assisted us in the
determination of this appeal.

Since Crown counsel attached some significance to the appel­lant's
acquittal on count 1 of the indictment, we believe that before turning
to count 2, we should say a few words about the pamphlet that formed
the subject-matter of the first count. In 1981, the appellant wrote and
distributed a rambling, diffuse, four-page pamphlet entitled, "The
West, War and Islam!". In essence, the pamphlet alleged that a
conspiracy existed among International Zionists, International Secret
Societies (particularly Freemasonry), International Bankers, and
International Commu­nists to use their control of Western media "to
misinform, to miseducate and to instill hatred against the Islamic
peoples". The pamphlet appealed to the Islamic nations to rectify the
situation by assisting in the creation "of an independent, worldwide
inform­ation network capable of countering the now unopposed Zionist
disinformation and hate propaganda". It ended with an indirect appeal
to the Islamic world to contribute money to the appellant and his
organization so that they could commence a public inform­ation
campaign immediately. The appellant mailed the pamphlet to people
outside Canada from Morocco to Pakistan. It was not distributed in
Canada.

Count 2 of the indictment on which the appellant was convicted related
to the publication by the appellant of a 32-page pamphlet entitled,
"Did Six Million Really Die? Truth At Last Exposed:". The appellant
gave evidence at his trial. The following is a brief outline of the
background facts as related by him which led up to the publication of
the pamphlet.

The appellant was born in 1939 in the Black Forest region of Germany.
His father was a soldier in the German army in World War II, and except
for sporadic visits, was away from home until 1948. The appellant
related in detail the hardships that he experi­enced as a boy during
and after the war in Germany.

After finishing school in Germany, the appellant in 1958 decided to
immigrate to Canada. He chose Canada because it had a volunteer army
and the appellant did not wish to be drafted. On arrival in Canada, he
obtained employment as a graphic artist. He swore that up until 1960,
he firmly believed that the Germans had killed six million Jews during
World War II.

In 1959 the appellant married a French-Canadian girl. There were two
children of the marriage: Pierre, born in 1960, and Hans, born in 1967.
Shortly after the birth of Pierre, he and his wife moved to Montreal
where the appellant started his own business. He lived in Montreal for
nine years. He testified that he had a thriving business in Montreal,
and the business did so well that he was able to take off several
months each year and travel. In the course of his travels, he went all
over Europe, Canada and the United States making investigations
concerning German conduct during the Second World War. Gradually he
became more and more interested in the story that six million Jews had
been killed by the Germans during the war. By 1977, he said that his
interest in the subject had become "overwhelming",

The appellant outlined for the jury the elaborate and detailed
investigations he made into the truth of the allegation that six
million Jews were killed by the Germans during World War II, commencing
with his discussions in the 1960s in West Germany with Joseph Ginsburg,
the author of a German book called Schuld and Schicksal. As a result of
his investigations, the appellant said that he intended to write a book
to set the record straight. He gave the following testimony concerning
how he heard of the pamphlet, "Did Six Million Really Die?":

I had been involved in a study of this topic for a long time, and I had
planned to write something on this topic, but always held back because
it's such a distasteful subject to me. And I just couldn't get myself
to write it, and then I heard of a booklet in Europe called, "Did Six
Million Really Die?" out of England. I wrote to the publisher, got a
copy of the booklet in English. Then I received one in French, in
Dutch, in Flemish. There were later editions in Swedish, in Finnish, in
German I already said. I think there is one in Hungarian, and one in
Rumanian. I saw at that time before I ever thought of publishing it
four or five different languages of this booklet, so I naturally read
through this booklet and I thought that it was in a nice condensed form
virtually what I had intended to write myself, because I thought
something like that should be written. Most of the revisionist
literature of the day, like Rassinier, fairly thick tomes, and I have
learned one thing being in the graphic arts, that people like to read
less and less, especially serious stuff. So I felt this was a good
vehicle, of the best that I had seen. And Dr. App with whom I was at
that time working and had been selling some of his publica­tions, "The
Six Million Swindle", for instance, and another booklet called, "A
Straight Look at the Third Reich", and Christopherson's booklet, "The
Auschwitz Lie", I thought that the Harwood booklet was superior to all
the three or four which I was selling at the time.

In the beginning, the appellant imported the pamphlet from England and
distributed it in Canada; however, this did not prove satisfactory as
the English publisher did not package it properly. He then obtained an
American source for the pamphlet and made arrangements for the printing
of a Canadian edition. He added to the title the words, "Truth At Last
Exposed", and he wrote a foreword and a postscript. The publisher would
not, however, permit him to make any change in the format or in the
contents of the pamphlet.

Although the appellant's evidence as to when he published the pamphlet
is rather vague, and although the indictment states that it was "in or
about the year 1981", counsel for the appellant at the commencement of
the trial admitted, in response to a request from Crown counsel to
avoid the calling of a witness, that "Mr. Zundel published the article
and wrote a foreword and postscript to that article and distributed it
in Canada in 1983". The trial proceeded on this basis.

The appellant testified that he sold some copies of the pamphlet. He
said that he also sent copies free of charge to every member of
Parliament, to every Catholic priest in Ontario and Quebec, to every
Protestant minister in Ontario, to all radio stations, television
stations and newspaper editors in Ontario, and to every high school
history teacher in Ontario.

The pamphlet purports to be written by one Richard Harwood. At the end
of the pamphlet, the following description is given of Harwood:

RICHARD HARWOOD is a writer and specialist in political and diplomatic
aspects of the Second World War. At present he is with the University
of London. Mr. Harwood turned to the vexed subject of war crimes under
the influence of Professor Paul Rassinier, to whose monumental work
this little volume is greatly indebted. The author is now working on a
sequel in this series on the Main Nuremberg Trial, 1945-46.

Zundel testified that he discovered in 1982 or 1983 that Richard
Harwood was a pseudonym and that the author's real name was Richard
Verrai. Zundel said that, according to his information, Verrai was a
graduate student of one of London's universities in history. Zundel
tried to get Verrai to give evidence at the trial, but Verral refused
as he had married a Jewish girl and had given up political work.

In addition to printed material, the pamphlet contains some photographs
and a map showing the location of German concen­tration camps during
World War II. The general theme of the pamphlet is summed up in the
following passages from the intro­duction:

In the following chapters the author has, he believes, brought together
irrefutable evidence that the allegation that 6 million Jews died
during the Second World War, as a direct result of official German
policy of extermina­tion, is utterly unfounded. This conclusion,
admittedly an unpopular one, resulted from an inquiry which was begun
with no pre-conceived opinions, beyond a general notion that the
statistical possibility of such huge casualties was perhaps open to
doubt, as well as an awareness that political capital was being made
from the implications of this alleged atrocity. A great deal of careful
research into this question, however, has now convinced me beyond any
doubt that the allegation is not merely an exaggeration but an
invention of post-war propaganda.

.....

So far as the Jewish people themsleves [sic] are concerned, the
deception has been an incalculable benefit. Every conceivable race and
nationality had its share of suffering in the Second World War, but
none has so successfully elaborated it and turned it to such great
advantage. The alleged extent of their persecution quickly advised
sympathy for the Jewish national homeland they had sought for so long;
after the War the British Government did little to prevent Jewish
emigration to Palestine which they had declared illegal, and it was not
long afterwards that the Zionists wrested from the Government the land
of Palestine and created their haven from persecution, the State of
Israel. Indeed, it is a remarkable fact that the Jewish people emerged
from the Second World War as nothing less than a triumphant minority.
Dr. Max Nussbaum, the former chief rabbi of the Jewish community in
Berlin, stated on April 11, 1953: "The position the Jewish people
occupy today in the world - despite the enormous losses - is ten
times stonger [sic] than what it was twenty years ago." It should be
added, if one is to be honest, that this strength has been much
consolidated financially by the supposed massacre of the Six Million,
undoubtedly the most profitable atrocity allegation of all time. To
date, the staggering figure of six thousand million pounds has been
paid out in compensation by the Federal Government of West Germany,
mostly to the State of Israel (which did not even exist during the
Second World War), as well as to individual Jewish claimants.

The pamphlet proceeds to discuss these issues under the following
headings:

German Policy Towards the Jews Prior to the War

German Policy Towards the Jews After the Outbreak of War Population and
Emigration

The Six Million: Documentary Evidence

The Nuremberg Trials

Auschwitz and Polish Jewry

Some Concentration Camp Memoirs

The Nature & Condition of War-time Concentration Camps

The Jews and the Concentration Camps: A Factual Appraisal By the Red
Cross

The Truth At Last: The Work of Paul Rassinier

Under the subheading, "Enormous Fraud", the author of the pamphlet
quotes the following passage from Professor Paul Rassi­nier's book, Le
Drame des Juifs européen [sic]:

Perhaps I may be allowed to recall here that the State of Israel was
only founded in May 1948 and that the Jews were nationals of all states
with the exception of Israel, in order to underline the dimensions of a
fraud which defies description in any language; on the one hand Germany
pays to Israel sums which are calculated on six million dead, and on
the other, since at least four-fifths of these six million were
decidedly alive at the end of the war, she is paying substantial sums
by way of reparation to the victims of Hitler's Germany to those who
are still alive in countries all over the world other than Israel and
to the rightful claimants of those who have since deceased, which means
that for the former (I. e. the six million), or in other words, for the
vast majority, she is paying twice.

The author concludes the pamphlet in this way:

The question most pertinent to the extermination legend is, of course:
how many of the 3 million European Jews under German control survived
after 1945? The Jewish Joint Distribution Committee estimated the
number of survivors in Europe to be only one and a half million, but
such a figure is now totally unacceptable. This is proved by the
growing number of Jews claiming compensation from the West German
Government for having allegedly suffered between 1939 and 1945. By
1965, the number of these claimants registered with the West German
Government had tripled in ten years and reached 3,375,000 (Aufbau, June
30th, 1965). Nothing could be a more devas­tating proof of the brazen
fantasy of the Six Million. Most of these claimants are Jews, so there
can be no doubt that the majority of the 3 million Jews who experienced
the Nazi occupation of Europe are, in fact, very much alive. It is a
resounding confirmation of the fact that Jewish casualties during the
Second World War can only be estimated at a figure in thousands. Surely
this is enough grief for the Jewish people? Who has the right to
compound it with vast imaginary slaughter, marking with eternal shame a
great European nation, as well as wringing fraudulent monetary
compensation from them?

Zundel conceded that there were some errors in the pamphlet. For
example, the pamphlet states that Meyer Levin wrote the dialogue of The
Diary of Anne Frank. Zundel admitted that this was not correct. Levin
only wrote a stage adaption of The Diary. Otto Frank, the father of
Anne Frank, was dissatisfied with Levin's work and employed someone
else to do it. Zundel acknowl­edged that there were also some sloppy
errors in the Red Cross report. Zundel swore that he was not aware of
the errors until after he had published the pamphlet. However, he said
that 99% of the pamphlet was accurate, and he stood behind it.

The witnesses called by the Crown were principally directed to the
issue of whether or not six million Jews had died during the Second
World War as a direct result of official German policy of
extermination. A number of witnesses were called who had been
incarcerated in German concentration camps, such as Birkenau,
Auschwitz, and Maidenek; they testified about what they had seen and
what their experiences had been in the camps. The Crown also called Dr.
Raul Hilberg as an expert witness to testify on the subject of the
systematic destruction of Jews by the Germans during World War II. We
will be dealing with Dr. Hilberg's evidence in greater detail later in
these reasons. No direct evidence appears to have been called by the
Crown as to the appellant's knowledge that the statements in the
pamphlets were false.

The appellant's defence at the trial was that he had an honest belief
in the truth of what was written in the pamphlet. He produced a large
number of articles, letters and books which he had read prior to the
publication of the pamphlet and which he claimed accorded with what was
contained in the pamphlet. In addition, the defence called a number of
witnesses, some of whom were qualified to a limited extent as experts,
to prove the truth of the contents of the pamphlet. The appellant swore
that he had read material written by some of these witnesses in
arriving at his belief that the contents of the pamphlet were true.
Finally, the defence called a number of character witnesses to testify
to the good reputation of the appellant in the community.

Although counsel for the appellant advanced a number of grounds of
error, we believe that the following are the only ones that warrant
consideration by this court:

I Constitutional validity of s. 177 of the Criminal Code

The first ground of appeal raised by the appellant is that s. 177 of
the Criminal Code, which provides for the offence of "spreading false
news", is unconstitutional because it infringes the fundamental
"freedom of expression" guaranteed by the Canadian Charter of Rights
and Freedoms. Section 2(b) of the Charter provides:

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;

A. History of s. 177

Before turning to consider the Charter, it is necessary to examine the
history of the offence of "spreading false news", and the essential
nature of the offence created by s. 177. The present s. 177 reads as
follows:

177. 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 is liable
to imprisonment for two years.

The offence of "spreading false news" had a very ancient origin in the
statutes concerning scandalum magnatum, the earliest of which is a
provision of the first Statute of Westminster, 1275, 3 Edw. I, c. 34,
which reads as follows:

Forasmuch as there have been oftentimes found in the Country Devisors
of Tales, whereby Discord, or Occasion of Discord, hath many times
arisen between the King and his People, or great Men of the Realm; For
the Damage that hath and may thereof ensue, it is commanded, That from
hence­forth, none be so hardy to tell or publish any false News or
Tales, whereby Discord or Occasion of Discord or Slander may grow
between the King and his People, or the great Men of the Realm; and he
that doth so, shall be taken and kept in Prison, until he hath brought
him into the Court, which was the first Author of the Tale.

This and subsequent amending statutes were primarily designed to
protect the peers and other great men against slanderous lies which
might imperil or cause mischief to the public if the perpe­trator were
not punished. Bishop in his text on Criminal Law, 5th ed. (1872), vol.
1, para. 473, states that the statute of Edward I provided a means
whereby the perpetrator could be brought to justice for an offence well
understood by the common law. There is authority that quite apart from
these statutes the common law recognized the publication of false news
to the public detriment as an offence: see Scott, "Publishing False
News", 30 Can. Bar Rev. 37 at p. 40 (1952).

The statute of 3 Edw. I, and the other amending statutes were finally
repealed in 1888. Prior to this time, Stephen had embodied in his
Digest of the Criminal Law, 1st ed. (1877), p. 57, art. 95, which
stated:

Spreading False News

Every one commits a misdemeanor who cites or publishes any false news
or tales whereby discord or occasion of discord or slander may grow
between the Queen and her people or the great men of the realm (or
which may produce other mischiefs)

The words in brackets at the end of this article are significant in
view of the words "injury or mischief to any public interest" in the
present s. 177 of the Code.

As the late Professor Scott pointed out in his learned article,
"Publishing False News", op. cit. at p. 39:

... the Canadian Criminal Code was based on Stephen's Digest and on the
Draft Code he prepared for the British Parliament in 1879. Burbridge,
the draftsman of the Canadian Code of 1892, himself published a Digest
of the Criminal Law of Canada in 1890, founded on Stephen's, and in
article 125 repeats the latter's article 95 verbatim, including the
comment that "The definition is very vague and the doctrine exceedingly
doubtful". Through Burbridge the doctrine, despite its vagueness,
entered our Code, the element of "false news or tales" remaining from
scandalum magnatum and the notion of "discord and slander between the
Queen and her people or the great men of the realm" being generalized
into "injury or mischief" to "any public interest".

The Criminal Code, 1892 (Can.), c. 29, included s. 126 in "Part VII:
Seditious Offences", which was under "Title II: Offences Against Public
Order, Internal and External". Section 126 provided as follows:

126. Every one is guilty of an indictable offence and liable to one
year's imprisonment who wilfully and knowingly publishes any false news
or tale whereby injury or mischief is or is likely to be occasioned to
any public interest.

In the statutory revisions of 1906 (R.S.C. 1906, c. 146) and of 1927
(R.S.C. 1927, c. 36), the provision appeared as s. 136 under the same
general heading and subheading. In the revision of the Criminal Code in
1953-54 (Can.), c. 51, the word "statement" was inserted before the
words "tale or news" and the section was designated as s. 166 and was
reworded as the present wording of s. 177. However, s. 166 appeared in
"Part IV: Sexual Offences, Public Morals and Disorderly Conduct" under
the subheading "Nuisances". The reclassification of the offence from
the category of seditious offences to the category of nuisances may be
of signifi­cance in viewing it as an offence with less serious
potential consequences. In the 1970 revision (R.S.C. 1970, c. C-34),
the provision was renumbered as s. 177 under the same heading and
subheading but there was no change in wording.

The essential ingredients of an offence under s. 177 are:

(a) wilful publication, and

(b) the publication must be of a statement, tale or news.

(It is not necessary in this appeal to go into the precise difference
in meaning between a statement, tale and news. Counsel for the
respondent conceded that an assertion of fact must be proved which is
capable of being false. The assertion of an opinion is not sufficient.)

(c) The assertion of fact must be false to the knowledge of the person
who publishes it;

(d) it does not have to be proved that the false assertion of fact
actually caused injury or mischief to a public interest. It is
sufficient if it is proved that it was likely to cause such injury or
mischief.

In this appeal the charge specifies that the public interest in
question is the public interest in racial and social tolerance.

There are extremely few reported decisions on s. 177. In R. y. Hoaglin
(1907), 12 C.C.C. 226, the accused published a placard in connection
with a closing-out sale stating he had decided to leave Canada and that
settlers from the United States were not wanted in Canada. This was
done at a time when great efforts were being made to induce settlers
from the United States to come to Canada. He was convicted under a
predecessor of s. 177, the court holding that the publication was
contrary to the public interest.

In R. v. Kirby (1970), 1 C.C.C. (2d) 286, 13 Crim. L.Q. 128, an
underground newspaper published an edition in Montreal parodying the
Gazette and containing a false story that the mayor had been "shot by
[a] dope-crazed hippie". The Quebec Court of Appeal set aside the
conviction of the appellant. It considered that while the night city
editor of the Gazette might have been incon­venienced by the 50 or so
calls received at the Gazette switchboard, there was no injury or
mischief to a public interest. It was not "reasonably sure to cause
trouble and insecurity" (p. 289),

B. Procedure in determining constitutionality of s. 177

With this background it is now necessary to consider whether s. 177 is
unconstitutional because it infringes s. 2(b) of the Charter, the
fundamental freedom of expression. In considering the
consti­tutionality of impugned legislation under the Charter, both the
purpose and the effect of the legislation are relevant. No
funda­mental freedoms are more basic to our democratic way of life,
and more highly prized than the freedoms guaranteed under s. 2(b) of
the Charter. It is the freedom of "expression" with which we are
primarily concerned in this appeal. There is a twofold aspect to this
inquiry:

(a) Is the fundamental freedom of expression an absolute freedom, or is
it a qualified freedom which must give way to certain restrictions in
the interest of society as a whole? If it is a qualified freedom, then
the exact limits of that freedom must be determined.

(b) Once the limits of the freedom of expression have been
deter­mined, then a decision can be made whether those limits have
been breached. If so, then s. 1 of the Charter comes into operation in
order to decide whether the limitations imposed on the freedom are a
reasonable limit which is demonstrably justified in a free and
democratic society.

C. Limits of freedom of expression

It is essential at the outset to consider just exactly what is the
"freedom of expression" which is constitutionally protected. The words
are extremely broad. They are not like rights proscribed under some
other sections of the Charter such as ss. 10, 11(f) and (i). There the
limits of the rights protected are much clearer, and a breach is more
readily apparent and, if a breach has occurred, can be tested under s.
1 of the Charter.

Freedom of expression must necessarily have regard to the corresponding
rights and freedoms of other persons. It contem­plates the existence
of a social order in which other persons must not be denied similar
rights. A simplistic example, which is often given, is that a person is
not at liberty to shout "fire!" in a crowded theatre.

As Dickson C.J.C. stated when delivering the judgment of the Supreme
Court of Canada in R. v. Big M Drug Mart Ltd. 1985 CanLII 69 (S.C.C.),
(1985), 18 C.C.C. (3d) 385 at p. 418, 18 D.L.R. (4th) 321 at p. 354,
[1985] 1 S.C.R. 295:

Freedom means that, subject to such limitations as are necessary to
protect public safety, order, health, or morals or the fundamental
rights and freedoms of others, no one is to be forced to act in a way
contrary to his beliefs or his conscience.

(Emphasis added.) (See also his dicta to the same effect at p. 425
C.C.C., p. 361 D.L.R.) In that case Chief Justice Dickson was, of
course, addressing his remarks to the limits of the fundamental freedom
of religion under s. 2(a) of the Charter but his remarks are, in our
opinion, apposite for "freedom of expression".

In this appeal it is not necessary to give an all-embracing definition
of "freedom of expression", but merely to decide whether "spreading
false news" within s. 177 of the Code is encompassed within that
fundamental freedom.

When considering the interpretation of the Charter, it is important to
bear in mind the admonition of Chief Justice Dickson in Hunter et al.
v. Southam Inc. 1984 CanLII 33 (S.C.C.), (1984), 14 C.C.C. (3d) 97 at
p. 106, 11 D.L.R. (4th) 641 at p. 650, 2 C.P.R. (3d) 1 at p. 10, [1984]
2 S.C.R. 145 at p. 156, that the proper approach to the definition of
the rights and freedoms guaranteed by the Charter is a purposive one:
"Its purpose is to guarantee and to protect, within the limits of
reason, the enjoyment of the rights and freedoms it enshrines."

In R. v. Big M Drug Mart Ltd., supra, at pp. 423-4 C.C.C., pp. 359-60
D.L.R., Dickson C.J.C. elaborated on his views as follows:

The meaning of a right or freedom guaranteed by the Charter was to be
ascertained by an analysis of the purpose of such a guarantee; it was
to be understood, in other words, in the light of the interests it was
meant to protect.

In my view, this analysis is to be undertaken, and the purpose of the
right or freedom in question is to be sought by reference to the
character and the larger objects of the Charter itself, to the language
chosen to articulate the specific right or freedom, to the historical
origins of the concepts enshrined, and where applicable, to the meaning
and purpose of the other specific rights and freedoms with which it is
associated within the text of the Charter. The interpretation should
be, as the judgment in Southam emphasizes, a generous rather than a
legalistic one, aimed at fulfilling the purpose of the guarantee and
securing for individuals the full benefit of the Charter's protection.
At the same time it is important not to overshoot the actual purpose of
the right or freedom in question, but to recall that the Charter was
not enacted in a vacuum, and must therefore, as this Court's decision
in Law Society of Upper Canada v. Skapinker 1984 CanLII 3 (S.C.C.),
(1984), 11 C.C.C. (3d) 481, 9 D.L.R. (4th) 161, [1984] 1 S.C.R. 357,
illustrates, be placed in its proper linguistic, philosophic and
historical contexts.

Differing reasons have been expressed as to why freedom of expression
should be guaranteed. Some have based it on the theory that the best
way to obtain truth is through the free exchange of ideas. Others have
based it on the theory that free expression of opinion is essential to
the working of a parlia­mentary democracy. A third rationale is that
it furthers self-fulfilment, what Professor Tribe in his American
Constitutional Law (1978), at p. 578, refers to as "the evolution,
definition and proclamation of individual and group identity".

The Supreme Court of Canada appears to have adopted the rationale that
freedom of expression is essential to the working of a parliamentary
democracy.

The historical roots of "freedom of expression" were carefully examined
by McIntyre J. in giving the reasons of the majority of the Supreme
Court of Canada in Retail, Wholesale & Department Store Union, Local
580 et al. v. Dolphin Delivery Ltd. et al., December 18, 1986
(unreported [since reported 1986 CanLII 5 (S.C.C.), [1987] 1 W.W.R.
577]). There the court had to consider whether secondary picketing of a
third party not involved in a labour dispute by members of a trade
union infringed the freedom of expression secured under s. 2(b) of the
Charter. McIntyre J., for a unanimous court on this point, considered
that freedom of expression was not created by the Charter but had been
recognized since early times. He cited in support the works of John
Milton and John Stuart Mill. He was of the opinion that freedom of
expression lay at the roots of parliamentary democracy. At p. 9 [p. 585
W.W.R.] he stated:

It is one of the fundamental concepts that has formed the basis for the
historical development of the political, social and educational
institutions of western society. Representative democracy, as we know
it today, which is in great part the product of free expression and
discussion of varying ideas, depends upon its maintenance and
protection.

He cited in support dicta of Holmes J. in Abrams v. United States
(1919), 250 U.S. 616 at p. 630; of Rand J. in Boucher v. The King, 1950
CanLII 2 (S.C.C.), [1950] 1 D.L.R. 657 at p. 682, [1951] S.C.R. 265 at
p. 288; and Rand J. and Abbott J. respectively in Switzman v. Ealing
and A.-G. Que. 1957 CanLII 2 (S.C.C.), (1957), 117 C.C.C. 129 at pp.
151 and 164, 7 D.L.R. (2d) 337 at pp. 357 and 369, [1957] S.C.R. 285 at
pp. 306 and 326. There Abbott J. had referred to the dicta of Duff
C.J.C. in Re Alberta Legislation, 1938 CanLII 1 (S.C.C.), [1938] 2
D.L.R. 81 at pp. 106-7, [1938] S.C.R. 100 sub nom. Reference re Alberta
Statutes, at pp. 132-3, as strongly supporting what could almost be
described as a constitu­tional position for the concept of freedom of
speech and expression in Canadian law, and then said at p. 166 C.C.C.,
p. 371 D.L.R., p. 328 S.C.R.: "... I am also of opinion that as our
constitutional Act now stands, Parliament itself could not abrogate
this right of discussion and debate".

McIntyre J. concluded that any question as to the constitutional status
of "freedom of expression" had been settled by the decla­ration in s.
2(b) of the Charter that it was now a fundamental freedom.

Historically, freedom of expression has not been an absolute freedom
which gives an unrestricted right of speech or expression. In Re
Alberta Legislation, supra, Sir Lyman P. Duff C.J.C. considered the
constitutionality of a bill of the Alberta Legisla­ture, "to Ensure
the Publication of Accurate News and Information". He stated at p. 107
D.L.R., p. 133 S.C.R.:

The right of public discussion is, of course, subject to legal
restrictions; those based upon considerations of decency and public
order, and others conceived for the protection of various private and
public interests with which, for example, the laws of defamation and
sedition are concerned. In a word, freedom of discussion means, to
quote the words of Lord Wright in James v. Commonwealth of Australia,
[1936] A.C. at p. 627, "freedom governed by law."

In Boucher v. The King, Rinfret C.J.C., when considering an appeal from
a conviction for seditious libel stated in a dissenting opinion at p.
666 D.L.R., p. 277 S.C.R.:

... to interpret freedom as license is a dangerous fallacy. Obviously
pure criti­cism, or expression of opinion, however severe or extreme,
is, I might almost say, to be invited. But, as was said elsewhere,
"there must be a point where restriction on individual freedom of
expression is justified and required on the grounds of reason, or on
the ground of the democratic process and the neces­sities of the
present situation".

In Switzman v. Elbling, Rand J. recognized that freedom of expression
was limited and not absolute when he stated at p. 150 C.C.C., p. 356
D.L.R., pp. 304-5 S.C.R., that:

For the past century and a half in both the United Kingdom and Canada,
there has been a steady removal of restraints on this freedom, stopping
only at perimeters where the foundation of the freedom itself is
threatened. Apart from sedition, obscene writings and criminal libels,
the public law leaves the literary, discursive and polemic use of
language, in the broadest sense, free.

The Canadian Bill of Rights, R. S.C. 1970, App. III, recognizes in s.
1(d) that freedom of speech has existed and shall continue to exist.
The preamble acknowledges the supremacy of God, and the dignity and
worth of the human person, and asserts that freedom can only be founded
upon respect for moral and spiritual values and the rule of law. This
would in turn confirm that freedom of expression which is guaranteed
under the Charter is not absolute.

More recently in Re Fraser and Public Service Staff Relations Board
1985 CanLII 14 (S.C.C.), (1985), 23 D.L.R. (4th) 122, [1985] 2 S.C.R.
455, 19 C.R.R. 152, in considering the extent to which a public servant
could openly criticize government policy, Dickson C.J.C. stated at p.
131 D.L.R., pp. 467-8 S.C.R.:

First, our democratic system is deeply rooted in, and thrives on, free
and robust public discussion of public issues. As a general rule, all
members of society should be permitted, indeed encouraged, to
participate in that discus­sion.

.....

On the other side, however, it is equally obvious that free speech or
expression is not an absolute, unqualified value. Other values must be
weighed with it. Sometimes these other values supplement, and build on,
the value of speech. But in other situations there is a collision. When
that happens the value of speech may be cut back if the competing value
is a powerful one. Thus, for example, we have laws dealing with libel
and slander, sedition and blasphemy. We also have laws imposing
restrictions on the press in the interests of, for example, ensuring a
fair trial or protecting the privacy of minors or victims of sexual
assaults.

[Emphasis added.]

When determining the limits of freedom of expression, a distinction
must be drawn at the outset between "rights" and "freedoms". A "right"
is defined positively as what one can do. A "freedom", on the other
hand, is defined by determining first the area which is regulated. The
freedom is then what exists in the unregulated area - a sphere of
activity within which all acts are permissible. It is a residual area
in which all acts are free of specific legal regulation and the
individual is free to choose. The regulated area will include
restrictions for purposes of decency and public order, and specifically
with respect to the freedom of expression, prohibitions concerning
criminal libel and sedition. It is what Rand J. described in Saumur v.
City of Quebec and A.-G. Que. 1953 CanLII 3 (S.C.C.), (1953), 106
C.C.C. 289 at p. 322, [1953] 4 D.L.R. 641 at p. 670, [1953] 2 S.C.R.
299 at p. 329, as "the residue inside the periphery". This is the
approach to rights and freedoms which was taken in the McRuer Report of
the Royal Commission Inquiry into Civil Rights, Report 2, vol. 4, pp.
1493-96 (1969), and was adopted by Bayda C.J.S. in Re Retail, Wholesale
& Department Store Union, Locals 54.4, 496, 635 & 955 et al. and
Government of Saskatchewan et al. 1985 CanLII 184 (SK C.A.), (1985), 19
D.L.R. (4th) 609 at pp. 616-8, [1985] 5 W.W.R. 97 at pp. 105-8, 39
Sask. R. 193. It is also the approach recently adopted by the Court of
Appeal of British Columbia in Re Cromer and British Columbia Teachers'
Federation et al., July 18, 1986 (unreported) at pp. 12-3 [since
reported 29 D.L.R. (4th) 641 at pp. 649-50, [1986] 5 W.W.R. 638, 4 B.
C. L. R. (2d) 273]. In our opinion it is the right approach.

D. Freedom of speech under the American Constitution

In considering the interpretation to be given to "freedom of
expression" in the Charter, it may be of assistance to examine the
corresponding provisions of the American Constitution and consider how
the American courts have dealt with them. At the outset it is
imperative to bear in mind that there are fundamental structural
differences between our Charter and the American Constitution, and
that, most importantly, the latter has no provision which corresponds
to s. 1 of the Canadian Charter.

The relevant provision of the American Constitution is the First
Amendment which provides in part that "Congress shall make no law ...
abridging the freedom of speech, or of the press ...". The rights of
freedom of speech and freedom of the press have also been held to be
fundamental personal rights and liberties which are protected by the
Fourteenth Amendment from invasion by state action: Chaplinsky v. State
of New Hampshire (1942), 315 U. S. 568. It will be noted that the words
"freedom of speech" rather than "freedom of expression" are used in the
American First Amendment. However, American courts have extended the
protection of the First Amendment to expressive conduct as "sym­bolic
speech", for example, the desecration of a flag: see Spence v.
Washington (1974), 418 U.S. 405.

In the Chaplinsky case, Chaplinsky was convicted of violating a New
Hampshire statute prohibiting the addressing of any offen­sive,
derisive or annoying word to any other person who is lawfully in any
street or other public place, or calling him by any offensive or
derisive name. The Supreme Court of the United States in upholding the
state legislation made it clear that the right of free speech was not
absolute and that the punishment of obscene, profane and libellous
utterances or insulting or fighting words did not raise a
constitutional problem. The interest of society in order and morality
outweighed any slight social value which such speech might have. As
Murphy J. stated at pp. 571-2 (footnotes omitted):

Allowing the broadest scope to the language and purpose of the
Fourteenth Amendment, it is well understood that the right of free
speech is not absolute at all times and under all circumstances. There
are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which has never been thought to raise any
Constitutional problems. These include the lewd and obscene, the
profane, the libelous, and the insulting or "fighting" words - those
which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. It has been well observed that such
utterances are no essential part of any exposition of ideas, and are of
such slight social value as a step to truth that any benefit that may
be derived from them is clearly outweighed by the social interest in
order and morality. "Resort to epithets or personal abuse is not in any
proper sense communication of information or opinion safeguarded by the
Constitution, and its punishment as a criminal act would raise no
question under that instrument." Cantwell y. Connecticut, 310 U.S. 296,
309, 310, 60 S. Ct. 900, 906, 84 L.Ed. 1213, 128 A.L.R. 1352.

Despite the broad language of the First Amendment, it has been held
that neither criminal libel nor obscenity is protected by it. In
Beauharnais v. People of State of Illinois (1952), 343 U.S. 250, 72 S.
Ct. 725, the accused was convicted under an Illinois criminal libel
statute for distributing a leaflet which attacked the Negro race. In
this case a group libel was involved rather than uttering offensive
words to an individual face-to-face as in Chaplinsky, supra. The
majority of the Supreme Court of the United States, in an opinion
delivered by Frankfurter J., relied on its earlier decision in
Chaplinsky and held that libellous utter­ances were not
constitutionally protected speech, and added at p. 266:

... it is unnecessary, either for us or for the State courts, to
consider the issues behind the phrase "clear and present danger".
Certainly no one would contend that obscene speech, for example, may be
punished only upon a showing of such circumstances. Libel, as we have
seen, is in the same class.

Justices Jackson, Douglas, Reed and Black dissented. Justice Douglas
expressed his view at pp. 284-5:

My view is that if in any case other public interests are to override
the plain command of the First Amendment, the peril of speech must be
clear and present, leaving no room for argument, raising no doubts as
to the necessity of curbing speech in order to prevent disaster.

Justice Jackson would have applied the "clear and present danger" test.
At p. 303 he stated:

Punishment of printed words, based on their tendency either to cause
breach of the peace or injury to persons or groups, in my opinion, is
justifiable only if the prosecution survives the "clear and present
danger" test. It is the most just and workable standard yet evolved for
determining criminality of words whose injurious or inciting tendencies
are not demonstrated by the event but are ascribed to them on the basis
of probabilities.

and at pp. 304-5:

Group libel statutes represent a commendable desire to reduce sinister
abuses of our freedoms of expression - abuses which I have had
occasion to learn can tear apart a society, brutalize its dominant
elements, and persecute, even to extermination, its minorities ...

...our guiding spirit should be that each freedom is balanced with a
responsi­bility, and every power of the State must be checked with
safeguards. Such is the spirit of our American law of criminal libel,
which concedes the power to the State, but only as a power restrained
by recognition of individual rights.

The leading cases that obscenity is not within the areas of
constitutionally protected speech or press are Roth v. United States
(1957), 354 U.S. 476, and Alberts v. State of California. In Roth the
primary constitutional question was whether the federal obscenity
statute in issue violated the First Amendment, whereas in Alberts the
primary constitutional question was whether the obscenity provisions of
the California Penal Code invaded the freedoms of speech and press as
they may be incorporated into the liberty protected from state action
by the due process clause of the Fourteenth Amendment.

Justice Brennan in delivering the opinion of the majority of the court
noted that while the law of obscenity was not so fully developed as the
law of libel, there was sufficient contemporary evidence to show that
obscenity, too, was outside the protection intended for speech and
press. From the history of the First Amendment, its unconditional
phrasing and the early existence of laws as to criminal libel,
blasphemy, profanity and obscenity, he concluded that the First
Amendment was not intended to protect every utterance. At pp. 484-5 he
stated (footnotes omitted):

All ideas having even the slightest redeeming social importance -
unorthodox ideas, controversial ideas, even ideas hateful to the
prevailing climate of opinion - have the full protection of the
guaranties, unless excludable because they encroach upon the limited
area of more important interests. But implicit in the history of the
First Amendment is the rejection of obscenity as utterly without
redeeming social importance. This rejection for that reason is mirrored
in the universal judgment that obscenity should be restrained,
reflected in the international agreement of over 50 nations, in the
obscenity laws of all of the 48 States, and in the 20 obscenity laws
enacted by the Congress from 1842 to 1956. This is the same judgment
expressed by this Court in Chaplinsky v. New Hampshire, 315 U.S. 568,
571-572, 62 S.Ct. 766, 769, 86 L.Ed. 1031... We hold that obscenity is
not within the area of constitutionally protected speech or press.

Justices Douglas and Black dissented and Justice Harlan dissented in
part as to the Roth case only.

The laws of civil and criminal libel in the United States were altered
in meaning and scope after the Beauharnais case with the decisions in
New York Times Co. v. Sullivan (1964), 376 U.S. 254, and Garrison y.
State of Louisiana (1964), 379 U. S. 64. A distinction was drawn
between public officials on the one hand and private individuals on the
other. In the New York Times case, Sullivan, one of the three elected
commissioners of. the City of Montgomery, Alabama, brought a civil
libel action against four individual critics of his official conduct
and the New York Times Company for an advertisement published in the
New York Times. The Supreme Court of the United States held that there
was an absolute immunity for the criticism of the way public officials
do their public duty. Accordingly, the judgment for libel could not be
sustained. The court held that a public official cannot recover unless
it is proven that the libellous statement was made with "actual malice"
- that is, with knowledge that it was false or with reckless
disregard whether it was false or not.

In Garrison v. State of Louisiana, the Supreme Court of the United
States decided that the same rule should apply in the case of a
criminal libel prosecution as in an action for civil libel. In this
case a New Orleans attorney was convicted of issuing a statement
disparaging the judicial conduct of eight judges. He was convicted of
criminal defamation under the Louisiana Criminal Defamation Statute and
his conviction was upheld on appeal. The appellant contended that his
right of expression had been abridged. On a further appeal to the
Supreme Court of the United States, his conviction was reversed. The
Supreme Court applied the same rule as in New York Times Co. v.
Sullivan, supra, that criticism of official conduct of public officials
was constitutionally protected unless it was made with actual malice.
The Louisiana Criminal Libel Statute imposed standards which were
constitutionally invalid as it directed punishment for true statements
which were made with actual malice. It was also unconstitutional
because it punished false statements against public officials if made
with ill will without regard to whether they were made with knowledge
of their falsity or in reckless disregard of whether they are true or
false, or not made in reasonable belief of their truth. Brennan J. in
delivering the opinion of the court stated at p. 73:

Moreover, even where the utterance is false, the great principles of
the Constitution which secure freedom of expression in this area
preclude attaching adverse consequences to any except the knowing or
reckless false­hood. Debate on public issues will not be uninhibited
if the speaker must run the risk that it will be proved in court that
he spoke out of hatred; even if he did speak out of hatred, utterances
honestly believed contribute to the free interchange of ideas and the
ascertainment of truth.

and at pp. 75-6:

Although honest utterance, even if inaccurate, may further the fruitful
exercise of the right of free speech, it does not follow that the lie,
knowingly and deliberately published about a public official, should
enjoy a like immunity ... Calculated falsehood falls into that class of
utterances which "are no essential part of any exposition of ideas, and
are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social
interest in order and morality ...". Chaplinsky v. New Hampshire, 315
U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031. Hence the knowingly
false statement and the false statement made with reckless disregard of
the truth, do not enjoy constitutional protection.

Accordingly, American constitutional cases support the position that
freedom of speech is not an absolute freedom, and that there are
certain well-defined and limited classes of speech such as the obscene
or libellous, or knowingly false statements, which are not
constitutionally protected because any slight social value as a step to
truth that they may entail, is clearly outweighed by the social
interest in order and morality.

E. Does s. 177 of the Code infringe freedom of expression under s. 2(b)
of the Charter

It is not necessary for the purpose of this appeal to define the limits
of the unregulated areas where freedom of expression is supreme. The
pertinent question is whether s. 177 of the Criminal Code properly
forms part of the permissibly regulated area. If it does, then it is
not necessary to consider s. 1 of the Charter. The nub of the offence
in s. 177 is the wilful publication of assertions of a fact or facts
which are false to the knowledge of the person who publishes them, and
which cause or are likely to cause injury or mischief to a public
interest. It is difficult to see how such conduct would fall within any
of the previously expressed rationales for guaranteeing freedom of
expression. Spreading falsehoods knowingly is the antithesis of seeking
truth through the free exchange of ideas. It would appear to have no
social or moral value which would merit constitutional protection. Nor
would it aid the working of parliamentary democracy or further
self-fulfilment. In our opinion an offence falling within the ambit of
s. 177 lies within the permissibly regulated area which is not
constitutionally protected. It does not come within the residue which
comprises freedom of expression guaranteed by s. 2(b) of the Charter.

F. Application of s. 1 of the Charter

If we are in error in concluding that s. 177, which is now classified
in the Criminal Code as a nuisance, properly forms part of the
permissibly regulated area of conduct, then s. 177 would constitute an
infringement of the guaranteed freedom of expression and we would have
to consider whether those limita­tions prescribed by law are
reasonable and demonstrably justified in a free and democratic society
under s. 1 of the Charter. In this connection the onus is on the Crown
as the party claiming that the requirements of s. 1 have been
satisfied.

The two central criteria to be satisfied in the application of s. 1 of
the Charter were laid down by Dickson C.J.C. when delivering the
judgment of the majority of the Supreme Court of Canada in R. v. Oakes
1986 CanLII 46 (S.C.C.), (1986), 24 C.C.C. (3d) 321 at pp. 348-9, 26
D.L.R. (4th) 200 at p. 227, {19861 1 S.C.R. 103. They may be
paraphrased as follows:

(1) The objective which the measures responsible for a limit on a
Charter right or freedom are designed to serve, must be of sufficient
importance to warrant overriding a constitutionally protected right or
freedom. The objective must relate to concerns which are pressing and
substantial in a free and democratic society.

(2) The party invoking s. 1 must show that the means chosen to achieve
a permissible objective are reasonable and demonstrably justified. This
involves a form of proportionality test which has three conjunctive
components:

(a) the measures adopted must be carefully designed to achieve the
objective in question. They must be rationally connected to the
objective;

(b) they should impair as little as possible the right or freedom in
question;

(c) there must be a proportionality between the effects of the measures
responsible for limiting the Charter right or freedom, and the
objective identified as of sufficient importance. The more serious the
deleterious effects of a measure, the more important the objective must
be.

The objective of s. 177 is to prohibit the wilful publication of false
statements which the person publishing them knows are false and which
cause, or are likely to cause, injury or mischief to the public
interest. Such an activity is the very opposite of free public
discussion. Stopping such publication by prosecution would seem not
only reasonable but important. Lesser measures would not appear to be
effective. As we have already pointed out, the statutory provision in
England comparable to s. 177 was repealed in 1888. Our attention was
not drawn by counsel to statutory provisions in other democratic
countries in similar terms to s. 177. Section 263 of the Criminal Code
sets forth the offence of publishing a defamatory libel and a higher
penalty is imposed by s. 264 where the person publishing the defamatory
libel knows that it is false. Section 330 of the Criminal Code provides
for the offence of conveying a false message knowing that it is false.
There are similar statutory provisions respecting defamatory libel in:

(a) England - Libel Act, 1843 (U. K.), c. 96, ss. 4 and 5.

(b) Victoria - The Wrongs Act 1958 (No. 6420), s. 10, as amended by
the Penalties and Sentences Amendment Act 1983 (No. 9945), s. 3(3).

(c) Western Australia - Criminal Code, 1913, No. 28 (4 Geo. V), s.
360.

(d) Queensland - The Criminal Code Act, 1899 (63 Viet. No. 9), s.
380.

(e) Ireland - Defamation Act, 1961 [No. 40], ss. 11 and 12.

Section 177 would appear to be a reasonable means of achieving the
objective of prohibiting the spread of false news which a person knows
to be false, and which causes or is likely to cause injury or mischief
to a public interest. It impairs freedom of expression as little as is
possible, and any impairment is propor­tionate to the objective to be
achieved. Accordingly, we have concluded that if s. 1 of the Charter is
applicable, s. 177 is a reasonable limit prescribed by law which can be
demonstrably justified in a free and democratic society.

G. Vagueness or overbreadth of s. 177

The final ground of appeal raised with respect to the
constitu­tionality of s. 177 is that it is too vague, or is overly
broad. Vagueness and overbreadth are two concepts. They can be applied
separately, or they may be closely interrelated. The intended effect of
a statute may be perfectly clear and thus not vague, and yet its
application may be overly broad. Alternatively, as an example of the
two concepts being closely interrelated, the wording of a statute may
be so vague that its effect is considered to be overbroad. Vagueness or
overbreadth, for the purpose of determining the permissibly regulated
area of conduct, and whether freedom of expression under s. 2(b) of the
Charter has been breached, may be different from vagueness or
overbreadth for the purpose of applying the criteria in Oakes as to the
appli­cation of s. 1 of the Charter.

This court in R. v. Morgentaler, Smoling and Scott 1985 CanLII 116 (ON
C.A.), (1985), 52 O.R. (2d) 353 at p. 388, 22 C.C.C. (3d) 353 at p.
388, 22 D.L.R. (4th) 641 at p. 676, adopted the principle in Village of
Hoffman Estates et al. y. Flipside, Hoffman Estates Inc. (1982), 455
U.S. 489 at p. 495, that if a person's conduct clearly falls within the
prescription of a statute, then that person cannot complain of the
vagueness of the statute as applied to others. To succeed on the basis
of vagueness, a person would have to show that the statute is vague in
all its applications as, for example, if there were no specified
standard of conduct.

When a freedom protected by the Charter is breached, then in applying
s. 1, the limits placed on that freedom must be reasonable limits
prescribed by law. The limits must be ascer­tainable and
understandable and articulated with some precision. They cannot be
vague, undefined and simply discretionary, at the whim of an official:
Re Ontario Film & Video Appreciation Society and Ontario Board of
Censors (1983), 41 O.R. (2d) 583 at p. 592, 147 D.L.R. (2d) 58 at p.
68, 34 C.R. (3d) 73; affirmed 45 O.R. (2d) 80n, 5 D.L.R. (4th) 766n, 38
C.R. (3d) 271 (Ont. C.A.).

In Re Luscher and Deputy Minister, Revenue Canada, Customs & Excise
reflex, (1985), 17 D.L.R. (4th) 503, [1985] 1 F.C. 85, 45 C.R. (3d) 81,
the Federal Court of Appeal allowed an appeal from a county court judge
upholding the decision of the Deputy Minister prohibiting the
importation of a book under a tariff item as immoral or indecent. As
Hugessen J. said in delivering the judgment of the court at p. 506
D.L.R., p. 85 C.R.:

In my opinion, one of the first characteristics of a reasonable limit
prescribed by law is that it should be expressed in terms sufficiently
clear to permit a determination of where and what the limit is. A limit
which is vague, ambiguous, uncertain, or subject to discretionary
determination is, by that fact alone, an unreasonable limit. If a
citizen cannot know with tolerable certainty the extent to which the
exercise of a guaranteed freedom may be restrained, he is likely to be
deterred from conduct which is, in fact, lawful and not prohibited.
Uncertainty and vagueness are constitutional vices when they are used
to restrain constitutionally protected rights and freedoms. While there
can never be absolute certainty, a limitation of a guaranteed right
must be such as to allow a very high degree of predictability to the
legal consequences.

The decision in Luscher would appear to involve a case of overbreadth
rather than vagueness.

In Re Information Retailers Ass'n of Metropolitan Toronto Inc. and
Municipality of Metropolitan Toronto reflex, (1985), 52 O.R. (2d) 449,
22 D.L.R. (4th) 161, 32 M. P. L. R. 49, this court considered a
municipal by-law which required persons selling adult books or
magazines to obtain a licence. Adult books or magazines included those
which appealed to erotic or sexual appetites or inclinations, but also
portrayed or depicted, as a principal feature or character­istic, one
or more specifically defined bodily areas. The court held that the
by-law was overly broad and that the infringement on the fundamental
freedom of expression was disproportionate to the objective of the
enactment which was to discourage or limit the exposure of children to
sexually-oriented pictorial material. At p. 472 O.R., p. 184 D.L.R.,
Robins J.A. stated:

In the case of this by-law, whether it be seen as overbroad or vague
(and an element of vagueness is intrinsic in overbroad legislation) the
vice is essen­tially the same: it lacks a definition proportionate to
its aim which would give those governed by it and those who administer
it a reasonable opportunity to know what is covered by it, and to act
accordingly.

Bearing in mind the above authorities, the terminology of s. 177 would
not appear to be vague or overly broad. It is conceded that it is
limited to a statement of fact or facts. This statement must be known
by the person publishing it to be false. It is not applicable to a
statement made honestly, negligently, or recklessly. The statement must
cause or be likely to cause injury or mischief. Causation or the
likelihood or probability of causation of injury or mischief are
concepts within the ambit of the criminal law. The only question then
is whether the fact that the injury or mischief must be to a "public
interest" makes the section too broad. There are a great many offences
in which one aspect or another of the public interest is central. The
definition of a crime in the judgment of Rand J. in Reference re
Validity of s. 5(a) of Dairy Industry Act, 1948 CanLII 2 (S.C.C.),
[1949] 1 D.L.R. 433 at pp. 472-3, [1949] S.C.R. 1 at pp. 49-50, is
pertinent in this respect:

A crime is an act which the law, with appropriate penal sanctions,
forbids; but as prohibitions are not enacted in a vacuum, we can
properly look for some evil or injurious or undesirable effect upon the
public against which the law is directed. That effect may be in
relation to social, economic or political inter­ests; and the
legislature has had in mind to suppress the evil or to safeguard the
interest threatened.

.....

Is the prohibition then enacted with a view to a public purpose which
can support it as being in relation to criminal law? Public peace,
order, security, health, morality: these are the ordinary though not
exclusive ends served by that law ...

In our opinion, the words "injury or mischief to a public inter­est"
are not vague or overly broad in their context bearing in mind that
they are used in relation to a statement known by the accused to be
false. The maintenance of racial and religious harmony is certainly a
matter of public interest in Canada. The accused and those who
administer the law would have a reasonable opportunity to know what was
covered by s. 177 and to act accordingly. Furthermore, the specific
charge which the accused faced was expressly limited to the public
interest in racial and social toler­ance, so he was left in no doubt
as to the alleged manner in which his conduct was offensive.

H. Conclusion on constitutional validity of s. 177

Accordingly, in our opinion, s. 177 of the Criminal Code is not
unconstitutional as infringing the fundamental freedom of expression in
s. 2(b) of the Charter on the grounds of vagueness or overbreadth.

II The challenge for cause

It is alleged that the trial judge erred by refusing the defence
application to challenge the potential jurors for cause, in view of
prejudicial pretrial publicity generated by the prosecution.

On a motion made by defence counsel following the appellant's
arraignment but before any plea was taken, the presiding judge
conducted a pretrial voir dire. In the course of the voir dire the
appellant was sworn and testified, as the sole witness, regarding the
pretrial publicity concerning him. Section 567(1)(b) of the Criminal
Code was invoked. It reads as follows:

567(1) A prosecutor or an accused is entitled to any number of
challenges on the ground that

.....

(b) a juror is not indifferent between the Queen and the accused ...

On the voir dire the appellant filed many articles published before the
trial in the Globe and Mail which identified the appellant as a
distributor of neo-Nazi, anti-Semitic hate literature. One such article
quoted political personalities describing the appellant as "one of the
world's big purveyors of Nazi propa­ganda" (Globe and Mail, June 15,
1983).

Other articles taken from the Toronto Sun and the Ottawa Citizen were
filed. They described action by the Postmaster-General to suspend the
appellant's mail privileges (later reinstated) and included comments by
the federal Minister of Justice on proposed legislation to curb hate
literature, with particular reference to the appellant.

Other materials filed included two articles reporting picketing by the
appellant and his group of the film "The Boys from Brazil", which is
said to describe the cloning of Hitler; and a number of articles in
different publications referring to large demonstrations by Jewish
groups at the appellant's home in Toronto and referring to the views of
a group known as the Canadian Holocaust Remem­brance Association which
focused on the appellant. The appellant described these materials as
standard Zionist rhetoric.

In addition, the appellant produced media reports of confronta­tions
between the appellant's group and hostile demonstrators at the earlier
court proceedings, and the explosion of a pipe bomb causing
considerable property damage near the appellant's garage in September,
1984. The appellant also produced on the voir dire a tape recording of
a CBC broadcast on the television programme the "National" which he
claims was a distortion of a press conference that he had given. There
was also evidence of a large demonstration of up to 2,000 people
outside of the appellant's home, and of demonstrations at the
court-house on the occasion of earlier appearances, which culminated in
a violent confrontation outside the Metropolitan court-house on the
first morning of the trial.

The evidence presented on the voir dire was meant to support the
appellant's endeavour to establish his right to question the
prospective jurors on their potential prejudice. The appellant's
purpose was to demonstrate that members of identifiable groups
entertained ill will towards him and therefore could not be
dispas­sionate and impartial jurors.

A. The questions

In his reasons for ruling, given orally after the first ruling on the
Charter, the learned trial judge summarized the evidence given by the
apellant on the voir dire and referred to the scenes of physical
violence between the appellant and his followers and members of the
Jewish Defence League. He quoted the questions which counsel for the
appellant proposed to ask of each juror:

1. Can you consider and will your mind allow consideration of the
question of whether there were gas chambers in Germany for the
extermination of Jews? Yes or no.

2. Can you impartially consider the question of gas chambers and the
Holocaust and remove from your mind the massive publicity of it to
decide the case on the evidence put before you in this court and only
on such evidence? Yes or no.

3. Do you believe that the Jews of today are God's chosen people or
especially favoured by God? Yes or no.

4. Do you believe the Holocaust happened as depicted by the media, and
would you be able to remove that idea from your mind and consider the
question solely on the evidence presented in court? Yes or no.

5. Do you have any moral, religious or other beliefs relating to Jews
or the Holocaust such that you would convict or acquit regardless of
the law or evidence? Yes or no.

6. Do you have any moral, religious or other beliefs relating to
Freemasons such that you would convict or acquit regardless of the law
or evidence? Yes or no.

7. Have you, because of religious or moral beliefs, or because of what
you have heard, read or seen in the media, formed any opinion as to the
guilt or innocence of the accused? Yes or no.

8. Despite any beliefs or opinions, would you be able to set aside
those beliefs or opinions and reach a verdict of guilty or not guilty
solely on the evidence and the law you receive in this courtroom? Yes
or no.

9. Do you have any abiding prejudices against German people?

In addition, counsel for the accused had asked the trial judge, in his
opening remarks to the jury panel, to excuse anyone from the jury panel
who:

(1) is a Jewish person or is employed by Jewish persons or is a close
relative of a Jewish person;

(2) is a Freemason or is employed by a Freemason or is a close friend
or relative of a Freemason;

(3) is personally acquainted with the accused in such a way that he
favours or dislikes the accused so much that he would be unable,
through preju­dice, to look impartially upon the accused or judge his
guilt or innocence solely on the evidence in court;

(4) speaks or understands some English, but has difficulty
understanding it fully.

After making reference to the decision of Osler J. in R. v. Crosby
(1979), 49 C.C.C. (2d) 255, the learned trial judge noted that there
had not been any "notorious episode in the community". In that case,
Osler J,, in refusing to permit counsel to challenge for cause on the
grounds of racial prejudice, said at p. 256:

It seems to me that, in the absence of any notorious episode in a
community of the type I have mentioned, to permit challenges of this
kind to go forward simply on the ground that man is prejudiced and that
black and white may frequently be prejudiced against each other is to
admit to a weakness in our nation and in our community which I do not
propose to acknowledge.

Should the fact that an accused belongs to a particular, even a highly
visible minority group lead automatically to a searching examination of
prospective jurors on their views there would be few criminal cases
today in which such challenges would not be justified.

The learned trial judge concluded that allowing the proposed questions
would prevent a substantial segment of the community from sitting as
jurors. After quoting excerpts from the leading case in this province
on the subject of challenge for cause, R. v. Hubbert (1975), 11 O. R.
(2d) 464, 29 C.C.C. (2d) 279, 31 C. R. N. S. 27; affirmed 15 O.R. (2d)
324n, 33 C.C.C. (2d) 207n, [1977] 2 S.C.R. 267, the learned trial judge
concluded as follows:

I conclude with the observation that the evidence I have heard and read
shows that the accused, perhaps through his own deliberate acts, has
attracted much publicity and notoriety upon himself. His positions on
sensi­tive, emotion-provoking subjects certainly achieved that result,
in my view. That alone, however, should not compel the exercise of my
judicial discretion to permit any of these questions to be put. Each
and every proposed question, I find, offends the principles set out in
R. v. Hubbert. There is no evidentiary connection between the attracted
notoriety and the reasonable prospect that any prospective juror,
regardless of his or her racial origin or religious belief, or for any
other reason, would be unable to impartially return a verdict in this
trial based solely and only upon the evidence led thereat.

.....

Mr. Zundel elected trial by jury. No one forced him to elect that mode
of trial. He has an absolute right to be tried by a jury of his peers.
Having so elected, the public notoriety he has attracted to himself
does not, of itself, in the absence of anything further, entitle him to
use any of these questions to challenge his prospective jurors for
cause in order to tailor his own jury to suit him.

Following the dismissal of his application the appellant was arraigned
and pleaded not guilty to the charges. In his opening remarks to the
panel the learned trial judge then gave the following caution:

If there is any prospective juror here who is a member of, or who is
related by blood or marriage to anyone else who is a member of any
group or organi­zation which uses violent confrontation in public
places in support of or in opposition to the ideas of other groups, and
if by the reason of that membership or your relationship you feel that
you would be unable to judge and act as a judge or as a juror who, as a
judge, impartially, and solely and only upon the evidence that you have
heard, then you will please so indicate in the same manner as I have
already indicated.

If there is anything that you have heard, seen or read about this case
that would prevent you from impartially deciding a verdict solely and
only upon the evidence led in this courtroom, then of course you don't
come to the case free of preconceived notions or prejudice, and you
will please so indicate.

Notwithstanding anything I have said, if there is any member of your
number who is a prospective juror whose present views concerning the
guilt or innocence of this accused are so strongly fixed that an
impartial assessment of the evidence heard only in this trial would be
impossible or difficult, if the answer to this question or to any of
the other questions I have posed is yes, if your name is called please
indicate that when you come to the book to be sworn.

It is clear, from the analysis made by this court in R. v. Hubbert,
supra, at pp. 476-7 O.R., pp. 291-2 C.C.C., that where the suggestion
is made that publicity concerning the alleged offence has been
widespread, there may be a danger that the mind of a prospective juror
may be influenced and biased in such a way that he would be unable to
give an impartial verdict.

There is no doubt, and the learned trial judge found as a fact in the
instant case, that there had been considerable pretrial publicity in
the media, generally adverse to the appellant. In our respectful view,
the learned trial judge erred in stressing the absence of a notorious
episode and elevating it as a sine qua non requirement to a successful
application to allow the proposed questions in the challenge for cause.
While a notorious episode would be a factor to be considered in an
application of this kind, we do not think that Osler J. ever intended
it to be an absolute requirement. In the present case, in any event,
the series of well-publicized confrontations continuing up to the time
of trial would, in our view, qualify as notorious episodes.

Similarly, the fact that the appellant's conduct attracted publicity
and notoriety upon himself is not sufficient to automati­cally
disallow certain questions to be put to the jury. The judge's
discretion must be exercised judicially. The real question is whether
the particular publicity and notoriety of the accused could potentially
have the effect of destroying the prospective juror's indifference
between the Crown and the accused. In this context indifference means
"absence of feeling for or against": the Shorter Oxford English
Dictionary, 3rd ed. The equivalent is a now rare expression
"indifferency" meaning "absence of bias, prejudice or favour ..."
(ibid.).

The reference in the judge's ruling to the absence of an eviden­tiary
connection between the publicity and notoriety and the challenge to the
prospective juror's lack of indifference is, with respect, based on a
misconception. It is not for the presiding judge to rule on the
"evidentiary connection" but for the trier selected for that purpose.
In addition, the trial judge's statement that the accused "would not be
allowed to tailor-make his own jury" was incorrect, inasmuch as any
challenge for cause by the defence would have been tried by the triers
selected from the jury panel pursuant to the provisions of s. 569(2) of
the Criminal Code.

Having recognized these errors, it is only fair to point out that
counsel for the appellant, in his recorded submissions and in framing
the questions, was in large part responsible for the adverse ruling. It
is apparent on the record that Crown counsel at trial was prepared to
concede that certain questions could properly be asked of each
prospective juror. In particular, Qq. 7 and 8, if the reference to
"religious or moral belief", or "opinions" had been deleted, would have
been appropriate questions in seeking to determine whether the pretrial
publicity and the accused's notoriety had made it impossible for the
prospective juror to render an impartial verdict. This near-agreement
was referred to by the trial judge in his ruling in the following
passage:

As I understand it, Crown counsel and defence counsel may well have
come close to agreement that subject to my order, Qq. 7 and 8 might be
permitted, but they have been totally unable to agree with respect to
the balance of the questions that I have just read.

It appears from his submissions and proposed questions that defence
counsel at trial was attempting to disqualify all Freemasons and Jewish
members of the panel as jurors in the case. The assumption that Jewish
people or Freemasons form part of a homogeneous group with an identity
of interest capable of subverting their impartiality in a criminal case
is unwarranted and formed the basis of proposed Qq. 3, 5 and 6 in the
first group of questions and grounds 1 and 2 in the proposed remarks to
the jury panel. It is contrary to established practice, in this
province, to attempt to challenge jurors for cause on general grounds
such as race, religion, political belief, or opinions: see R. v.
Hubbert, supra, at pp. 475-6 O.R., p. 290 C.C.C.. Similarly, a
challenge on the basis of membership in a minority group is not
permissible in Canada.

Mr. Christie, counsel for the appellant, defended the propriety of
these questions by referring to questions which were approved by the
then Associate Chief Justice of the High Court in the 1984 prosecution
against Dr. Henry Morgentaler and others: R. v. Morgentaler, October
15, 1984 (unreported). We were provided with a certified transcript of
the three main questions which were framed following a long discussion
in chambers and which were asked of each prospective juror in the case.
All three questions inquired of the prospective juror whether he or she
had any religious, moral or other beliefs or opinions relating to
abortion that would interfere with the juror's ability to render a true
verdict. Mr. Christie also relied on the ruling made by Ewaschuk J. in
R. v. Rowbotham et al. (1984), 12 C.C.C. (3d) 189, where prospective
jurors were asked first, by defence counsel, whether they had a strong
dislike for the narcotic marijuana or hashish. As a corollary to this
question the Crown then asked whether they had a strong view in favour
of the legalization or use of marijuana or hashish. In either case, the
jurors were asked whether their views would prevent them from rendering
a true verdict based on the evidence given at trial. The rationale for
the ruling was given at p. 192:

A general as opposed to a particular challenge may arise because of
extensive pretrial publicity or, as here, because of strong personal
views held by various members of the public on such controversial
matters as drugs, obscenity or abortion. The goal is to obtain a fair
trial for both sides based only on the evidence at trial and not on
jurors' personal prejudices.

Counsel for the appellant relied on the rulings in Morgentaler and
Rowbotham, made since the Hubbert decision, as supporting his proposed
set of questions on the challenge for cause. In partic­ular, he claims
to have framed his questions by reference to the questions allowed by
Parker A. C.J. H. C. in Morgentaler. There is some similarity in the
questions' reference to religious, moral or other beliefs. We must
point out, however, that the propriety of the questions used in the
challenge for cause in the Morgentaler case was never made an issue and
thus was not reviewed in the Crown appeal to this court.

In the present case, the defence motion was directed, in part, towards
the exclusion of Jewish people on the grounds that they would not
render a true verdict as to the occurrence of the Holocaust. The
majority of the proposed questions were improperly worded, and
therefore properly rejected by the learned trial judge. This rejection
should not have been the end of the matter, so as to foreclose any
challenge for cause.

In our view, although the presiding judge correctly refused the
questions as framed, he ought, in the circumstances, to have advised
counsel that he was not precluded from rephrasing certain of the
proposed questions in a manner which would have been in accordance with
the guidelines laid down in R. v. Hubbert.

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, when the grounds of challenge are properly specified in
accordance with s. 567(1)(b) of the Criminal Code and made before the
juror is sworn. We are concerned that the failure of the presiding
judge to advise counsel that he was at liberty to amend some of the
questions may have resulted in the denial of a fundamental right;
counsel was entitled to determine whether any potential juror was, by
reason of the pretrial publicity and the notoriety of the appellant,
sufficiently impartial. In our opinion the appellant was effectively
denied that fundamental right.

It was conceded by counsel, in the course of the argument, that the
challenge for cause was not repeated when each juror came forward to be
sworn, according to the correct practice. We agree, however, that once
the trial judge had refused the defence permission to ask any of the
proposed questions, and failed to give an opportunity to amend, the
defence was, in effect, prevented from exercising its right to
challenge for cause. A trial judge cannot, in the exercise of a
discretion which he undoubtedly possesses in the area of admitting
grounds of challenge for cause and settling the questions, effectively
curtail the statutory right to challenge for cause.

The warning later given by the trial judge, requesting that individual
members of the panel disqualify themselves under certain circumstances,
was insufficient to correct the erroneous denial of the statutory right
of challenge for cause. The issue of impartiality or indifference is
one that Parliament has entrusted to the two triers, not to the
conscience of the individual prospective juror.

We are all of the view that the appellant was deprived of his right to
have a jury selected according to law, whose impartiality or appearance
of impartiality could not be impugned. This error was compounded by the
judge's refusal to order a ban on the publication of both the
submissions made and of the ruling on the motion, as was done in R. v.
Keegstra, April 9, 1985 (unreported), which may have also prejudiced
the appellant's right to an impartial jury.

In our view this ground of appeal has merit and should be considered
with the other grounds in the disposition of the appeal.

III The admissibility of Dr. Hilberg's evidence

One of the principal grounds of appeal is that the opinion evidence of
Dr. Raul Hilberg to the effect that over five million Jews were
systematically annihilated by the Nazi government of Germany, was
inadmissible since Dr. Hilberg's evidence was based on hearsay.

With a view to establishing the systematic annihilation of millions of
Jews by the Nazi government of Germany, the Crown adduced the
eyewitness evidence of several survivors of Nazi concentration camps as
to what occurred in those camps, as well as the expert evidence of Dr.
Hilberg that over five million European Jews were killed, pursuant to
Nazi government policy.

It will be helpful to an understanding of Dr. Hilberg's evidence and
the legal issues that arise therefrom to outline that evidence briefly,
and to outline the nature of the eyewitness evidence. It is also
convenient to outline briefly at this time the evidence of Dr.
Faurisson who was permitted to give expert testimony for the defence on
the same basis upon which Dr. Hilberg was permitted to testify for the
Crown.

A. The eyewitness evidence

The eyewitness evidence, in the main, although not exclusively, related
to Auschwitz, which was a complex of camps. Auschwitz I was the main
camp. Auschwitz II, a subsidiary camp, was also known as Birkenau. The
evidence of several of the eyewitnesses essentially was that Jews were
collected at various places in Austria, Hungary, Poland and
Czechoslovakia and transported by cattle-car to Birkenau. At Birkenau
there was a wooden ramp about one-half mile long adjacent to the
railroad siding. When a train arrived carrying prisoners, members of
the SS ordered the prisoners to get out of the cars and to leave their
luggage behind. Some of the eyewitnesses testified that a selection
process, frequently conducted by Dr. Mengele, then began. The
able-bodied men and women were directed to one side in separate groups.
The old, the sick and the children were either marched off in the
direction of the crematoria at Birkenau or were loaded into lorries or
dump trucks which then left in the direction of Birkenau, returning in
a short time for another load. The men and the young women remained on
the ramp. One group of SS marched the men off to Auschwitz I and
another group of SS took the remaining women to the women's camp. There
were four crematoria in Birkenau. The gas chambers were adjacent to the
crematoria. After a transport of prisoners arrived, a buzzing sound
from the crematoria could be heard and smoke and flames could be seen
coming from the chimneys. The smoke and flames rarely stopped when
there was a great influx of prisoners. When the capacity of the
crematoria was exceeded the bodies were buried in pits.

Dr. Rudolf Vrba, one of the eyewitnesses, is an associate professor of
pharmacology at the University of British Columbia. He testified that
on June 20, 1942, he was put in a cattle truck and taken to Auschwitz
where he remained until 1944, when he escaped and returned to Slovakia.
For the first two months he was in Auschwitz I, where he worked at a
nearby construction site. The daily mortality rate at the construction
site was 5% to 10% of the total work-force. It is clear from his
evidence that the high mortality rate was due to privation and brutal
treatment. After about two months a typhus epidemic broke out and the
work was stopped. The prisoners were medically examined. Those who
failed the examination were loaded into lorries which left the camp,
and Dr. Vrba never saw them again.

He was then transferred to Birkenau. He said that he was assigned to a
work-force called the Kanada Kommando. This group would be sent to the
railroad siding when a transport was arriving. The job of the Kanada
Kommando was to sort the luggage and clean the cattle-cars after the
prisoners had been removed. Dr. Vrba testified that one of his jobs was
to load cannisters of Zyklon gas into a green military van with a large
red cross on the side prior to the arrival of a train. In December,
1942, in connection with his duties he was taken to Birkenau where he
saw pits containing burned bone fragments and the slightly burned heads
of children. He frequently visited a friend, Fred Wetzler, who was in
charge of the mortuary. From the mortuary he could see Crematorium II.
There were occasions when he saw several hundred people go into the
building. A corporal from the sanitation service would climb up to the
roof of a low structure or bunker, don a gas mask and empty one or two
tins of Zyklon into each vent in the roof. Dr. Vrba computed that
1,765,000 people were killed at Auschwitz while he was there and a
total of 2.5 million people were killed at Auschwitz during the war.

Dennis Urstein was born in Vienna. He was arrested and eventually taken
to Auschwitz. He also worked with the Kanada Kommando and met the
trains. He testified that in February, 1943, he and a group of
prisoners were driven to a building. A sergeant or a corporal donned a
gas mask and he heard a loud "hum" coming from the door of the building
they were facing. He knew this was a crematorium because of the smoke
stack. The corporal or sergeant then opened the door. Mr. Urstein and
the other prisoners were issued large hooks and ordered to remove the
bodies. They went through a small corridor to the gas chamber where he
saw a large number of bodies entangled with one another; the children,
generally, were on the bottom. They dragged the bodies out and then
they were ordered to wash the gas chamber.

Henry Leader was born in Poland. He testified that in 1941, several
thousand people were rounded up and transported to Maidanek
concentration camp. After several weeks he was assigned to assist in
carrying bodies from the gas chamber to the crematorium which at
Maidanek was about 350 yards from the gas chamber. The bodies would be
thrown from the gas chamber onto a ramp, loaded in wagons and taken to
the crematorium. The people inside the gas chamber dragging the bodies
out wore masks. The witness testified that in June, 1943, he was taken
from Maidanek to Birkenau. At Birkenau he could look through a wire
fence in the direction of the crematorium. He daily saw transports of
people arrive at the crematorium in dump trucks. On some days six or
seven trucks would arrive at a time. A truck would carry about 100
persons. The people were taken from the trucks to the gas chamber. He
never saw any of those people come out again. As the Russian Army
advanced, the prisoners were transported by cattle-car to Mauthausen in
Austria. He estimated that 35% of the prisoners perished en route.

Chester Tomaszewski was born in Poland. He was not Jewish. He was
arrested in October, 1939, and sent to Dachau concen­tration camp. He
was subsequently transferred to Mauthausen­Gussen in Austria. Gussen
is a satellite camp of Mauthausen. There were about 300 Jews in the
camp when he arrived. The entire Jewish population of the camp was
eliminated in a few weeks. One of the devices used by the guards was to
order a Jewish prisoner to pick up a stone outside the line of guards
and then to shoot him when he carried out the order.

B. Dr. Hilberg's evidence

The trial judge, as previously indicated, ruled after holding a voir
dire that Dr. Hilberg was qualified to testify as an expert witness on
the Holocaust. The judge expressly and immediately instructed the jury
that they were not bound to accept the opinion of an expert. He again
instructed the jury in his charge that they were free to accept or
reject the evidence of expert witnesses.

Dr. Hilberg is a professor at the University of Vermont where he
teaches courses in international relations, American foreign policy and
the Holocaust. He defined the Holocaust as the annihi­lation by
physical means of the Jews in Europe during the Nazi regime, 1933-1945.

He was appointed by the president of the United States to the United
States Holocaust Memorial Council and to the President's Commission on
The Holocaust. He testified that in his research he relied primarily on
documents and secondarily on the statements of witnesses who had direct
knowledge of the subject-matter.

During the war the United States seized a large part of the records of
the Nazi regime from 1933 to 1945. These records were physically kept
at the Federal Records Centre in Alexandria, Virginia. Dr. Hilberg was
employed for a time by the United States Government at the centre and
had direct access to these records. Many of the documents that he
examined were civil service or ministry documents. Some were military
documents, some were SS or party documents and some were industrial
documents. The documents used at the Nuremberg trials were taken from
this collection. He testified that, in addition, he has examined
documents in the archives of foreign countries where smaller
collections are available.

The major war criminals such as Goering were tried by the International
Military Tribunal established by a treaty to which about 20 countries
were parties. The judges were American, British, Russian and French.
Twelve subsequent trials involving high-ranking military officers, top
corporation executives, top members of the ministerial bureaucracy and
high-ranking SS personnel, were presided over by American judges. The
trials are referred to collectively as the Nuremberg trials; however,
the Nuremberg Trial refers to the trial before the International
Military Tribunal. Dr. Hilberg testified that he has read the
transcripts of the evidence and examined the documents intro­duced in
evidence at the Nuremberg Trial before the International Military
Tribunal and also the transcripts of the proceedings at the subsequent
Nuremberg trials before the American Military Tribunal. He commenced a
study of the Holocaust in 1948, and is the author of a book, "The
Destruction of The European Jews" which was first published in 1961; a
second and larger edition was expected to be published shortly.

Dr. Hilberg stated in cross-examination that he was of the opinion that
there was an oral order for the extermination of the Jews given by
Adolf Hitler in 1941. He testified that there was a plan within the
German high command for the "treatment of populations" in the territory
to be occupied in the U.S.S.R. This plan was submitted to Hitler who
indicated that he wished certain changes to be made. The changes were
made in April, 1941, and the directive was then resubmitted to Hitler.
According to the document written by General Jodl, and which is in the
West German Archives, Hitler said that he wanted the "Jewish-Bolshevik
Commissars" liquidated. Dr. Hilberg interpreted the order to mean that
Hitler wanted the Jewish people and the Bolshevik Commissars to be
liquidated.

When the German armies crossed the border into the Soviet Union they
were accompanied by battalion-size units of security police. These
units, called Einsatzgruppen, reported back on a daily basis, detailing
the number of people killed, of whom, according to the reports, 90% to
95% were Jews. Dr. Hilberg reasoned that one would not set up four
units of Einsatzgruppen aggregating 3,000 men to kill a handful of
Bolshevik Commissars, and therefore the clear intent of Hitler's oral
directive was that the Jews in the territory to be occupied should be
annihilated. Dr. Hilberg conceded that other historians take the view
that there was not a Hitler order.

It was Dr. Hilberg's opinion that the word "resettlement" became the
term used in the correspondence in World War II records to refer to the
process of deporting Jews to death camps. He characterized a death camp
as one set up for the specific purpose of killing people, Dr. Hilberg
said that Belzec, Treblinka, and Chelmno were used exclusively for
killing people. These camps were small and had no facilities of any
kind for production. Sobibor was also a death camp, but late in 1943, a
facility for making ammunition was established there.

Dr. Hilberg testified in cross-examination that Auschwitz was composed
of three camps - Auschwitz, Birkenau and Monowitz. The three camps
were also known as Auschwitz I, II and III. There was a gas chamber in
Auschwitz I. Two gas chambers were established in Birkenau in 1942. In
1943, four massive structures were built in Birkenau; these structures
contained gas chambers and crematoria. When the capacity of the
crematoria was exceeded the bodies were burned in pits outside the
building. There were, Dr. Hilberg testified, three gas chambers at
Maidanek. Belzec initially had three gas chambers but they were
expanded in 1942 to six. Chelmno was equipped with gas vans which used
carbon monoxide to kill prisoners. Treblinka had carbon monoxide gas
chambers.

Dr. Hilberg testified that he had also examined railroad schedules in
wartime Germany. They played an important role in his research. They
indicate, according to him, that the camps were located near places
where the Jewish population was the most dense. The Gestapo, as the
shipping agents, had to pay the German railways for each person
transported and, consequently, it was in the financial interest of the
Gestapo to make the trips as short as possible. The railway schedules
make clear that the transportees had to be counted because payment to
the railways had to be made for each person. It was highly significant
to Dr. Hilberg that suddenly there were hundreds of thousands of people
going to Treblinka and Sobibor which on the maps are small villages;
and of greater significance that the trains were returning empty.

Hoess, the commandant at Auschwitz, was a witness at Nuremberg and said
that 2,500,000 people were killed at Auschwitz. However, Dr. Hilberg
said that this figure was too high and he estimated that approximately
one million people were killed in the gas chambers at Auschwitz II
(Birkenau). According to Dr. Hilberg's estimate over five million Jews
were killed during the Nazi regime, of whom approximately three million
died in camps. The vast majority of those persons killed in camps were
killed in gas chambers, but several hundred thousand in those camps
were shot or died of deprivation or disease. In addition, approximately
1,300,000 or 1,400,000 Jews were shot in systematic operations such as
those conducted by the Einsatz­gruppen in the occupied U.S.S.R.,
Galicia and Serbia. The remainder, according to reports by the SS
statistician Korherr and the reports of Jewish councils in various
ghettos sent to German agencies, died from conditions in those ghettos.

Dr. Hilberg testified that of the Jewish population in Poland of
approximately 3,350,000 as of September, 1939, the death toll
attributable to the Holocaust was close to three million. His estimate
of the pre-war Jewish population in Poland appears to have been based
on the 1931 Polish census extrapolated to 1939. He testified in
cross-examination that of the pre-war population of approximately
3,350,000, there were only 50,000 Jews in Poland in 1945, excluding the
175,000 repatriates from the Soviet Union. He said there was a record
of those repatriated.

Dr. Hilberg testified that he found the pamphlet published by the
appellant to be a "concoction, contradiction, untruth mixed with
half-truths". He was asked by Crown counsel at the trial to comment on
various parts of the pamphlet and in substance he testified that those
parts contained misstatements and were false. In particular he said
that he never gave the figure of 896,892 Jews killed, attributed in the
pamphlet to the "Jewish statistician Raul Hilberg".

Dr. Hilberg was extensively cross-examined as to his reliance, in his
book, on one Gerstein, an SS officer. Dr. Hilberg agreed that some of
the statements made by Gerstein were not credible. He said, however,
that some parts of Gerstein's statements were credible and some were
corroborated. He said he used only those parts of his statements that
were credible, and that authors like himself develop a certain amount
of expertise in the use of material. Dr. Hilberg also testified that
the figure of 1.7 million Jews killed at Auschwitz contained in the War
Refugee Board Report, of which Dr. Vrba is a co-author, was too high.

C. Dr. Robert Faurisson
teslacoils2006
2006-12-29 05:37:31 UTC
Permalink
We face world War 3 because people like you have not the stomach to
talk about the issues. Instead the Bnaibrith shuts down genuine
religions and the Jesuits help the Catholic church become a one world
religion. Nobody has time to dance around the truth because your
Catholic or jewish or both.

I am not racist the Jewish people are not responsible for a few
Jewish freemason. Just like the catholic people are not responsible
for the head of their church. They still should disown the
leadership!!!

www.arcticbeacon.com

Make sure if we ever meet remind me what you said here so I can
ignore you when you need help.
Post by Rab
I have issues with Freemasonry as well, but your posts certainly don't do
anything other than give these folks more credibility.
Just search freemason in Canadian courts ...very interesting
http://www.canlii.org/bc/cas/bcpc/2006/2006bcpc210.html
just search freemason, freemasonry
Court of Appeal for Ontario
R. v. Zundel
Date: 19870123
BY THE COURT:-The appellant Ernst Zundel was charged with the
commission of two offences contrary to s. 177 of the Criminal Code,
1. ERNST ZUNDEL stands charged that he, during the year 1981, at the
Munic­ipality of Metropolitan Toronto in the Judicial District of
York, did publish a statement or tale that he knows is false, namely
the article "The West, War, and Islam", and the said article is likely
to cause mischief to the public interest in social and racial
tolerance, contrary to the Criminal Code.
2. ERNST ZUNDEL stands further charged that he, in or about the year
1981, at the Municipality of Metropolitan Toronto in the Judicial
District of York, did publish a statement or tale, namely "Did Six
Million Really Die?" that he knows is false and that is likely to cause
mischief to the public interest in social and racial tolerance,
contrary to the Criminal Code.
After a seven-and-one-half week trial before the Honourable Judge Locke
and a general sessions jury, the appellant was acquitted on count 1 but
convicted on count 2. On March 25, 1985, he was sentenced to 15 months'
imprisonment together with three years' probation. It was a term of the
probation order that he would not publish, directly or indirectly,
anything on the subject of the Holocaust or any subject related to the
Holocaust. The appellant is appealing both conviction and sentence.
Although, as will be seen from our reasons, we are of the opinion that
the Honourable Judge Locke committed some errors during the course of
the trial and in his charge to the jury, we believe fairness requires
that we should acknowledge at the outset that this was a difficult and
complex trial. There was little case-law to guide the learned judge in
the interpretation and appli­cation of s. 177. In addition, he was
required almost daily to make rulings on difficult and involved
questions of law. For instance, the trial began with a challenge by
counsel for the accused to the validity of s. 177 on the ground that it
was inconsistent with s. 2(b) of the Canadian Charter of Rights and
Freedoms. This was followed immediately by an application by counsel
for the accused to have certain questions put by the trial judge to the
jury panel at large and to permit counsel to challenge prospective
jurors for cause by asking them a list of questions which he had
prepared. In all instances, the trial judge made his rulings promptly,
giving full and detailed reasons. While we do not always agree with his
rulings, the way in which he made them has greatly assisted us in the
determination of this appeal.
Since Crown counsel attached some significance to the appel­lant's
acquittal on count 1 of the indictment, we believe that before turning
to count 2, we should say a few words about the pamphlet that formed
the subject-matter of the first count. In 1981, the appellant wrote and
distributed a rambling, diffuse, four-page pamphlet entitled, "The
West, War and Islam!". In essence, the pamphlet alleged that a
conspiracy existed among International Zionists, International Secret
Societies (particularly Freemasonry), International Bankers, and
International Commu­nists to use their control of Western media "to
misinform, to miseducate and to instill hatred against the Islamic
peoples". The pamphlet appealed to the Islamic nations to rectify the
situation by assisting in the creation "of an independent, worldwide
inform­ation network capable of countering the now unopposed Zionist
disinformation and hate propaganda". It ended with an indirect appeal
to the Islamic world to contribute money to the appellant and his
organization so that they could commence a public inform­ation
campaign immediately. The appellant mailed the pamphlet to people
outside Canada from Morocco to Pakistan. It was not distributed in
Canada.
Count 2 of the indictment on which the appellant was convicted related
to the publication by the appellant of a 32-page pamphlet entitled,
"Did Six Million Really Die? Truth At Last Exposed:". The appellant
gave evidence at his trial. The following is a brief outline of the
background facts as related by him which led up to the publication of
the pamphlet.
The appellant was born in 1939 in the Black Forest region of Germany.
His father was a soldier in the German army in World War II, and except
for sporadic visits, was away from home until 1948. The appellant
related in detail the hardships that he experi­enced as a boy during
and after the war in Germany.
After finishing school in Germany, the appellant in 1958 decided to
immigrate to Canada. He chose Canada because it had a volunteer army
and the appellant did not wish to be drafted. On arrival in Canada, he
obtained employment as a graphic artist. He swore that up until 1960,
he firmly believed that the Germans had killed six million Jews during
World War II.
In 1959 the appellant married a French-Canadian girl. There were two
children of the marriage: Pierre, born in 1960, and Hans, born in 1967.
Shortly after the birth of Pierre, he and his wife moved to Montreal
where the appellant started his own business. He lived in Montreal for
nine years. He testified that he had a thriving business in Montreal,
and the business did so well that he was able to take off several
months each year and travel. In the course of his travels, he went all
over Europe, Canada and the United States making investigations
concerning German conduct during the Second World War. Gradually he
became more and more interested in the story that six million Jews had
been killed by the Germans during the war. By 1977, he said that his
interest in the subject had become "overwhelming",
The appellant outlined for the jury the elaborate and detailed
investigations he made into the truth of the allegation that six
million Jews were killed by the Germans during World War II, commencing
with his discussions in the 1960s in West Germany with Joseph Ginsburg,
the author of a German book called Schuld and Schicksal. As a result of
his investigations, the appellant said that he intended to write a book
to set the record straight. He gave the following testimony concerning
I had been involved in a study of this topic for a long time, and I had
planned to write something on this topic, but always held back because
it's such a distasteful subject to me. And I just couldn't get myself
to write it, and then I heard of a booklet in Europe called, "Did Six
Million Really Die?" out of England. I wrote to the publisher, got a
copy of the booklet in English. Then I received one in French, in
Dutch, in Flemish. There were later editions in Swedish, in Finnish, in
German I already said. I think there is one in Hungarian, and one in
Rumanian. I saw at that time before I ever thought of publishing it
four or five different languages of this booklet, so I naturally read
through this booklet and I thought that it was in a nice condensed form
virtually what I had intended to write myself, because I thought
something like that should be written. Most of the revisionist
literature of the day, like Rassinier, fairly thick tomes, and I have
learned one thing being in the graphic arts, that people like to read
less and less, especially serious stuff. So I felt this was a good
vehicle, of the best that I had seen. And Dr. App with whom I was at
that time working and had been selling some of his publica­tions, "The
Six Million Swindle", for instance, and another booklet called, "A
Straight Look at the Third Reich", and Christopherson's booklet, "The
Auschwitz Lie", I thought that the Harwood booklet was superior to all
the three or four which I was selling at the time.
In the beginning, the appellant imported the pamphlet from England and
distributed it in Canada; however, this did not prove satisfactory as
the English publisher did not package it properly. He then obtained an
American source for the pamphlet and made arrangements for the printing
of a Canadian edition. He added to the title the words, "Truth At Last
Exposed", and he wrote a foreword and a postscript. The publisher would
not, however, permit him to make any change in the format or in the
contents of the pamphlet.
Although the appellant's evidence as to when he published the pamphlet
is rather vague, and although the indictment states that it was "in or
about the year 1981", counsel for the appellant at the commencement of
the trial admitted, in response to a request from Crown counsel to
avoid the calling of a witness, that "Mr. Zundel published the article
and wrote a foreword and postscript to that article and distributed it
in Canada in 1983". The trial proceeded on this basis.
The appellant testified that he sold some copies of the pamphlet. He
said that he also sent copies free of charge to every member of
Parliament, to every Catholic priest in Ontario and Quebec, to every
Protestant minister in Ontario, to all radio stations, television
stations and newspaper editors in Ontario, and to every high school
history teacher in Ontario.
The pamphlet purports to be written by one Richard Harwood. At the end
RICHARD HARWOOD is a writer and specialist in political and diplomatic
aspects of the Second World War. At present he is with the University
of London. Mr. Harwood turned to the vexed subject of war crimes under
the influence of Professor Paul Rassinier, to whose monumental work
this little volume is greatly indebted. The author is now working on a
sequel in this series on the Main Nuremberg Trial, 1945-46.
Zundel testified that he discovered in 1982 or 1983 that Richard
Harwood was a pseudonym and that the author's real name was Richard
Verrai. Zundel said that, according to his information, Verrai was a
graduate student of one of London's universities in history. Zundel
tried to get Verrai to give evidence at the trial, but Verral refused
as he had married a Jewish girl and had given up political work.
In addition to printed material, the pamphlet contains some photographs
and a map showing the location of German concen­tration camps during
World War II. The general theme of the pamphlet is summed up in the
In the following chapters the author has, he believes, brought together
irrefutable evidence that the allegation that 6 million Jews died
during the Second World War, as a direct result of official German
policy of extermina­tion, is utterly unfounded. This conclusion,
admittedly an unpopular one, resulted from an inquiry which was begun
with no pre-conceived opinions, beyond a general notion that the
statistical possibility of such huge casualties was perhaps open to
doubt, as well as an awareness that political capital was being made
from the implications of this alleged atrocity. A great deal of careful
research into this question, however, has now convinced me beyond any
doubt that the allegation is not merely an exaggeration but an
invention of post-war propaganda.
.....
So far as the Jewish people themsleves [sic] are concerned, the
deception has been an incalculable benefit. Every conceivable race and
nationality had its share of suffering in the Second World War, but
none has so successfully elaborated it and turned it to such great
advantage. The alleged extent of their persecution quickly advised
sympathy for the Jewish national homeland they had sought for so long;
after the War the British Government did little to prevent Jewish
emigration to Palestine which they had declared illegal, and it was not
long afterwards that the Zionists wrested from the Government the land
of Palestine and created their haven from persecution, the State of
Israel. Indeed, it is a remarkable fact that the Jewish people emerged
from the Second World War as nothing less than a triumphant minority.
Dr. Max Nussbaum, the former chief rabbi of the Jewish community in
Berlin, stated on April 11, 1953: "The position the Jewish people
occupy today in the world - despite the enormous losses - is ten
times stonger [sic] than what it was twenty years ago." It should be
added, if one is to be honest, that this strength has been much
consolidated financially by the supposed massacre of the Six Million,
undoubtedly the most profitable atrocity allegation of all time. To
date, the staggering figure of six thousand million pounds has been
paid out in compensation by the Federal Government of West Germany,
mostly to the State of Israel (which did not even exist during the
Second World War), as well as to individual Jewish claimants.
The pamphlet proceeds to discuss these issues under the following
German Policy Towards the Jews Prior to the War
German Policy Towards the Jews After the Outbreak of War Population and
Emigration
The Six Million: Documentary Evidence
The Nuremberg Trials
Auschwitz and Polish Jewry
Some Concentration Camp Memoirs
The Nature & Condition of War-time Concentration Camps
The Jews and the Concentration Camps: A Factual Appraisal By the Red
Cross
The Truth At Last: The Work of Paul Rassinier
Under the subheading, "Enormous Fraud", the author of the pamphlet
quotes the following passage from Professor Paul Rassi­nier's book, Le
Perhaps I may be allowed to recall here that the State of Israel was
only founded in May 1948 and that the Jews were nationals of all states
with the exception of Israel, in order to underline the dimensions of a
fraud which defies description in any language; on the one hand Germany
pays to Israel sums which are calculated on six million dead, and on
the other, since at least four-fifths of these six million were
decidedly alive at the end of the war, she is paying substantial sums
by way of reparation to the victims of Hitler's Germany to those who
are still alive in countries all over the world other than Israel and
to the rightful claimants of those who have since deceased, which means
that for the former (I. e. the six million), or in other words, for the
vast majority, she is paying twice.
how many of the 3 million European Jews under German control survived
after 1945? The Jewish Joint Distribution Committee estimated the
number of survivors in Europe to be only one and a half million, but
such a figure is now totally unacceptable. This is proved by the
growing number of Jews claiming compensation from the West German
Government for having allegedly suffered between 1939 and 1945. By
1965, the number of these claimants registered with the West German
Government had tripled in ten years and reached 3,375,000 (Aufbau, June
30th, 1965). Nothing could be a more devas­tating proof of the brazen
fantasy of the Six Million. Most of these claimants are Jews, so there
can be no doubt that the majority of the 3 million Jews who experienced
the Nazi occupation of Europe are, in fact, very much alive. It is a
resounding confirmation of the fact that Jewish casualties during the
Second World War can only be estimated at a figure in thousands. Surely
this is enough grief for the Jewish people? Who has the right to
compound it with vast imaginary slaughter, marking with eternal shame a
great European nation, as well as wringing fraudulent monetary
compensation from them?
Zundel conceded that there were some errors in the pamphlet. For
example, the pamphlet states that Meyer Levin wrote the dialogue of The
Diary of Anne Frank. Zundel admitted that this was not correct. Levin
only wrote a stage adaption of The Diary. Otto Frank, the father of
Anne Frank, was dissatisfied with Levin's work and employed someone
else to do it. Zundel acknowl­edged that there were also some sloppy
errors in the Red Cross report. Zundel swore that he was not aware of
the errors until after he had published the pamphlet. However, he said
that 99% of the pamphlet was accurate, and he stood behind it.
The witnesses called by the Crown were principally directed to the
issue of whether or not six million Jews had died during the Second
World War as a direct result of official German policy of
extermination. A number of witnesses were called who had been
incarcerated in German concentration camps, such as Birkenau,
Auschwitz, and Maidenek; they testified about what they had seen and
what their experiences had been in the camps. The Crown also called Dr.
Raul Hilberg as an expert witness to testify on the subject of the
systematic destruction of Jews by the Germans during World War II. We
will be dealing with Dr. Hilberg's evidence in greater detail later in
these reasons. No direct evidence appears to have been called by the
Crown as to the appellant's knowledge that the statements in the
pamphlets were false.
The appellant's defence at the trial was that he had an honest belief
in the truth of what was written in the pamphlet. He produced a large
number of articles, letters and books which he had read prior to the
publication of the pamphlet and which he claimed accorded with what was
contained in the pamphlet. In addition, the defence called a number of
witnesses, some of whom were qualified to a limited extent as experts,
to prove the truth of the contents of the pamphlet. The appellant swore
that he had read material written by some of these witnesses in
arriving at his belief that the contents of the pamphlet were true.
Finally, the defence called a number of character witnesses to testify
to the good reputation of the appellant in the community.
Although counsel for the appellant advanced a number of grounds of
error, we believe that the following are the only ones that warrant
I Constitutional validity of s. 177 of the Criminal Code
The first ground of appeal raised by the appellant is that s. 177 of
the Criminal Code, which provides for the offence of "spreading false
news", is unconstitutional because it infringes the fundamental
"freedom of expression" guaranteed by the Canadian Charter of Rights
.....
(b) freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication;
A. History of s. 177
Before turning to consider the Charter, it is necessary to examine the
history of the offence of "spreading false news", and the essential
nature of the offence created by s. 177. The present s. 177 reads as
177. 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 is liable
to imprisonment for two years.
The offence of "spreading false news" had a very ancient origin in the
statutes concerning scandalum magnatum, the earliest of which is a
provision of the first Statute of Westminster, 1275, 3 Edw. I, c. 34,
Forasmuch as there have been oftentimes found in the Country Devisors
of Tales, whereby Discord, or Occasion of Discord, hath many times
arisen between the King and his People, or great Men of the Realm; For
the Damage that hath and may thereof ensue, it is commanded, That from
hence­forth, none be so hardy to tell or publish any false News or
Tales, whereby Discord or Occasion of Discord or Slander may grow
between the King and his People, or the great Men of the Realm; and he
that doth so, shall be taken and kept in Prison, until he hath brought
him into the Court, which was the first Author of the Tale.
This and subsequent amending statutes were primarily designed to
protect the peers and other great men against slanderous lies which
might imperil or cause mischief to the public if the perpe­trator were
not punished. Bishop in his text on Criminal Law, 5th ed. (1872), vol.
1, para. 473, states that the statute of Edward I provided a means
whereby the perpetrator could be brought to justice for an offence well
understood by the common law. There is authority that quite apart from
these statutes the common law recognized the publication of false news
to the public detriment as an offence: see Scott, "Publishing False
News", 30 Can. Bar Rev. 37 at p. 40 (1952).
The statute of 3 Edw. I, and the other amending statutes were finally
repealed in 1888. Prior to this time, Stephen had embodied in his
Digest of the Criminal Law, 1st ed. (1877), p. 57, art. 95, which
Spreading False News
Every one commits a misdemeanor who cites or publishes any false news
or tales whereby discord or occasion of discord or slander may grow
between the Queen and her people or the great men of the realm (or
which may produce other mischiefs)
The words in brackets at the end of this article are significant in
view of the words "injury or mischief to any public interest" in the
present s. 177 of the Code.
As the late Professor Scott pointed out in his learned article,
... the Canadian Criminal Code was based on Stephen's Digest and on the
Draft Code he prepared for the British Parliament in 1879. Burbridge,
the draftsman of the Canadian Code of 1892, himself published a Digest
of the Criminal Law of Canada in 1890, founded on Stephen's, and in
article 125 repeats the latter's article 95 verbatim, including the
comment that "The definition is very vague and the doctrine exceedingly
doubtful". Through Burbridge the doctrine, despite its vagueness,
entered our Code, the element of "false news or tales" remaining from
scandalum magnatum and the notion of "discord and slander between the
Queen and her people or the great men of the realm" being generalized
into "injury or mischief" to "any public interest".
Seditious Offences", which was under "Title II: Offences Against Public
126. Every one is guilty of an indictable offence and liable to one
year's imprisonment who wilfully and knowingly publishes any false news
or tale whereby injury or mischief is or is likely to be occasioned to
any public interest.
In the statutory revisions of 1906 (R.S.C. 1906, c. 146) and of 1927
(R.S.C. 1927, c. 36), the provision appeared as s. 136 under the same
general heading and subheading. In the revision of the Criminal Code in
1953-54 (Can.), c. 51, the word "statement" was inserted before the
words "tale or news" and the section was designated as s. 166 and was
reworded as the present wording of s. 177. However, s. 166 appeared in
"Part IV: Sexual Offences, Public Morals and Disorderly Conduct" under
the subheading "Nuisances". The reclassification of the offence from
the category of seditious offences to the category of nuisances may be
of signifi­cance in viewing it as an offence with less serious
potential consequences. In the 1970 revision (R.S.C. 1970, c. C-34),
the provision was renumbered as s. 177 under the same heading and
subheading but there was no change in wording.
(a) wilful publication, and
(b) the publication must be of a statement, tale or news.
(It is not necessary in this appeal to go into the precise difference
in meaning between a statement, tale and news. Counsel for the
respondent conceded that an assertion of fact must be proved which is
capable of being false. The assertion of an opinion is not sufficient.)
(c) The assertion of fact must be false to the knowledge of the person
who publishes it;
(d) it does not have to be proved that the false assertion of fact
actually caused injury or mischief to a public interest. It is
sufficient if it is proved that it was likely to cause such injury or
mischief.
In this appeal the charge specifies that the public interest in
question is the public interest in racial and social tolerance.
There are extremely few reported decisions on s. 177. In R. y. Hoaglin
(1907), 12 C.C.C. 226, the accused published a placard in connection
with a closing-out sale stating he had decided to leave Canada and that
settlers from the United States were not wanted in Canada. This was
done at a time when great efforts were being made to induce settlers
from the United States to come to Canada. He was convicted under a
predecessor of s. 177, the court holding that the publication was
contrary to the public interest.
In R. v. Kirby (1970), 1 C.C.C. (2d) 286, 13 Crim. L.Q. 128, an
underground newspaper published an edition in Montreal parodying the
Gazette and containing a false story that the mayor had been "shot by
[a] dope-crazed hippie". The Quebec Court of Appeal set aside the
conviction of the appellant. It considered that while the night city
editor of the Gazette might have been incon­venienced by the 50 or so
calls received at the Gazette switchboard, there was no injury or
mischief to a public interest. It was not "reasonably sure to cause
trouble and insecurity" (p. 289),
B. Procedure in determining constitutionality of s. 177
With this background it is now necessary to consider whether s. 177 is
unconstitutional because it infringes s. 2(b) of the Charter, the
fundamental freedom of expression. In considering the
consti­tutionality of impugned legislation under the Charter, both the
purpose and the effect of the legislation are relevant. No
funda­mental freedoms are more basic to our democratic way of life,
and more highly prized than the freedoms guaranteed under s. 2(b) of
the Charter. It is the freedom of "expression" with which we are
primarily concerned in this appeal. There is a twofold aspect to this
(a) Is the fundamental freedom of expression an absolute freedom, or is
it a qualified freedom which must give way to certain restrictions in
the interest of society as a whole? If it is a qualified freedom, then
the exact limits of that freedom must be determined.
(b) Once the limits of the freedom of expression have been
deter­mined, then a decision can be made whether those limits have
been breached. If so, then s. 1 of the Charter comes into operation in
order to decide whether the limitations imposed on the freedom are a
reasonable limit which is demonstrably justified in a free and
democratic society.
C. Limits of freedom of expression
It is essential at the outset to consider just exactly what is the
"freedom of expression" which is constitutionally protected. The words
are extremely broad. They are not like rights proscribed under some
other sections of the Charter such as ss. 10, 11(f) and (i). There the
limits of the rights protected are much clearer, and a breach is more
readily apparent and, if a breach has occurred, can be tested under s.
1 of the Charter.
Freedom of expression must necessarily have regard to the corresponding
rights and freedoms of other persons. It contem­plates the existence
of a social order in which other persons must not be denied similar
rights. A simplistic example, which is often given, is that a person is
not at liberty to shout "fire!" in a crowded theatre.
As Dickson C.J.C. stated when delivering the judgment of the Supreme
Court of Canada in R. v. Big M Drug Mart Ltd. 1985 CanLII 69 (S.C.C.),
(1985), 18 C.C.C. (3d) 385 at p. 418, 18 D.L.R. (4th) 321 at p. 354,
Freedom means that, subject to such limitations as are necessary to
protect public safety, order, health, or morals or the fundamental
rights and freedoms of others, no one is to be forced to act in a way
contrary to his beliefs or his conscience.
(Emphasis added.) (See also his dicta to the same effect at p. 425
C.C.C., p. 361 D.L.R.) In that case Chief Justice Dickson was, of
course, addressing his remarks to the limits of the fundamental freedom
of religion under s. 2(a) of the Charter but his remarks are, in our
opinion, apposite for "freedom of expression".
In this appeal it is not necessary to give an all-embracing definition
of "freedom of expression", but merely to decide whether "spreading
false news" within s. 177 of the Code is encompassed within that
fundamental freedom.
When considering the interpretation of the Charter, it is important to
bear in mind the admonition of Chief Justice Dickson in Hunter et al.
v. Southam Inc. 1984 CanLII 33 (S.C.C.), (1984), 14 C.C.C. (3d) 97 at
p. 106, 11 D.L.R. (4th) 641 at p. 650, 2 C.P.R. (3d) 1 at p. 10, [1984]
2 S.C.R. 145 at p. 156, that the proper approach to the definition of
"Its purpose is to guarantee and to protect, within the limits of
reason, the enjoyment of the rights and freedoms it enshrines."
In R. v. Big M Drug Mart Ltd., supra, at pp. 423-4 C.C.C., pp. 359-60
The meaning of a right or freedom guaranteed by the Charter was to be
ascertained by an analysis of the purpose of such a guarantee; it was
to be understood, in other words, in the light of the interests it was
meant to protect.
In my view, this analysis is to be undertaken, and the purpose of the
right or freedom in question is to be sought by reference to the
character and the larger objects of the Charter itself, to the language
chosen to articulate the specific right or freedom, to the historical
origins of the concepts enshrined, and where applicable, to the meaning
and purpose of the other specific rights and freedoms with which it is
associated within the text of the Charter. The interpretation should
be, as the judgment in Southam emphasizes, a generous rather than a
legalistic one, aimed at fulfilling the purpose of the guarantee and
securing for individuals the full benefit of the Charter's protection.
At the same time it is important not to overshoot the actual purpose of
the right or freedom in question, but to recall that the Charter was
not enacted in a vacuum, and must therefore, as this Court's decision
in Law Society of Upper Canada v. Skapinker 1984 CanLII 3 (S.C.C.),
(1984), 11 C.C.C. (3d) 481, 9 D.L.R. (4th) 161, [1984] 1 S.C.R. 357,
illustrates, be placed in its proper linguistic, philosophic and
historical contexts.
Differing reasons have been expressed as to why freedom of expression
should be guaranteed. Some have based it on the theory that the best
way to obtain truth is through the free exchange of ideas. Others have
based it on the theory that free expression of opinion is essential to
the working of a parlia­mentary democracy. A third rationale is that
it furthers self-fulfilment, what Professor Tribe in his American
Constitutional Law (1978), at p. 578, refers to as "the evolution,
definition and proclamation of individual and group identity".
The Supreme Court of Canada appears to have adopted the rationale that
freedom of expression is essential to the working of a parliamentary
democracy.
The historical roots of "freedom of expression" were carefully examined
by McIntyre J. in giving the reasons of the majority of the Supreme
Court of Canada in Retail, Wholesale & Department Store Union, Local
580 et al. v. Dolphin Delivery Ltd. et al., December 18, 1986
(unreported [since reported 1986 CanLII 5 (S.C.C.), [1987] 1 W.W.R.
577]). There the court had to consider whether secondary picketing of a
third party not involved in a labour dispute by members of a trade
union infringed the freedom of expression secured under s. 2(b) of the
Charter. McIntyre J., for a unanimous court on this point, considered
that freedom of expression was not created by the Charter but had been
recognized since early times. He cited in support the works of John
Milton and John Stuart Mill. He was of the opinion that freedom of
expression lay at the roots of parliamentary democracy. At p. 9 [p. 585
It is one of the fundamental concepts that has formed the basis for the
historical development of the political, social and educational
institutions of western society. Representative democracy, as we know
it today, which is in great part the product of free expression and
discussion of varying ideas, depends upon its maintenance and
protection.
He cited in support dicta of Holmes J. in Abrams v. United States
(1919), 250 U.S. 616 at p. 630; of Rand J. in Boucher v. The King, 1950
CanLII 2 (S.C.C.), [1950] 1 D.L.R. 657 at p. 682, [1951] S.C.R. 265 at
p. 288; and Rand J. and Abbott J. respectively in Switzman v. Ealing
and A.-G. Que. 1957 CanLII 2 (S.C.C.), (1957), 117 C.C.C. 129 at pp.
151 and 164, 7 D.L.R. (2d) 337 at pp. 357 and 369, [1957] S.C.R. 285 at
pp. 306 and 326. There Abbott J. had referred to the dicta of Duff
C.J.C. in Re Alberta Legislation, 1938 CanLII 1 (S.C.C.), [1938] 2
D.L.R. 81 at pp. 106-7, [1938] S.C.R. 100 sub nom. Reference re Alberta
Statutes, at pp. 132-3, as strongly supporting what could almost be
described as a constitu­tional position for the concept of freedom of
speech and expression in Canadian law, and then said at p. 166 C.C.C.,
p. 371 D.L.R., p. 328 S.C.R.: "... I am also of opinion that as our
constitutional Act now stands, Parliament itself could not abrogate
this right of discussion and debate".
McIntyre J. concluded that any question as to the constitutional status
of "freedom of expression" had been settled by the decla­ration in s.
2(b) of the Charter that it was now a fundamental freedom.
Historically, freedom of expression has not been an absolute freedom
which gives an unrestricted right of speech or expression. In Re
Alberta Legislation, supra, Sir Lyman P. Duff C.J.C. considered the
constitutionality of a bill of the Alberta Legisla­ture, "to Ensure
the Publication of Accurate News and Information". He stated at p. 107
The right of public discussion is, of course, subject to legal
restrictions; those based upon considerations of decency and public
order, and others conceived for the protection of various private and
public interests with which, for example, the laws of defamation and
sedition are concerned. In a word, freedom of discussion means, to
quote the words of Lord Wright in James v. Commonwealth of Australia,
[1936] A.C. at p. 627, "freedom governed by law."
In Boucher v. The King, Rinfret C.J.C., when considering an appeal from
a conviction for seditious libel stated in a dissenting opinion at p.
... to interpret freedom as license is a dangerous fallacy. Obviously
pure criti­cism, or expression of opinion, however severe or extreme,
is, I might almost say, to be invited. But, as was said elsewhere,
"there must be a point where restriction on individual freedom of
expression is justified and required on the grounds of reason, or on
the ground of the democratic process and the neces­sities of the
present situation".
In Switzman v. Elbling, Rand J. recognized that freedom of expression
was limited and not absolute when he stated at p. 150 C.C.C., p. 356
For the past century and a half in both the United Kingdom and Canada,
there has been a steady removal of restraints on this freedom, stopping
only at perimeters where the foundation of the freedom itself is
threatened. Apart from sedition, obscene writings and criminal libels,
the public law leaves the literary, discursive and polemic use of
language, in the broadest sense, free.
The Canadian Bill of Rights, R. S.C. 1970, App. III, recognizes in s.
1(d) that freedom of speech has existed and shall continue to exist.
The preamble acknowledges the supremacy of God, and the dignity and
worth of the human person, and asserts that freedom can only be founded
upon respect for moral and spiritual values and the rule of law. This
would in turn confirm that freedom of expression which is guaranteed
under the Charter is not absolute.
More recently in Re Fraser and Public Service Staff Relations Board
1985 CanLII 14 (S.C.C.), (1985), 23 D.L.R. (4th) 122, [1985] 2 S.C.R.
455, 19 C.R.R. 152, in considering the extent to which a public servant
could openly criticize government policy, Dickson C.J.C. stated at p.
First, our democratic system is deeply rooted in, and thrives on, free
and robust public discussion of public issues. As a general rule, all
members of society should be permitted, indeed encouraged, to
participate in that discus­sion.
.....
On the other side, however, it is equally obvious that free speech or
expression is not an absolute, unqualified value. Other values must be
weighed with it. Sometimes these other values supplement, and build on,
the value of speech. But in other situations there is a collision. When
that happens the value of speech may be cut back if the competing value
is a powerful one. Thus, for example, we have laws dealing with libel
and slander, sedition and blasphemy. We also have laws imposing
restrictions on the press in the interests of, for example, ensuring a
fair trial or protecting the privacy of minors or victims of sexual
assaults.
[Emphasis added.]
When determining the limits of freedom of expression, a distinction
must be drawn at the outset between "rights" and "freedoms". A "right"
is defined positively as what one can do. A "freedom", on the other
hand, is defined by determining first the area which is regulated. The
freedom is then what exists in the unregulated area - a sphere of
activity within which all acts are permissible. It is a residual area
in which all acts are free of specific legal regulation and the
individual is free to choose. The regulated area will include
restrictions for purposes of decency and public order, and specifically
with respect to the freedom of expression, prohibitions concerning
criminal libel and sedition. It is what Rand J. described in Saumur v.
City of Quebec and A.-G. Que. 1953 CanLII 3 (S.C.C.), (1953), 106
C.C.C. 289 at p. 322, [1953] 4 D.L.R. 641 at p. 670, [1953] 2 S.C.R.
299 at p. 329, as "the residue inside the periphery". This is the
approach to rights and freedoms which was taken in the McRuer Report of
the Royal Commission Inquiry into Civil Rights, Report 2, vol. 4, pp.
1493-96 (1969), and was adopted by Bayda C.J.S. in Re Retail, Wholesale
& Department Store Union, Locals 54.4, 496, 635 & 955 et al. and
Government of Saskatchewan et al. 1985 CanLII 184 (SK C.A.), (1985), 19
D.L.R. (4th) 609 at pp. 616-8, [1985] 5 W.W.R. 97 at pp. 105-8, 39
Sask. R. 193. It is also the approach recently adopted by the Court of
Appeal of British Columbia in Re Cromer and British Columbia Teachers'
Federation et al., July 18, 1986 (unreported) at pp. 12-3 [since
reported 29 D.L.R. (4th) 641 at pp. 649-50, [1986] 5 W.W.R. 638, 4 B.
C. L. R. (2d) 273]. In our opinion it is the right approach.
D. Freedom of speech under the American Constitution
In considering the interpretation to be given to "freedom of
expression" in the Charter, it may be of assistance to examine the
corresponding provisions of the American Constitution and consider how
the American courts have dealt with them. At the outset it is
imperative to bear in mind that there are fundamental structural
differences between our Charter and the American Constitution, and
that, most importantly, the latter has no provision which corresponds
to s. 1 of the Canadian Charter.
The relevant provision of the American Constitution is the First
Amendment which provides in part that "Congress shall make no law ...
abridging the freedom of speech, or of the press ...". The rights of
freedom of speech and freedom of the press have also been held to be
fundamental personal rights and liberties which are protected by the
Fourteenth Amendment from invasion by state action: Chaplinsky v. State
of New Hampshire (1942), 315 U. S. 568. It will be noted that the words
"freedom of speech" rather than "freedom of expression" are used in the
American First Amendment. However, American courts have extended the
protection of the First Amendment to expressive conduct as "sym­bolic
speech", for example, the desecration of a flag: see Spence v.
Washington (1974), 418 U.S. 405.
In the Chaplinsky case, Chaplinsky was convicted of violating a New
Hampshire statute prohibiting the addressing of any offen­sive,
derisive or annoying word to any other person who is lawfully in any
street or other public place, or calling him by any offensive or
derisive name. The Supreme Court of the United States in upholding the
state legislation made it clear that the right of free speech was not
absolute and that the punishment of obscene, profane and libellous
utterances or insulting or fighting words did not raise a
constitutional problem. The interest of society in order and morality
outweighed any slight social value which such speech might have. As
Allowing the broadest scope to the language and purpose of the
Fourteenth Amendment, it is well understood that the right of free
speech is not absolute at all times and under all circumstances. There
are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which has never been thought to raise any
Constitutional problems. These include the lewd and obscene, the
profane, the libelous, and the insulting or "fighting" words - those
which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. It has been well observed that such
utterances are no essential part of any exposition of ideas, and are of
such slight social value as a step to truth that any benefit that may
be derived from them is clearly outweighed by the social interest in
order and morality. "Resort to epithets or personal abuse is not in any
proper sense communication of information or opinion safeguarded by the
Constitution, and its punishment as a criminal act would raise no
question under that instrument." Cantwell y. Connecticut, 310 U.S. 296,
309, 310, 60 S. Ct. 900, 906, 84 L.Ed. 1213, 128 A.L.R. 1352.
Despite the broad language of the First Amendment, it has been held
that neither criminal libel nor obscenity is protected by it. In
Beauharnais v. People of State of Illinois (1952), 343 U.S. 250, 72 S.
Ct. 725, the accused was convicted under an Illinois criminal libel
statute for distributing a leaflet which attacked the Negro race. In
this case a group libel was involved rather than uttering offensive
words to an individual face-to-face as in Chaplinsky, supra. The
majority of the Supreme Court of the United States, in an opinion
delivered by Frankfurter J., relied on its earlier decision in
Chaplinsky and held that libellous utter­ances were not
... it is unnecessary, either for us or for the State courts, to
consider the issues behind the phrase "clear and present danger".
Certainly no one would contend that obscene speech, for example, may be
punished only upon a showing of such circumstances. Libel, as we have
seen, is in the same class.
Justices Jackson, Douglas, Reed and Black dissented. Justice Douglas
My view is that if in any case other public interests are to override
the plain command of the First Amendment, the peril of speech must be
clear and present, leaving no room for argument, raising no doubts as
to the necessity of curbing speech in order to prevent disaster.
Justice Jackson would have applied the "clear and present danger" test.
Punishment of printed words, based on their tendency either to cause
breach of the peace or injury to persons or groups, in my opinion, is
justifiable only if the prosecution survives the "clear and present
danger" test. It is the most just and workable standard yet evolved for
determining criminality of words whose injurious or inciting tendencies
are not demonstrated by the event but are ascribed to them on the basis
of probabilities.
Group libel statutes represent a commendable desire to reduce sinister
abuses of our freedoms of expression - abuses which I have had
occasion to learn can tear apart a society, brutalize its dominant
elements, and persecute, even to extermination, its minorities ...
...our guiding spirit should be that each freedom is balanced with a
responsi­bility, and every power of the State must be checked with
safeguards. Such is the spirit of our American law of criminal libel,
which concedes the power to the State, but only as a power restrained
by recognition of individual rights.
The leading cases that obscenity is not within the areas of
constitutionally protected speech or press are Roth v. United States
(1957), 354 U.S. 476, and Alberts v. State of California. In Roth the
primary constitutional question was whether the federal obscenity
statute in issue violated the First Amendment, whereas in Alberts the
primary constitutional question was whether the obscenity provisions of
the California Penal Code invaded the freedoms of speech and press as
they may be incorporated into the liberty protected from state action
by the due process clause of the Fourteenth Amendment.
Justice Brennan in delivering the opinion of the majority of the court
noted that while the law of obscenity was not so fully developed as the
law of libel, there was sufficient contemporary evidence to show that
obscenity, too, was outside the protection intended for speech and
press. From the history of the First Amendment, its unconditional
phrasing and the early existence of laws as to criminal libel,
blasphemy, profanity and obscenity, he concluded that the First
Amendment was not intended to protect every utterance. At pp. 484-5 he
All ideas having even the slightest redeeming social importance -
unorthodox ideas, controversial ideas, even ideas hateful to the
prevailing climate of opinion - have the full protection of the
guaranties, unless excludable because they encroach upon the limited
area of more important interests. But implicit in the history of the
First Amendment is the rejection of obscenity as utterly without
redeeming social importance. This rejection for that reason is mirrored
in the universal judgment that obscenity should be restrained,
reflected in the international agreement of over 50 nations, in the
obscenity laws of all of the 48 States, and in the 20 obscenity laws
enacted by the Congress from 1842 to 1956. This is the same judgment
expressed by this Court in Chaplinsky v. New Hampshire, 315 U.S. 568,
571-572, 62 S.Ct. 766, 769, 86 L.Ed. 1031... We hold that obscenity is
not within the area of constitutionally protected speech or press.
Justices Douglas and Black dissented and Justice Harlan dissented in
part as to the Roth case only.
The laws of civil and criminal libel in the United States were altered
in meaning and scope after the Beauharnais case with the decisions in
New York Times Co. v. Sullivan (1964), 376 U.S. 254, and Garrison y.
State of Louisiana (1964), 379 U. S. 64. A distinction was drawn
between public officials on the one hand and private individuals on the
other. In the New York Times case, Sullivan, one of the three elected
commissioners of. the City of Montgomery, Alabama, brought a civil
libel action against four individual critics of his official conduct
and the New York Times Company for an advertisement published in the
New York Times. The Supreme Court of the United States held that there
was an absolute immunity for the criticism of the way public officials
do their public duty. Accordingly, the judgment for libel could not be
sustained. The court held that a public official cannot recover unless
it is proven that the libellous statement was made with "actual malice"
- that is, with knowledge that it was false or with reckless
disregard whether it was false or not.
In Garrison v. State of Louisiana, the Supreme Court of the United
States decided that the same rule should apply in the case of a
criminal libel prosecution as in an action for civil libel. In this
case a New Orleans attorney was convicted of issuing a statement
disparaging the judicial conduct of eight judges. He was convicted of
criminal defamation under the Louisiana Criminal Defamation Statute and
his conviction was upheld on appeal. The appellant contended that his
right of expression had been abridged. On a further appeal to the
Supreme Court of the United States, his conviction was reversed. The
Supreme Court applied the same rule as in New York Times Co. v.
Sullivan, supra, that criticism of official conduct of public officials
was constitutionally protected unless it was made with actual malice.
The Louisiana Criminal Libel Statute imposed standards which were
constitutionally invalid as it directed punishment for true statements
which were made with actual malice. It was also unconstitutional
because it punished false statements against public officials if made
with ill will without regard to whether they were made with knowledge
of their falsity or in reckless disregard of whether they are true or
false, or not made in reasonable belief of their truth. Brennan J. in
Moreover, even where the utterance is false, the great principles of
the Constitution which secure freedom of expression in this area
preclude attaching adverse consequences to any except the knowing or
reckless false­hood. Debate on public issues will not be uninhibited
if the speaker must run the risk that it will be proved in court that
he spoke out of hatred; even if he did speak out of hatred, utterances
honestly believed contribute to the free interchange of ideas and the
ascertainment of truth.
Although honest utterance, even if inaccurate, may further the fruitful
exercise of the right of free speech, it does not follow that the lie,
knowingly and deliberately published about a public official, should
enjoy a like immunity ... Calculated falsehood falls into that class of
utterances which "are no essential part of any exposition of ideas, and
are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social
interest in order and morality ...". Chaplinsky v. New Hampshire, 315
U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031. Hence the knowingly
false statement and the false statement made with reckless disregard of
the truth, do not enjoy constitutional protection.
Accordingly, American constitutional cases support the position that
freedom of speech is not an absolute freedom, and that there are
certain well-defined and limited classes of speech such as the obscene
or libellous, or knowingly false statements, which are not
constitutionally protected because any slight social value as a step to
truth that they may entail, is clearly outweighed by the social
interest in order and morality.
E. Does s. 177 of the Code infringe freedom of expression under s. 2(b)
of the Charter
It is not necessary for the purpose of this appeal to define the limits
of the unregulated areas where freedom of expression is supreme. The
pertinent question is whether s. 177 of the Criminal Code properly
forms part of the permissibly regulated area. If it does, then it is
not necessary to consider s. 1 of the Charter. The nub of the offence
in s. 177 is the wilful publication of assertions of a fact or facts
which are false to the knowledge of the person who publishes them, and
which cause or are likely to cause injury or mischief to a public
interest. It is difficult to see how such conduct would fall within any
of the previously expressed rationales for guaranteeing freedom of
expression. Spreading falsehoods knowingly is the antithesis of seeking
truth through the free exchange of ideas. It would appear to have no
social or moral value which would merit constitutional protection. Nor
would it aid the working of parliamentary democracy or further
self-fulfilment. In our opinion an offence falling within the ambit of
s. 177 lies within the permissibly regulated area which is not
constitutionally protected. It does not come within the residue which
comprises freedom of expression guaranteed by s. 2(b) of the Charter.
F. Application of s. 1 of the Charter
If we are in error in concluding that s. 177, which is now classified
in the Criminal Code as a nuisance, properly forms part of the
permissibly regulated area of conduct, then s. 177 would constitute an
infringement of the guaranteed freedom of expression and we would have
to consider whether those limita­tions prescribed by law are
reasonable and demonstrably justified in a free and democratic society
under s. 1 of the Charter. In this connection the onus is on the Crown
as the party claiming that the requirements of s. 1 have been
satisfied.
The two central criteria to be satisfied in the application of s. 1 of
the Charter were laid down by Dickson C.J.C. when delivering the
judgment of the majority of the Supreme Court of Canada in R. v. Oakes
1986 CanLII 46 (S.C.C.), (1986), 24 C.C.C. (3d) 321 at pp. 348-9, 26
D.L.R. (4th) 200 at p. 227, {19861 1 S.C.R. 103. They may be
(1) The objective which the measures responsible for a limit on a
Charter right or freedom are designed to serve, must be of sufficient
importance to warrant overriding a constitutionally protected right or
freedom. The objective must relate to concerns which are pressing and
substantial in a free and democratic society.
(2) The party invoking s. 1 must show that the means chosen to achieve
a permissible objective are reasonable and demonstrably justified. This
involves a form of proportionality test which has three conjunctive
(a) the measures adopted must be carefully designed to achieve the
objective in question. They must be rationally connected to the
objective;
(b) they should impair as little as possible the right or freedom in
question;
(c) there must be a proportionality between the effects of the measures
responsible for limiting the Charter right or freedom, and the
objective identified as of sufficient importance. The more serious the
deleterious effects of a measure, the more important the objective must
be.
The objective of s. 177 is to prohibit the wilful publication of false
statements which the person publishing them knows are false and which
cause, or are likely to cause, injury or mischief to the public
interest. Such an activity is the very opposite of free public
discussion. Stopping such publication by prosecution would seem not
only reasonable but important. Lesser measures would not appear to be
effective. As we have already pointed out, the statutory provision in
England comparable to s. 177 was repealed in 1888. Our attention was
not drawn by counsel to statutory provisions in other democratic
countries in similar terms to s. 177. Section 263 of the Criminal Code
sets forth the offence of publishing a defamatory libel and a higher
penalty is imposed by s. 264 where the person publishing the defamatory
libel knows that it is false. Section 330 of the Criminal Code provides
for the offence of conveying a false message knowing that it is false.
(a) England - Libel Act, 1843 (U. K.), c. 96, ss. 4 and 5.
(b) Victoria - The Wrongs Act 1958 (No. 6420), s. 10, as amended by
the Penalties and Sentences Amendment Act 1983 (No. 9945), s. 3(3).
(c) Western Australia - Criminal Code, 1913, No. 28 (4 Geo. V), s.
360.
(d) Queensland - The Criminal Code Act, 1899 (63 Viet. No. 9), s.
380.
(e) Ireland - Defamation Act, 1961 [No. 40], ss. 11 and 12.
Section 177 would appear to be a reasonable means of achieving the
objective of prohibiting the spread of false news which a person knows
to be false, and which causes or is likely to cause injury or mischief
to a public interest. It impairs freedom of expression as little as is
possible, and any impairment is propor­tionate to the objective to be
achieved. Accordingly, we have concluded that if s. 1 of the Charter is
applicable, s. 177 is a reasonable limit prescribed by law which can be
demonstrably justified in a free and democratic society.
G. Vagueness or overbreadth of s. 177
The final ground of appeal raised with respect to the
constitu­tionality of s. 177 is that it is too vague, or is overly
broad. Vagueness and overbreadth are two concepts. They can be applied
separately, or they may be closely interrelated. The intended effect of
a statute may be perfectly clear and thus not vague, and yet its
application may be overly broad. Alternatively, as an example of the
two concepts being closely interrelated, the wording of a statute may
be so vague that its effect is considered to be overbroad. Vagueness or
overbreadth, for the purpose of determining the permissibly regulated
area of conduct, and whether freedom of expression under s. 2(b) of the
Charter has been breached, may be different from vagueness or
overbreadth for the purpose of applying the criteria in Oakes as to the
appli­cation of s. 1 of the Charter.
This court in R. v. Morgentaler, Smoling and Scott 1985 CanLII 116 (ON
C.A.), (1985), 52 O.R. (2d) 353 at p. 388, 22 C.C.C. (3d) 353 at p.
388, 22 D.L.R. (4th) 641 at p. 676, adopted the principle in Village of
Hoffman Estates et al. y. Flipside, Hoffman Estates Inc. (1982), 455
U.S. 489 at p. 495, that if a person's conduct clearly falls within the
prescription of a statute, then that person cannot complain of the
vagueness of the statute as applied to others. To succeed on the basis
of vagueness, a person would have to show that the statute is vague in
all its applications as, for example, if there were no specified
standard of conduct.
When a freedom protected by the Charter is breached, then in applying
s. 1, the limits placed on that freedom must be reasonable limits
prescribed by law. The limits must be ascer­tainable and
understandable and articulated with some precision. They cannot be
Re Ontario Film & Video Appreciation Society and Ontario Board of
Censors (1983), 41 O.R. (2d) 583 at p. 592, 147 D.L.R. (2d) 58 at p.
68, 34 C.R. (3d) 73; affirmed 45 O.R. (2d) 80n, 5 D.L.R. (4th) 766n, 38
C.R. (3d) 271 (Ont. C.A.).
In Re Luscher and Deputy Minister, Revenue Canada, Customs & Excise
reflex, (1985), 17 D.L.R. (4th) 503, [1985] 1 F.C. 85, 45 C.R. (3d) 81,
the Federal Court of Appeal allowed an appeal from a county court judge
upholding the decision of the Deputy Minister prohibiting the
importation of a book under a tariff item as immoral or indecent. As
Hugessen J. said in delivering the judgment of the court at p. 506
In my opinion, one of the first characteristics of a reasonable limit
prescribed by law is that it should be expressed in terms sufficiently
clear to permit a determination of where and what the limit is. A limit
which is vague, ambiguous, uncertain, or subject to discretionary
determination is, by that fact alone, an unreasonable limit. If a
citizen cannot know with tolerable certainty the extent to which the
exercise of a guaranteed freedom may be restrained, he is likely to be
deterred from conduct which is, in fact, lawful and not prohibited.
Uncertainty and vagueness are constitutional vices when they are used
to restrain constitutionally protected rights and freedoms. While there
can never be absolute certainty, a limitation of a guaranteed right
must be such as to allow a very high degree of predictability to the
legal consequences.
The decision in Luscher would appear to involve a case of overbreadth
rather than vagueness.
In Re Information Retailers Ass'n of Metropolitan Toronto Inc. and
Municipality of Metropolitan Toronto reflex, (1985), 52 O.R. (2d) 449,
22 D.L.R. (4th) 161, 32 M. P. L. R. 49, this court considered a
municipal by-law which required persons selling adult books or
magazines to obtain a licence. Adult books or magazines included those
which appealed to erotic or sexual appetites or inclinations, but also
portrayed or depicted, as a principal feature or character­istic, one
or more specifically defined bodily areas. The court held that the
by-law was overly broad and that the infringement on the fundamental
freedom of expression was disproportionate to the objective of the
enactment which was to discourage or limit the exposure of children to
sexually-oriented pictorial material. At p. 472 O.R., p. 184 D.L.R.,
In the case of this by-law, whether it be seen as overbroad or vague
(and an element of vagueness is intrinsic in overbroad legislation) the
vice is essen­tially the same: it lacks a definition proportionate to
its aim which would give those governed by it and those who administer
it a reasonable opportunity to know what is covered by it, and to act
accordingly.
Bearing in mind the above authorities, the terminology of s. 177 would
not appear to be vague or overly broad. It is conceded that it is
limited to a statement of fact or facts. This statement must be known
by the person publishing it to be false. It is not applicable to a
statement made honestly, negligently, or recklessly. The statement must
cause or be likely to cause injury or mischief. Causation or the
likelihood or probability of causation of injury or mischief are
concepts within the ambit of the criminal law. The only question then
is whether the fact that the injury or mischief must be to a "public
interest" makes the section too broad. There are a great many offences
in which one aspect or another of the public interest is central. The
definition of a crime in the judgment of Rand J. in Reference re
Validity of s. 5(a) of Dairy Industry Act, 1948 CanLII 2 (S.C.C.),
[1949] 1 D.L.R. 433 at pp. 472-3, [1949] S.C.R. 1 at pp. 49-50, is
A crime is an act which the law, with appropriate penal sanctions,
forbids; but as prohibitions are not enacted in a vacuum, we can
properly look for some evil or injurious or undesirable effect upon the
public against which the law is directed. That effect may be in
relation to social, economic or political inter­ests; and the
legislature has had in mind to suppress the evil or to safeguard the
interest threatened.
.....
Is the prohibition then enacted with a view to a public purpose which
can support it as being in relation to criminal law? Public peace,
order, security, health, morality: these are the ordinary though not
exclusive ends served by that law ...
In our opinion, the words "injury or mischief to a public inter­est"
are not vague or overly broad in their context bearing in mind that
they are used in relation to a statement known by the accused to be
false. The maintenance of racial and religious harmony is certainly a
matter of public interest in Canada. The accused and those who
administer the law would have a reasonable opportunity to know what was
covered by s. 177 and to act accordingly. Furthermore, the specific
charge which the accused faced was expressly limited to the public
interest in racial and social toler­ance, so he was left in no doubt
as to the alleged manner in which his conduct was offensive.
H. Conclusion on constitutional validity of s. 177
Accordingly, in our opinion, s. 177 of the Criminal Code is not
unconstitutional as infringing the fundamental freedom of expression in
s. 2(b) of the Charter on the grounds of vagueness or overbreadth.
II The challenge for cause
It is alleged that the trial judge erred by refusing the defence
application to challenge the potential jurors for cause, in view of
prejudicial pretrial publicity generated by the prosecution.
On a motion made by defence counsel following the appellant's
arraignment but before any plea was taken, the presiding judge
conducted a pretrial voir dire. In the course of the voir dire the
appellant was sworn and testified, as the sole witness, regarding the
pretrial publicity concerning him. Section 567(1)(b) of the Criminal
567(1) A prosecutor or an accused is entitled to any number of
challenges on the ground that
.....
(b) a juror is not indifferent between the Queen and the accused ...
On the voir dire the appellant filed many articles published before the
trial in the Globe and Mail which identified the appellant as a
distributor of neo-Nazi, anti-Semitic hate literature. One such article
quoted political personalities describing the appellant as "one of the
world's big purveyors of Nazi propa­ganda" (Globe and Mail, June 15,
1983).
Other articles taken from the Toronto Sun and the Ottawa Citizen were
filed. They described action by the Postmaster-General to suspend the
appellant's mail privileges (later reinstated) and included comments by
the federal Minister of Justice on proposed legislation to curb hate
literature, with particular reference to the appellant.
Other materials filed included two articles reporting picketing by the
appellant and his group of the film "The Boys from Brazil", which is
said to describe the cloning of Hitler; and a number of articles in
different publications referring to large demonstrations by Jewish
groups at the appellant's home in Toronto and referring to the views of
a group known as the Canadian Holocaust Remem­brance Association which
focused on the appellant. The appellant described these materials as
standard Zionist rhetoric.
In addition, the appellant produced media reports of confronta­tions
between the appellant's group and hostile demonstrators at the earlier
court proceedings, and the explosion of a pipe bomb causing
considerable property damage near the appellant's garage in September,
1984. The appellant also produced on the voir dire a tape recording of
a CBC broadcast on the television programme the "National" which he
claims was a distortion of a press conference that he had given. There
was also evidence of a large demonstration of up to 2,000 people
outside of the appellant's home, and of demonstrations at the
court-house on the occasion of earlier appearances, which culminated in
a violent confrontation outside the Metropolitan court-house on the
first morning of the trial.
The evidence presented on the voir dire was meant to support the
appellant's endeavour to establish his right to question the
prospective jurors on their potential prejudice. The appellant's
purpose was to demonstrate that members of identifiable groups
entertained ill will towards him and therefore could not be
dispas­sionate and impartial jurors.
A. The questions
In his reasons for ruling, given orally after the first ruling on the
Charter, the learned trial judge summarized the evidence given by the
apellant on the voir dire and referred to the scenes of physical
violence between the appellant and his followers and members of the
Jewish Defence League. He quoted the questions which counsel for the
1. Can you consider and will your mind allow consideration of the
question of whether there were gas chambers in Germany for the
extermination of Jews? Yes or no.
2. Can you impartially consider the question of gas chambers and the
Holocaust and remove from your mind the massive publicity of it to
decide the case on the evidence put before you in this court and only
on such evidence? Yes or no.
3. Do you believe that the Jews of today are God's chosen people or
especially favoured by God? Yes or no.
4. Do you believe the Holocaust happened as depicted by the media, and
would you be able to remove that idea from your mind and consider the
question solely on the evidence presented in court? Yes or no.
5. Do you have any moral, religious or other beliefs relating to Jews
or the Holocaust such that you would convict or acquit regardless of
the law or evidence? Yes or no.
6. Do you have any moral, religious or other beliefs relating to
Freemasons such that you would convict or acquit regardless of the law
or evidence? Yes or no.
7. Have you, because of religious or moral beliefs, or because of what
you have heard, read or seen in the media, formed any opinion as to the
guilt or innocence of the accused? Yes or no.
8. Despite any beliefs or opinions, would you be able to set aside
those beliefs or opinions and reach a verdict of guilty or not guilty
solely on the evidence and the law you receive in this courtroom? Yes
or no.
9. Do you have any abiding prejudices against German people?
In addition, counsel for the accused had asked the trial judge, in his
opening remarks to the jury panel, to excuse anyone from the jury panel
(1) is a Jewish person or is employed by Jewish persons or is a close
relative of a Jewish person;
(2) is a Freemason or is employed by a Freemason or is a close friend
or relative of a Freemason;
(3) is personally acquainted with the accused in such a way that he
favours or dislikes the accused so much that he would be unable,
through preju­dice, to look impartially upon the accused or judge his
guilt or innocence solely on the evidence in court;
(4) speaks or understands some English, but has difficulty
understanding it fully.
After making reference to the decision of Osler J. in R. v. Crosby
(1979), 49 C.C.C. (2d) 255, the learned trial judge noted that there
had not been any "notorious episode in the community". In that case,
Osler J,, in refusing to permit counsel to challenge for cause on the
It seems to me that, in the absence of any notorious episode in a
community of the type I have mentioned, to permit challenges of this
kind to go forward simply on the ground that man is prejudiced and that
black and white may frequently be prejudiced against each other is to
admit to a weakness in our nation and in our community which I do not
propose to acknowledge.
Should the fact that an accused belongs to a particular, even a highly
visible minority group lead automatically to a searching examination of
prospective jurors on their views there would be few criminal cases
today in which such challenges would not be justified.
The learned trial judge concluded that allowing the proposed questions
would prevent a substantial segment of the community from sitting as
jurors. After quoting excerpts from the leading case in this province
on the subject of challenge for cause, R. v. Hubbert (1975), 11 O. R.
(2d) 464, 29 C.C.C. (2d) 279, 31 C. R. N. S. 27; affirmed 15 O.R. (2d)
324n, 33 C.C.C. (2d) 207n, [1977] 2 S.C.R. 267, the learned trial judge
I conclude with the observation that the evidence I have heard and read
shows that the accused, perhaps through his own deliberate acts, has
attracted much publicity and notoriety upon himself. His positions on
sensi­tive, emotion-provoking subjects certainly achieved that result,
in my view. That alone, however, should not compel the exercise of my
judicial discretion to permit any of these questions to be put. Each
and every proposed question, I find, offends the principles set out in
R. v. Hubbert. There is no evidentiary connection between the attracted
notoriety and the reasonable prospect that any prospective juror,
regardless of his or her racial origin or religious belief, or for any
other reason, would be unable to impartially return a verdict in this
trial based solely and only upon the evidence led thereat.
.....
Mr. Zundel elected trial by jury. No one forced him to elect that mode
of trial. He has an absolute right to be tried by a jury of his peers.
Having so elected, the public notoriety he has attracted to himself
does not, of itself, in the absence of anything further, entitle him to
use any of these questions to challenge his prospective jurors for
cause in order to tailor his own jury to suit him.
Following the dismissal of his application the appellant was arraigned
and pleaded not guilty to the charges. In his opening remarks to the
If there is any prospective juror here who is a member of, or who is
related by blood or marriage to anyone else who is a member of any
group or organi­zation which uses violent confrontation in public
places in support of or in opposition to the ideas of other groups, and
if by the reason of that membership or your relationship you feel that
you would be unable to judge and act as a judge or as a juror who, as a
judge, impartially, and solely and only upon the evidence that you have
heard, then you will please so indicate in the same manner as I have
already indicated.
If there is anything that you have heard, seen or read about this case
that would prevent you from impartially deciding a verdict solely and
only upon the evidence led in this courtroom, then of course you don't
come to the case free of preconceived notions or prejudice, and you
will please so indicate.
Notwithstanding anything I have said, if there is any member of your
number who is a prospective juror whose present views concerning the
guilt or innocence of this accused are so strongly fixed that an
impartial assessment of the evidence heard only in this trial would be
impossible or difficult, if the answer to this question or to any of
the other questions I have posed is yes, if your name is called please
indicate that when you come to the book to be sworn.
It is clear, from the analysis made by this court in R. v. Hubbert,
supra, at pp. 476-7 O.R., pp. 291-2 C.C.C., that where the suggestion
is made that publicity concerning the alleged offence has been
widespread, there may be a danger that the mind of a prospective juror
may be influenced and biased in such a way that he would be unable to
give an impartial verdict.
There is no doubt, and the learned trial judge found as a fact in the
instant case, that there had been considerable pretrial publicity in
the media, generally adverse to the appellant. In our respectful view,
the learned trial judge erred in stressing the absence of a notorious
episode and elevating it as a sine qua non requirement to a successful
application to allow the proposed questions in the challenge for cause.
While a notorious episode would be a factor to be considered in an
application of this kind, we do not think that Osler J. ever intended
it to be an absolute requirement. In the present case, in any event,
the series of well-publicized confrontations continuing up to the time
of trial would, in our view, qualify as notorious episodes.
Similarly, the fact that the appellant's conduct attracted publicity
and notoriety upon himself is not sufficient to automati­cally
disallow certain questions to be put to the jury. The judge's
discretion must be exercised judicially. The real question is whether
the particular publicity and notoriety of the accused could potentially
have the effect of destroying the prospective juror's indifference
between the Crown and the accused. In this context indifference means
"absence of feeling for or against": the Shorter Oxford English
Dictionary, 3rd ed. The equivalent is a now rare expression
"indifferency" meaning "absence of bias, prejudice or favour ..."
(ibid.).
The reference in the judge's ruling to the absence of an eviden­tiary
connection between the publicity and notoriety and the challenge to the
prospective juror's lack of indifference is, with respect, based on a
misconception. It is not for the presiding judge to rule on the
"evidentiary connection" but for the trier selected for that purpose.
In addition, the trial judge's statement that the accused "would not be
allowed to tailor-make his own jury" was incorrect, inasmuch as any
challenge for cause by the defence would have been tried by the triers
selected from the jury panel pursuant to the provisions of s. 569(2) of
the Criminal Code.
Having recognized these errors, it is only fair to point out that
counsel for the appellant, in his recorded submissions and in framing
the questions, was in large part responsible for the adverse ruling. It
is apparent on the record that Crown counsel at trial was prepared to
concede that certain questions could properly be asked of each
prospective juror. In particular, Qq. 7 and 8, if the reference to
"religious or moral belief", or "opinions" had been deleted, would have
been appropriate questions in seeking to determine whether the pretrial
publicity and the accused's notoriety had made it impossible for the
prospective juror to render an impartial verdict. This near-agreement
was referred to by the trial judge in his ruling in the following
As I understand it, Crown counsel and defence counsel may well have
come close to agreement that subject to my order, Qq. 7 and 8 might be
permitted, but they have been totally unable to agree with respect to
the balance of the questions that I have just read.
It appears from his submissions and proposed questions that defence
counsel at trial was attempting to disqualify all Freemasons and Jewish
members of the panel as jurors in the case. The assumption that Jewish
people or Freemasons form part of a homogeneous group with an identity
of interest capable of subverting their impartiality in a criminal case
is unwarranted and formed the basis of proposed Qq. 3, 5 and 6 in the
first group of questions and grounds 1 and 2 in the proposed remarks to
the jury panel. It is contrary to established practice, in this
province, to attempt to challenge jurors for cause on general grounds
such as race, religion, political belief, or opinions: see R. v.
Hubbert, supra, at pp. 475-6 O.R., p. 290 C.C.C.. Similarly, a
challenge on the basis of membership in a minority group is not
permissible in Canada.
Mr. Christie, counsel for the appellant, defended the propriety of
these questions by referring to questions which were approved by the
then Associate Chief Justice of the High Court in the 1984 prosecution
against Dr. Henry Morgentaler and others: R. v. Morgentaler, October
15, 1984 (unreported). We were provided with a certified transcript of
the three main questions which were framed following a long discussion
in chambers and which were asked of each prospective juror in the case.
All three questions inquired of the prospective juror whether he or she
had any religious, moral or other beliefs or opinions relating to
abortion that would interfere with the juror's ability to render a true
verdict. Mr. Christie also relied on the ruling made by Ewaschuk J. in
R. v. Rowbotham et al. (1984), 12 C.C.C. (3d) 189, where prospective
jurors were asked first, by defence counsel, whether they had a strong
dislike for the narcotic marijuana or hashish. As a corollary to this
question the Crown then asked whether they had a strong view in favour
of the legalization or use of marijuana or hashish. In either case, the
jurors were asked whether their views would prevent them from rendering
a true verdict based on the evidence given at trial. The rationale for
A general as opposed to a particular challenge may arise because of
extensive pretrial publicity or, as here, because of strong personal
views held by various members of the public on such controversial
matters as drugs, obscenity or abortion. The goal is to obtain a fair
trial for both sides based only on the evidence at trial and not on
jurors' personal prejudices.
Counsel for the appellant relied on the rulings in Morgentaler and
Rowbotham, made since the Hubbert decision, as supporting his proposed
set of questions on the challenge for cause. In partic­ular, he claims
to have framed his questions by reference to the questions allowed by
Parker A. C.J. H. C. in Morgentaler. There is some similarity in the
questions' reference to religious, moral or other beliefs. We must
point out, however, that the propriety of the questions used in the
challenge for cause in the Morgentaler case was never made an issue and
thus was not reviewed in the Crown appeal to this court.
In the present case, the defence motion was directed, in part, towards
the exclusion of Jewish people on the grounds that they would not
render a true verdict as to the occurrence of the Holocaust. The
majority of the proposed questions were improperly worded, and
therefore properly rejected by the learned trial judge. This rejection
should not have been the end of the matter, so as to foreclose any
challenge for cause.
In our view, although the presiding judge correctly refused the
questions as framed, he ought, in the circumstances, to have advised
counsel that he was not precluded from rephrasing certain of the
proposed questions in a manner which would have been in accordance with
the guidelines laid down in R. v. Hubbert.
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, when the grounds of challenge are properly specified in
accordance with s. 567(1)(b) of the Criminal Code and made before the
juror is sworn. We are concerned that the failure of the presiding
judge to advise counsel that he was at liberty to amend some of the
questions may have resulted in the denial of a fundamental right;
counsel was entitled to determine whether any potential juror was, by
reason of the pretrial publicity and the notoriety of the appellant,
sufficiently impartial. In our opinion the appellant was effectively
denied that fundamental right.
It was conceded by counsel, in the course of the argument, that the
challenge for cause was not repeated when each juror came forward to be
sworn, according to the correct practice. We agree, however, that once
the trial judge had refused the defence permission to ask any of the
proposed questions, and failed to give an opportunity to amend, the
defence was, in effect, prevented from exercising its right to
challenge for cause. A trial judge cannot, in the exercise of a
discretion which he undoubtedly possesses in the area of admitting
grounds of challenge for cause and settling the questions, effectively
curtail the statutory right to challenge for cause.
The warning later given by the trial judge, requesting that individual
members of the panel disqualify themselves under certain circumstances,
was insufficient to correct the erroneous denial of the statutory right
of challenge for cause. The issue of impartiality or indifference is
one that Parliament has entrusted to the two triers, not to the
conscience of the individual prospective juror.
We are all of the view that the appellant was deprived of his right to
have a jury selected according to law, whose impartiality or appearance
of impartiality could not be impugned. This error was compounded by the
judge's refusal to order a ban on the publication of both the
submissions made and of the ruling on the motion, as was done in R. v.
Keegstra, April 9, 1985 (unreported), which may have also prejudiced
the appellant's right to an impartial jury.
In our view this ground of appeal has merit and should be considered
with the other grounds in the disposition of the appeal.
III The admissibility of Dr. Hilberg's evidence
One of the principal grounds of appeal is that the opinion evidence of
Dr. Raul Hilberg to the effect that over five million Jews were
systematically annihilated by the Nazi government of Germany, was
inadmissible since Dr. Hilberg's evidence was based on hearsay.
With a view to establishing the systematic annihilation of millions of
Jews by the Nazi government of Germany, the Crown adduced the
eyewitness evidence of several survivors of Nazi concentration camps as
to what occurred in those camps, as well as the expert evidence of Dr.
Hilberg that over five million European Jews were killed, pursuant to
Nazi government policy.
It will be helpful to an understanding of Dr. Hilberg's evidence and
the legal issues that arise therefrom to outline that evidence briefly,
and to outline the nature of the eyewitness evidence. It is also
convenient to outline briefly at this time the evidence of Dr.
Faurisson who was permitted to give expert testimony for the defence on
the same basis upon which Dr. Hilberg was permitted to testify for the
Crown.
A. The eyewitness evidence
The eyewitness evidence, in the main, although not exclusively, related
to Auschwitz, which was a complex of camps. Auschwitz I was the main
camp. Auschwitz II, a subsidiary camp, was also known as Birkenau. The
evidence of several of the eyewitnesses essentially was that Jews were
collected at various places in Austria, Hungary, Poland and
Czechoslovakia and transported by cattle-car to Birkenau. At Birkenau
there was a wooden ramp about one-half mile long adjacent to the
railroad siding. When a train arrived carrying prisoners, members of
the SS ordered the prisoners to get out of the cars and to leave their
luggage behind. Some of the eyewitnesses testified that a selection
process, frequently conducted by Dr. Mengele, then began. The
able-bodied men and women were directed to one side in separate groups.
The old, the sick and the children were either marched off in the
direction of the crematoria at Birkenau or were loaded into lorries or
dump trucks which then left in the direction of Birkenau, returning in
a short time for another load. The men and the young women remained on
the ramp. One group of SS marched the men off to Auschwitz I and
another group of SS took the remaining women to the women's camp. There
were four crematoria in Birkenau. The gas chambers were adjacent to the
crematoria. After a transport of prisoners arrived, a buzzing sound
from the crematoria could be heard and smoke and flames could be seen
coming from the chimneys. The smoke and flames rarely stopped when
there was a great influx of prisoners. When the capacity of the
crematoria was exceeded the bodies were buried in pits.
Dr. Rudolf Vrba, one of the eyewitnesses, is an associate professor of
pharmacology at the University of British Columbia. He testified that
on June 20, 1942, he was put in a cattle truck and taken to Auschwitz
where he remained until 1944, when he escaped and returned to Slovakia.
For the first two months he was in Auschwitz I, where he worked at a
nearby construction site. The daily mortality rate at the construction
site was 5% to 10% of the total work-force. It is clear from his
evidence that the high mortality rate was due to privation and brutal
treatment. After about two months a typhus epidemic broke out and the
work was stopped. The prisoners were medically examined. Those who
failed the examination were loaded into lorries which left the camp,
and Dr. Vrba never saw them again.
He was then transferred to Birkenau. He said that he was assigned to a
work-force called the Kanada Kommando. This group would be sent to the
railroad siding when a transport was arriving. The job of the Kanada
Kommando was to sort the luggage and clean the cattle-cars after the
prisoners had been removed. Dr. Vrba testified that one of his jobs was
to load cannisters of Zyklon gas into a green military van with a large
red cross on the side prior to the arrival of a train. In December,
1942, in connection with his duties he was taken to Birkenau where he
saw pits containing burned bone fragments and the slightly burned heads
of children. He frequently visited a friend, Fred Wetzler, who was in
charge of the mortuary. From the mortuary he could see Crematorium II.
There were occasions when he saw several hundred people go into the
building. A corporal from the sanitation service would climb up to the
roof of a low structure or bunker, don a gas mask and empty one or two
tins of Zyklon into each vent in the roof. Dr. Vrba computed that
1,765,000 people were killed at Auschwitz while he was there and a
total of 2.5 million people were killed at Auschwitz during the war.
Dennis Urstein was born in Vienna. He was arrested and eventually taken
to Auschwitz. He also worked with the Kanada Kommando and met the
trains. He testified that in February, 1943, he and a group of
prisoners were driven to a building. A sergeant or a corporal donned a
gas mask and he heard a loud "hum" coming from the door of the building
they were facing. He knew this was a crematorium because of the smoke
stack. The corporal or sergeant then opened the door. Mr. Urstein and
the other prisoners were issued large hooks and ordered to remove the
bodies. They went through a small corridor to the gas chamber where he
saw a large number of bodies entangled with one another; the children,
generally, were on the bottom. They dragged the bodies out and then
they were ordered to wash the gas chamber.
Henry Leader was born in Poland. He testified that in 1941, several
thousand people were rounded up and transported to Maidanek
concentration camp. After several weeks he was assigned to assist in
carrying bodies from the gas chamber to the crematorium which at
Maidanek was about 350 yards from the gas chamber. The bodies would be
thrown from the gas chamber onto a ramp, loaded in wagons and taken to
the crematorium. The people inside the gas chamber dragging the bodies
out wore masks. The witness testified that in June, 1943, he was taken
from Maidanek to Birkenau. At Birkenau he could look through a wire
fence in the direction of the crematorium. He daily saw transports of
people arrive at the crematorium in dump trucks. On some days six or
seven trucks would arrive at a time. A truck would carry about 100
persons. The people were taken from the trucks to the gas chamber. He
never saw any of those people come out again. As the Russian Army
advanced, the prisoners were transported by cattle-car to Mauthausen in
Austria. He estimated that 35% of the prisoners perished en route.
Chester Tomaszewski was born in Poland. He was not Jewish. He was
arrested in October, 1939, and sent to Dachau concen­tration camp. He
was subsequently transferred to Mauthausen­Gussen in Austria. Gussen
is a satellite camp of Mauthausen. There were about 300 Jews in the
camp when he arrived. The entire Jewish population of the camp was
eliminated in a few weeks. One of the devices used by the guards was to
order a Jewish prisoner to pick up a stone outside the line of guards
and then to shoot him when he carried out the order.
B. Dr. Hilberg's evidence
The trial judge, as previously indicated, ruled after holding a voir
dire that Dr. Hilberg was qualified to testify as an expert witness on
the Holocaust. The judge expressly and immediately instructed the jury
that they were not bound to accept the opinion of an expert. He again
instructed the jury in his charge that they were free to accept or
reject the evidence of expert witnesses.
Dr. Hilberg is a professor at the University of Vermont where he
teaches courses in international relations, American foreign policy and
the Holocaust. He defined the Holocaust as the annihi­lation by
physical means of the Jews in Europe during the Nazi regime, 1933-1945.
He was appointed by the president of the United States to the United
States Holocaust Memorial Council and to the President's Commission on
The Holocaust. He testified that in his research he relied primarily on
documents and secondarily on the statements of witnesses who had direct
knowledge of the subject-matter.
During the war the United States seized a large part of the records of
the Nazi regime from 1933 to 1945. These records were physically kept
at the Federal Records Centre in Alexandria, Virginia. Dr. Hilberg was
employed for a time by the United States Government at the centre and
had direct access to these records. Many of the documents that he
examined were civil service or ministry documents. Some were military
documents, some were SS or party documents and some were industrial
documents. The documents used at the Nuremberg trials were taken from
this collection. He testified that, in addition, he has examined
documents in the archives of foreign countries where smaller
collections are available.
The major war criminals such as Goering were tried by the International
Military Tribunal established by a treaty to which about 20 countries
were parties. The judges were American, British, Russian and French.
Twelve subsequent trials involving high-ranking military officers, top
corporation executives, top members of the ministerial bureaucracy and
high-ranking SS personnel, were presided over by American judges. The
trials are referred to collectively as the Nuremberg trials; however,
the Nuremberg Trial refers to the trial before the International
Military Tribunal. Dr. Hilberg testified that he has read the
transcripts of the evidence and examined the documents intro­duced in
evidence at the Nuremberg Trial before the International Military
Tribunal and also the transcripts of the proceedings at the subsequent
Nuremberg trials before the American Military Tribunal. He commenced a
study of the Holocaust in 1948, and is the author of a book, "The
Destruction of The European Jews" which was first published in 1961; a
second and larger edition was expected to be published shortly.
Dr. Hilberg stated in cross-examination that he was of the opinion that
there was an oral order for the extermination of the Jews given by
Adolf Hitler in 1941. He testified that there was a plan within the
German high command for the "treatment of populations" in the territory
to be occupied in the U.S.S.R. This plan was submitted to Hitler who
indicated that he wished certain changes to be made. The changes were
made in April, 1941, and the directive was then resubmitted to Hitler.
According to the document written by General Jodl, and which is in the
West German Archives, Hitler said that he wanted the "Jewish-Bolshevik
Commissars" liquidated. Dr. Hilberg interpreted the order to mean that
Hitler wanted the Jewish people and the Bolshevik Commissars to be
liquidated.
When the German armies crossed the border into the Soviet Union they
were accompanied by battalion-size units of security police. These
units, called Einsatzgruppen, reported back on a daily basis, detailing
the number of people killed, of whom, according to the reports, 90% to
95% were Jews. Dr. Hilberg reasoned that one would not set up four
units of Einsatzgruppen aggregating 3,000 men to kill a handful of
Bolshevik Commissars, and therefore the clear intent of Hitler's oral
directive was that the Jews in the territory to be occupied should be
annihilated. Dr. Hilberg conceded that other historians take the view
that there was not a Hitler order.
It was Dr. Hilberg's opinion that the word "resettlement" became the
term used in the correspondence in World War II records to refer to the
process of deporting Jews to death camps. He characterized a death camp
as one set up for the specific purpose of killing people, Dr. Hilberg
said that Belzec, Treblinka, and Chelmno were used exclusively for
killing people. These camps were small and had no facilities of any
kind for production. Sobibor was also a death camp, but late in 1943, a
facility for making ammunition was established there.
Dr. Hilberg testified in cross-examination that Auschwitz was composed
of three camps - Auschwitz, Birkenau and Monowitz. The three camps
were also known as Auschwitz I, II and III. There was a gas chamber in
Auschwitz I. Two gas chambers were established in Birkenau in 1942. In
1943, four massive structures were built in Birkenau; these structures
contained gas chambers and crematoria. When the capacity of the
crematoria was exceeded the bodies were burned in pits outside the
building. There were, Dr. Hilberg testified, three gas chambers at
Maidanek. Belzec initially had three gas chambers but they were
expanded in 1942 to six. Chelmno was equipped with gas vans which used
carbon monoxide to kill prisoners. Treblinka had carbon monoxide gas
chambers.
Dr. Hilberg testified that he had also examined railroad schedules in
wartime Germany. They played an important role in his research. They
indicate, according to him, that the camps were located near places
where the Jewish population was the most dense. The Gestapo, as the
shipping agents, had to pay the German railways for each person
transported and, consequently, it was in the financial interest of the
Gestapo to make the trips as short as possible. The railway schedules
make clear that the transportees had to be counted because payment to
the railways had to be made for each person. It was highly significant
to Dr. Hilberg that suddenly there were hundreds of thousands of people
going to Treblinka and Sobibor which on the maps are small villages;
and of greater significance that the trains were returning empty.
Hoess, the commandant at Auschwitz, was a witness at Nuremberg and said
that 2,500,000 people were killed at Auschwitz. However, Dr. Hilberg
said that this figure was too high and he estimated that approximately
one million people were killed in the gas chambers at Auschwitz II
(Birkenau). According to Dr. Hilberg's estimate over five million Jews
were killed during the Nazi regime, of whom approximately three million
died in camps. The vast majority of those persons killed in camps were
killed in gas chambers, but several hundred thousand in those camps
were shot or died of deprivation or disease. In addition, approximately
1,300,000 or 1,400,000 Jews were shot in systematic operations such as
those conducted by the Einsatz­gruppen in the occupied U.S.S.R.,
Galicia and Serbia. The remainder, according to reports by the SS
statistician Korherr and the reports of Jewish councils in various
ghettos sent to German agencies, died from conditions in those ghettos.
Dr. Hilberg testified that of the Jewish population in Poland of
approximately 3,350,000 as of September, 1939, the death toll
attributable to the Holocaust was close to three million. His estimate
of the pre-war Jewish population in Poland appears to have been based
on the 1931 Polish census extrapolated to 1939. He testified in
cross-examination that of the pre-war population of approximately
3,350,000, there were only 50,000 Jews in Poland in 1945, excluding the
175,000 repatriates from the Soviet Union. He said there was a record
of those repatriated.
Dr. Hilberg testified that he found the pamphlet published by the
appellant to be a "concoction, contradiction, untruth mixed with
half-truths". He was asked by Crown counsel at the trial to comment on
various parts of the pamphlet and in substance he testified that those
parts contained misstatements and were false. In particular he said
that he never gave the figure of 896,892 Jews killed, attributed in the
pamphlet to the "Jewish statistician Raul Hilberg".
Dr. Hilberg was extensively cross-examined as to his reliance, in his
book, on one Gerstein, an SS officer. Dr. Hilberg agreed that some of
the statements made by Gerstein were not credible. He said, however,
that some parts of Gerstein's statements were credible and some were
corroborated. He said he used only those parts of his statements that
were credible, and that authors like himself develop a certain amount
of expertise in the use of material. Dr. Hilberg also testified that
the figure of 1.7 million Jews killed at Auschwitz contained in the War
Refugee Board Report, of which Dr. Vrba is a co-author, was too high.
C. Dr. Robert Faurisson
Olaf Timandahaff
2006-12-29 06:28:02 UTC
Permalink
On Thu, 28 Dec 2006 21:37:31 -0800, teslacoils2006 wrote:

[clipt]
Post by teslacoils2006
Make sure if we ever meet remind me what you said here so I can
ignore you when you need help.
Everyone in ott.general needs your help, you can ignore us now.

[~`~]
s***@gmail.com
2006-12-29 11:23:59 UTC
Permalink
Christmas is a time where people of all faiths come together to worship
Jesus Christ.
Post by teslacoils2006
We face world War 3 because people like you have not the stomach to
talk about the issues. Instead the Bnaibrith shuts down genuine
religions and the Jesuits help the Catholic church become a one world
religion. Nobody has time to dance around the truth because your
Catholic or jewish or both.
I am not racist the Jewish people are not responsible for a few
Jewish freemason. Just like the catholic people are not responsible
for the head of their church. They still should disown the
leadership!!!
www.arcticbeacon.com
Make sure if we ever meet remind me what you said here so I can
ignore you when you need help.
Post by Rab
I have issues with Freemasonry as well, but your posts certainly don't do
anything other than give these folks more credibility.
Just search freemason in Canadian courts ...very interesting
http://www.canlii.org/bc/cas/bcpc/2006/2006bcpc210.html
just search freemason, freemasonry
Court of Appeal for Ontario
R. v. Zundel
Date: 19870123
BY THE COURT:-The appellant Ernst Zundel was charged with the
commission of two offences contrary to s. 177 of the Criminal Code,
1. ERNST ZUNDEL stands charged that he, during the year 1981, at the
Munic­ipality of Metropolitan Toronto in the Judicial District of
York, did publish a statement or tale that he knows is false, namely
the article "The West, War, and Islam", and the said article is likely
to cause mischief to the public interest in social and racial
tolerance, contrary to the Criminal Code.
2. ERNST ZUNDEL stands further charged that he, in or about the year
1981, at the Municipality of Metropolitan Toronto in the Judicial
District of York, did publish a statement or tale, namely "Did Six
Million Really Die?" that he knows is false and that is likely to cause
mischief to the public interest in social and racial tolerance,
contrary to the Criminal Code.
After a seven-and-one-half week trial before the Honourable Judge Locke
and a general sessions jury, the appellant was acquitted on count 1 but
convicted on count 2. On March 25, 1985, he was sentenced to 15 months'
imprisonment together with three years' probation. It was a term of the
probation order that he would not publish, directly or indirectly,
anything on the subject of the Holocaust or any subject related to the
Holocaust. The appellant is appealing both conviction and sentence.
Although, as will be seen from our reasons, we are of the opinion that
the Honourable Judge Locke committed some errors during the course of
the trial and in his charge to the jury, we believe fairness requires
that we should acknowledge at the outset that this was a difficult and
complex trial. There was little case-law to guide the learned judge in
the interpretation and appli­cation of s. 177. In addition, he was
required almost daily to make rulings on difficult and involved
questions of law. For instance, the trial began with a challenge by
counsel for the accused to the validity of s. 177 on the ground that it
was inconsistent with s. 2(b) of the Canadian Charter of Rights and
Freedoms. This was followed immediately by an application by counsel
for the accused to have certain questions put by the trial judge to the
jury panel at large and to permit counsel to challenge prospective
jurors for cause by asking them a list of questions which he had
prepared. In all instances, the trial judge made his rulings promptly,
giving full and detailed reasons. While we do not always agree with his
rulings, the way in which he made them has greatly assisted us in the
determination of this appeal.
Since Crown counsel attached some significance to the appel­lant's
acquittal on count 1 of the indictment, we believe that before turning
to count 2, we should say a few words about the pamphlet that formed
the subject-matter of the first count. In 1981, the appellant wrote and
distributed a rambling, diffuse, four-page pamphlet entitled, "The
West, War and Islam!". In essence, the pamphlet alleged that a
conspiracy existed among International Zionists, International Secret
Societies (particularly Freemasonry), International Bankers, and
International Commu­nists to use their control of Western media "to
misinform, to miseducate and to instill hatred against the Islamic
peoples". The pamphlet appealed to the Islamic nations to rectify the
situation by assisting in the creation "of an independent, worldwide
inform­ation network capable of countering the now unopposed Zionist
disinformation and hate propaganda". It ended with an indirect appeal
to the Islamic world to contribute money to the appellant and his
organization so that they could commence a public inform­ation
campaign immediately. The appellant mailed the pamphlet to people
outside Canada from Morocco to Pakistan. It was not distributed in
Canada.
Count 2 of the indictment on which the appellant was convicted related
to the publication by the appellant of a 32-page pamphlet entitled,
"Did Six Million Really Die? Truth At Last Exposed:". The appellant
gave evidence at his trial. The following is a brief outline of the
background facts as related by him which led up to the publication of
the pamphlet.
The appellant was born in 1939 in the Black Forest region of Germany.
His father was a soldier in the German army in World War II, and except
for sporadic visits, was away from home until 1948. The appellant
related in detail the hardships that he experi­enced as a boy during
and after the war in Germany.
After finishing school in Germany, the appellant in 1958 decided to
immigrate to Canada. He chose Canada because it had a volunteer army
and the appellant did not wish to be drafted. On arrival in Canada, he
obtained employment as a graphic artist. He swore that up until 1960,
he firmly believed that the Germans had killed six million Jews during
World War II.
In 1959 the appellant married a French-Canadian girl. There were two
children of the marriage: Pierre, born in 1960, and Hans, born in 1967.
Shortly after the birth of Pierre, he and his wife moved to Montreal
where the appellant started his own business. He lived in Montreal for
nine years. He testified that he had a thriving business in Montreal,
and the business did so well that he was able to take off several
months each year and travel. In the course of his travels, he went all
over Europe, Canada and the United States making investigations
concerning German conduct during the Second World War. Gradually he
became more and more interested in the story that six million Jews had
been killed by the Germans during the war. By 1977, he said that his
interest in the subject had become "overwhelming",
The appellant outlined for the jury the elaborate and detailed
investigations he made into the truth of the allegation that six
million Jews were killed by the Germans during World War II, commencing
with his discussions in the 1960s in West Germany with Joseph Ginsburg,
the author of a German book called Schuld and Schicksal. As a result of
his investigations, the appellant said that he intended to write a book
to set the record straight. He gave the following testimony concerning
I had been involved in a study of this topic for a long time, and I had
planned to write something on this topic, but always held back because
it's such a distasteful subject to me. And I just couldn't get myself
to write it, and then I heard of a booklet in Europe called, "Did Six
Million Really Die?" out of England. I wrote to the publisher, got a
copy of the booklet in English. Then I received one in French, in
Dutch, in Flemish. There were later editions in Swedish, in Finnish, in
German I already said. I think there is one in Hungarian, and one in
Rumanian. I saw at that time before I ever thought of publishing it
four or five different languages of this booklet, so I naturally read
through this booklet and I thought that it was in a nice condensed form
virtually what I had intended to write myself, because I thought
something like that should be written. Most of the revisionist
literature of the day, like Rassinier, fairly thick tomes, and I have
learned one thing being in the graphic arts, that people like to read
less and less, especially serious stuff. So I felt this was a good
vehicle, of the best that I had seen. And Dr. App with whom I was at
that time working and had been selling some of his publica­tions, "The
Six Million Swindle", for instance, and another booklet called, "A
Straight Look at the Third Reich", and Christopherson's booklet, "The
Auschwitz Lie", I thought that the Harwood booklet was superior to all
the three or four which I was selling at the time.
In the beginning, the appellant imported the pamphlet from England and
distributed it in Canada; however, this did not prove satisfactory as
the English publisher did not package it properly. He then obtained an
American source for the pamphlet and made arrangements for the printing
of a Canadian edition. He added to the title the words, "Truth At Last
Exposed", and he wrote a foreword and a postscript. The publisher would
not, however, permit him to make any change in the format or in the
contents of the pamphlet.
Although the appellant's evidence as to when he published the pamphlet
is rather vague, and although the indictment states that it was "in or
about the year 1981", counsel for the appellant at the commencement of
the trial admitted, in response to a request from Crown counsel to
avoid the calling of a witness, that "Mr. Zundel published the article
and wrote a foreword and postscript to that article and distributed it
in Canada in 1983". The trial proceeded on this basis.
The appellant testified that he sold some copies of the pamphlet. He
said that he also sent copies free of charge to every member of
Parliament, to every Catholic priest in Ontario and Quebec, to every
Protestant minister in Ontario, to all radio stations, television
stations and newspaper editors in Ontario, and to every high school
history teacher in Ontario.
The pamphlet purports to be written by one Richard Harwood. At the end
RICHARD HARWOOD is a writer and specialist in political and diplomatic
aspects of the Second World War. At present he is with the University
of London. Mr. Harwood turned to the vexed subject of war crimes under
the influence of Professor Paul Rassinier, to whose monumental work
this little volume is greatly indebted. The author is now working on a
sequel in this series on the Main Nuremberg Trial, 1945-46.
Zundel testified that he discovered in 1982 or 1983 that Richard
Harwood was a pseudonym and that the author's real name was Richard
Verrai. Zundel said that, according to his information, Verrai was a
graduate student of one of London's universities in history. Zundel
tried to get Verrai to give evidence at the trial, but Verral refused
as he had married a Jewish girl and had given up political work.
In addition to printed material, the pamphlet contains some photographs
and a map showing the location of German concen­tration camps during
World War II. The general theme of the pamphlet is summed up in the
In the following chapters the author has, he believes, brought together
irrefutable evidence that the allegation that 6 million Jews died
during the Second World War, as a direct result of official German
policy of extermina­tion, is utterly unfounded. This conclusion,
admittedly an unpopular one, resulted from an inquiry which was begun
with no pre-conceived opinions, beyond a general notion that the
statistical possibility of such huge casualties was perhaps open to
doubt, as well as an awareness that political capital was being made
from the implications of this alleged atrocity. A great deal of careful
research into this question, however, has now convinced me beyond any
doubt that the allegation is not merely an exaggeration but an
invention of post-war propaganda.
.....
So far as the Jewish people themsleves [sic] are concerned, the
deception has been an incalculable benefit. Every conceivable race and
nationality had its share of suffering in the Second World War, but
none has so successfully elaborated it and turned it to such great
advantage. The alleged extent of their persecution quickly advised
sympathy for the Jewish national homeland they had sought for so long;
after the War the British Government did little to prevent Jewish
emigration to Palestine which they had declared illegal, and it was not
long afterwards that the Zionists wrested from the Government the land
of Palestine and created their haven from persecution, the State of
Israel. Indeed, it is a remarkable fact that the Jewish people emerged
from the Second World War as nothing less than a triumphant minority.
Dr. Max Nussbaum, the former chief rabbi of the Jewish community in
Berlin, stated on April 11, 1953: "The position the Jewish people
occupy today in the world - despite the enormous losses - is ten
times stonger [sic] than what it was twenty years ago." It should be
added, if one is to be honest, that this strength has been much
consolidated financially by the supposed massacre of the Six Million,
undoubtedly the most profitable atrocity allegation of all time. To
date, the staggering figure of six thousand million pounds has been
paid out in compensation by the Federal Government of West Germany,
mostly to the State of Israel (which did not even exist during the
Second World War), as well as to individual Jewish claimants.
The pamphlet proceeds to discuss these issues under the following
German Policy Towards the Jews Prior to the War
German Policy Towards the Jews After the Outbreak of War Population and
Emigration
The Six Million: Documentary Evidence
The Nuremberg Trials
Auschwitz and Polish Jewry
Some Concentration Camp Memoirs
The Nature & Condition of War-time Concentration Camps
The Jews and the Concentration Camps: A Factual Appraisal By the Red
Cross
The Truth At Last: The Work of Paul Rassinier
Under the subheading, "Enormous Fraud", the author of the pamphlet
quotes the following passage from Professor Paul Rassi­nier's book, Le
Perhaps I may be allowed to recall here that the State of Israel was
only founded in May 1948 and that the Jews were nationals of all states
with the exception of Israel, in order to underline the dimensions of a
fraud which defies description in any language; on the one hand Germany
pays to Israel sums which are calculated on six million dead, and on
the other, since at least four-fifths of these six million were
decidedly alive at the end of the war, she is paying substantial sums
by way of reparation to the victims of Hitler's Germany to those who
are still alive in countries all over the world other than Israel and
to the rightful claimants of those who have since deceased, which means
that for the former (I. e. the six million), or in other words, for the
vast majority, she is paying twice.
how many of the 3 million European Jews under German control survived
after 1945? The Jewish Joint Distribution Committee estimated the
number of survivors in Europe to be only one and a half million, but
such a figure is now totally unacceptable. This is proved by the
growing number of Jews claiming compensation from the West German
Government for having allegedly suffered between 1939 and 1945. By
1965, the number of these claimants registered with the West German
Government had tripled in ten years and reached 3,375,000 (Aufbau, June
30th, 1965). Nothing could be a more devas­tating proof of the brazen
fantasy of the Six Million. Most of these claimants are Jews, so there
can be no doubt that the majority of the 3 million Jews who experienced
the Nazi occupation of Europe are, in fact, very much alive. It is a
resounding confirmation of the fact that Jewish casualties during the
Second World War can only be estimated at a figure in thousands. Surely
this is enough grief for the Jewish people? Who has the right to
compound it with vast imaginary slaughter, marking with eternal shame a
great European nation, as well as wringing fraudulent monetary
compensation from them?
Zundel conceded that there were some errors in the pamphlet. For
example, the pamphlet states that Meyer Levin wrote the dialogue of The
Diary of Anne Frank. Zundel admitted that this was not correct. Levin
only wrote a stage adaption of The Diary. Otto Frank, the father of
Anne Frank, was dissatisfied with Levin's work and employed someone
else to do it. Zundel acknowl­edged that there were also some sloppy
errors in the Red Cross report. Zundel swore that he was not aware of
the errors until after he had published the pamphlet. However, he said
that 99% of the pamphlet was accurate, and he stood behind it.
The witnesses called by the Crown were principally directed to the
issue of whether or not six million Jews had died during the Second
World War as a direct result of official German policy of
extermination. A number of witnesses were called who had been
incarcerated in German concentration camps, such as Birkenau,
Auschwitz, and Maidenek; they testified about what they had seen and
what their experiences had been in the camps. The Crown also called Dr.
Raul Hilberg as an expert witness to testify on the subject of the
systematic destruction of Jews by the Germans during World War II. We
will be dealing with Dr. Hilberg's evidence in greater detail later in
these reasons. No direct evidence appears to have been called by the
Crown as to the appellant's knowledge that the statements in the
pamphlets were false.
The appellant's defence at the trial was that he had an honest belief
in the truth of what was written in the pamphlet. He produced a large
number of articles, letters and books which he had read prior to the
publication of the pamphlet and which he claimed accorded with what was
contained in the pamphlet. In addition, the defence called a number of
witnesses, some of whom were qualified to a limited extent as experts,
to prove the truth of the contents of the pamphlet. The appellant swore
that he had read material written by some of these witnesses in
arriving at his belief that the contents of the pamphlet were true.
Finally, the defence called a number of character witnesses to testify
to the good reputation of the appellant in the community.
Although counsel for the appellant advanced a number of grounds of
error, we believe that the following are the only ones that warrant
I Constitutional validity of s. 177 of the Criminal Code
The first ground of appeal raised by the appellant is that s. 177 of
the Criminal Code, which provides for the offence of "spreading false
news", is unconstitutional because it infringes the fundamental
"freedom of expression" guaranteed by the Canadian Charter of Rights
.....
(b) freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication;
A. History of s. 177
Before turning to consider the Charter, it is necessary to examine the
history of the offence of "spreading false news", and the essential
nature of the offence created by s. 177. The present s. 177 reads as
177. 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 is liable
to imprisonment for two years.
The offence of "spreading false news" had a very ancient origin in the
statutes concerning scandalum magnatum, the earliest of which is a
provision of the first Statute of Westminster, 1275, 3 Edw. I, c. 34,
Forasmuch as there have been oftentimes found in the Country Devisors
of Tales, whereby Discord, or Occasion of Discord, hath many times
arisen between the King and his People, or great Men of the Realm; For
the Damage that hath and may thereof ensue, it is commanded, That from
hence­forth, none be so hardy to tell or publish any false News or
Tales, whereby Discord or Occasion of Discord or Slander may grow
between the King and his People, or the great Men of the Realm; and he
that doth so, shall be taken and kept in Prison, until he hath brought
him into the Court, which was the first Author of the Tale.
This and subsequent amending statutes were primarily designed to
protect the peers and other great men against slanderous lies which
might imperil or cause mischief to the public if the perpe­trator were
not punished. Bishop in his text on Criminal Law, 5th ed. (1872), vol.
1, para. 473, states that the statute of Edward I provided a means
whereby the perpetrator could be brought to justice for an offence well
understood by the common law. There is authority that quite apart from
these statutes the common law recognized the publication of false news
to the public detriment as an offence: see Scott, "Publishing False
News", 30 Can. Bar Rev. 37 at p. 40 (1952).
The statute of 3 Edw. I, and the other amending statutes were finally
repealed in 1888. Prior to this time, Stephen had embodied in his
Digest of the Criminal Law, 1st ed. (1877), p. 57, art. 95, which
Spreading False News
Every one commits a misdemeanor who cites or publishes any false news
or tales whereby discord or occasion of discord or slander may grow
between the Queen and her people or the great men of the realm (or
which may produce other mischiefs)
The words in brackets at the end of this article are significant in
view of the words "injury or mischief to any public interest" in the
present s. 177 of the Code.
As the late Professor Scott pointed out in his learned article,
... the Canadian Criminal Code was based on Stephen's Digest and on the
Draft Code he prepared for the British Parliament in 1879. Burbridge,
the draftsman of the Canadian Code of 1892, himself published a Digest
of the Criminal Law of Canada in 1890, founded on Stephen's, and in
article 125 repeats the latter's article 95 verbatim, including the
comment that "The definition is very vague and the doctrine exceedingly
doubtful". Through Burbridge the doctrine, despite its vagueness,
entered our Code, the element of "false news or tales" remaining from
scandalum magnatum and the notion of "discord and slander between the
Queen and her people or the great men of the realm" being generalized
into "injury or mischief" to "any public interest".
Seditious Offences", which was under "Title II: Offences Against Public
126. Every one is guilty of an indictable offence and liable to one
year's imprisonment who wilfully and knowingly publishes any false news
or tale whereby injury or mischief is or is likely to be occasioned to
any public interest.
In the statutory revisions of 1906 (R.S.C. 1906, c. 146) and of 1927
(R.S.C. 1927, c. 36), the provision appeared as s. 136 under the same
general heading and subheading. In the revision of the Criminal Code in
1953-54 (Can.), c. 51, the word "statement" was inserted before the
words "tale or news" and the section was designated as s. 166 and was
reworded as the present wording of s. 177. However, s. 166 appeared in
"Part IV: Sexual Offences, Public Morals and Disorderly Conduct" under
the subheading "Nuisances". The reclassification of the offence from
the category of seditious offences to the category of nuisances may be
of signifi­cance in viewing it as an offence with less serious
potential consequences. In the 1970 revision (R.S.C. 1970, c. C-34),
the provision was renumbered as s. 177 under the same heading and
subheading but there was no change in wording.
(a) wilful publication, and
(b) the publication must be of a statement, tale or news.
(It is not necessary in this appeal to go into the precise difference
in meaning between a statement, tale and news. Counsel for the
respondent conceded that an assertion of fact must be proved which is
capable of being false. The assertion of an opinion is not sufficient.)
(c) The assertion of fact must be false to the knowledge of the person
who publishes it;
(d) it does not have to be proved that the false assertion of fact
actually caused injury or mischief to a public interest. It is
sufficient if it is proved that it was likely to cause such injury or
mischief.
In this appeal the charge specifies that the public interest in
question is the public interest in racial and social tolerance.
There are extremely few reported decisions on s. 177. In R. y. Hoaglin
(1907), 12 C.C.C. 226, the accused published a placard in connection
with a closing-out sale stating he had decided to leave Canada and that
settlers from the United States were not wanted in Canada. This was
done at a time when great efforts were being made to induce settlers
from the United States to come to Canada. He was convicted under a
predecessor of s. 177, the court holding that the publication was
contrary to the public interest.
In R. v. Kirby (1970), 1 C.C.C. (2d) 286, 13 Crim. L.Q. 128, an
underground newspaper published an edition in Montreal parodying the
Gazette and containing a false story that the mayor had been "shot by
[a] dope-crazed hippie". The Quebec Court of Appeal set aside the
conviction of the appellant. It considered that while the night city
editor of the Gazette might have been incon­venienced by the 50 or so
calls received at the Gazette switchboard, there was no injury or
mischief to a public interest. It was not "reasonably sure to cause
trouble and insecurity" (p. 289),
B. Procedure in determining constitutionality of s. 177
With this background it is now necessary to consider whether s. 177 is
unconstitutional because it infringes s. 2(b) of the Charter, the
fundamental freedom of expression. In considering the
consti­tutionality of impugned legislation under the Charter, both the
purpose and the effect of the legislation are relevant. No
funda­mental freedoms are more basic to our democratic way of life,
and more highly prized than the freedoms guaranteed under s. 2(b) of
the Charter. It is the freedom of "expression" with which we are
primarily concerned in this appeal. There is a twofold aspect to this
(a) Is the fundamental freedom of expression an absolute freedom, or is
it a qualified freedom which must give way to certain restrictions in
the interest of society as a whole? If it is a qualified freedom, then
the exact limits of that freedom must be determined.
(b) Once the limits of the freedom of expression have been
deter­mined, then a decision can be made whether those limits have
been breached. If so, then s. 1 of the Charter comes into operation in
order to decide whether the limitations imposed on the freedom are a
reasonable limit which is demonstrably justified in a free and
democratic society.
C. Limits of freedom of expression
It is essential at the outset to consider just exactly what is the
"freedom of expression" which is constitutionally protected. The words
are extremely broad. They are not like rights proscribed under some
other sections of the Charter such as ss. 10, 11(f) and (i). There the
limits of the rights protected are much clearer, and a breach is more
readily apparent and, if a breach has occurred, can be tested under s.
1 of the Charter.
Freedom of expression must necessarily have regard to the corresponding
rights and freedoms of other persons. It contem­plates the existence
of a social order in which other persons must not be denied similar
rights. A simplistic example, which is often given, is that a person is
not at liberty to shout "fire!" in a crowded theatre.
As Dickson C.J.C. stated when delivering the judgment of the Supreme
Court of Canada in R. v. Big M Drug Mart Ltd. 1985 CanLII 69 (S.C.C.),
(1985), 18 C.C.C. (3d) 385 at p. 418, 18 D.L.R. (4th) 321 at p. 354,
Freedom means that, subject to such limitations as are necessary to
protect public safety, order, health, or morals or the fundamental
rights and freedoms of others, no one is to be forced to act in a way
contrary to his beliefs or his conscience.
(Emphasis added.) (See also his dicta to the same effect at p. 425
C.C.C., p. 361 D.L.R.) In that case Chief Justice Dickson was, of
course, addressing his remarks to the limits of the fundamental freedom
of religion under s. 2(a) of the Charter but his remarks are, in our
opinion, apposite for "freedom of expression".
In this appeal it is not necessary to give an all-embracing definition
of "freedom of expression", but merely to decide whether "spreading
false news" within s. 177 of the Code is encompassed within that
fundamental freedom.
When considering the interpretation of the Charter, it is important to
bear in mind the admonition of Chief Justice Dickson in Hunter et al.
v. Southam Inc. 1984 CanLII 33 (S.C.C.), (1984), 14 C.C.C. (3d) 97 at
p. 106, 11 D.L.R. (4th) 641 at p. 650, 2 C.P.R. (3d) 1 at p. 10, [1984]
2 S.C.R. 145 at p. 156, that the proper approach to the definition of
"Its purpose is to guarantee and to protect, within the limits of
reason, the enjoyment of the rights and freedoms it enshrines."
In R. v. Big M Drug Mart Ltd., supra, at pp. 423-4 C.C.C., pp. 359-60
The meaning of a right or freedom guaranteed by the Charter was to be
ascertained by an analysis of the purpose of such a guarantee; it was
to be understood, in other words, in the light of the interests it was
meant to protect.
In my view, this analysis is to be undertaken, and the purpose of the
right or freedom in question is to be sought by reference to the
character and the larger objects of the Charter itself, to the language
chosen to articulate the specific right or freedom, to the historical
origins of the concepts enshrined, and where applicable, to the meaning
and purpose of the other specific rights and freedoms with which it is
associated within the text of the Charter. The interpretation should
be, as the judgment in Southam emphasizes, a generous rather than a
legalistic one, aimed at fulfilling the purpose of the guarantee and
securing for individuals the full benefit of the Charter's protection.
At the same time it is important not to overshoot the actual purpose of
the right or freedom in question, but to recall that the Charter was
not enacted in a vacuum, and must therefore, as this Court's decision
in Law Society of Upper Canada v. Skapinker 1984 CanLII 3 (S.C.C.),
(1984), 11 C.C.C. (3d) 481, 9 D.L.R. (4th) 161, [1984] 1 S.C.R. 357,
illustrates, be placed in its proper linguistic, philosophic and
historical contexts.
Differing reasons have been expressed as to why freedom of expression
should be guaranteed. Some have based it on the theory that the best
way to obtain truth is through the free exchange of ideas. Others have
based it on the theory that free expression of opinion is essential to
the working of a parlia­mentary democracy. A third rationale is that
it furthers self-fulfilment, what Professor Tribe in his American
Constitutional Law (1978), at p. 578, refers to as "the evolution,
definition and proclamation of individual and group identity".
The Supreme Court of Canada appears to have adopted the rationale that
freedom of expression is essential to the working of a parliamentary
democracy.
The historical roots of "freedom of expression" were carefully examined
by McIntyre J. in giving the reasons of the majority of the Supreme
Court of Canada in Retail, Wholesale & Department Store Union, Local
580 et al. v. Dolphin Delivery Ltd. et al., December 18, 1986
(unreported [since reported 1986 CanLII 5 (S.C.C.), [1987] 1 W.W.R.
577]). There the court had to consider whether secondary picketing of a
third party not involved in a labour dispute by members of a trade
union infringed the freedom of expression secured under s. 2(b) of the
Charter. McIntyre J., for a unanimous court on this point, considered
that freedom of expression was not created by the Charter but had been
recognized since early times. He cited in support the works of John
Milton and John Stuart Mill. He was of the opinion that freedom of
expression lay at the roots of parliamentary democracy. At p. 9 [p. 585
It is one of the fundamental concepts that has formed the basis for the
historical development of the political, social and educational
institutions of western society. Representative democracy, as we know
it today, which is in great part the product of free expression and
discussion of varying ideas, depends upon its maintenance and
protection.
He cited in support dicta of Holmes J. in Abrams v. United States
(1919), 250 U.S. 616 at p. 630; of Rand J. in Boucher v. The King, 1950
CanLII 2 (S.C.C.), [1950] 1 D.L.R. 657 at p. 682, [1951] S.C.R. 265 at
p. 288; and Rand J. and Abbott J. respectively in Switzman v. Ealing
and A.-G. Que. 1957 CanLII 2 (S.C.C.), (1957), 117 C.C.C. 129 at pp.
151 and 164, 7 D.L.R. (2d) 337 at pp. 357 and 369, [1957] S.C.R. 285 at
pp. 306 and 326. There Abbott J. had referred to the dicta of Duff
C.J.C. in Re Alberta Legislation, 1938 CanLII 1 (S.C.C.), [1938] 2
D.L.R. 81 at pp. 106-7, [1938] S.C.R. 100 sub nom. Reference re Alberta
Statutes, at pp. 132-3, as strongly supporting what could almost be
described as a constitu­tional position for the concept of freedom of
speech and expression in Canadian law, and then said at p. 166 C.C.C.,
p. 371 D.L.R., p. 328 S.C.R.: "... I am also of opinion that as our
constitutional Act now stands, Parliament itself could not abrogate
this right of discussion and debate".
McIntyre J. concluded that any question as to the constitutional status
of "freedom of expression" had been settled by the decla­ration in s.
2(b) of the Charter that it was now a fundamental freedom.
Historically, freedom of expression has not been an absolute freedom
which gives an unrestricted right of speech or expression. In Re
Alberta Legislation, supra, Sir Lyman P. Duff C.J.C. considered the
constitutionality of a bill of the Alberta Legisla­ture, "to Ensure
the Publication of Accurate News and Information". He stated at p. 107
The right of public discussion is, of course, subject to legal
restrictions; those based upon considerations of decency and public
order, and others conceived for the protection of various private and
public interests with which, for example, the laws of defamation and
sedition are concerned. In a word, freedom of discussion means, to
quote the words of Lord Wright in James v. Commonwealth of Australia,
[1936] A.C. at p. 627, "freedom governed by law."
In Boucher v. The King, Rinfret C.J.C., when considering an appeal from
a conviction for seditious libel stated in a dissenting opinion at p.
... to interpret freedom as license is a dangerous fallacy. Obviously
pure criti­cism, or expression of opinion, however severe or extreme,
is, I might almost say, to be invited. But, as was said elsewhere,
"there must be a point where restriction on individual freedom of
expression is justified and required on the grounds of reason, or on
the ground of the democratic process and the neces­sities of the
present situation".
In Switzman v. Elbling, Rand J. recognized that freedom of expression
was limited and not absolute when he stated at p. 150 C.C.C., p. 356
For the past century and a half in both the United Kingdom and Canada,
there has been a steady removal of restraints on this freedom, stopping
only at perimeters where the foundation of the freedom itself is
threatened. Apart from sedition, obscene writings and criminal libels,
the public law leaves the literary, discursive and polemic use of
language, in the broadest sense, free.
The Canadian Bill of Rights, R. S.C. 1970, App. III, recognizes in s.
1(d) that freedom of speech has existed and shall continue to exist.
The preamble acknowledges the supremacy of God, and the dignity and
worth of the human person, and asserts that freedom can only be founded
upon respect for moral and spiritual values and the rule of law. This
would in turn confirm that freedom of expression which is guaranteed
under the Charter is not absolute.
More recently in Re Fraser and Public Service Staff Relations Board
1985 CanLII 14 (S.C.C.), (1985), 23 D.L.R. (4th) 122, [1985] 2 S.C.R.
455, 19 C.R.R. 152, in considering the extent to which a public servant
could openly criticize government policy, Dickson C.J.C. stated at p.
First, our democratic system is deeply rooted in, and thrives on, free
and robust public discussion of public issues. As a general rule, all
members of society should be permitted, indeed encouraged, to
participate in that discus­sion.
.....
On the other side, however, it is equally obvious that free speech or
expression is not an absolute, unqualified value. Other values must be
weighed with it. Sometimes these other values supplement, and build on,
the value of speech. But in other situations there is a collision. When
that happens the value of speech may be cut back if the competing value
is a powerful one. Thus, for example, we have laws dealing with libel
and slander, sedition and blasphemy. We also have laws imposing
restrictions on the press in the interests of, for example, ensuring a
fair trial or protecting the privacy of minors or victims of sexual
assaults.
[Emphasis added.]
When determining the limits of freedom of expression, a distinction
must be drawn at the outset between "rights" and "freedoms". A "right"
is defined positively as what one can do. A "freedom", on the other
hand, is defined by determining first the area which is regulated. The
freedom is then what exists in the unregulated area - a sphere of
activity within which all acts are permissible. It is a residual area
in which all acts are free of specific legal regulation and the
individual is free to choose. The regulated area will include
restrictions for purposes of decency and public order, and specifically
with respect to the freedom of expression, prohibitions concerning
criminal libel and sedition. It is what Rand J. described in Saumur v.
City of Quebec and A.-G. Que. 1953 CanLII 3 (S.C.C.), (1953), 106
C.C.C. 289 at p. 322, [1953] 4 D.L.R. 641 at p. 670, [1953] 2 S.C.R.
299 at p. 329, as "the residue inside the periphery". This is the
approach to rights and freedoms which was taken in the McRuer Report of
the Royal Commission Inquiry into Civil Rights, Report 2, vol. 4, pp.
1493-96 (1969), and was adopted by Bayda C.J.S. in Re Retail, Wholesale
& Department Store Union, Locals 54.4, 496, 635 & 955 et al. and
Government of Saskatchewan et al. 1985 CanLII 184 (SK C.A.), (1985), 19
D.L.R. (4th) 609 at pp. 616-8, [1985] 5 W.W.R. 97 at pp. 105-8, 39
Sask. R. 193. It is also the approach recently adopted by the Court of
Appeal of British Columbia in Re Cromer and British Columbia Teachers'
Federation et al., July 18, 1986 (unreported) at pp. 12-3 [since
reported 29 D.L.R. (4th) 641 at pp. 649-50, [1986] 5 W.W.R. 638, 4 B.
C. L. R. (2d) 273]. In our opinion it is the right approach.
D. Freedom of speech under the American Constitution
In considering the interpretation to be given to "freedom of
expression" in the Charter, it may be of assistance to examine the
corresponding provisions of the American Constitution and consider how
the American courts have dealt with them. At the outset it is
imperative to bear in mind that there are fundamental structural
differences between our Charter and the American Constitution, and
that, most importantly, the latter has no provision which corresponds
to s. 1 of the Canadian Charter.
The relevant provision of the American Constitution is the First
Amendment which provides in part that "Congress shall make no law ...
abridging the freedom of speech, or of the press ...". The rights of
freedom of speech and freedom of the press have also been held to be
fundamental personal rights and liberties which are protected by the
Fourteenth Amendment from invasion by state action: Chaplinsky v. State
of New Hampshire (1942), 315 U. S. 568. It will be noted that the words
"freedom of speech" rather than "freedom of expression" are used in the
American First Amendment. However, American courts have extended the
protection of the First Amendment to expressive conduct as "sym­bolic
speech", for example, the desecration of a flag: see Spence v.
Washington (1974), 418 U.S. 405.
In the Chaplinsky case, Chaplinsky was convicted of violating a New
Hampshire statute prohibiting the addressing of any offen­sive,
derisive or annoying word to any other person who is lawfully in any
street or other public place, or calling him by any offensive or
derisive name. The Supreme Court of the United States in upholding the
state legislation made it clear that the right of free speech was not
absolute and that the punishment of obscene, profane and libellous
utterances or insulting or fighting words did not raise a
constitutional problem. The interest of society in order and morality
outweighed any slight social value which such speech might have. As
Allowing the broadest scope to the language and purpose of the
Fourteenth Amendment, it is well understood that the right of free
speech is not absolute at all times and under all circumstances. There
are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which has never been thought to raise any
Constitutional problems. These include the lewd and obscene, the
profane, the libelous, and the insulting or "fighting" words - those
which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. It has been well observed that such
utterances are no essential part of any exposition of ideas, and are of
such slight social value as a step to truth that any benefit that may
be derived from them is clearly outweighed by the social interest in
order and morality. "Resort to epithets or personal abuse is not in any
proper sense communication of information or opinion safeguarded by the
Constitution, and its punishment as a criminal act would raise no
question under that instrument." Cantwell y. Connecticut, 310 U.S. 296,
309, 310, 60 S. Ct. 900, 906, 84 L.Ed. 1213, 128 A.L.R. 1352.
Despite the broad language of the First Amendment, it has been held
that neither criminal libel nor obscenity is protected by it. In
Beauharnais v. People of State of Illinois (1952), 343 U.S. 250, 72 S.
Ct. 725, the accused was convicted under an Illinois criminal libel
statute for distributing a leaflet which attacked the Negro race. In
this case a group libel was involved rather than uttering offensive
words to an individual face-to-face as in Chaplinsky, supra. The
majority of the Supreme Court of the United States, in an opinion
delivered by Frankfurter J., relied on its earlier decision in
Chaplinsky and held that libellous utter­ances were not
... it is unnecessary, either for us or for the State courts, to
consider the issues behind the phrase "clear and present danger".
Certainly no one would contend that obscene speech, for example, may be
punished only upon a showing of such circumstances. Libel, as we have
seen, is in the same class.
Justices Jackson, Douglas, Reed and Black dissented. Justice Douglas
My view is that if in any case other public interests are to override
the plain command of the First Amendment, the peril of speech must be
clear and present, leaving no room for argument, raising no doubts as
to the necessity of curbing speech in order to prevent disaster.
Justice Jackson would have applied the "clear and present danger" test.
Punishment of printed words, based on their tendency either to cause
breach of the peace or injury to persons or groups, in my opinion, is
justifiable only if the prosecution survives the "clear and present
danger" test. It is the most just and workable standard yet evolved for
determining criminality of words whose injurious or inciting tendencies
are not demonstrated by the event but are ascribed to them on the basis
of probabilities.
Group libel statutes represent a commendable desire to reduce sinister
abuses of our freedoms of expression - abuses which I have had
occasion to learn can tear apart a society, brutalize its dominant
elements, and persecute, even to extermination, its minorities ...
...our guiding spirit should be that each freedom is balanced with a
responsi­bility, and every power of the State must be checked with
safeguards. Such is the spirit of our American law of criminal libel,
which concedes the power to the State, but only as a power restrained
by recognition of individual rights.
The leading cases that obscenity is not within the areas of
constitutionally protected speech or press are Roth v. United States
(1957), 354 U.S. 476, and Alberts v. State of California. In Roth the
primary constitutional question was whether the federal obscenity
statute in issue violated the First Amendment, whereas in Alberts the
primary constitutional question was whether the obscenity provisions of
the California Penal Code invaded the freedoms of speech and press as
they may be incorporated into the liberty protected from state action
by the due process clause of the Fourteenth Amendment.
Justice Brennan in delivering the opinion of the majority of the court
noted that while the law of obscenity was not so fully developed as the
law of libel, there was sufficient contemporary evidence to show that
obscenity, too, was outside the protection intended for speech and
press. From the history of the First Amendment, its unconditional
phrasing and the early existence of laws as to criminal libel,
blasphemy, profanity and obscenity, he concluded that the First
Amendment was not intended to protect every utterance. At pp. 484-5 he
All ideas having even the slightest redeeming social importance -
unorthodox ideas, controversial ideas, even ideas hateful to the
prevailing climate of opinion - have the full protection of the
guaranties, unless excludable because they encroach upon the limited
area of more important interests. But implicit in the history of the
First Amendment is the rejection of obscenity as utterly without
redeeming social importance. This rejection for that reason is mirrored
in the universal judgment that obscenity should be restrained,
reflected in the international agreement of over 50 nations, in the
obscenity laws of all of the 48 States, and in the 20 obscenity laws
enacted by the Congress from 1842 to 1956. This is the same judgment
expressed by this Court in Chaplinsky v. New Hampshire, 315 U.S. 568,
571-572, 62 S.Ct. 766, 769, 86 L.Ed. 1031... We hold that obscenity is
not within the area of constitutionally protected speech or press.
Justices Douglas and Black dissented and Justice Harlan dissented in
part as to the Roth case only.
The laws of civil and criminal libel in the United States were altered
in meaning and scope after the Beauharnais case with the decisions in
New York Times Co. v. Sullivan (1964), 376 U.S. 254, and Garrison y.
State of Louisiana (1964), 379 U. S. 64. A distinction was drawn
between public officials on the one hand and private individuals on the
other. In the New York Times case, Sullivan, one of the three elected
commissioners of. the City of Montgomery, Alabama, brought a civil
libel action against four individual critics of his official conduct
and the New York Times Company for an advertisement published in the
New York Times. The Supreme Court of the United States held that there
was an absolute immunity for the criticism of the way public officials
do their public duty. Accordingly, the judgment for libel could not be
sustained. The court held that a public official cannot recover unless
it is proven that the libellous statement was made with "actual malice"
- that is, with knowledge that it was false or with reckless
disregard whether it was false or not.
In Garrison v. State of Louisiana, the Supreme Court of the United
States decided that the same rule should apply in the case of a
criminal libel prosecution as in an action for civil libel. In this
case a New Orleans attorney was convicted of issuing a statement
disparaging the judicial conduct of eight judges. He was convicted of
criminal defamation under the Louisiana Criminal Defamation Statute and
his conviction was upheld on appeal. The appellant contended that his
right of expression had been abridged. On a further appeal to the
Supreme Court of the United States, his conviction was reversed. The
Supreme Court applied the same rule as in New York Times Co. v.
Sullivan, supra, that criticism of official conduct of public officials
was constitutionally protected unless it was made with actual malice.
The Louisiana Criminal Libel Statute imposed standards which were
constitutionally invalid as it directed punishment for true statements
which were made with actual malice. It was also unconstitutional
because it punished false statements against public officials if made
with ill will without regard to whether they were made with knowledge
of their falsity or in reckless disregard of whether they are true or
false, or not made in reasonable belief of their truth. Brennan J. in
Moreover, even where the utterance is false, the great principles of
the Constitution which secure freedom of expression in this area
preclude attaching adverse consequences to any except the knowing or
reckless false­hood. Debate on public issues will not be uninhibited
if the speaker must run the risk that it will be proved in court that
he spoke out of hatred; even if he did speak out of hatred, utterances
honestly believed contribute to the free interchange of ideas and the
ascertainment of truth.
Although honest utterance, even if inaccurate, may further the fruitful
exercise of the right of free speech, it does not follow that the lie,
knowingly and deliberately published about a public official, should
enjoy a like immunity ... Calculated falsehood falls into that class of
utterances which "are no essential part of any exposition of ideas, and
are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social
interest in order and morality ...". Chaplinsky v. New Hampshire, 315
U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031. Hence the knowingly
false statement and the false statement made with reckless disregard of
the truth, do not enjoy constitutional protection.
Accordingly, American constitutional cases support the position that
freedom of speech is not an absolute freedom, and that there are
certain well-defined and limited classes of speech such as the obscene
or libellous, or knowingly false statements, which are not
constitutionally protected because any slight social value as a step to
truth that they may entail, is clearly outweighed by the social
interest in order and morality.
E. Does s. 177 of the Code infringe freedom of expression under s. 2(b)
of the Charter
It is not necessary for the purpose of this appeal to define the limits
of the unregulated areas where freedom of expression is supreme. The
pertinent question is whether s. 177 of the Criminal Code properly
forms part of the permissibly regulated area. If it does, then it is
not necessary to consider s. 1 of the Charter. The nub of the offence
in s. 177 is the wilful publication of assertions of a fact or facts
which are false to the knowledge of the person who publishes them, and
which cause or are likely to cause injury or mischief to a public
interest. It is difficult to see how such conduct would fall within any
of the previously expressed rationales for guaranteeing freedom of
expression. Spreading falsehoods knowingly is the antithesis of seeking
truth through the free exchange of ideas. It would appear to have no
social or moral value which would merit constitutional protection. Nor
would it aid the working of parliamentary democracy or further
self-fulfilment. In our opinion an offence falling within the ambit of
s. 177 lies within the permissibly regulated area which is not
constitutionally protected. It does not come within the residue which
comprises freedom of expression guaranteed by s. 2(b) of the Charter.
F. Application of s. 1 of the Charter
If we are in error in concluding that s. 177, which is now classified
in the Criminal Code as a nuisance, properly forms part of the
permissibly regulated area of conduct, then s. 177 would constitute an
infringement of the guaranteed freedom of expression and we would have
to consider whether those limita­tions prescribed by law are
reasonable and demonstrably justified in a free and democratic society
under s. 1 of the Charter. In this connection the onus is on the Crown
as the party claiming that the requirements of s. 1 have been
satisfied.
The two central criteria to be satisfied in the application of s. 1 of
the Charter were laid down by Dickson C.J.C. when delivering the
judgment of the majority of the Supreme Court of Canada in R. v. Oakes
1986 CanLII 46 (S.C.C.), (1986), 24 C.C.C. (3d) 321 at pp. 348-9, 26
D.L.R. (4th) 200 at p. 227, {19861 1 S.C.R. 103. They may be
(1) The objective which the measures responsible for a limit on a
Charter right or freedom are designed to serve, must be of sufficient
importance to warrant overriding a constitutionally protected right or
freedom. The objective must relate to concerns which are pressing and
substantial in a free and democratic society.
(2) The party invoking s. 1 must show that the means chosen to achieve
a permissible objective are reasonable and demonstrably justified. This
involves a form of proportionality test which has three conjunctive
(a) the measures adopted must be carefully designed to achieve the
objective in question. They must be rationally connected to the
objective;
(b) they should impair as little as possible the right or freedom in
question;
(c) there must be a proportionality between the effects of the measures
responsible for limiting the Charter right or freedom, and the
objective identified as of sufficient importance. The more serious the
deleterious effects of a measure, the more important the objective must
be.
The objective of s. 177 is to prohibit the wilful publication of false
statements which the person publishing them knows are false and which
cause, or are likely to cause, injury or mischief to the public
interest. Such an activity is the very opposite of free public
discussion. Stopping such publication by prosecution would seem not
only reasonable but important. Lesser measures would not appear to be
effective. As we have already pointed out, the statutory provision in
England comparable to s. 177 was repealed in 1888. Our attention was
not drawn by counsel to statutory provisions in other democratic
countries in similar terms to s. 177. Section 263 of the Criminal Code
sets forth the offence of publishing a defamatory libel and a higher
penalty is imposed by s. 264 where the person publishing the defamatory
libel knows that it is false. Section 330 of the Criminal Code provides
for the offence of conveying a false message knowing that it is false.
(a) England - Libel Act, 1843 (U. K.), c. 96, ss. 4 and 5.
(b) Victoria - The Wrongs Act 1958 (No. 6420), s. 10, as amended by
the Penalties and Sentences Amendment Act 1983 (No. 9945), s. 3(3).
(c) Western Australia - Criminal Code, 1913, No. 28 (4 Geo. V), s.
360.
(d) Queensland - The Criminal Code Act, 1899 (63 Viet. No. 9), s.
380.
(e) Ireland - Defamation Act, 1961 [No. 40], ss. 11 and 12.
Section 177 would appear to be a reasonable means of achieving the
objective of prohibiting the spread of false news which a person knows
to be false, and which causes or is likely to cause injury or mischief
to a public interest. It impairs freedom of expression as little as is
possible, and any impairment is propor­tionate to the objective to be
achieved. Accordingly, we have concluded that if s. 1 of the Charter is
applicable, s. 177 is a reasonable limit prescribed by law which can be
demonstrably justified in a free and democratic society.
G. Vagueness or overbreadth of s. 177
The final ground of appeal raised with respect to the
constitu­tionality of s. 177 is that it is too vague, or is overly
broad. Vagueness and overbreadth are two concepts. They can be applied
separately, or they may be closely interrelated. The intended effect of
a statute may be perfectly clear and thus not vague, and yet its
application may be overly broad. Alternatively, as an example of the
two concepts being closely interrelated, the wording of a statute may
be so vague that its effect is considered to be overbroad. Vagueness or
overbreadth, for the purpose of determining the permissibly regulated
area of conduct, and whether freedom of expression under s. 2(b) of the
Charter has been breached, may be different from vagueness or
overbreadth for the purpose of applying the criteria in Oakes as to the
appli­cation of s. 1 of the Charter.
This court in R. v. Morgentaler, Smoling and Scott 1985 CanLII 116 (ON
C.A.), (1985), 52 O.R. (2d) 353 at p. 388, 22 C.C.C. (3d) 353 at p.
388, 22 D.L.R. (4th) 641 at p. 676, adopted the principle in Village of
Hoffman Estates et al. y. Flipside, Hoffman Estates Inc. (1982), 455
U.S. 489 at p. 495, that if a person's conduct clearly falls within the
prescription of a statute, then that person cannot complain of the
vagueness of the statute as applied to others. To succeed on the basis
of vagueness, a person would have to show that the statute is vague in
all its applications as, for example, if there were no specified
standard of conduct.
When a freedom protected by the Charter is breached, then in applying
s. 1, the limits placed on that freedom must be reasonable limits
prescribed by law. The limits must be ascer­tainable and
understandable and articulated with some precision. They cannot be
Re Ontario Film & Video Appreciation Society and Ontario Board of
Censors (1983), 41 O.R. (2d) 583 at p. 592, 147 D.L.R. (2d) 58 at p.
68, 34 C.R. (3d) 73; affirmed 45 O.R. (2d) 80n, 5 D.L.R. (4th) 766n, 38
C.R. (3d) 271 (Ont. C.A.).
In Re Luscher and Deputy Minister, Revenue Canada, Customs & Excise
reflex, (1985), 17 D.L.R. (4th) 503, [1985] 1 F.C. 85, 45 C.R. (3d) 81,
the Federal Court of Appeal allowed an appeal from a county court judge
upholding the decision of the Deputy Minister prohibiting the
importation of a book under a tariff item as immoral or indecent. As
Hugessen J. said in delivering the judgment of the court at p. 506
In my opinion, one of the first characteristics of a reasonable limit
prescribed by law is that it should be expressed in terms sufficiently
clear to permit a determination of where and what the limit is. A limit
which is vague, ambiguous, uncertain, or subject to discretionary
determination is, by that fact alone, an unreasonable limit. If a
citizen cannot know with tolerable certainty the extent to which the
exercise of a guaranteed freedom may be restrained, he is likely to be
deterred from conduct which is, in fact, lawful and not prohibited.
Uncertainty and vagueness are constitutional vices when they are used
to restrain constitutionally protected rights and freedoms. While there
can never be absolute certainty, a limitation of a guaranteed right
must be such as to allow a very high degree of predictability to the
legal consequences.
The decision in Luscher would appear to involve a case of overbreadth
rather than vagueness.
In Re Information Retailers Ass'n of Metropolitan Toronto Inc. and
Municipality of Metropolitan Toronto reflex, (1985), 52 O.R. (2d) 449,
22 D.L.R. (4th) 161, 32 M. P. L. R. 49, this court considered a
municipal by-law which required persons selling adult books or
magazines to obtain a licence. Adult books or magazines included those
which appealed to erotic or sexual appetites or inclinations, but also
portrayed or depicted, as a principal feature or character­istic, one
or more specifically defined bodily areas. The court held that the
by-law was overly broad and that the infringement on the fundamental
freedom of expression was disproportionate to the objective of the
enactment which was to discourage or limit the exposure of children to
sexually-oriented pictorial material. At p. 472 O.R., p. 184 D.L.R.,
In the case of this by-law, whether it be seen as overbroad or vague
(and an element of vagueness is intrinsic in overbroad legislation) the
vice is essen­tially the same: it lacks a definition proportionate to
its aim which would give those governed by it and those who administer
it a reasonable opportunity to know what is covered by it, and to act
accordingly.
Bearing in mind the above authorities, the terminology of s. 177 would
not appear to be vague or overly broad. It is conceded that it is
limited to a statement of fact or facts. This statement must be known
by the person publishing it to be false. It is not applicable to a
statement made honestly, negligently, or recklessly. The statement must
cause or be likely to cause injury or mischief. Causation or the
likelihood or probability of causation of injury or mischief are
concepts within the ambit of the criminal law. The only question then
is whether the fact that the injury or mischief must be to a "public
interest" makes the section too broad. There are a great many offences
in which one aspect or another of the public interest is central. The
definition of a crime in the judgment of Rand J. in Reference re
Validity of s. 5(a) of Dairy Industry Act, 1948 CanLII 2 (S.C.C.),
[1949] 1 D.L.R. 433 at pp. 472-3, [1949] S.C.R. 1 at pp. 49-50, is
A crime is an act which the law, with appropriate penal sanctions,
forbids; but as prohibitions are not enacted in a vacuum, we can
properly look for some evil or injurious or undesirable effect upon the
public against which the law is directed. That effect may be in
relation to social, economic or political inter­ests; and the
legislature has had in mind to suppress the evil or to safeguard the
interest threatened.
.....
Is the prohibition then enacted with a view to a public purpose which
can support it as being in relation to criminal law? Public peace,
order, security, health, morality: these are the ordinary though not
exclusive ends served by that law ...
In our opinion, the words "injury or mischief to a public inter­est"
are not vague or overly broad in their context bearing in mind that
they are used in relation to a statement known by the accused to be
false. The maintenance of racial and religious harmony is certainly a
matter of public interest in Canada. The accused and those who
administer the law would have a reasonable opportunity to know what was
covered by s. 177 and to act accordingly. Furthermore, the specific
charge which the accused faced was expressly limited to the public
interest in racial and social toler­ance, so he was left in no doubt
as to the alleged manner in which his conduct was offensive.
H. Conclusion on constitutional validity of s. 177
Accordingly, in our opinion, s. 177 of the Criminal Code is not
unconstitutional as infringing the fundamental freedom of expression in
s. 2(b) of the Charter on the grounds of vagueness or overbreadth.
II The challenge for cause
It is alleged that the trial judge erred by refusing the defence
application to challenge the potential jurors for cause, in view of
prejudicial pretrial publicity generated by the prosecution.
On a motion made by defence counsel following the appellant's
arraignment but before any plea was taken, the presiding judge
conducted a pretrial voir dire. In the course of the voir dire the
appellant was sworn and testified, as the sole witness, regarding the
pretrial publicity concerning him. Section 567(1)(b) of the Criminal
567(1) A prosecutor or an accused is entitled to any number of
challenges on the ground that
.....
(b) a juror is not indifferent between the Queen and the accused ...
On the voir dire the appellant filed many articles published before the
trial in the Globe and Mail which identified the appellant as a
distributor of neo-Nazi, anti-Semitic hate literature. One such article
quoted political personalities describing the appellant as "one of the
world's big purveyors of Nazi propa­ganda" (Globe and Mail, June 15,
1983).
Other articles taken from the Toronto Sun and the Ottawa Citizen were
filed. They described action by the Postmaster-General to suspend the
appellant's mail privileges (later reinstated) and included comments by
the federal Minister of Justice on proposed legislation to curb hate
literature, with particular reference to the appellant.
Other materials filed included two articles reporting picketing by the
appellant and his group of the film "The Boys from Brazil", which is
said to describe the cloning of Hitler; and a number of articles in
different publications referring to large demonstrations by Jewish
groups at the appellant's home in Toronto and referring to the views of
a group known as the Canadian Holocaust Remem­brance Association which
focused on the appellant. The appellant described these materials as
standard Zionist rhetoric.
In addition, the appellant produced media reports of confronta­tions
between the appellant's group and hostile demonstrators at the earlier
court proceedings, and the explosion of a pipe bomb causing
considerable property damage near the appellant's garage in September,
1984. The appellant also produced on the voir dire a tape recording of
a CBC broadcast on the television programme the "National" which he
claims was a distortion of a press conference that he had given. There
was also evidence of a large demonstration of up to 2,000 people
outside of the appellant's home, and of demonstrations at the
court-house on the occasion of earlier appearances, which culminated in
a violent confrontation outside the Metropolitan court-house on the
first morning of the trial.
The evidence presented on the voir dire was meant to support the
appellant's endeavour to establish his right to question the
prospective jurors on their potential prejudice. The appellant's
purpose was to demonstrate that members of identifiable groups
entertained ill will towards him and therefore could not be
dispas­sionate and impartial jurors.
A. The questions
In his reasons for ruling, given orally after the first ruling on the
Charter, the learned trial judge summarized the evidence given by the
apellant on the voir dire and referred to the scenes of physical
violence between the appellant and his followers and members of the
Jewish Defence League. He quoted the questions which counsel for the
1. Can you consider and will your mind allow consideration of the
question of whether there were gas chambers in Germany for the
extermination of Jews? Yes or no.
2. Can you impartially consider the question of gas chambers and the
Holocaust and remove from your mind the massive publicity of it to
decide the case on the evidence put before you in this court and only
on such evidence? Yes or no.
3. Do you believe that the Jews of today are God's chosen people or
especially favoured by God? Yes or no.
4. Do you believe the Holocaust happened as depicted by the media, and
would you be able to remove that idea from your mind and consider the
question solely on the evidence presented in court? Yes or no.
5. Do you have any moral, religious or other beliefs relating to Jews
or the Holocaust such that you would convict or acquit regardless of
the law or evidence? Yes or no.
6. Do you have any moral, religious or other beliefs relating to
Freemasons such that you would convict or acquit regardless of the law
or evidence? Yes or no.
7. Have you, because of religious or moral beliefs, or because of what
you have heard, read or seen in the media, formed any opinion as to the
guilt or innocence of the accused? Yes or no.
8. Despite any beliefs or opinions, would you be able to set aside
those beliefs or opinions and reach a verdict of guilty or not guilty
solely on the evidence and the law you receive in this courtroom? Yes
or no.
9. Do you have any abiding prejudices against German people?
In addition, counsel for the accused had asked the trial judge, in his
opening remarks to the jury panel, to excuse anyone from the jury panel
(1) is a Jewish person or is employed by Jewish persons or is a close
relative of a Jewish person;
(2) is a Freemason or is employed by a Freemason or is a close friend
or relative of a Freemason;
(3) is personally acquainted with the accused in such a way that he
favours or dislikes the accused so much that he would be unable,
through preju­dice, to look impartially upon the accused or judge his
guilt or innocence solely on the evidence in court;
(4) speaks or understands some English, but has difficulty
understanding it fully.
After making reference to the decision of Osler J. in R. v. Crosby
(1979), 49 C.C.C. (2d) 255, the learned trial judge noted that there
had not been any "notorious episode in the community". In that case,
Osler J,, in refusing to permit counsel to challenge for cause on the
It seems to me that, in the absence of any notorious episode in a
community of the type I have mentioned, to permit challenges of this
kind to go forward simply on the ground that man is prejudiced and that
black and white may frequently be prejudiced against each other is to
admit to a weakness in our nation and in our community which I do not
propose to acknowledge.
Should the fact that an accused belongs to a particular, even a highly
visible minority group lead automatically to a searching examination of
prospective jurors on their views there would be few criminal cases
today in which such challenges would not be justified.
The learned trial judge concluded that allowing the proposed questions
would prevent a substantial segment of the community from sitting as
jurors. After quoting excerpts from the leading case in this province
on the subject of challenge for cause, R. v. Hubbert (1975), 11 O. R.
(2d) 464, 29 C.C.C. (2d) 279, 31 C. R. N. S. 27; affirmed 15 O.R. (2d)
324n, 33 C.C.C. (2d) 207n, [1977] 2 S.C.R. 267, the learned trial judge
I conclude with the observation that the evidence I have heard and read
shows that the accused, perhaps through his own deliberate acts, has
attracted much publicity and notoriety upon himself. His positions on
sensi­tive, emotion-provoking subjects certainly achieved that result,
in my view. That alone, however, should not compel the exercise of my
judicial discretion to permit any of these questions to be put. Each
and every proposed question, I find, offends the principles set out in
R. v. Hubbert. There is no evidentiary connection between the attracted
notoriety and the reasonable prospect that any prospective juror,
regardless of his or her racial origin or religious belief, or for any
other reason, would be unable to impartially return a verdict in this
trial based solely and only upon the evidence led thereat.
.....
Mr. Zundel elected trial by jury. No one forced him to elect that mode
of trial. He has an absolute right to be tried by a jury of his peers.
Having so elected, the public notoriety he has attracted to himself
does not, of itself, in the absence of anything further, entitle him to
use any of these questions to challenge his prospective jurors for
cause in order to tailor his own jury to suit him.
Following the dismissal of his application the appellant was arraigned
and pleaded not guilty to the charges. In his opening remarks to the
If there is any prospective juror here who is a member of, or who is
related by blood or marriage to anyone else who is a member of any
group or organi­zation which uses violent confrontation in public
places in support of or in opposition to the ideas of other groups, and
if by the reason of that membership or your relationship you feel that
you would be unable to judge and act as a judge or as a juror who, as a
judge, impartially, and solely and only upon the evidence that you have
heard, then you will please so indicate in the same manner as I have
already indicated.
If there is anything that you have heard, seen or read about this case
that would prevent you from impartially deciding a verdict solely and
only upon the evidence led in this courtroom, then of course you don't
come to the case free of preconceived notions or prejudice, and you
will please so indicate.
Notwithstanding anything I have said, if there is any member of your
number who is a prospective juror whose present views concerning the
guilt or innocence of this accused are so strongly fixed that an
impartial assessment of the evidence heard only in this trial would be
impossible or difficult, if the answer to this question or to any of
the other questions I have posed is yes, if your name is called please
indicate that when you come to the book to be sworn.
It is clear, from the analysis made by this court in R. v. Hubbert,
supra, at pp. 476-7 O.R., pp. 291-2 C.C.C., that where the suggestion
is made that publicity concerning the alleged offence has been
widespread, there may be a danger that the mind of a prospective juror
may be influenced and biased in such a way that he would be unable to
give an impartial verdict.
There is no doubt, and the learned trial judge found as a fact in the
instant case, that there had been considerable pretrial publicity in
the media, generally adverse to the appellant. In our respectful view,
the learned trial judge erred in stressing the absence of a notorious
episode and elevating it as a sine qua non requirement to a successful
application to allow the proposed questions in the challenge for cause.
While a notorious episode would be a factor to be considered in an
application of this kind, we do not think that Osler J. ever intended
it to be an absolute requirement. In the present case, in any event,
the series of well-publicized confrontations continuing up to the time
of trial would, in our view, qualify as notorious episodes.
Similarly, the fact that the appellant's conduct attracted publicity
and notoriety upon himself is not sufficient to automati­cally
disallow certain questions to be put to the jury. The judge's
discretion must be exercised judicially. The real question is whether
the particular publicity and notoriety of the accused could potentially
have the effect of destroying the prospective juror's indifference
between the Crown and the accused. In this context indifference means
"absence of feeling for or against": the Shorter Oxford English
Dictionary, 3rd ed. The equivalent is a now rare expression
"indifferency" meaning "absence of bias, prejudice or favour ..."
(ibid.).
The reference in the judge's ruling to the absence of an eviden­tiary
connection between the publicity and notoriety and the challenge to the
prospective juror's lack of indifference is, with respect, based on a
misconception. It is not for the presiding judge to rule on the
"evidentiary connection" but for the trier selected for that purpose.
In addition, the trial judge's statement that the accused "would not be
allowed to tailor-make his own jury" was incorrect, inasmuch as any
challenge for cause by the defence would have been tried by the triers
selected from the jury panel pursuant to the provisions of s. 569(2) of
the Criminal Code.
Having recognized these errors, it is only fair to point out that
counsel for the appellant, in his recorded submissions and in framing
the questions, was in large part responsible for the adverse ruling. It
is apparent on the record that Crown counsel at trial was prepared to
concede that certain questions could properly be asked of each
prospective juror. In particular, Qq. 7 and 8, if the reference to
"religious or moral belief", or "opinions" had been deleted, would have
been appropriate questions in seeking to determine whether the pretrial
publicity and the accused's notoriety had made it impossible for the
prospective juror to render an impartial verdict. This near-agreement
was referred to by the trial judge in his ruling in the following
As I understand it, Crown counsel and defence counsel may well have
come close to agreement that subject to my order, Qq. 7 and 8 might be
permitted, but they have been totally unable to agree with respect to
the balance of the questions that I have just read.
It appears from his submissions and proposed questions that defence
counsel at trial was attempting to disqualify all Freemasons and Jewish
members of the panel as jurors in the case. The assumption that Jewish
people or Freemasons form part of a homogeneous group with an identity
of interest capable of subverting their impartiality in a criminal case
is unwarranted and formed the basis of proposed Qq. 3, 5 and 6 in the
first group of questions and grounds 1 and 2 in the proposed remarks to
the jury panel. It is contrary to established practice, in this
province, to attempt to challenge jurors for cause on general grounds
such as race, religion, political belief, or opinions: see R. v.
Hubbert, supra, at pp. 475-6 O.R., p. 290 C.C.C.. Similarly, a
challenge on the basis of membership in a minority group is not
permissible in Canada.
Mr. Christie, counsel for the appellant, defended the propriety of
these questions by referring to questions which were approved by the
then Associate Chief Justice of the High Court in the 1984 prosecution
against Dr. Henry Morgentaler and others: R. v. Morgentaler, October
15, 1984 (unreported). We were provided with a certified transcript of
the three main questions which were framed following a long discussion
in chambers and which were asked of each prospective juror in the case.
All three questions inquired of the prospective juror whether he or she
had any religious, moral or other beliefs or opinions relating to
abortion that would interfere with the juror's ability to render a true
verdict. Mr. Christie also relied on the ruling made by Ewaschuk J. in
R. v. Rowbotham et al. (1984), 12 C.C.C. (3d) 189, where prospective
jurors were asked first, by defence counsel, whether they had a strong
dislike for the narcotic marijuana or hashish. As a corollary to this
question the Crown then asked whether they had a strong view in favour
of the legalization or use of marijuana or hashish. In either case, the
jurors were asked whether their views would prevent them from rendering
a true verdict based on the evidence given at trial. The rationale for
A general as opposed to a particular challenge may arise because of
extensive pretrial publicity or, as here, because of strong personal
views held by various members of the public on such controversial
matters as drugs, obscenity or abortion. The goal is to obtain a fair
trial for both sides based only on the evidence at trial and not on
jurors' personal prejudices.
Counsel for the appellant relied on the rulings in Morgentaler and
Rowbotham, made since the Hubbert decision, as supporting his proposed
set of questions on the challenge for cause. In partic­ular, he claims
to have framed his questions by reference to the questions allowed by
Parker A. C.J. H. C. in Morgentaler. There is some similarity in the
questions' reference to religious, moral or other beliefs. We must
point out, however, that the propriety of the questions used in the
challenge for cause in the Morgentaler case was never made an issue and
thus was not reviewed in the Crown appeal to this court.
In the present case, the defence motion was directed, in part, towards
the exclusion of Jewish people on the grounds that they would not
render a true verdict as to the occurrence of the Holocaust. The
majority of the proposed questions were improperly worded, and
therefore properly rejected by the learned trial judge. This rejection
should not have been the end of the matter, so as to foreclose any
challenge for cause.
In our view, although the presiding judge correctly refused the
questions as framed, he ought, in the circumstances, to have advised
counsel that he was not precluded from rephrasing certain of the
proposed questions in a manner which would have been in accordance with
the guidelines laid down in R. v. Hubbert.
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, when the grounds of challenge are properly specified in
accordance with s. 567(1)(b) of the Criminal Code and made before the
juror is sworn. We are concerned that the failure of the presiding
judge to advise counsel that he was at liberty to amend some of the
questions may have resulted in the denial of a fundamental right;
counsel was entitled to determine whether any potential juror was, by
reason of the pretrial publicity and the notoriety of the appellant,
sufficiently impartial. In our opinion the appellant was effectively
denied that fundamental right.
It was conceded by counsel, in the course of the argument, that the
challenge for cause was not repeated when each juror came forward to be
sworn, according to the correct practice. We agree, however, that once
the trial judge had refused the defence permission to ask any of the
proposed questions, and failed to give an opportunity to amend, the
defence was, in effect, prevented from exercising its right to
challenge for cause. A trial judge cannot, in the exercise of a
discretion which he undoubtedly possesses in the area of admitting
grounds of challenge for cause and settling the questions, effectively
curtail the statutory right to challenge for cause.
The warning later given by the trial judge, requesting that individual
members of the panel disqualify themselves under certain circumstances,
was insufficient to correct the erroneous denial of the statutory right
of challenge for cause. The issue of impartiality or indifference is
one that Parliament has entrusted to the two triers, not to the
conscience of the individual prospective juror.
We are all of the view that the appellant was deprived of his right to
have a jury selected according to law, whose impartiality or appearance
of impartiality could not be impugned. This error was compounded by the
judge's refusal to order a ban on the publication of both the
submissions made and of the ruling on the motion, as was done in R. v.
Keegstra, April 9, 1985 (unreported), which may have also prejudiced
the appellant's right to an impartial jury.
In our view this ground of appeal has merit and should be considered
with the other grounds in the disposition of the appeal.
III The admissibility of Dr. Hilberg's evidence
One of the principal grounds of appeal is that the opinion evidence of
Dr. Raul Hilberg to the effect that over five million Jews were
systematically annihilated by the Nazi government of Germany, was
inadmissible since Dr. Hilberg's evidence was based on hearsay.
With a view to establishing the systematic annihilation of millions of
Jews by the Nazi government of Germany, the Crown adduced the
eyewitness evidence of several survivors of Nazi concentration camps as
to what occurred in those camps, as well as the expert evidence of Dr.
Hilberg that over five million European Jews were killed, pursuant to
Nazi government policy.
It will be helpful to an understanding of Dr. Hilberg's evidence and
the legal issues that arise therefrom to outline that evidence briefly,
and to outline the nature of the eyewitness evidence. It is also
convenient to outline briefly at this time the evidence of Dr.
Faurisson who was permitted to give expert testimony for the defence on
the same basis upon which Dr. Hilberg was permitted to testify for the
Crown.
A. The eyewitness evidence
The eyewitness evidence, in the main, although not exclusively, related
to Auschwitz, which was a complex of camps. Auschwitz I was the main
camp. Auschwitz II, a subsidiary camp, was also known as Birkenau. The
evidence of several of the eyewitnesses essentially was that Jews were
collected at various places in Austria, Hungary, Poland and
Czechoslovakia and transported by cattle-car to Birkenau. At Birkenau
there was a wooden ramp about one-half mile long adjacent to the
railroad siding. When a train arrived carrying prisoners, members of
the SS ordered the prisoners to get out of the cars and to leave their
luggage behind. Some of the eyewitnesses testified that a selection
process, frequently conducted by Dr. Mengele, then began. The
able-bodied men and women were directed to one side in separate groups.
The old, the sick and the children were either marched off in the
direction of the crematoria at Birkenau or were loaded into lorries or
dump trucks which then left in the direction of Birkenau, returning in
a short time for another load. The men and the young women remained on
the ramp. One group of SS marched the men off to Auschwitz I and
another group of SS took the remaining women to the women's camp. There
were four crematoria in Birkenau. The gas chambers were adjacent to the
crematoria. After a transport of prisoners arrived, a buzzing sound
from the crematoria could be heard and smoke and flames could be seen
coming from the chimneys. The smoke and flames rarely stopped when
there was a great influx of prisoners. When the capacity of the
crematoria was exceeded the bodies were buried in pits.
Dr. Rudolf Vrba, one of the eyewitnesses, is an associate professor of
pharmacology at the University of British Columbia. He testified that
on June 20, 1942, he was put in a cattle truck and taken to Auschwitz
where he remained until 1944, when he escaped and returned to Slovakia.
For the first two months he was in Auschwitz I, where he worked at a
nearby construction site. The daily mortality rate at the construction
site was 5% to 10% of the total work-force. It is clear from his
evidence that the high mortality rate was due to privation and brutal
treatment. After about two months a typhus epidemic broke out and the
work was stopped. The prisoners were medically examined. Those who
failed the examination were loaded into lorries which left the camp,
and Dr. Vrba never saw them again.
He was then transferred to Birkenau. He said that he was assigned to a
work-force called the Kanada Kommando. This group would be sent to the
railroad siding when a transport was arriving. The job of the Kanada
Kommando was to sort the luggage and clean the cattle-cars after the
prisoners had been removed. Dr. Vrba testified that one of his jobs was
to load cannisters of Zyklon gas into a green military van with a large
red cross on the side prior to the arrival of a train. In December,
1942, in connection with his duties he was taken to Birkenau where he
saw pits containing burned bone fragments and the slightly burned heads
of children. He frequently visited a friend, Fred Wetzler, who was in
charge of the mortuary. From the mortuary he could see Crematorium II.
There were occasions when he saw several hundred people go into the
building. A corporal from the sanitation service would climb up to the
roof of a low structure or bunker, don a gas mask and empty one or two
tins of Zyklon into each vent in the roof. Dr. Vrba computed that
1,765,000 people were killed at Auschwitz while he was there and a
total of 2.5 million people were killed at Auschwitz during the war.
Dennis Urstein was born in Vienna. He was arrested and eventually taken
to Auschwitz. He also worked with the Kanada Kommando and met the
trains. He testified that in February, 1943, he and a group of
prisoners were driven to a building. A sergeant or a corporal donned a
gas mask and he heard a loud "hum" coming from the door of the building
they were facing. He knew this was a crematorium because of the smoke
stack. The corporal or sergeant then opened the door. Mr. Urstein and
the other prisoners were issued large hooks and ordered to remove the
bodies. They went through a small corridor to the gas chamber where he
saw a large number of bodies entangled with one another; the children,
generally, were on the bottom. They dragged the bodies out and then
they were ordered to wash the gas chamber.
Henry Leader was born in Poland. He testified that in 1941, several
thousand people were rounded up and transported to Maidanek
concentration camp. After several weeks he was assigned to assist in
carrying bodies from the gas chamber to the crematorium which at
Maidanek was about 350 yards from the gas chamber. The bodies would be
thrown from the gas chamber onto a ramp, loaded in wagons and taken to
the crematorium. The people inside the gas chamber dragging the bodies
out wore masks. The witness testified that in June, 1943, he was taken
from Maidanek to Birkenau. At Birkenau he could look through a wire
fence in the direction of the crematorium. He daily saw transports of
people arrive at the crematorium in dump trucks. On some days six or
seven trucks would arrive at a time. A truck would carry about 100
persons. The people were taken from the trucks to the gas chamber. He
never saw any of those people come out again. As the Russian Army
advanced, the prisoners were transported by cattle-car to Mauthausen in
Austria. He estimated that 35% of the prisoners perished en route.
Chester Tomaszewski was born in Poland. He was not Jewish. He was
arrested in October, 1939, and sent to Dachau concen­tration camp. He
was subsequently transferred to Mauthausen­Gussen in Austria. Gussen
is a satellite camp of Mauthausen. There were about 300 Jews in the
camp when he arrived. The entire Jewish population of the camp was
eliminated in a few weeks. One of the devices used by the guards was to
order a Jewish prisoner to pick up a stone outside the line of guards
and then to shoot him when he carried out the order.
B. Dr. Hilberg's evidence
The trial judge, as previously indicated, ruled after holding a voir
dire that Dr. Hilberg was qualified to testify as an expert witness on
the Holocaust. The judge expressly and immediately instructed the jury
that they were not bound to accept the opinion of an expert. He again
instructed the jury in his charge that they were free to accept or
reject the evidence of expert witnesses.
Dr. Hilberg is a professor at the University of Vermont where he
teaches courses in international relations, American foreign policy and
the Holocaust. He defined the Holocaust as the annihi­lation by
physical means of the Jews in Europe during the Nazi regime, 1933-1945.
He was appointed by the president of the United States to the United
States Holocaust Memorial Council and to the President's Commission on
The Holocaust. He testified that in his research he relied primarily on
documents and secondarily on the statements of witnesses who had direct
knowledge of the subject-matter.
During the war the United States seized a large part of the records of
the Nazi regime from 1933 to 1945. These records were physically kept
at the Federal Records Centre in Alexandria, Virginia. Dr. Hilberg was
employed for a time by the United States Government at the centre and
had direct access to these records. Many of the documents that he
examined were civil service or ministry documents. Some were military
documents, some were SS or party documents and some were industrial
documents. The documents used at the Nuremberg trials were taken from
this collection. He testified that, in addition, he has examined
documents in the archives of foreign countries where smaller
collections are available.
The major war criminals such as Goering were tried by the International
Military Tribunal established by a treaty to which about 20 countries
were parties. The judges were American, British, Russian and French.
Twelve subsequent trials involving high-ranking military officers, top
corporation executives, top members of the ministerial bureaucracy and
high-ranking SS personnel, were presided over by American judges. The
trials are referred to collectively as the Nuremberg trials; however,
the Nuremberg Trial refers to the trial before the International
Military Tribunal. Dr. Hilberg testified that he has read the
transcripts of the evidence and examined the documents intro­duced in
evidence at the Nuremberg Trial before the International Military
Tribunal and also the transcripts of the proceedings at the subsequent
Nuremberg trials before the American Military Tribunal. He commenced a
study of the Holocaust in 1948, and is the author of a book, "The
Destruction of The European Jews" which was first published in 1961; a
second and larger edition was expected to be published shortly.
Dr. Hilberg stated in cross-examination that he was of the opinion that
there was an oral order for the extermination of the Jews given by
Adolf Hitler in 1941. He testified that there was a plan within the
German high command for the "treatment of populations" in the territory
to be occupied in the U.S.S.R. This plan was submitted to Hitler who
indicated that he wished certain changes to be made. The changes were
made in April, 1941, and the directive was then resubmitted to Hitler.
According to the document written by General Jodl, and which is in the
West German Archives, Hitler said that he wanted the "Jewish-Bolshevik
Commissars" liquidated. Dr. Hilberg interpreted the order to mean that
Hitler wanted the Jewish people and the Bolshevik Commissars to be
liquidated.
When the German armies crossed the border into the Soviet Union they
were accompanied by battalion-size units of security police. These
units, called Einsatzgruppen, reported back on a daily basis, detailing
the number of people killed, of whom, according to the reports, 90% to
95% were Jews. Dr. Hilberg reasoned that one would not set up four
units of Einsatzgruppen aggregating 3,000 men to kill a handful of
Bolshevik Commissars, and therefore the clear intent of Hitler's oral
directive was that the Jews in the territory to be occupied should be
annihilated. Dr. Hilberg conceded that other historians take the view
that there was not a Hitler order.
It was Dr. Hilberg's opinion that the word "resettlement" became the
term used in the correspondence in World War II records to refer to the
process of deporting Jews to death camps. He characterized a death camp
as one set up for the specific purpose of killing people, Dr. Hilberg
said that Belzec, Treblinka, and Chelmno were used exclusively for
killing people. These camps were small and had no facilities of any
kind for production. Sobibor was also a death camp, but late in 1943, a
facility for making ammunition was established there.
Dr. Hilberg testified in cross-examination that Auschwitz was composed
of three camps - Auschwitz, Birkenau and Monowitz. The three camps
were also known as Auschwitz I, II and III. There was a gas chamber in
Auschwitz I. Two gas chambers were established in Birkenau in 1942. In
1943, four massive structures were built in Birkenau; these structures
contained gas chambers and crematoria. When the capacity of the
crematoria was exceeded the bodies were burned in pits outside the
building. There were, Dr. Hilberg testified, three gas chambers at
Maidanek. Belzec initially had three gas chambers but they were
expanded in 1942 to six. Chelmno was equipped with gas vans which used
carbon monoxide to kill prisoners. Treblinka had carbon monoxide gas
chambers.
Dr. Hilberg testified that he had also examined railroad schedules in
wartime Germany. They played an important role in his research. They
indicate, according to him, that the camps were located near places
where the Jewish population was the most dense. The Gestapo, as the
shipping agents, had to pay the German railways for each person
transported and, consequently, it was in the financial interest of the
Gestapo to make the trips as short as possible. The railway schedules
make clear that the transportees had to be counted because payment to
the railways had to be made for each person. It was highly significant
to Dr. Hilberg that suddenly there were hundreds of thousands of people
going to Treblinka and Sobibor which on the maps are small villages;
and of greater significance that the trains were returning empty.
Hoess, the commandant at Auschwitz, was a witness at Nuremberg and said
that 2,500,000 people were killed at Auschwitz. However, Dr. Hilberg
said that this figure was too high and he estimated that approximately
one million people were killed in the gas chambers at Auschwitz II
(Birkenau). According to Dr. Hilberg's estimate over five million Jews
were killed during the Nazi regime, of whom approximately three million
died in camps. The vast majority of those persons killed in camps were
killed in gas chambers, but several hundred thousand in those camps
were shot or died of deprivation or disease. In addition, approximately
1,300,000 or 1,400,000 Jews were shot in systematic operations such as
those conducted by the Einsatz­gruppen in the occupied U.S.S.R.,
Galicia and Serbia. The remainder, according to reports by the SS
statistician Korherr and the reports of Jewish councils in various
ghettos sent to German agencies, died from conditions in those ghettos.
Dr. Hilberg testified that of the Jewish population in Poland of
approximately 3,350,000 as of September, 1939, the death toll
attributable to the Holocaust was close to three million. His estimate
of the pre-war Jewish population in Poland appears to have been based
on the 1931 Polish census extrapolated to 1939. He testified in
cross-examination that of the pre-war population of approximately
3,350,000, there were only 50,000 Jews in Poland in 1945, excluding the
175,000 repatriates from the Soviet Union. He said there was a record
of those repatriated.
Dr. Hilberg testified that he found the pamphlet published by the
appellant to be a "concoction, contradiction, untruth mixed with
half-truths". He was asked by Crown counsel at the trial to comment on
various parts of the pamphlet and in substance he testified that those
parts contained misstatements and were false. In particular he said
that he never gave the figure of 896,892 Jews killed, attributed in the
pamphlet to the "Jewish statistician Raul Hilberg".
Dr. Hilberg was extensively cross-examined as to his reliance, in his
book, on one Gerstein, an SS officer. Dr. Hilberg agreed that some of
the statements made by Gerstein were not credible. He said, however,
that some parts of Gerstein's statements were credible and some were
corroborated. He said he used only those parts of his statements that
were credible, and that authors like himself develop a certain amount
of expertise in the use of material. Dr. Hilberg also testified that
the figure of 1.7 million Jews killed at Auschwitz contained in the War
Refugee Board Report, of which Dr. Vrba is a co-author, was too high.
C. Dr. Robert Faurisson
Ceri Thomas
2006-12-30 08:31:24 UTC
Permalink
How fucking dare you say we don't want to talk. It's you who doesn't want to
talk, you just lecture and preach, you fucking piece of worthless shit.

I noticed your MSN group is gone and is under investigation for hate crimes
and copyright theft, glad I never joined that jail bait group. You should
hold your meetings in pubs and rally that work shall set you free like other
fucknut you remind me of. Leave this forum as what you write can be used
against you if your not careful. Those laws you hate do have vastly more
powers than you wether you like them or not. Lots of what you've posted here
does fall against the anti-hate laws, discrimination and uttering threats to
insight revolt in most western based countries including Canada.

Why don't you just say the sky is falling the sky is falling and get it over
with, that your a fucknut and move the fuck on.


"teslacoils2006" <***@yahoo.com> wrote in message news:***@79g2000cws.googlegroups.com...
We face world War 3 because people like you have not the stomach to
talk about the issues. Instead the Bnaibrith shuts down genuine
religions and the Jesuits help the Catholic church become a one world
religion. Nobody has time to dance around the truth because your
Catholic or jewish or both.

I am not racist the Jewish people are not responsible for a few
Jewish freemason. Just like the catholic people are not responsible
for the head of their church. They still should disown the
leadership!!!

www.arcticbeacon.com

Make sure if we ever meet remind me what you said here so I can
ignore you when you need help.
Post by Rab
I have issues with Freemasonry as well, but your posts certainly don't do
anything other than give these folks more credibility.
Just search freemason in Canadian courts ...very interesting
http://www.canlii.org/bc/cas/bcpc/2006/2006bcpc210.html
just search freemason, freemasonry
Court of Appeal for Ontario
R. v. Zundel
Date: 19870123
BY THE COURT:-The appellant Ernst Zundel was charged with the
commission of two offences contrary to s. 177 of the Criminal Code,
1. ERNST ZUNDEL stands charged that he, during the year 1981, at the
Munic­ipality of Metropolitan Toronto in the Judicial District of
York, did publish a statement or tale that he knows is false, namely
the article "The West, War, and Islam", and the said article is likely
to cause mischief to the public interest in social and racial
tolerance, contrary to the Criminal Code.
2. ERNST ZUNDEL stands further charged that he, in or about the year
1981, at the Municipality of Metropolitan Toronto in the Judicial
District of York, did publish a statement or tale, namely "Did Six
Million Really Die?" that he knows is false and that is likely to cause
mischief to the public interest in social and racial tolerance,
contrary to the Criminal Code.
After a seven-and-one-half week trial before the Honourable Judge Locke
and a general sessions jury, the appellant was acquitted on count 1 but
convicted on count 2. On March 25, 1985, he was sentenced to 15 months'
imprisonment together with three years' probation. It was a term of the
probation order that he would not publish, directly or indirectly,
anything on the subject of the Holocaust or any subject related to the
Holocaust. The appellant is appealing both conviction and sentence.
Although, as will be seen from our reasons, we are of the opinion that
the Honourable Judge Locke committed some errors during the course of
the trial and in his charge to the jury, we believe fairness requires
that we should acknowledge at the outset that this was a difficult and
complex trial. There was little case-law to guide the learned judge in
the interpretation and appli­cation of s. 177. In addition, he was
required almost daily to make rulings on difficult and involved
questions of law. For instance, the trial began with a challenge by
counsel for the accused to the validity of s. 177 on the ground that it
was inconsistent with s. 2(b) of the Canadian Charter of Rights and
Freedoms. This was followed immediately by an application by counsel
for the accused to have certain questions put by the trial judge to the
jury panel at large and to permit counsel to challenge prospective
jurors for cause by asking them a list of questions which he had
prepared. In all instances, the trial judge made his rulings promptly,
giving full and detailed reasons. While we do not always agree with his
rulings, the way in which he made them has greatly assisted us in the
determination of this appeal.
Since Crown counsel attached some significance to the appel­lant's
acquittal on count 1 of the indictment, we believe that before turning
to count 2, we should say a few words about the pamphlet that formed
the subject-matter of the first count. In 1981, the appellant wrote and
distributed a rambling, diffuse, four-page pamphlet entitled, "The
West, War and Islam!". In essence, the pamphlet alleged that a
conspiracy existed among International Zionists, International Secret
Societies (particularly Freemasonry), International Bankers, and
International Commu­nists to use their control of Western media "to
misinform, to miseducate and to instill hatred against the Islamic
peoples". The pamphlet appealed to the Islamic nations to rectify the
situation by assisting in the creation "of an independent, worldwide
inform­ation network capable of countering the now unopposed Zionist
disinformation and hate propaganda". It ended with an indirect appeal
to the Islamic world to contribute money to the appellant and his
organization so that they could commence a public inform­ation
campaign immediately. The appellant mailed the pamphlet to people
outside Canada from Morocco to Pakistan. It was not distributed in
Canada.
Count 2 of the indictment on which the appellant was convicted related
to the publication by the appellant of a 32-page pamphlet entitled,
"Did Six Million Really Die? Truth At Last Exposed:". The appellant
gave evidence at his trial. The following is a brief outline of the
background facts as related by him which led up to the publication of
the pamphlet.
The appellant was born in 1939 in the Black Forest region of Germany.
His father was a soldier in the German army in World War II, and except
for sporadic visits, was away from home until 1948. The appellant
related in detail the hardships that he experi­enced as a boy during
and after the war in Germany.
After finishing school in Germany, the appellant in 1958 decided to
immigrate to Canada. He chose Canada because it had a volunteer army
and the appellant did not wish to be drafted. On arrival in Canada, he
obtained employment as a graphic artist. He swore that up until 1960,
he firmly believed that the Germans had killed six million Jews during
World War II.
In 1959 the appellant married a French-Canadian girl. There were two
children of the marriage: Pierre, born in 1960, and Hans, born in 1967.
Shortly after the birth of Pierre, he and his wife moved to Montreal
where the appellant started his own business. He lived in Montreal for
nine years. He testified that he had a thriving business in Montreal,
and the business did so well that he was able to take off several
months each year and travel. In the course of his travels, he went all
over Europe, Canada and the United States making investigations
concerning German conduct during the Second World War. Gradually he
became more and more interested in the story that six million Jews had
been killed by the Germans during the war. By 1977, he said that his
interest in the subject had become "overwhelming",
The appellant outlined for the jury the elaborate and detailed
investigations he made into the truth of the allegation that six
million Jews were killed by the Germans during World War II, commencing
with his discussions in the 1960s in West Germany with Joseph Ginsburg,
the author of a German book called Schuld and Schicksal. As a result of
his investigations, the appellant said that he intended to write a book
to set the record straight. He gave the following testimony concerning
I had been involved in a study of this topic for a long time, and I had
planned to write something on this topic, but always held back because
it's such a distasteful subject to me. And I just couldn't get myself
to write it, and then I heard of a booklet in Europe called, "Did Six
Million Really Die?" out of England. I wrote to the publisher, got a
copy of the booklet in English. Then I received one in French, in
Dutch, in Flemish. There were later editions in Swedish, in Finnish, in
German I already said. I think there is one in Hungarian, and one in
Rumanian. I saw at that time before I ever thought of publishing it
four or five different languages of this booklet, so I naturally read
through this booklet and I thought that it was in a nice condensed form
virtually what I had intended to write myself, because I thought
something like that should be written. Most of the revisionist
literature of the day, like Rassinier, fairly thick tomes, and I have
learned one thing being in the graphic arts, that people like to read
less and less, especially serious stuff. So I felt this was a good
vehicle, of the best that I had seen. And Dr. App with whom I was at
that time working and had been selling some of his publica­tions, "The
Six Million Swindle", for instance, and another booklet called, "A
Straight Look at the Third Reich", and Christopherson's booklet, "The
Auschwitz Lie", I thought that the Harwood booklet was superior to all
the three or four which I was selling at the time.
In the beginning, the appellant imported the pamphlet from England and
distributed it in Canada; however, this did not prove satisfactory as
the English publisher did not package it properly. He then obtained an
American source for the pamphlet and made arrangements for the printing
of a Canadian edition. He added to the title the words, "Truth At Last
Exposed", and he wrote a foreword and a postscript. The publisher would
not, however, permit him to make any change in the format or in the
contents of the pamphlet.
Although the appellant's evidence as to when he published the pamphlet
is rather vague, and although the indictment states that it was "in or
about the year 1981", counsel for the appellant at the commencement of
the trial admitted, in response to a request from Crown counsel to
avoid the calling of a witness, that "Mr. Zundel published the article
and wrote a foreword and postscript to that article and distributed it
in Canada in 1983". The trial proceeded on this basis.
The appellant testified that he sold some copies of the pamphlet. He
said that he also sent copies free of charge to every member of
Parliament, to every Catholic priest in Ontario and Quebec, to every
Protestant minister in Ontario, to all radio stations, television
stations and newspaper editors in Ontario, and to every high school
history teacher in Ontario.
The pamphlet purports to be written by one Richard Harwood. At the end
RICHARD HARWOOD is a writer and specialist in political and diplomatic
aspects of the Second World War. At present he is with the University
of London. Mr. Harwood turned to the vexed subject of war crimes under
the influence of Professor Paul Rassinier, to whose monumental work
this little volume is greatly indebted. The author is now working on a
sequel in this series on the Main Nuremberg Trial, 1945-46.
Zundel testified that he discovered in 1982 or 1983 that Richard
Harwood was a pseudonym and that the author's real name was Richard
Verrai. Zundel said that, according to his information, Verrai was a
graduate student of one of London's universities in history. Zundel
tried to get Verrai to give evidence at the trial, but Verral refused
as he had married a Jewish girl and had given up political work.
In addition to printed material, the pamphlet contains some photographs
and a map showing the location of German concen­tration camps during
World War II. The general theme of the pamphlet is summed up in the
In the following chapters the author has, he believes, brought together
irrefutable evidence that the allegation that 6 million Jews died
during the Second World War, as a direct result of official German
policy of extermina­tion, is utterly unfounded. This conclusion,
admittedly an unpopular one, resulted from an inquiry which was begun
with no pre-conceived opinions, beyond a general notion that the
statistical possibility of such huge casualties was perhaps open to
doubt, as well as an awareness that political capital was being made
from the implications of this alleged atrocity. A great deal of careful
research into this question, however, has now convinced me beyond any
doubt that the allegation is not merely an exaggeration but an
invention of post-war propaganda.
.....
So far as the Jewish people themsleves [sic] are concerned, the
deception has been an incalculable benefit. Every conceivable race and
nationality had its share of suffering in the Second World War, but
none has so successfully elaborated it and turned it to such great
advantage. The alleged extent of their persecution quickly advised
sympathy for the Jewish national homeland they had sought for so long;
after the War the British Government did little to prevent Jewish
emigration to Palestine which they had declared illegal, and it was not
long afterwards that the Zionists wrested from the Government the land
of Palestine and created their haven from persecution, the State of
Israel. Indeed, it is a remarkable fact that the Jewish people emerged
from the Second World War as nothing less than a triumphant minority.
Dr. Max Nussbaum, the former chief rabbi of the Jewish community in
Berlin, stated on April 11, 1953: "The position the Jewish people
occupy today in the world - despite the enormous losses - is ten
times stonger [sic] than what it was twenty years ago." It should be
added, if one is to be honest, that this strength has been much
consolidated financially by the supposed massacre of the Six Million,
undoubtedly the most profitable atrocity allegation of all time. To
date, the staggering figure of six thousand million pounds has been
paid out in compensation by the Federal Government of West Germany,
mostly to the State of Israel (which did not even exist during the
Second World War), as well as to individual Jewish claimants.
The pamphlet proceeds to discuss these issues under the following
German Policy Towards the Jews Prior to the War
German Policy Towards the Jews After the Outbreak of War Population and
Emigration
The Six Million: Documentary Evidence
The Nuremberg Trials
Auschwitz and Polish Jewry
Some Concentration Camp Memoirs
The Nature & Condition of War-time Concentration Camps
The Jews and the Concentration Camps: A Factual Appraisal By the Red
Cross
The Truth At Last: The Work of Paul Rassinier
Under the subheading, "Enormous Fraud", the author of the pamphlet
quotes the following passage from Professor Paul Rassi­nier's book, Le
Perhaps I may be allowed to recall here that the State of Israel was
only founded in May 1948 and that the Jews were nationals of all states
with the exception of Israel, in order to underline the dimensions of a
fraud which defies description in any language; on the one hand Germany
pays to Israel sums which are calculated on six million dead, and on
the other, since at least four-fifths of these six million were
decidedly alive at the end of the war, she is paying substantial sums
by way of reparation to the victims of Hitler's Germany to those who
are still alive in countries all over the world other than Israel and
to the rightful claimants of those who have since deceased, which means
that for the former (I. e. the six million), or in other words, for the
vast majority, she is paying twice.
how many of the 3 million European Jews under German control survived
after 1945? The Jewish Joint Distribution Committee estimated the
number of survivors in Europe to be only one and a half million, but
such a figure is now totally unacceptable. This is proved by the
growing number of Jews claiming compensation from the West German
Government for having allegedly suffered between 1939 and 1945. By
1965, the number of these claimants registered with the West German
Government had tripled in ten years and reached 3,375,000 (Aufbau, June
30th, 1965). Nothing could be a more devas­tating proof of the brazen
fantasy of the Six Million. Most of these claimants are Jews, so there
can be no doubt that the majority of the 3 million Jews who experienced
the Nazi occupation of Europe are, in fact, very much alive. It is a
resounding confirmation of the fact that Jewish casualties during the
Second World War can only be estimated at a figure in thousands. Surely
this is enough grief for the Jewish people? Who has the right to
compound it with vast imaginary slaughter, marking with eternal shame a
great European nation, as well as wringing fraudulent monetary
compensation from them?
Zundel conceded that there were some errors in the pamphlet. For
example, the pamphlet states that Meyer Levin wrote the dialogue of The
Diary of Anne Frank. Zundel admitted that this was not correct. Levin
only wrote a stage adaption of The Diary. Otto Frank, the father of
Anne Frank, was dissatisfied with Levin's work and employed someone
else to do it. Zundel acknowl­edged that there were also some sloppy
errors in the Red Cross report. Zundel swore that he was not aware of
the errors until after he had published the pamphlet. However, he said
that 99% of the pamphlet was accurate, and he stood behind it.
The witnesses called by the Crown were principally directed to the
issue of whether or not six million Jews had died during the Second
World War as a direct result of official German policy of
extermination. A number of witnesses were called who had been
incarcerated in German concentration camps, such as Birkenau,
Auschwitz, and Maidenek; they testified about what they had seen and
what their experiences had been in the camps. The Crown also called Dr.
Raul Hilberg as an expert witness to testify on the subject of the
systematic destruction of Jews by the Germans during World War II. We
will be dealing with Dr. Hilberg's evidence in greater detail later in
these reasons. No direct evidence appears to have been called by the
Crown as to the appellant's knowledge that the statements in the
pamphlets were false.
The appellant's defence at the trial was that he had an honest belief
in the truth of what was written in the pamphlet. He produced a large
number of articles, letters and books which he had read prior to the
publication of the pamphlet and which he claimed accorded with what was
contained in the pamphlet. In addition, the defence called a number of
witnesses, some of whom were qualified to a limited extent as experts,
to prove the truth of the contents of the pamphlet. The appellant swore
that he had read material written by some of these witnesses in
arriving at his belief that the contents of the pamphlet were true.
Finally, the defence called a number of character witnesses to testify
to the good reputation of the appellant in the community.
Although counsel for the appellant advanced a number of grounds of
error, we believe that the following are the only ones that warrant
I Constitutional validity of s. 177 of the Criminal Code
The first ground of appeal raised by the appellant is that s. 177 of
the Criminal Code, which provides for the offence of "spreading false
news", is unconstitutional because it infringes the fundamental
"freedom of expression" guaranteed by the Canadian Charter of Rights
.....
(b) freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication;
A. History of s. 177
Before turning to consider the Charter, it is necessary to examine the
history of the offence of "spreading false news", and the essential
nature of the offence created by s. 177. The present s. 177 reads as
177. 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 is liable
to imprisonment for two years.
The offence of "spreading false news" had a very ancient origin in the
statutes concerning scandalum magnatum, the earliest of which is a
provision of the first Statute of Westminster, 1275, 3 Edw. I, c. 34,
Forasmuch as there have been oftentimes found in the Country Devisors
of Tales, whereby Discord, or Occasion of Discord, hath many times
arisen between the King and his People, or great Men of the Realm; For
the Damage that hath and may thereof ensue, it is commanded, That from
hence­forth, none be so hardy to tell or publish any false News or
Tales, whereby Discord or Occasion of Discord or Slander may grow
between the King and his People, or the great Men of the Realm; and he
that doth so, shall be taken and kept in Prison, until he hath brought
him into the Court, which was the first Author of the Tale.
This and subsequent amending statutes were primarily designed to
protect the peers and other great men against slanderous lies which
might imperil or cause mischief to the public if the perpe­trator were
not punished. Bishop in his text on Criminal Law, 5th ed. (1872), vol.
1, para. 473, states that the statute of Edward I provided a means
whereby the perpetrator could be brought to justice for an offence well
understood by the common law. There is authority that quite apart from
these statutes the common law recognized the publication of false news
to the public detriment as an offence: see Scott, "Publishing False
News", 30 Can. Bar Rev. 37 at p. 40 (1952).
The statute of 3 Edw. I, and the other amending statutes were finally
repealed in 1888. Prior to this time, Stephen had embodied in his
Digest of the Criminal Law, 1st ed. (1877), p. 57, art. 95, which
Spreading False News
Every one commits a misdemeanor who cites or publishes any false news
or tales whereby discord or occasion of discord or slander may grow
between the Queen and her people or the great men of the realm (or
which may produce other mischiefs)
The words in brackets at the end of this article are significant in
view of the words "injury or mischief to any public interest" in the
present s. 177 of the Code.
As the late Professor Scott pointed out in his learned article,
... the Canadian Criminal Code was based on Stephen's Digest and on the
Draft Code he prepared for the British Parliament in 1879. Burbridge,
the draftsman of the Canadian Code of 1892, himself published a Digest
of the Criminal Law of Canada in 1890, founded on Stephen's, and in
article 125 repeats the latter's article 95 verbatim, including the
comment that "The definition is very vague and the doctrine exceedingly
doubtful". Through Burbridge the doctrine, despite its vagueness,
entered our Code, the element of "false news or tales" remaining from
scandalum magnatum and the notion of "discord and slander between the
Queen and her people or the great men of the realm" being generalized
into "injury or mischief" to "any public interest".
Seditious Offences", which was under "Title II: Offences Against Public
126. Every one is guilty of an indictable offence and liable to one
year's imprisonment who wilfully and knowingly publishes any false news
or tale whereby injury or mischief is or is likely to be occasioned to
any public interest.
In the statutory revisions of 1906 (R.S.C. 1906, c. 146) and of 1927
(R.S.C. 1927, c. 36), the provision appeared as s. 136 under the same
general heading and subheading. In the revision of the Criminal Code in
1953-54 (Can.), c. 51, the word "statement" was inserted before the
words "tale or news" and the section was designated as s. 166 and was
reworded as the present wording of s. 177. However, s. 166 appeared in
"Part IV: Sexual Offences, Public Morals and Disorderly Conduct" under
the subheading "Nuisances". The reclassification of the offence from
the category of seditious offences to the category of nuisances may be
of signifi­cance in viewing it as an offence with less serious
potential consequences. In the 1970 revision (R.S.C. 1970, c. C-34),
the provision was renumbered as s. 177 under the same heading and
subheading but there was no change in wording.
(a) wilful publication, and
(b) the publication must be of a statement, tale or news.
(It is not necessary in this appeal to go into the precise difference
in meaning between a statement, tale and news. Counsel for the
respondent conceded that an assertion of fact must be proved which is
capable of being false. The assertion of an opinion is not sufficient.)
(c) The assertion of fact must be false to the knowledge of the person
who publishes it;
(d) it does not have to be proved that the false assertion of fact
actually caused injury or mischief to a public interest. It is
sufficient if it is proved that it was likely to cause such injury or
mischief.
In this appeal the charge specifies that the public interest in
question is the public interest in racial and social tolerance.
There are extremely few reported decisions on s. 177. In R. y. Hoaglin
(1907), 12 C.C.C. 226, the accused published a placard in connection
with a closing-out sale stating he had decided to leave Canada and that
settlers from the United States were not wanted in Canada. This was
done at a time when great efforts were being made to induce settlers
from the United States to come to Canada. He was convicted under a
predecessor of s. 177, the court holding that the publication was
contrary to the public interest.
In R. v. Kirby (1970), 1 C.C.C. (2d) 286, 13 Crim. L.Q. 128, an
underground newspaper published an edition in Montreal parodying the
Gazette and containing a false story that the mayor had been "shot by
[a] dope-crazed hippie". The Quebec Court of Appeal set aside the
conviction of the appellant. It considered that while the night city
editor of the Gazette might have been incon­venienced by the 50 or so
calls received at the Gazette switchboard, there was no injury or
mischief to a public interest. It was not "reasonably sure to cause
trouble and insecurity" (p. 289),
B. Procedure in determining constitutionality of s. 177
With this background it is now necessary to consider whether s. 177 is
unconstitutional because it infringes s. 2(b) of the Charter, the
fundamental freedom of expression. In considering the
consti­tutionality of impugned legislation under the Charter, both the
purpose and the effect of the legislation are relevant. No
funda­mental freedoms are more basic to our democratic way of life,
and more highly prized than the freedoms guaranteed under s. 2(b) of
the Charter. It is the freedom of "expression" with which we are
primarily concerned in this appeal. There is a twofold aspect to this
(a) Is the fundamental freedom of expression an absolute freedom, or is
it a qualified freedom which must give way to certain restrictions in
the interest of society as a whole? If it is a qualified freedom, then
the exact limits of that freedom must be determined.
(b) Once the limits of the freedom of expression have been
deter­mined, then a decision can be made whether those limits have
been breached. If so, then s. 1 of the Charter comes into operation in
order to decide whether the limitations imposed on the freedom are a
reasonable limit which is demonstrably justified in a free and
democratic society.
C. Limits of freedom of expression
It is essential at the outset to consider just exactly what is the
"freedom of expression" which is constitutionally protected. The words
are extremely broad. They are not like rights proscribed under some
other sections of the Charter such as ss. 10, 11(f) and (i). There the
limits of the rights protected are much clearer, and a breach is more
readily apparent and, if a breach has occurred, can be tested under s.
1 of the Charter.
Freedom of expression must necessarily have regard to the corresponding
rights and freedoms of other persons. It contem­plates the existence
of a social order in which other persons must not be denied similar
rights. A simplistic example, which is often given, is that a person is
not at liberty to shout "fire!" in a crowded theatre.
As Dickson C.J.C. stated when delivering the judgment of the Supreme
Court of Canada in R. v. Big M Drug Mart Ltd. 1985 CanLII 69 (S.C.C.),
(1985), 18 C.C.C. (3d) 385 at p. 418, 18 D.L.R. (4th) 321 at p. 354,
Freedom means that, subject to such limitations as are necessary to
protect public safety, order, health, or morals or the fundamental
rights and freedoms of others, no one is to be forced to act in a way
contrary to his beliefs or his conscience.
(Emphasis added.) (See also his dicta to the same effect at p. 425
C.C.C., p. 361 D.L.R.) In that case Chief Justice Dickson was, of
course, addressing his remarks to the limits of the fundamental freedom
of religion under s. 2(a) of the Charter but his remarks are, in our
opinion, apposite for "freedom of expression".
In this appeal it is not necessary to give an all-embracing definition
of "freedom of expression", but merely to decide whether "spreading
false news" within s. 177 of the Code is encompassed within that
fundamental freedom.
When considering the interpretation of the Charter, it is important to
bear in mind the admonition of Chief Justice Dickson in Hunter et al.
v. Southam Inc. 1984 CanLII 33 (S.C.C.), (1984), 14 C.C.C. (3d) 97 at
p. 106, 11 D.L.R. (4th) 641 at p. 650, 2 C.P.R. (3d) 1 at p. 10, [1984]
2 S.C.R. 145 at p. 156, that the proper approach to the definition of
"Its purpose is to guarantee and to protect, within the limits of
reason, the enjoyment of the rights and freedoms it enshrines."
In R. v. Big M Drug Mart Ltd., supra, at pp. 423-4 C.C.C., pp. 359-60
The meaning of a right or freedom guaranteed by the Charter was to be
ascertained by an analysis of the purpose of such a guarantee; it was
to be understood, in other words, in the light of the interests it was
meant to protect.
In my view, this analysis is to be undertaken, and the purpose of the
right or freedom in question is to be sought by reference to the
character and the larger objects of the Charter itself, to the language
chosen to articulate the specific right or freedom, to the historical
origins of the concepts enshrined, and where applicable, to the meaning
and purpose of the other specific rights and freedoms with which it is
associated within the text of the Charter. The interpretation should
be, as the judgment in Southam emphasizes, a generous rather than a
legalistic one, aimed at fulfilling the purpose of the guarantee and
securing for individuals the full benefit of the Charter's protection.
At the same time it is important not to overshoot the actual purpose of
the right or freedom in question, but to recall that the Charter was
not enacted in a vacuum, and must therefore, as this Court's decision
in Law Society of Upper Canada v. Skapinker 1984 CanLII 3 (S.C.C.),
(1984), 11 C.C.C. (3d) 481, 9 D.L.R. (4th) 161, [1984] 1 S.C.R. 357,
illustrates, be placed in its proper linguistic, philosophic and
historical contexts.
Differing reasons have been expressed as to why freedom of expression
should be guaranteed. Some have based it on the theory that the best
way to obtain truth is through the free exchange of ideas. Others have
based it on the theory that free expression of opinion is essential to
the working of a parlia­mentary democracy. A third rationale is that
it furthers self-fulfilment, what Professor Tribe in his American
Constitutional Law (1978), at p. 578, refers to as "the evolution,
definition and proclamation of individual and group identity".
The Supreme Court of Canada appears to have adopted the rationale that
freedom of expression is essential to the working of a parliamentary
democracy.
The historical roots of "freedom of expression" were carefully examined
by McIntyre J. in giving the reasons of the majority of the Supreme
Court of Canada in Retail, Wholesale & Department Store Union, Local
580 et al. v. Dolphin Delivery Ltd. et al., December 18, 1986
(unreported [since reported 1986 CanLII 5 (S.C.C.), [1987] 1 W.W.R.
577]). There the court had to consider whether secondary picketing of a
third party not involved in a labour dispute by members of a trade
union infringed the freedom of expression secured under s. 2(b) of the
Charter. McIntyre J., for a unanimous court on this point, considered
that freedom of expression was not created by the Charter but had been
recognized since early times. He cited in support the works of John
Milton and John Stuart Mill. He was of the opinion that freedom of
expression lay at the roots of parliamentary democracy. At p. 9 [p. 585
It is one of the fundamental concepts that has formed the basis for the
historical development of the political, social and educational
institutions of western society. Representative democracy, as we know
it today, which is in great part the product of free expression and
discussion of varying ideas, depends upon its maintenance and
protection.
He cited in support dicta of Holmes J. in Abrams v. United States
(1919), 250 U.S. 616 at p. 630; of Rand J. in Boucher v. The King, 1950
CanLII 2 (S.C.C.), [1950] 1 D.L.R. 657 at p. 682, [1951] S.C.R. 265 at
p. 288; and Rand J. and Abbott J. respectively in Switzman v. Ealing
and A.-G. Que. 1957 CanLII 2 (S.C.C.), (1957), 117 C.C.C. 129 at pp.
151 and 164, 7 D.L.R. (2d) 337 at pp. 357 and 369, [1957] S.C.R. 285 at
pp. 306 and 326. There Abbott J. had referred to the dicta of Duff
C.J.C. in Re Alberta Legislation, 1938 CanLII 1 (S.C.C.), [1938] 2
D.L.R. 81 at pp. 106-7, [1938] S.C.R. 100 sub nom. Reference re Alberta
Statutes, at pp. 132-3, as strongly supporting what could almost be
described as a constitu­tional position for the concept of freedom of
speech and expression in Canadian law, and then said at p. 166 C.C.C.,
p. 371 D.L.R., p. 328 S.C.R.: "... I am also of opinion that as our
constitutional Act now stands, Parliament itself could not abrogate
this right of discussion and debate".
McIntyre J. concluded that any question as to the constitutional status
of "freedom of expression" had been settled by the decla­ration in s.
2(b) of the Charter that it was now a fundamental freedom.
Historically, freedom of expression has not been an absolute freedom
which gives an unrestricted right of speech or expression. In Re
Alberta Legislation, supra, Sir Lyman P. Duff C.J.C. considered the
constitutionality of a bill of the Alberta Legisla­ture, "to Ensure
the Publication of Accurate News and Information". He stated at p. 107
The right of public discussion is, of course, subject to legal
restrictions; those based upon considerations of decency and public
order, and others conceived for the protection of various private and
public interests with which, for example, the laws of defamation and
sedition are concerned. In a word, freedom of discussion means, to
quote the words of Lord Wright in James v. Commonwealth of Australia,
[1936] A.C. at p. 627, "freedom governed by law."
In Boucher v. The King, Rinfret C.J.C., when considering an appeal from
a conviction for seditious libel stated in a dissenting opinion at p.
... to interpret freedom as license is a dangerous fallacy. Obviously
pure criti­cism, or expression of opinion, however severe or extreme,
is, I might almost say, to be invited. But, as was said elsewhere,
"there must be a point where restriction on individual freedom of
expression is justified and required on the grounds of reason, or on
the ground of the democratic process and the neces­sities of the
present situation".
In Switzman v. Elbling, Rand J. recognized that freedom of expression
was limited and not absolute when he stated at p. 150 C.C.C., p. 356
For the past century and a half in both the United Kingdom and Canada,
there has been a steady removal of restraints on this freedom, stopping
only at perimeters where the foundation of the freedom itself is
threatened. Apart from sedition, obscene writings and criminal libels,
the public law leaves the literary, discursive and polemic use of
language, in the broadest sense, free.
The Canadian Bill of Rights, R. S.C. 1970, App. III, recognizes in s.
1(d) that freedom of speech has existed and shall continue to exist.
The preamble acknowledges the supremacy of God, and the dignity and
worth of the human person, and asserts that freedom can only be founded
upon respect for moral and spiritual values and the rule of law. This
would in turn confirm that freedom of expression which is guaranteed
under the Charter is not absolute.
More recently in Re Fraser and Public Service Staff Relations Board
1985 CanLII 14 (S.C.C.), (1985), 23 D.L.R. (4th) 122, [1985] 2 S.C.R.
455, 19 C.R.R. 152, in considering the extent to which a public servant
could openly criticize government policy, Dickson C.J.C. stated at p.
First, our democratic system is deeply rooted in, and thrives on, free
and robust public discussion of public issues. As a general rule, all
members of society should be permitted, indeed encouraged, to
participate in that discus­sion.
.....
On the other side, however, it is equally obvious that free speech or
expression is not an absolute, unqualified value. Other values must be
weighed with it. Sometimes these other values supplement, and build on,
the value of speech. But in other situations there is a collision. When
that happens the value of speech may be cut back if the competing value
is a powerful one. Thus, for example, we have laws dealing with libel
and slander, sedition and blasphemy. We also have laws imposing
restrictions on the press in the interests of, for example, ensuring a
fair trial or protecting the privacy of minors or victims of sexual
assaults.
[Emphasis added.]
When determining the limits of freedom of expression, a distinction
must be drawn at the outset between "rights" and "freedoms". A "right"
is defined positively as what one can do. A "freedom", on the other
hand, is defined by determining first the area which is regulated. The
freedom is then what exists in the unregulated area - a sphere of
activity within which all acts are permissible. It is a residual area
in which all acts are free of specific legal regulation and the
individual is free to choose. The regulated area will include
restrictions for purposes of decency and public order, and specifically
with respect to the freedom of expression, prohibitions concerning
criminal libel and sedition. It is what Rand J. described in Saumur v.
City of Quebec and A.-G. Que. 1953 CanLII 3 (S.C.C.), (1953), 106
C.C.C. 289 at p. 322, [1953] 4 D.L.R. 641 at p. 670, [1953] 2 S.C.R.
299 at p. 329, as "the residue inside the periphery". This is the
approach to rights and freedoms which was taken in the McRuer Report of
the Royal Commission Inquiry into Civil Rights, Report 2, vol. 4, pp.
1493-96 (1969), and was adopted by Bayda C.J.S. in Re Retail, Wholesale
& Department Store Union, Locals 54.4, 496, 635 & 955 et al. and
Government of Saskatchewan et al. 1985 CanLII 184 (SK C.A.), (1985), 19
D.L.R. (4th) 609 at pp. 616-8, [1985] 5 W.W.R. 97 at pp. 105-8, 39
Sask. R. 193. It is also the approach recently adopted by the Court of
Appeal of British Columbia in Re Cromer and British Columbia Teachers'
Federation et al., July 18, 1986 (unreported) at pp. 12-3 [since
reported 29 D.L.R. (4th) 641 at pp. 649-50, [1986] 5 W.W.R. 638, 4 B.
C. L. R. (2d) 273]. In our opinion it is the right approach.
D. Freedom of speech under the American Constitution
In considering the interpretation to be given to "freedom of
expression" in the Charter, it may be of assistance to examine the
corresponding provisions of the American Constitution and consider how
the American courts have dealt with them. At the outset it is
imperative to bear in mind that there are fundamental structural
differences between our Charter and the American Constitution, and
that, most importantly, the latter has no provision which corresponds
to s. 1 of the Canadian Charter.
The relevant provision of the American Constitution is the First
Amendment which provides in part that "Congress shall make no law ...
abridging the freedom of speech, or of the press ...". The rights of
freedom of speech and freedom of the press have also been held to be
fundamental personal rights and liberties which are protected by the
Fourteenth Amendment from invasion by state action: Chaplinsky v. State
of New Hampshire (1942), 315 U. S. 568. It will be noted that the words
"freedom of speech" rather than "freedom of expression" are used in the
American First Amendment. However, American courts have extended the
protection of the First Amendment to expressive conduct as "sym­bolic
speech", for example, the desecration of a flag: see Spence v.
Washington (1974), 418 U.S. 405.
In the Chaplinsky case, Chaplinsky was convicted of violating a New
Hampshire statute prohibiting the addressing of any offen­sive,
derisive or annoying word to any other person who is lawfully in any
street or other public place, or calling him by any offensive or
derisive name. The Supreme Court of the United States in upholding the
state legislation made it clear that the right of free speech was not
absolute and that the punishment of obscene, profane and libellous
utterances or insulting or fighting words did not raise a
constitutional problem. The interest of society in order and morality
outweighed any slight social value which such speech might have. As
Allowing the broadest scope to the language and purpose of the
Fourteenth Amendment, it is well understood that the right of free
speech is not absolute at all times and under all circumstances. There
are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which has never been thought to raise any
Constitutional problems. These include the lewd and obscene, the
profane, the libelous, and the insulting or "fighting" words - those
which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. It has been well observed that such
utterances are no essential part of any exposition of ideas, and are of
such slight social value as a step to truth that any benefit that may
be derived from them is clearly outweighed by the social interest in
order and morality. "Resort to epithets or personal abuse is not in any
proper sense communication of information or opinion safeguarded by the
Constitution, and its punishment as a criminal act would raise no
question under that instrument." Cantwell y. Connecticut, 310 U.S. 296,
309, 310, 60 S. Ct. 900, 906, 84 L.Ed. 1213, 128 A.L.R. 1352.
Despite the broad language of the First Amendment, it has been held
that neither criminal libel nor obscenity is protected by it. In
Beauharnais v. People of State of Illinois (1952), 343 U.S. 250, 72 S.
Ct. 725, the accused was convicted under an Illinois criminal libel
statute for distributing a leaflet which attacked the Negro race. In
this case a group libel was involved rather than uttering offensive
words to an individual face-to-face as in Chaplinsky, supra. The
majority of the Supreme Court of the United States, in an opinion
delivered by Frankfurter J., relied on its earlier decision in
Chaplinsky and held that libellous utter­ances were not
... it is unnecessary, either for us or for the State courts, to
consider the issues behind the phrase "clear and present danger".
Certainly no one would contend that obscene speech, for example, may be
punished only upon a showing of such circumstances. Libel, as we have
seen, is in the same class.
Justices Jackson, Douglas, Reed and Black dissented. Justice Douglas
My view is that if in any case other public interests are to override
the plain command of the First Amendment, the peril of speech must be
clear and present, leaving no room for argument, raising no doubts as
to the necessity of curbing speech in order to prevent disaster.
Justice Jackson would have applied the "clear and present danger" test.
Punishment of printed words, based on their tendency either to cause
breach of the peace or injury to persons or groups, in my opinion, is
justifiable only if the prosecution survives the "clear and present
danger" test. It is the most just and workable standard yet evolved for
determining criminality of words whose injurious or inciting tendencies
are not demonstrated by the event but are ascribed to them on the basis
of probabilities.
Group libel statutes represent a commendable desire to reduce sinister
abuses of our freedoms of expression - abuses which I have had
occasion to learn can tear apart a society, brutalize its dominant
elements, and persecute, even to extermination, its minorities ...
...our guiding spirit should be that each freedom is balanced with a
responsi­bility, and every power of the State must be checked with
safeguards. Such is the spirit of our American law of criminal libel,
which concedes the power to the State, but only as a power restrained
by recognition of individual rights.
The leading cases that obscenity is not within the areas of
constitutionally protected speech or press are Roth v. United States
(1957), 354 U.S. 476, and Alberts v. State of California. In Roth the
primary constitutional question was whether the federal obscenity
statute in issue violated the First Amendment, whereas in Alberts the
primary constitutional question was whether the obscenity provisions of
the California Penal Code invaded the freedoms of speech and press as
they may be incorporated into the liberty protected from state action
by the due process clause of the Fourteenth Amendment.
Justice Brennan in delivering the opinion of the majority of the court
noted that while the law of obscenity was not so fully developed as the
law of libel, there was sufficient contemporary evidence to show that
obscenity, too, was outside the protection intended for speech and
press. From the history of the First Amendment, its unconditional
phrasing and the early existence of laws as to criminal libel,
blasphemy, profanity and obscenity, he concluded that the First
Amendment was not intended to protect every utterance. At pp. 484-5 he
All ideas having even the slightest redeeming social importance -
unorthodox ideas, controversial ideas, even ideas hateful to the
prevailing climate of opinion - have the full protection of the
guaranties, unless excludable because they encroach upon the limited
area of more important interests. But implicit in the history of the
First Amendment is the rejection of obscenity as utterly without
redeeming social importance. This rejection for that reason is mirrored
in the universal judgment that obscenity should be restrained,
reflected in the international agreement of over 50 nations, in the
obscenity laws of all of the 48 States, and in the 20 obscenity laws
enacted by the Congress from 1842 to 1956. This is the same judgment
expressed by this Court in Chaplinsky v. New Hampshire, 315 U.S. 568,
571-572, 62 S.Ct. 766, 769, 86 L.Ed. 1031... We hold that obscenity is
not within the area of constitutionally protected speech or press.
Justices Douglas and Black dissented and Justice Harlan dissented in
part as to the Roth case only.
The laws of civil and criminal libel in the United States were altered
in meaning and scope after the Beauharnais case with the decisions in
New York Times Co. v. Sullivan (1964), 376 U.S. 254, and Garrison y.
State of Louisiana (1964), 379 U. S. 64. A distinction was drawn
between public officials on the one hand and private individuals on the
other. In the New York Times case, Sullivan, one of the three elected
commissioners of. the City of Montgomery, Alabama, brought a civil
libel action against four individual critics of his official conduct
and the New York Times Company for an advertisement published in the
New York Times. The Supreme Court of the United States held that there
was an absolute immunity for the criticism of the way public officials
do their public duty. Accordingly, the judgment for libel could not be
sustained. The court held that a public official cannot recover unless
it is proven that the libellous statement was made with "actual malice"
- that is, with knowledge that it was false or with reckless
disregard whether it was false or not.
In Garrison v. State of Louisiana, the Supreme Court of the United
States decided that the same rule should apply in the case of a
criminal libel prosecution as in an action for civil libel. In this
case a New Orleans attorney was convicted of issuing a statement
disparaging the judicial conduct of eight judges. He was convicted of
criminal defamation under the Louisiana Criminal Defamation Statute and
his conviction was upheld on appeal. The appellant contended that his
right of expression had been abridged. On a further appeal to the
Supreme Court of the United States, his conviction was reversed. The
Supreme Court applied the same rule as in New York Times Co. v.
Sullivan, supra, that criticism of official conduct of public officials
was constitutionally protected unless it was made with actual malice.
The Louisiana Criminal Libel Statute imposed standards which were
constitutionally invalid as it directed punishment for true statements
which were made with actual malice. It was also unconstitutional
because it punished false statements against public officials if made
with ill will without regard to whether they were made with knowledge
of their falsity or in reckless disregard of whether they are true or
false, or not made in reasonable belief of their truth. Brennan J. in
Moreover, even where the utterance is false, the great principles of
the Constitution which secure freedom of expression in this area
preclude attaching adverse consequences to any except the knowing or
reckless false­hood. Debate on public issues will not be uninhibited
if the speaker must run the risk that it will be proved in court that
he spoke out of hatred; even if he did speak out of hatred, utterances
honestly believed contribute to the free interchange of ideas and the
ascertainment of truth.
Although honest utterance, even if inaccurate, may further the fruitful
exercise of the right of free speech, it does not follow that the lie,
knowingly and deliberately published about a public official, should
enjoy a like immunity ... Calculated falsehood falls into that class of
utterances which "are no essential part of any exposition of ideas, and
are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social
interest in order and morality ...". Chaplinsky v. New Hampshire, 315
U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031. Hence the knowingly
false statement and the false statement made with reckless disregard of
the truth, do not enjoy constitutional protection.
Accordingly, American constitutional cases support the position that
freedom of speech is not an absolute freedom, and that there are
certain well-defined and limited classes of speech such as the obscene
or libellous, or knowingly false statements, which are not
constitutionally protected because any slight social value as a step to
truth that they may entail, is clearly outweighed by the social
interest in order and morality.
E. Does s. 177 of the Code infringe freedom of expression under s. 2(b)
of the Charter
It is not necessary for the purpose of this appeal to define the limits
of the unregulated areas where freedom of expression is supreme. The
pertinent question is whether s. 177 of the Criminal Code properly
forms part of the permissibly regulated area. If it does, then it is
not necessary to consider s. 1 of the Charter. The nub of the offence
in s. 177 is the wilful publication of assertions of a fact or facts
which are false to the knowledge of the person who publishes them, and
which cause or are likely to cause injury or mischief to a public
interest. It is difficult to see how such conduct would fall within any
of the previously expressed rationales for guaranteeing freedom of
expression. Spreading falsehoods knowingly is the antithesis of seeking
truth through the free exchange of ideas. It would appear to have no
social or moral value which would merit constitutional protection. Nor
would it aid the working of parliamentary democracy or further
self-fulfilment. In our opinion an offence falling within the ambit of
s. 177 lies within the permissibly regulated area which is not
constitutionally protected. It does not come within the residue which
comprises freedom of expression guaranteed by s. 2(b) of the Charter.
F. Application of s. 1 of the Charter
If we are in error in concluding that s. 177, which is now classified
in the Criminal Code as a nuisance, properly forms part of the
permissibly regulated area of conduct, then s. 177 would constitute an
infringement of the guaranteed freedom of expression and we would have
to consider whether those limita­tions prescribed by law are
reasonable and demonstrably justified in a free and democratic society
under s. 1 of the Charter. In this connection the onus is on the Crown
as the party claiming that the requirements of s. 1 have been
satisfied.
The two central criteria to be satisfied in the application of s. 1 of
the Charter were laid down by Dickson C.J.C. when delivering the
judgment of the majority of the Supreme Court of Canada in R. v. Oakes
1986 CanLII 46 (S.C.C.), (1986), 24 C.C.C. (3d) 321 at pp. 348-9, 26
D.L.R. (4th) 200 at p. 227, {19861 1 S.C.R. 103. They may be
(1) The objective which the measures responsible for a limit on a
Charter right or freedom are designed to serve, must be of sufficient
importance to warrant overriding a constitutionally protected right or
freedom. The objective must relate to concerns which are pressing and
substantial in a free and democratic society.
(2) The party invoking s. 1 must show that the means chosen to achieve
a permissible objective are reasonable and demonstrably justified. This
involves a form of proportionality test which has three conjunctive
(a) the measures adopted must be carefully designed to achieve the
objective in question. They must be rationally connected to the
objective;
(b) they should impair as little as possible the right or freedom in
question;
(c) there must be a proportionality between the effects of the measures
responsible for limiting the Charter right or freedom, and the
objective identified as of sufficient importance. The more serious the
deleterious effects of a measure, the more important the objective must
be.
The objective of s. 177 is to prohibit the wilful publication of false
statements which the person publishing them knows are false and which
cause, or are likely to cause, injury or mischief to the public
interest. Such an activity is the very opposite of free public
discussion. Stopping such publication by prosecution would seem not
only reasonable but important. Lesser measures would not appear to be
effective. As we have already pointed out, the statutory provision in
England comparable to s. 177 was repealed in 1888. Our attention was
not drawn by counsel to statutory provisions in other democratic
countries in similar terms to s. 177. Section 263 of the Criminal Code
sets forth the offence of publishing a defamatory libel and a higher
penalty is imposed by s. 264 where the person publishing the defamatory
libel knows that it is false. Section 330 of the Criminal Code provides
for the offence of conveying a false message knowing that it is false.
(a) England - Libel Act, 1843 (U. K.), c. 96, ss. 4 and 5.
(b) Victoria - The Wrongs Act 1958 (No. 6420), s. 10, as amended by
the Penalties and Sentences Amendment Act 1983 (No. 9945), s. 3(3).
(c) Western Australia - Criminal Code, 1913, No. 28 (4 Geo. V), s.
360.
(d) Queensland - The Criminal Code Act, 1899 (63 Viet. No. 9), s.
380.
(e) Ireland - Defamation Act, 1961 [No. 40], ss. 11 and 12.
Section 177 would appear to be a reasonable means of achieving the
objective of prohibiting the spread of false news which a person knows
to be false, and which causes or is likely to cause injury or mischief
to a public interest. It impairs freedom of expression as little as is
possible, and any impairment is propor­tionate to the objective to be
achieved. Accordingly, we have concluded that if s. 1 of the Charter is
applicable, s. 177 is a reasonable limit prescribed by law which can be
demonstrably justified in a free and democratic society.
G. Vagueness or overbreadth of s. 177
The final ground of appeal raised with respect to the
constitu­tionality of s. 177 is that it is too vague, or is overly
broad. Vagueness and overbreadth are two concepts. They can be applied
separately, or they may be closely interrelated. The intended effect of
a statute may be perfectly clear and thus not vague, and yet its
application may be overly broad. Alternatively, as an example of the
two concepts being closely interrelated, the wording of a statute may
be so vague that its effect is considered to be overbroad. Vagueness or
overbreadth, for the purpose of determining the permissibly regulated
area of conduct, and whether freedom of expression under s. 2(b) of the
Charter has been breached, may be different from vagueness or
overbreadth for the purpose of applying the criteria in Oakes as to the
appli­cation of s. 1 of the Charter.
This court in R. v. Morgentaler, Smoling and Scott 1985 CanLII 116 (ON
C.A.), (1985), 52 O.R. (2d) 353 at p. 388, 22 C.C.C. (3d) 353 at p.
388, 22 D.L.R. (4th) 641 at p. 676, adopted the principle in Village of
Hoffman Estates et al. y. Flipside, Hoffman Estates Inc. (1982), 455
U.S. 489 at p. 495, that if a person's conduct clearly falls within the
prescription of a statute, then that person cannot complain of the
vagueness of the statute as applied to others. To succeed on the basis
of vagueness, a person would have to show that the statute is vague in
all its applications as, for example, if there were no specified
standard of conduct.
When a freedom protected by the Charter is breached, then in applying
s. 1, the limits placed on that freedom must be reasonable limits
prescribed by law. The limits must be ascer­tainable and
understandable and articulated with some precision. They cannot be
Re Ontario Film & Video Appreciation Society and Ontario Board of
Censors (1983), 41 O.R. (2d) 583 at p. 592, 147 D.L.R. (2d) 58 at p.
68, 34 C.R. (3d) 73; affirmed 45 O.R. (2d) 80n, 5 D.L.R. (4th) 766n, 38
C.R. (3d) 271 (Ont. C.A.).
In Re Luscher and Deputy Minister, Revenue Canada, Customs & Excise
reflex, (1985), 17 D.L.R. (4th) 503, [1985] 1 F.C. 85, 45 C.R. (3d) 81,
the Federal Court of Appeal allowed an appeal from a county court judge
upholding the decision of the Deputy Minister prohibiting the
importation of a book under a tariff item as immoral or indecent. As
Hugessen J. said in delivering the judgment of the court at p. 506
In my opinion, one of the first characteristics of a reasonable limit
prescribed by law is that it should be expressed in terms sufficiently
clear to permit a determination of where and what the limit is. A limit
which is vague, ambiguous, uncertain, or subject to discretionary
determination is, by that fact alone, an unreasonable limit. If a
citizen cannot know with tolerable certainty the extent to which the
exercise of a guaranteed freedom may be restrained, he is likely to be
deterred from conduct which is, in fact, lawful and not prohibited.
Uncertainty and vagueness are constitutional vices when they are used
to restrain constitutionally protected rights and freedoms. While there
can never be absolute certainty, a limitation of a guaranteed right
must be such as to allow a very high degree of predictability to the
legal consequences.
The decision in Luscher would appear to involve a case of overbreadth
rather than vagueness.
In Re Information Retailers Ass'n of Metropolitan Toronto Inc. and
Municipality of Metropolitan Toronto reflex, (1985), 52 O.R. (2d) 449,
22 D.L.R. (4th) 161, 32 M. P. L. R. 49, this court considered a
municipal by-law which required persons selling adult books or
magazines to obtain a licence. Adult books or magazines included those
which appealed to erotic or sexual appetites or inclinations, but also
portrayed or depicted, as a principal feature or character­istic, one
or more specifically defined bodily areas. The court held that the
by-law was overly broad and that the infringement on the fundamental
freedom of expression was disproportionate to the objective of the
enactment which was to discourage or limit the exposure of children to
sexually-oriented pictorial material. At p. 472 O.R., p. 184 D.L.R.,
In the case of this by-law, whether it be seen as overbroad or vague
(and an element of vagueness is intrinsic in overbroad legislation) the
vice is essen­tially the same: it lacks a definition proportionate to
its aim which would give those governed by it and those who administer
it a reasonable opportunity to know what is covered by it, and to act
accordingly.
Bearing in mind the above authorities, the terminology of s. 177 would
not appear to be vague or overly broad. It is conceded that it is
limited to a statement of fact or facts. This statement must be known
by the person publishing it to be false. It is not applicable to a
statement made honestly, negligently, or recklessly. The statement must
cause or be likely to cause injury or mischief. Causation or the
likelihood or probability of causation of injury or mischief are
concepts within the ambit of the criminal law. The only question then
is whether the fact that the injury or mischief must be to a "public
interest" makes the section too broad. There are a great many offences
in which one aspect or another of the public interest is central. The
definition of a crime in the judgment of Rand J. in Reference re
Validity of s. 5(a) of Dairy Industry Act, 1948 CanLII 2 (S.C.C.),
[1949] 1 D.L.R. 433 at pp. 472-3, [1949] S.C.R. 1 at pp. 49-50, is
A crime is an act which the law, with appropriate penal sanctions,
forbids; but as prohibitions are not enacted in a vacuum, we can
properly look for some evil or injurious or undesirable effect upon the
public against which the law is directed. That effect may be in
relation to social, economic or political inter­ests; and the
legislature has had in mind to suppress the evil or to safeguard the
interest threatened.
.....
Is the prohibition then enacted with a view to a public purpose which
can support it as being in relation to criminal law? Public peace,
order, security, health, morality: these are the ordinary though not
exclusive ends served by that law ...
In our opinion, the words "injury or mischief to a public inter­est"
are not vague or overly broad in their context bearing in mind that
they are used in relation to a statement known by the accused to be
false. The maintenance of racial and religious harmony is certainly a
matter of public interest in Canada. The accused and those who
administer the law would have a reasonable opportunity to know what was
covered by s. 177 and to act accordingly. Furthermore, the specific
charge which the accused faced was expressly limited to the public
interest in racial and social toler­ance, so he was left in no doubt
as to the alleged manner in which his conduct was offensive.
H. Conclusion on constitutional validity of s. 177
Accordingly, in our opinion, s. 177 of the Criminal Code is not
unconstitutional as infringing the fundamental freedom of expression in
s. 2(b) of the Charter on the grounds of vagueness or overbreadth.
II The challenge for cause
It is alleged that the trial judge erred by refusing the defence
application to challenge the potential jurors for cause, in view of
prejudicial pretrial publicity generated by the prosecution.
On a motion made by defence counsel following the appellant's
arraignment but before any plea was taken, the presiding judge
conducted a pretrial voir dire. In the course of the voir dire the
appellant was sworn and testified, as the sole witness, regarding the
pretrial publicity concerning him. Section 567(1)(b) of the Criminal
567(1) A prosecutor or an accused is entitled to any number of
challenges on the ground that
.....
(b) a juror is not indifferent between the Queen and the accused ...
On the voir dire the appellant filed many articles published before the
trial in the Globe and Mail which identified the appellant as a
distributor of neo-Nazi, anti-Semitic hate literature. One such article
quoted political personalities describing the appellant as "one of the
world's big purveyors of Nazi propa­ganda" (Globe and Mail, June 15,
1983).
Other articles taken from the Toronto Sun and the Ottawa Citizen were
filed. They described action by the Postmaster-General to suspend the
appellant's mail privileges (later reinstated) and included comments by
the federal Minister of Justice on proposed legislation to curb hate
literature, with particular reference to the appellant.
Other materials filed included two articles reporting picketing by the
appellant and his group of the film "The Boys from Brazil", which is
said to describe the cloning of Hitler; and a number of articles in
different publications referring to large demonstrations by Jewish
groups at the appellant's home in Toronto and referring to the views of
a group known as the Canadian Holocaust Remem­brance Association which
focused on the appellant. The appellant described these materials as
standard Zionist rhetoric.
In addition, the appellant produced media reports of confronta­tions
between the appellant's group and hostile demonstrators at the earlier
court proceedings, and the explosion of a pipe bomb causing
considerable property damage near the appellant's garage in September,
1984. The appellant also produced on the voir dire a tape recording of
a CBC broadcast on the television programme the "National" which he
claims was a distortion of a press conference that he had given. There
was also evidence of a large demonstration of up to 2,000 people
outside of the appellant's home, and of demonstrations at the
court-house on the occasion of earlier appearances, which culminated in
a violent confrontation outside the Metropolitan court-house on the
first morning of the trial.
The evidence presented on the voir dire was meant to support the
appellant's endeavour to establish his right to question the
prospective jurors on their potential prejudice. The appellant's
purpose was to demonstrate that members of identifiable groups
entertained ill will towards him and therefore could not be
dispas­sionate and impartial jurors.
A. The questions
In his reasons for ruling, given orally after the first ruling on the
Charter, the learned trial judge summarized the evidence given by the
apellant on the voir dire and referred to the scenes of physical
violence between the appellant and his followers and members of the
Jewish Defence League. He quoted the questions which counsel for the
1. Can you consider and will your mind allow consideration of the
question of whether there were gas chambers in Germany for the
extermination of Jews? Yes or no.
2. Can you impartially consider the question of gas chambers and the
Holocaust and remove from your mind the massive publicity of it to
decide the case on the evidence put before you in this court and only
on such evidence? Yes or no.
3. Do you believe that the Jews of today are God's chosen people or
especially favoured by God? Yes or no.
4. Do you believe the Holocaust happened as depicted by the media, and
would you be able to remove that idea from your mind and consider the
question solely on the evidence presented in court? Yes or no.
5. Do you have any moral, religious or other beliefs relating to Jews
or the Holocaust such that you would convict or acquit regardless of
the law or evidence? Yes or no.
6. Do you have any moral, religious or other beliefs relating to
Freemasons such that you would convict or acquit regardless of the law
or evidence? Yes or no.
7. Have you, because of religious or moral beliefs, or because of what
you have heard, read or seen in the media, formed any opinion as to the
guilt or innocence of the accused? Yes or no.
8. Despite any beliefs or opinions, would you be able to set aside
those beliefs or opinions and reach a verdict of guilty or not guilty
solely on the evidence and the law you receive in this courtroom? Yes
or no.
9. Do you have any abiding prejudices against German people?
In addition, counsel for the accused had asked the trial judge, in his
opening remarks to the jury panel, to excuse anyone from the jury panel
(1) is a Jewish person or is employed by Jewish persons or is a close
relative of a Jewish person;
(2) is a Freemason or is employed by a Freemason or is a close friend
or relative of a Freemason;
(3) is personally acquainted with the accused in such a way that he
favours or dislikes the accused so much that he would be unable,
through preju­dice, to look impartially upon the accused or judge his
guilt or innocence solely on the evidence in court;
(4) speaks or understands some English, but has difficulty
understanding it fully.
After making reference to the decision of Osler J. in R. v. Crosby
(1979), 49 C.C.C. (2d) 255, the learned trial judge noted that there
had not been any "notorious episode in the community". In that case,
Osler J,, in refusing to permit counsel to challenge for cause on the
It seems to me that, in the absence of any notorious episode in a
community of the type I have mentioned, to permit challenges of this
kind to go forward simply on the ground that man is prejudiced and that
black and white may frequently be prejudiced against each other is to
admit to a weakness in our nation and in our community which I do not
propose to acknowledge.
Should the fact that an accused belongs to a particular, even a highly
visible minority group lead automatically to a searching examination of
prospective jurors on their views there would be few criminal cases
today in which such challenges would not be justified.
The learned trial judge concluded that allowing the proposed questions
would prevent a substantial segment of the community from sitting as
jurors. After quoting excerpts from the leading case in this province
on the subject of challenge for cause, R. v. Hubbert (1975), 11 O. R.
(2d) 464, 29 C.C.C. (2d) 279, 31 C. R. N. S. 27; affirmed 15 O.R. (2d)
324n, 33 C.C.C. (2d) 207n, [1977] 2 S.C.R. 267, the learned trial judge
I conclude with the observation that the evidence I have heard and read
shows that the accused, perhaps through his own deliberate acts, has
attracted much publicity and notoriety upon himself. His positions on
sensi­tive, emotion-provoking subjects certainly achieved that result,
in my view. That alone, however, should not compel the exercise of my
judicial discretion to permit any of these questions to be put. Each
and every proposed question, I find, offends the principles set out in
R. v. Hubbert. There is no evidentiary connection between the attracted
notoriety and the reasonable prospect that any prospective juror,
regardless of his or her racial origin or religious belief, or for any
other reason, would be unable to impartially return a verdict in this
trial based solely and only upon the evidence led thereat.
.....
Mr. Zundel elected trial by jury. No one forced him to elect that mode
of trial. He has an absolute right to be tried by a jury of his peers.
Having so elected, the public notoriety he has attracted to himself
does not, of itself, in the absence of anything further, entitle him to
use any of these questions to challenge his prospective jurors for
cause in order to tailor his own jury to suit him.
Following the dismissal of his application the appellant was arraigned
and pleaded not guilty to the charges. In his opening remarks to the
If there is any prospective juror here who is a member of, or who is
related by blood or marriage to anyone else who is a member of any
group or organi­zation which uses violent confrontation in public
places in support of or in opposition to the ideas of other groups, and
if by the reason of that membership or your relationship you feel that
you would be unable to judge and act as a judge or as a juror who, as a
judge, impartially, and solely and only upon the evidence that you have
heard, then you will please so indicate in the same manner as I have
already indicated.
If there is anything that you have heard, seen or read about this case
that would prevent you from impartially deciding a verdict solely and
only upon the evidence led in this courtroom, then of course you don't
come to the case free of preconceived notions or prejudice, and you
will please so indicate.
Notwithstanding anything I have said, if there is any member of your
number who is a prospective juror whose present views concerning the
guilt or innocence of this accused are so strongly fixed that an
impartial assessment of the evidence heard only in this trial would be
impossible or difficult, if the answer to this question or to any of
the other questions I have posed is yes, if your name is called please
indicate that when you come to the book to be sworn.
It is clear, from the analysis made by this court in R. v. Hubbert,
supra, at pp. 476-7 O.R., pp. 291-2 C.C.C., that where the suggestion
is made that publicity concerning the alleged offence has been
widespread, there may be a danger that the mind of a prospective juror
may be influenced and biased in such a way that he would be unable to
give an impartial verdict.
There is no doubt, and the learned trial judge found as a fact in the
instant case, that there had been considerable pretrial publicity in
the media, generally adverse to the appellant. In our respectful view,
the learned trial judge erred in stressing the absence of a notorious
episode and elevating it as a sine qua non requirement to a successful
application to allow the proposed questions in the challenge for cause.
While a notorious episode would be a factor to be considered in an
application of this kind, we do not think that Osler J. ever intended
it to be an absolute requirement. In the present case, in any event,
the series of well-publicized confrontations continuing up to the time
of trial would, in our view, qualify as notorious episodes.
Similarly, the fact that the appellant's conduct attracted publicity
and notoriety upon himself is not sufficient to automati­cally
disallow certain questions to be put to the jury. The judge's
discretion must be exercised judicially. The real question is whether
the particular publicity and notoriety of the accused could potentially
have the effect of destroying the prospective juror's indifference
between the Crown and the accused. In this context indifference means
"absence of feeling for or against": the Shorter Oxford English
Dictionary, 3rd ed. The equivalent is a now rare expression
"indifferency" meaning "absence of bias, prejudice or favour ..."
(ibid.).
The reference in the judge's ruling to the absence of an eviden­tiary
connection between the publicity and notoriety and the challenge to the
prospective juror's lack of indifference is, with respect, based on a
misconception. It is not for the presiding judge to rule on the
"evidentiary connection" but for the trier selected for that purpose.
In addition, the trial judge's statement that the accused "would not be
allowed to tailor-make his own jury" was incorrect, inasmuch as any
challenge for cause by the defence would have been tried by the triers
selected from the jury panel pursuant to the provisions of s. 569(2) of
the Criminal Code.
Having recognized these errors, it is only fair to point out that
counsel for the appellant, in his recorded submissions and in framing
the questions, was in large part responsible for the adverse ruling. It
is apparent on the record that Crown counsel at trial was prepared to
concede that certain questions could properly be asked of each
prospective juror. In particular, Qq. 7 and 8, if the reference to
"religious or moral belief", or "opinions" had been deleted, would have
been appropriate questions in seeking to determine whether the pretrial
publicity and the accused's notoriety had made it impossible for the
prospective juror to render an impartial verdict. This near-agreement
was referred to by the trial judge in his ruling in the following
As I understand it, Crown counsel and defence counsel may well have
come close to agreement that subject to my order, Qq. 7 and 8 might be
permitted, but they have been totally unable to agree with respect to
the balance of the questions that I have just read.
It appears from his submissions and proposed questions that defence
counsel at trial was attempting to disqualify all Freemasons and Jewish
members of the panel as jurors in the case. The assumption that Jewish
people or Freemasons form part of a homogeneous group with an identity
of interest capable of subverting their impartiality in a criminal case
is unwarranted and formed the basis of proposed Qq. 3, 5 and 6 in the
first group of questions and grounds 1 and 2 in the proposed remarks to
the jury panel. It is contrary to established practice, in this
province, to attempt to challenge jurors for cause on general grounds
such as race, religion, political belief, or opinions: see R. v.
Hubbert, supra, at pp. 475-6 O.R., p. 290 C.C.C.. Similarly, a
challenge on the basis of membership in a minority group is not
permissible in Canada.
Mr. Christie, counsel for the appellant, defended the propriety of
these questions by referring to questions which were approved by the
then Associate Chief Justice of the High Court in the 1984 prosecution
against Dr. Henry Morgentaler and others: R. v. Morgentaler, October
15, 1984 (unreported). We were provided with a certified transcript of
the three main questions which were framed following a long discussion
in chambers and which were asked of each prospective juror in the case.
All three questions inquired of the prospective juror whether he or she
had any religious, moral or other beliefs or opinions relating to
abortion that would interfere with the juror's ability to render a true
verdict. Mr. Christie also relied on the ruling made by Ewaschuk J. in
R. v. Rowbotham et al. (1984), 12 C.C.C. (3d) 189, where prospective
jurors were asked first, by defence counsel, whether they had a strong
dislike for the narcotic marijuana or hashish. As a corollary to this
question the Crown then asked whether they had a strong view in favour
of the legalization or use of marijuana or hashish. In either case, the
jurors were asked whether their views would prevent them from rendering
a true verdict based on the evidence given at trial. The rationale for
A general as opposed to a particular challenge may arise because of
extensive pretrial publicity or, as here, because of strong personal
views held by various members of the public on such controversial
matters as drugs, obscenity or abortion. The goal is to obtain a fair
trial for both sides based only on the evidence at trial and not on
jurors' personal prejudices.
Counsel for the appellant relied on the rulings in Morgentaler and
Rowbotham, made since the Hubbert decision, as supporting his proposed
set of questions on the challenge for cause. In partic­ular, he claims
to have framed his questions by reference to the questions allowed by
Parker A. C.J. H. C. in Morgentaler. There is some similarity in the
questions' reference to religious, moral or other beliefs. We must
point out, however, that the propriety of the questions used in the
challenge for cause in the Morgentaler case was never made an issue and
thus was not reviewed in the Crown appeal to this court.
In the present case, the defence motion was directed, in part, towards
the exclusion of Jewish people on the grounds that they would not
render a true verdict as to the occurrence of the Holocaust. The
majority of the proposed questions were improperly worded, and
therefore properly rejected by the learned trial judge. This rejection
should not have been the end of the matter, so as to foreclose any
challenge for cause.
In our view, although the presiding judge correctly refused the
questions as framed, he ought, in the circumstances, to have advised
counsel that he was not precluded from rephrasing certain of the
proposed questions in a manner which would have been in accordance with
the guidelines laid down in R. v. Hubbert.
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, when the grounds of challenge are properly specified in
accordance with s. 567(1)(b) of the Criminal Code and made before the
juror is sworn. We are concerned that the failure of the presiding
judge to advise counsel that he was at liberty to amend some of the
questions may have resulted in the denial of a fundamental right;
counsel was entitled to determine whether any potential juror was, by
reason of the pretrial publicity and the notoriety of the appellant,
sufficiently impartial. In our opinion the appellant was effectively
denied that fundamental right.
It was conceded by counsel, in the course of the argument, that the
challenge for cause was not repeated when each juror came forward to be
sworn, according to the correct practice. We agree, however, that once
the trial judge had refused the defence permission to ask any of the
proposed questions, and failed to give an opportunity to amend, the
defence was, in effect, prevented from exercising its right to
challenge for cause. A trial judge cannot, in the exercise of a
discretion which he undoubtedly possesses in the area of admitting
grounds of challenge for cause and settling the questions, effectively
curtail the statutory right to challenge for cause.
The warning later given by the trial judge, requesting that individual
members of the panel disqualify themselves under certain circumstances,
was insufficient to correct the erroneous denial of the statutory right
of challenge for cause. The issue of impartiality or indifference is
one that Parliament has entrusted to the two triers, not to the
conscience of the individual prospective juror.
We are all of the view that the appellant was deprived of his right to
have a jury selected according to law, whose impartiality or appearance
of impartiality could not be impugned. This error was compounded by the
judge's refusal to order a ban on the publication of both the
submissions made and of the ruling on the motion, as was done in R. v.
Keegstra, April 9, 1985 (unreported), which may have also prejudiced
the appellant's right to an impartial jury.
In our view this ground of appeal has merit and should be considered
with the other grounds in the disposition of the appeal.
III The admissibility of Dr. Hilberg's evidence
One of the principal grounds of appeal is that the opinion evidence of
Dr. Raul Hilberg to the effect that over five million Jews were
systematically annihilated by the Nazi government of Germany, was
inadmissible since Dr. Hilberg's evidence was based on hearsay.
With a view to establishing the systematic annihilation of millions of
Jews by the Nazi government of Germany, the Crown adduced the
eyewitness evidence of several survivors of Nazi concentration camps as
to what occurred in those camps, as well as the expert evidence of Dr.
Hilberg that over five million European Jews were killed, pursuant to
Nazi government policy.
It will be helpful to an understanding of Dr. Hilberg's evidence and
the legal issues that arise therefrom to outline that evidence briefly,
and to outline the nature of the eyewitness evidence. It is also
convenient to outline briefly at this time the evidence of Dr.
Faurisson who was permitted to give expert testimony for the defence on
the same basis upon which Dr. Hilberg was permitted to testify for the
Crown.
A. The eyewitness evidence
The eyewitness evidence, in the main, although not exclusively, related
to Auschwitz, which was a complex of camps. Auschwitz I was the main
camp. Auschwitz II, a subsidiary camp, was also known as Birkenau. The
evidence of several of the eyewitnesses essentially was that Jews were
collected at various places in Austria, Hungary, Poland and
Czechoslovakia and transported by cattle-car to Birkenau. At Birkenau
there was a wooden ramp about one-half mile long adjacent to the
railroad siding. When a train arrived carrying prisoners, members of
the SS ordered the prisoners to get out of the cars and to leave their
luggage behind. Some of the eyewitnesses testified that a selection
process, frequently conducted by Dr. Mengele, then began. The
able-bodied men and women were directed to one side in separate groups.
The old, the sick and the children were either marched off in the
direction of the crematoria at Birkenau or were loaded into lorries or
dump trucks which then left in the direction of Birkenau, returning in
a short time for another load. The men and the young women remained on
the ramp. One group of SS marched the men off to Auschwitz I and
another group of SS took the remaining women to the women's camp. There
were four crematoria in Birkenau. The gas chambers were adjacent to the
crematoria. After a transport of prisoners arrived, a buzzing sound
from the crematoria could be heard and smoke and flames could be seen
coming from the chimneys. The smoke and flames rarely stopped when
there was a great influx of prisoners. When the capacity of the
crematoria was exceeded the bodies were buried in pits.
Dr. Rudolf Vrba, one of the eyewitnesses, is an associate professor of
pharmacology at the University of British Columbia. He testified that
on June 20, 1942, he was put in a cattle truck and taken to Auschwitz
where he remained until 1944, when he escaped and returned to Slovakia.
For the first two months he was in Auschwitz I, where he worked at a
nearby construction site. The daily mortality rate at the construction
site was 5% to 10% of the total work-force. It is clear from his
evidence that the high mortality rate was due to privation and brutal
treatment. After about two months a typhus epidemic broke out and the
work was stopped. The prisoners were medically examined. Those who
failed the examination were loaded into lorries which left the camp,
and Dr. Vrba never saw them again.
He was then transferred to Birkenau. He said that he was assigned to a
work-force called the Kanada Kommando. This group would be sent to the
railroad siding when a transport was arriving. The job of the Kanada
Kommando was to sort the luggage and clean the cattle-cars after the
prisoners had been removed. Dr. Vrba testified that one of his jobs was
to load cannisters of Zyklon gas into a green military van with a large
red cross on the side prior to the arrival of a train. In December,
1942, in connection with his duties he was taken to Birkenau where he
saw pits containing burned bone fragments and the slightly burned heads
of children. He frequently visited a friend, Fred Wetzler, who was in
charge of the mortuary. From the mortuary he could see Crematorium II.
There were occasions when he saw several hundred people go into the
building. A corporal from the sanitation service would climb up to the
roof of a low structure or bunker, don a gas mask and empty one or two
tins of Zyklon into each vent in the roof. Dr. Vrba computed that
1,765,000 people were killed at Auschwitz while he was there and a
total of 2.5 million people were killed at Auschwitz during the war.
Dennis Urstein was born in Vienna. He was arrested and eventually taken
to Auschwitz. He also worked with the Kanada Kommando and met the
trains. He testified that in February, 1943, he and a group of
prisoners were driven to a building. A sergeant or a corporal donned a
gas mask and he heard a loud "hum" coming from the door of the building
they were facing. He knew this was a crematorium because of the smoke
stack. The corporal or sergeant then opened the door. Mr. Urstein and
the other prisoners were issued large hooks and ordered to remove the
bodies. They went through a small corridor to the gas chamber where he
saw a large number of bodies entangled with one another; the children,
generally, were on the bottom. They dragged the bodies out and then
they were ordered to wash the gas chamber.
Henry Leader was born in Poland. He testified that in 1941, several
thousand people were rounded up and transported to Maidanek
concentration camp. After several weeks he was assigned to assist in
carrying bodies from the gas chamber to the crematorium which at
Maidanek was about 350 yards from the gas chamber. The bodies would be
thrown from the gas chamber onto a ramp, loaded in wagons and taken to
the crematorium. The people inside the gas chamber dragging the bodies
out wore masks. The witness testified that in June, 1943, he was taken
from Maidanek to Birkenau. At Birkenau he could look through a wire
fence in the direction of the crematorium. He daily saw transports of
people arrive at the crematorium in dump trucks. On some days six or
seven trucks would arrive at a time. A truck would carry about 100
persons. The people were taken from the trucks to the gas chamber. He
never saw any of those people come out again. As the Russian Army
advanced, the prisoners were transported by cattle-car to Mauthausen in
Austria. He estimated that 35% of the prisoners perished en route.
Chester Tomaszewski was born in Poland. He was not Jewish. He was
arrested in October, 1939, and sent to Dachau concen­tration camp. He
was subsequently transferred to Mauthausen­Gussen in Austria. Gussen
is a satellite camp of Mauthausen. There were about 300 Jews in the
camp when he arrived. The entire Jewish population of the camp was
eliminated in a few weeks. One of the devices used by the guards was to
order a Jewish prisoner to pick up a stone outside the line of guards
and then to shoot him when he carried out the order.
B. Dr. Hilberg's evidence
The trial judge, as previously indicated, ruled after holding a voir
dire that Dr. Hilberg was qualified to testify as an expert witness on
the Holocaust. The judge expressly and immediately instructed the jury
that they were not bound to accept the opinion of an expert. He again
instructed the jury in his charge that they were free to accept or
reject the evidence of expert witnesses.
Dr. Hilberg is a professor at the University of Vermont where he
teaches courses in international relations, American foreign policy and
the Holocaust. He defined the Holocaust as the annihi­lation by
physical means of the Jews in Europe during the Nazi regime, 1933-1945.
He was appointed by the president of the United States to the United
States Holocaust Memorial Council and to the President's Commission on
The Holocaust. He testified that in his research he relied primarily on
documents and secondarily on the statements of witnesses who had direct
knowledge of the subject-matter.
During the war the United States seized a large part of the records of
the Nazi regime from 1933 to 1945. These records were physically kept
at the Federal Records Centre in Alexandria, Virginia. Dr. Hilberg was
employed for a time by the United States Government at the centre and
had direct access to these records. Many of the documents that he
examined were civil service or ministry documents. Some were military
documents, some were SS or party documents and some were industrial
documents. The documents used at the Nuremberg trials were taken from
this collection. He testified that, in addition, he has examined
documents in the archives of foreign countries where smaller
collections are available.
The major war criminals such as Goering were tried by the International
Military Tribunal established by a treaty to which about 20 countries
were parties. The judges were American, British, Russian and French.
Twelve subsequent trials involving high-ranking military officers, top
corporation executives, top members of the ministerial bureaucracy and
high-ranking SS personnel, were presided over by American judges. The
trials are referred to collectively as the Nuremberg trials; however,
the Nuremberg Trial refers to the trial before the International
Military Tribunal. Dr. Hilberg testified that he has read the
transcripts of the evidence and examined the documents intro­duced in
evidence at the Nuremberg Trial before the International Military
Tribunal and also the transcripts of the proceedings at the subsequent
Nuremberg trials before the American Military Tribunal. He commenced a
study of the Holocaust in 1948, and is the author of a book, "The
Destruction of The European Jews" which was first published in 1961; a
second and larger edition was expected to be published shortly.
Dr. Hilberg stated in cross-examination that he was of the opinion that
there was an oral order for the extermination of the Jews given by
Adolf Hitler in 1941. He testified that there was a plan within the
German high command for the "treatment of populations" in the territory
to be occupied in the U.S.S.R. This plan was submitted to Hitler who
indicated that he wished certain changes to be made. The changes were
made in April, 1941, and the directive was then resubmitted to Hitler.
According to the document written by General Jodl, and which is in the
West German Archives, Hitler said that he wanted the "Jewish-Bolshevik
Commissars" liquidated. Dr. Hilberg interpreted the order to mean that
Hitler wanted the Jewish people and the Bolshevik Commissars to be
liquidated.
When the German armies crossed the border into the Soviet Union they
were accompanied by battalion-size units of security police. These
units, called Einsatzgruppen, reported back on a daily basis, detailing
the number of people killed, of whom, according to the reports, 90% to
95% were Jews. Dr. Hilberg reasoned that one would not set up four
units of Einsatzgruppen aggregating 3,000 men to kill a handful of
Bolshevik Commissars, and therefore the clear intent of Hitler's oral
directive was that the Jews in the territory to be occupied should be
annihilated. Dr. Hilberg conceded that other historians take the view
that there was not a Hitler order.
It was Dr. Hilberg's opinion that the word "resettlement" became the
term used in the correspondence in World War II records to refer to the
process of deporting Jews to death camps. He characterized a death camp
as one set up for the specific purpose of killing people, Dr. Hilberg
said that Belzec, Treblinka, and Chelmno were used exclusively for
killing people. These camps were small and had no facilities of any
kind for production. Sobibor was also a death camp, but late in 1943, a
facility for making ammunition was established there.
Dr. Hilberg testified in cross-examination that Auschwitz was composed
of three camps - Auschwitz, Birkenau and Monowitz. The three camps
were also known as Auschwitz I, II and III. There was a gas chamber in
Auschwitz I. Two gas chambers were established in Birkenau in 1942. In
1943, four massive structures were built in Birkenau; these structures
contained gas chambers and crematoria. When the capacity of the
crematoria was exceeded the bodies were burned in pits outside the
building. There were, Dr. Hilberg testified, three gas chambers at
Maidanek. Belzec initially had three gas chambers but they were
expanded in 1942 to six. Chelmno was equipped with gas vans which used
carbon monoxide to kill prisoners. Treblinka had carbon monoxide gas
chambers.
Dr. Hilberg testified that he had also examined railroad schedules in
wartime Germany. They played an important role in his research. They
indicate, according to him, that the camps were located near places
where the Jewish population was the most dense. The Gestapo, as the
shipping agents, had to pay the German railways for each person
transported and, consequently, it was in the financial interest of the
Gestapo to make the trips as short as possible. The railway schedules
make clear that the transportees had to be counted because payment to
the railways had to be made for each person. It was highly significant
to Dr. Hilberg that suddenly there were hundreds of thousands of people
going to Treblinka and Sobibor which on the maps are small villages;
and of greater significance that the trains were returning empty.
Hoess, the commandant at Auschwitz, was a witness at Nuremberg and said
that 2,500,000 people were killed at Auschwitz. However, Dr. Hilberg
said that this figure was too high and he estimated that approximately
one million people were killed in the gas chambers at Auschwitz II
(Birkenau). According to Dr. Hilberg's estimate over five million Jews
were killed during the Nazi regime, of whom approximately three million
died in camps. The vast majority of those persons killed in camps were
killed in gas chambers, but several hundred thousand in those camps
were shot or died of deprivation or disease. In addition, approximately
1,300,000 or 1,400,000 Jews were shot in systematic operations such as
those conducted by the Einsatz­gruppen in the occupied U.S.S.R.,
Galicia and Serbia. The remainder, according to reports by the SS
statistician Korherr and the reports of Jewish councils in various
ghettos sent to German agencies, died from conditions in those ghettos.
Dr. Hilberg testified that of the Jewish population in Poland of
approximately 3,350,000 as of September, 1939, the death toll
attributable to the Holocaust was close to three million. His estimate
of the pre-war Jewish population in Poland appears to have been based
on the 1931 Polish census extrapolated to 1939. He testified in
cross-examination that of the pre-war population of approximately
3,350,000, there were only 50,000 Jews in Poland in 1945, excluding the
175,000 repatriates from the Soviet Union. He said there was a record
of those repatriated.
Dr. Hilberg testified that he found the pamphlet published by the
appellant to be a "concoction, contradiction, untruth mixed with
half-truths". He was asked by Crown counsel at the trial to comment on
various parts of the pamphlet and in substance he testified that those
parts contained misstatements and were false. In particular he said
that he never gave the figure of 896,892 Jews killed, attributed in the
pamphlet to the "Jewish statistician Raul Hilberg".
Dr. Hilberg was extensively cross-examined as to his reliance, in his
book, on one Gerstein, an SS officer. Dr. Hilberg agreed that some of
the statements made by Gerstein were not credible. He said, however,
that some parts of Gerstein's statements were credible and some were
corroborated. He said he used only those parts of his statements that
were credible, and that authors like himself develop a certain amount
of expertise in the use of material. Dr. Hilberg also testified that
the figure of 1.7 million Jews killed at Auschwitz contained in the War
Refugee Board Report, of which Dr. Vrba is a co-author, was too high.
C. Dr. Robert Faurisson
Olaf Timandahaff
2006-12-30 10:06:48 UTC
Permalink
Post by Ceri Thomas
How fucking dare you say we don't want to talk. It's you who doesn't want to
talk, you just lecture and preach, you fucking piece of worthless shit.
That's tellin' him Ceri!
Post by Ceri Thomas
I noticed your MSN group is gone /
Netizens use the term "cratered", I think:

http://en.wikipedia.org/wiki/BLU-82
Nena
2006-12-30 15:21:47 UTC
Permalink
Post by Ceri Thomas
I noticed your MSN group is gone and is under investigation for hate crimes
and copyright theft, glad I never joined that jail bait group.
Too bad his is closed while Ed King's and other hate-promoting groups
are still there.

See, that is what bothers average people and makes wonder about the
'democracy'; why is it working for some and does not working for others?

What rules are in place?
KMan
2006-12-30 15:44:12 UTC
Permalink
Post by Nena
Post by Ceri Thomas
I noticed your MSN group is gone and is under investigation for hate crimes
and copyright theft, glad I never joined that jail bait group.
Too bad his is closed while Ed King's and other hate-promoting groups
are still there.
How so? Who the fuck are you???? nena? fuckoff cunt!
Fuck Ed King! OK? Fair enough?
Post by Nena
See, that is what bothers average people and makes wonder about the
'democracy'; why is it working for some and does not working for others?
You are a sub-moron to start?
Post by Nena
What rules are in place?
The Fuck-off sub-moron rulez!
Nena
2006-12-30 15:51:45 UTC
Permalink
Post by KMan
Post by Nena
Post by Ceri Thomas
I noticed your MSN group is gone and is under investigation for hate crimes
and copyright theft, glad I never joined that jail bait group.
Too bad his is closed while Ed King's and other hate-promoting groups
are still there.
How so? Who the fuck are you???? nena? fuckoff cunt!
Fuck Ed King! OK? Fair enough?
Post by Nena
See, that is what bothers average people and makes wonder about the
'democracy'; why is it working for some and does not working for others?
You are a sub-moron to start?
Post by Nena
What rules are in place?
The Fuck-off sub-moron rulez!
Nice introduction to one who makes the rules in democracy; you are the
finest example, I tell you! Keep up the good work.
KMan
2006-12-30 15:58:10 UTC
Permalink
Nena kashewed:
[~`~]
Post by Nena
Post by KMan
The Fuck-off sub-moron rulez!
Nice introduction to one who makes the rules in democracy; you are the
finest example, I tell you! Keep up the good work.
Thankyou,,, and shut your fucking cake hole.
Nena
2006-12-30 16:13:47 UTC
Permalink
Post by KMan
[~`~]
Post by Nena
Post by KMan
The Fuck-off sub-moron rulez!
Nice introduction to one who makes the rules in democracy; you are the
finest example, I tell you! Keep up the good work.
Thankyou,,,
You are welcome, KAVEMAN.
KMan
2006-12-30 16:25:27 UTC
Permalink
Post by Nena
Post by KMan
[~`~]
Post by Nena
Post by KMan
The Fuck-off sub-moron rulez!
Nice introduction to one who makes the rules in democracy; you are the
finest example, I tell you! Keep up the good work.
Thankyou,,,
You are welcome, KAVEMAN.
Here read my buddy's headers:

From: "Kadaitcha Man" <fuck-***@kiss-my-big-black-ass.com>
Lines: 95
Message-ID: <1gvykp$ye6$***@patchy-nippers.com>
Newsgroups: 24hoursupport.helpdesk,alt.os.windows-xp,alt.usenet.kooks
Organization: Thou no-brained horn-mad. Thou dribbling shotten herring.
Path: news.alt.net!news.alt.net!news.alt.net!$3ef82b3c!133.256.1.103.MISMATCH!not-for-mail
Subject: Tumour Update #1: Why me?
X-Comment-1: In the view of the author, the material is likely to be considered
X-Comment-10: at www.netalert.net.au
X-Comment-2: unsuitable for children according to the Australian National
X-Comment-3: Classification Code, though not Prohibited or Potential Prohibited
X-Comment-4: content. You have a right to make complaints to the Australian
X-Comment-5: Broadcasting Authority (ABA) about Prohibited Content or Potential
X-Comment-6: Prohibited Content; and you have the right to know about the
X-Comment-7: procedures by which such complaints to the ABA can be made. Visit
X-Comment-8: www.aba.gov.au/internet/complaints/complaints.htm visit the
X-Comment-9: Australian Internet Safety Advisory Body's (IIA) NetAlert website
X-Fuck-You: Fuck you.
X-Rude-Afrikaans: Poes.
X-Rude-AncientLatin: Puto vos esse molestissimos.
X-Rude-Arabic: Haneek Omm elly Khalefetak.
X-Rude-Cantonese: Pok ley gor chow gai la.
X-Rude-Danish: Bøssehåndtag.
X-Rude-Dutch: Jij bent een oostaziatische verrotte buitenlander.
X-Rude-Finnish: Perseensuti.
X-Rude-Flemish: Onnuttigaard.
X-Rude-French: Chauve roi henri.
X-Rude-German: Arsch.
X-Rude-Greek: Hese-mas.
X-Rude-HebrewYiddish: Shteyner af zayne beyner.
X-Rude-Hungarian: Te rohadt kurva.
X-Rude-IrishGaelic: Go stróice an diabhal thú.
X-Rude-Italian: Leccami la mia figa
X-Rude-Japanese: Nametonchaunka?
X-Rude-Korean: Shibal nyon.
X-Rude-Maltese: Pacocc.
X-Rude-Mexican: Panzon.
X-Rude-Norwegian: Horeunge. Drittunge.
X-Rude-Polish: Idz do diabla.
X-Rude-Portuguese: Burro que nem uma porta.
X-Rude-Punjabi: Fatay huay lundtopi ka result.
X-Rude-Russian: Oblom. Ne pudri mne mozgi.
X-Rude-ScottishGaelic: Ciochean.
X-Rude-Shakespeare: Thou foolish lout. What a caterwauling dost thou keep.
X-Rude-Slavic: Svrbe me jaja.
X-Rude-Spanish: Cuando monos vuelven de mi culo.
X-Rude-Tagalog: E kung sipain kita diyan.
X-Rude-Turkish: Orospu.
X-Rude-Vietnamese: Vo giao duc.
X-Rude-Welsh: Twllt din. Hwran.
X-Rude-Words-1: griping itinerant
X-Rude-Words-10: underprivileged tatties
X-Rude-Words-11: sissy queer
X-Rude-Words-12: lame pump-action porridge bazooka
X-Rude-Words-13: torpid blower
X-Rude-Words-14: saturated pearl hotel
X-Rude-Words-15: slouching welfare bum
X-Rude-Words-16: blunt chuff adder
X-Rude-Words-17: passive cow-tits
X-Rude-Words-18: tragic sissy-boy
X-Rude-Words-19: destitute doppelganger
X-Rude-Words-2: tickle-brained gentleman slut
X-Rude-Words-20: hot lady in red
X-Rude-Words-21: disappointing flesh tuxedo
X-Rude-Words-22: wizened derelict
X-Rude-Words-23: horny Butt Dart
X-Rude-Words-24: misshapen titskis
X-Rude-Words-25: quiescent bufu
X-Rude-Words-26: stark fire rod
X-Rude-Words-27: dumb blonde hay bag
X-Rude-Words-28: wringing-wet poosazi
X-Rude-Words-29: pissing scrounger
X-Rude-Words-3: powerful pillows
X-Rude-Words-30: bitchy knob jockey
X-Rude-Words-31: grungy spheres
X-Rude-Words-32: active dung-puncher
X-Rude-Words-33: plump schvontz
X-Rude-Words-34: flaunting amateur
X-Rude-Words-35: moist vagooter
X-Rude-Words-4: trilling joy boy
X-Rude-Words-5: pulsing red ender
X-Rude-Words-6: tight-laced woman of accomodating morals
X-Rude-Words-7: tight wookie
X-Rude-Words-8: sloppy ragbag
X-Rude-Words-9: tree-hugging buller
X-Rude-XhosaZulu: Kuma. Nenda kutomba.

Sig-line!
Ceri Thomas
2006-12-30 17:34:48 UTC
Permalink
Wow aren't you classy guy....not. Even the shit in the toilet bowl is
above your comments. Nothing from you in all these posts and then all of a
sudden you come in with with fuck, shit, piss blah blah blah blah. You're
not even smart enough to state your beef, you just swear like like a ten
year old because you don't know enough English to communicate properly.
That hotel was called The King Edward after the a king, you know what one
of those are don't you? You could of at least found out what she was
talking about politely before running in shooting all your guns off at once.
Now we only know you as a raging 10 year old fucknut as that's what you
shown us all so far, unless you care to prove otherwise.
If you your reply is another rage fest of swears and no point to it, it
will be ignored as you will prove that your truely ignorant buy opening your
mouth that way and removing all doubt for the newsgroups world to see. Your
last comment about submoron is redundent as you appear to come off to be
that in your last posting below.
Post by KMan
Post by Nena
Post by Ceri Thomas
I noticed your MSN group is gone and is under investigation for hate crimes
and copyright theft, glad I never joined that jail bait group.
Too bad his is closed while Ed King's and other hate-promoting groups
are still there.
How so? Who the fuck are you???? nena? fuckoff cunt!
Fuck Ed King! OK? Fair enough?
Post by Nena
See, that is what bothers average people and makes wonder about the
'democracy'; why is it working for some and does not working for others?
You are a sub-moron to start?
Post by Nena
What rules are in place?
The Fuck-off sub-moron rulez!
Rab
2006-12-31 18:27:01 UTC
Permalink
You *really* are stupid, arn't you? Denegrading someones denegrading
comments with denegrating comments? THEN critisizing thier denegrating
comments? How many times did you do grade 3?? Is your name Earl??
What a fuckstick.
Post by Ceri Thomas
Wow aren't you classy guy....not. Even the shit in the toilet bowl is
above your comments. Nothing from you in all these posts and then all of a
sudden you come in with with fuck, shit, piss blah blah blah blah. You're
not even smart enough to state your beef, you just swear like like a ten
year old because you don't know enough English to communicate properly.
That hotel was called The King Edward after the a king, you know what
one of those are don't you? You could of at least found out what she was
talking about politely before running in shooting all your guns off at
once. Now we only know you as a raging 10 year old fucknut as that's what
you shown us all so far, unless you care to prove otherwise.
If you your reply is another rage fest of swears and no point to it, it
will be ignored as you will prove that your truely ignorant buy opening
your mouth that way and removing all doubt for the newsgroups world to
see. Your last comment about submoron is redundent as you appear to come
off to be that in your last posting below.
Post by KMan
Post by Nena
Post by Ceri Thomas
I noticed your MSN group is gone and is under investigation for hate crimes
and copyright theft, glad I never joined that jail bait group.
Too bad his is closed while Ed King's and other hate-promoting groups
are still there.
How so? Who the fuck are you???? nena? fuckoff cunt!
Fuck Ed King! OK? Fair enough?
Post by Nena
See, that is what bothers average people and makes wonder about the
'democracy'; why is it working for some and does not working for others?
You are a sub-moron to start?
Post by Nena
What rules are in place?
The Fuck-off sub-moron rulez!
Ceri Thomas
2006-12-30 17:03:21 UTC
Permalink
Well Nena democracy is a fallacy much like Utopia great on paper but not in
practice. There are those people that have and those that have not but there
are also those that do not have and want what others have by any means
necessary, usually by means of stealing or thwarting. That's what started
the whole thing shortly after we left the cave, when raiders came and stole
things and people started to gather and defend by means of common laws and
armies keeping out the theiving have nots. The trouble with masses is how
many qusetions does one want to debate before nothing else gets done (sadly
it less than one question a year now). That moron Telsacoils is a dissident
or outlaw because he's lazy and wants some kind of handout unlike the rest
of us whom work the system to get what we need or want by going to work,
starting a business or something contributing to the community. He figures
attacking it like shaking the tree, loads of friut will instead of building
a ladder to get exactly what he wants and not getting killed by a falling
branch. Throughout time there has always been uncontented dissidents like
him, trying the exact same thing, insighting revolt and it's never worked in
history but he's to narrow minded to know that from what he rants about
here. He seams pretty unfunded to as he was asking me for next to free
computer for his server. All he appears to only have is newpapers and the
internet which as most of us know are not very reliable sources for truths
instead of what sells. By what he talks about he's never really traveled
either and has very little culture because of that, it shows in his writing
very well.
As for rules, well... there are always some, you just got know what they
are. Sometimes even knowing what they are isn't enough though. When Marget
Thatcher started out, she was just trying to change things and have things
enforced in the school her children went to. As time went on she knew she
could do bigger and better improvments in her county and then the nation
years later. She did it not by revilution or revolt like some nut we know
but by using the tools already in place. Politics is the second dirtiest
game after lending money, so it's not for the light hearted or simple.
Hitler was sort of like our Teslacoil guy but he learned to appeal to those
in power before instituting major changes like nutjob would like to do I'm
sure, but now his been black listed from any person in power concerned with
image. He wants control but not with the thought of the masses whom made the
current system we have in place. Wether he admits or not, otherwise there
would be no point to his kicking at the tree. He would be better off I
think, sticking to his role playing computer games as he can wreck havoc all
he wants and nobody is bothered or looking to silencing him in some form or
another. It's clear Teslacoils and company doesn't know that governments
anywhere are like sleeping dragons. All is fine until you awaken them to you
then they don't stop until one is finished fully and like a dragon they have
the upper hand right out of the gate.
Post by Ceri Thomas
I noticed your MSN group is gone and is under investigation for hate
crimes and copyright theft, glad I never joined that jail bait group.
Too bad his is closed while Ed King's and other hate-promoting groups are
still there.
See, that is what bothers average people and makes wonder about the
'democracy'; why is it working for some and does not working for others?
What rules are in place?
Bill Smith
2006-12-31 09:39:58 UTC
Permalink
Hey Now


On Sat, 30 Dec 2006 08:31:24 GMT, "Ceri Thomas"
Post by Ceri Thomas
How fucking dare you say we don't want to talk. It's you who doesn't want to
talk, you just lecture and preach, you fucking piece of worthless shit.
I noticed your MSN group is gone and is under investigation for hate crimes
and copyright theft, glad I never joined that jail bait group. You should
hold your meetings in pubs and rally that work shall set you free like other
fucknut you remind me of. Leave this forum as what you write can be used
against you if your not careful. Those laws you hate do have vastly more
powers than you wether you like them or not. Lots of what you've posted here
does fall against the anti-hate laws, discrimination and uttering threats to
insight revolt in most western based countries including Canada.
Why don't you just say the sky is falling the sky is falling and get it over
with, that your a fucknut and move the fuck on.
We face world War 3 because people like you have not the stomach to
talk about the issues. Instead the Bnaibrith shuts down genuine
religions and the Jesuits help the Catholic church become a one world
religion. Nobody has time to dance around the truth because your
Catholic or jewish or both.
I am not racist the Jewish people are not responsible for a few
Jewish freemason. Just like the catholic people are not responsible
for the head of their church. They still should disown the
leadership!!!
www.arcticbeacon.com
Make sure if we ever meet remind me what you said here so I can
ignore you when you need help.
Post by Rab
I have issues with Freemasonry as well, but your posts certainly don't do
anything other than give these folks more credibility.
Just search freemason in Canadian courts ...very interesting
http://www.canlii.org/bc/cas/bcpc/2006/2006bcpc210.html
just search freemason, freemasonry
Court of Appeal for Ontario
R. v. Zundel
Date: 19870123
BY THE COURT:-The appellant Ernst Zundel was charged with the
commission of two offences contrary to s. 177 of the Criminal Code,
1. ERNST ZUNDEL stands charged that he, during the year 1981, at the
Munic­ipality of Metropolitan Toronto in the Judicial District of
York, did publish a statement or tale that he knows is false, namely
the article "The West, War, and Islam", and the said article is likely
to cause mischief to the public interest in social and racial
tolerance, contrary to the Criminal Code.
2. ERNST ZUNDEL stands further charged that he, in or about the year
1981, at the Municipality of Metropolitan Toronto in the Judicial
District of York, did publish a statement or tale, namely "Did Six
Million Really Die?" that he knows is false and that is likely to cause
mischief to the public interest in social and racial tolerance,
contrary to the Criminal Code.
After a seven-and-one-half week trial before the Honourable Judge Locke
and a general sessions jury, the appellant was acquitted on count 1 but
convicted on count 2. On March 25, 1985, he was sentenced to 15 months'
imprisonment together with three years' probation. It was a term of the
probation order that he would not publish, directly or indirectly,
anything on the subject of the Holocaust or any subject related to the
Holocaust. The appellant is appealing both conviction and sentence.
Although, as will be seen from our reasons, we are of the opinion that
the Honourable Judge Locke committed some errors during the course of
the trial and in his charge to the jury, we believe fairness requires
that we should acknowledge at the outset that this was a difficult and
complex trial. There was little case-law to guide the learned judge in
the interpretation and appli­cation of s. 177. In addition, he was
required almost daily to make rulings on difficult and involved
questions of law. For instance, the trial began with a challenge by
counsel for the accused to the validity of s. 177 on the ground that it
was inconsistent with s. 2(b) of the Canadian Charter of Rights and
Freedoms. This was followed immediately by an application by counsel
for the accused to have certain questions put by the trial judge to the
jury panel at large and to permit counsel to challenge prospective
jurors for cause by asking them a list of questions which he had
prepared. In all instances, the trial judge made his rulings promptly,
giving full and detailed reasons. While we do not always agree with his
rulings, the way in which he made them has greatly assisted us in the
determination of this appeal.
Since Crown counsel attached some significance to the appel­lant's
acquittal on count 1 of the indictment, we believe that before turning
to count 2, we should say a few words about the pamphlet that formed
the subject-matter of the first count. In 1981, the appellant wrote and
distributed a rambling, diffuse, four-page pamphlet entitled, "The
West, War and Islam!". In essence, the pamphlet alleged that a
conspiracy existed among International Zionists, International Secret
Societies (particularly Freemasonry), International Bankers, and
International Commu­nists to use their control of Western media "to
misinform, to miseducate and to instill hatred against the Islamic
peoples". The pamphlet appealed to the Islamic nations to rectify the
situation by assisting in the creation "of an independent, worldwide
inform­ation network capable of countering the now unopposed Zionist
disinformation and hate propaganda". It ended with an indirect appeal
to the Islamic world to contribute money to the appellant and his
organization so that they could commence a public inform­ation
campaign immediately. The appellant mailed the pamphlet to people
outside Canada from Morocco to Pakistan. It was not distributed in
Canada.
Count 2 of the indictment on which the appellant was convicted related
to the publication by the appellant of a 32-page pamphlet entitled,
"Did Six Million Really Die? Truth At Last Exposed:". The appellant
gave evidence at his trial. The following is a brief outline of the
background facts as related by him which led up to the publication of
the pamphlet.
The appellant was born in 1939 in the Black Forest region of Germany.
His father was a soldier in the German army in World War II, and except
for sporadic visits, was away from home until 1948. The appellant
related in detail the hardships that he experi­enced as a boy during
and after the war in Germany.
After finishing school in Germany, the appellant in 1958 decided to
immigrate to Canada. He chose Canada because it had a volunteer army
and the appellant did not wish to be drafted. On arrival in Canada, he
obtained employment as a graphic artist. He swore that up until 1960,
he firmly believed that the Germans had killed six million Jews during
World War II.
In 1959 the appellant married a French-Canadian girl. There were two
children of the marriage: Pierre, born in 1960, and Hans, born in 1967.
Shortly after the birth of Pierre, he and his wife moved to Montreal
where the appellant started his own business. He lived in Montreal for
nine years. He testified that he had a thriving business in Montreal,
and the business did so well that he was able to take off several
months each year and travel. In the course of his travels, he went all
over Europe, Canada and the United States making investigations
concerning German conduct during the Second World War. Gradually he
became more and more interested in the story that six million Jews had
been killed by the Germans during the war. By 1977, he said that his
interest in the subject had become "overwhelming",
The appellant outlined for the jury the elaborate and detailed
investigations he made into the truth of the allegation that six
million Jews were killed by the Germans during World War II, commencing
with his discussions in the 1960s in West Germany with Joseph Ginsburg,
the author of a German book called Schuld and Schicksal. As a result of
his investigations, the appellant said that he intended to write a book
to set the record straight. He gave the following testimony concerning
I had been involved in a study of this topic for a long time, and I had
planned to write something on this topic, but always held back because
it's such a distasteful subject to me. And I just couldn't get myself
to write it, and then I heard of a booklet in Europe called, "Did Six
Million Really Die?" out of England. I wrote to the publisher, got a
copy of the booklet in English. Then I received one in French, in
Dutch, in Flemish. There were later editions in Swedish, in Finnish, in
German I already said. I think there is one in Hungarian, and one in
Rumanian. I saw at that time before I ever thought of publishing it
four or five different languages of this booklet, so I naturally read
through this booklet and I thought that it was in a nice condensed form
virtually what I had intended to write myself, because I thought
something like that should be written. Most of the revisionist
literature of the day, like Rassinier, fairly thick tomes, and I have
learned one thing being in the graphic arts, that people like to read
less and less, especially serious stuff. So I felt this was a good
vehicle, of the best that I had seen. And Dr. App with whom I was at
that time working and had been selling some of his publica­tions, "The
Six Million Swindle", for instance, and another booklet called, "A
Straight Look at the Third Reich", and Christopherson's booklet, "The
Auschwitz Lie", I thought that the Harwood booklet was superior to all
the three or four which I was selling at the time.
In the beginning, the appellant imported the pamphlet from England and
distributed it in Canada; however, this did not prove satisfactory as
the English publisher did not package it properly. He then obtained an
American source for the pamphlet and made arrangements for the printing
of a Canadian edition. He added to the title the words, "Truth At Last
Exposed", and he wrote a foreword and a postscript. The publisher would
not, however, permit him to make any change in the format or in the
contents of the pamphlet.
Although the appellant's evidence as to when he published the pamphlet
is rather vague, and although the indictment states that it was "in or
about the year 1981", counsel for the appellant at the commencement of
the trial admitted, in response to a request from Crown counsel to
avoid the calling of a witness, that "Mr. Zundel published the article
and wrote a foreword and postscript to that article and distributed it
in Canada in 1983". The trial proceeded on this basis.
The appellant testified that he sold some copies of the pamphlet. He
said that he also sent copies free of charge to every member of
Parliament, to every Catholic priest in Ontario and Quebec, to every
Protestant minister in Ontario, to all radio stations, television
stations and newspaper editors in Ontario, and to every high school
history teacher in Ontario.
The pamphlet purports to be written by one Richard Harwood. At the end
RICHARD HARWOOD is a writer and specialist in political and diplomatic
aspects of the Second World War. At present he is with the University
of London. Mr. Harwood turned to the vexed subject of war crimes under
the influence of Professor Paul Rassinier, to whose monumental work
this little volume is greatly indebted. The author is now working on a
sequel in this series on the Main Nuremberg Trial, 1945-46.
Zundel testified that he discovered in 1982 or 1983 that Richard
Harwood was a pseudonym and that the author's real name was Richard
Verrai. Zundel said that, according to his information, Verrai was a
graduate student of one of London's universities in history. Zundel
tried to get Verrai to give evidence at the trial, but Verral refused
as he had married a Jewish girl and had given up political work.
In addition to printed material, the pamphlet contains some photographs
and a map showing the location of German concen­tration camps during
World War II. The general theme of the pamphlet is summed up in the
In the following chapters the author has, he believes, brought together
irrefutable evidence that the allegation that 6 million Jews died
during the Second World War, as a direct result of official German
policy of extermina­tion, is utterly unfounded. This conclusion,
admittedly an unpopular one, resulted from an inquiry which was begun
with no pre-conceived opinions, beyond a general notion that the
statistical possibility of such huge casualties was perhaps open to
doubt, as well as an awareness that political capital was being made
from the implications of this alleged atrocity. A great deal of careful
research into this question, however, has now convinced me beyond any
doubt that the allegation is not merely an exaggeration but an
invention of post-war propaganda.
.....
So far as the Jewish people themsleves [sic] are concerned, the
deception has been an incalculable benefit. Every conceivable race and
nationality had its share of suffering in the Second World War, but
none has so successfully elaborated it and turned it to such great
advantage. The alleged extent of their persecution quickly advised
sympathy for the Jewish national homeland they had sought for so long;
after the War the British Government did little to prevent Jewish
emigration to Palestine which they had declared illegal, and it was not
long afterwards that the Zionists wrested from the Government the land
of Palestine and created their haven from persecution, the State of
Israel. Indeed, it is a remarkable fact that the Jewish people emerged
from the Second World War as nothing less than a triumphant minority.
Dr. Max Nussbaum, the former chief rabbi of the Jewish community in
Berlin, stated on April 11, 1953: "The position the Jewish people
occupy today in the world - despite the enormous losses - is ten
times stonger [sic] than what it was twenty years ago." It should be
added, if one is to be honest, that this strength has been much
consolidated financially by the supposed massacre of the Six Million,
undoubtedly the most profitable atrocity allegation of all time. To
date, the staggering figure of six thousand million pounds has been
paid out in compensation by the Federal Government of West Germany,
mostly to the State of Israel (which did not even exist during the
Second World War), as well as to individual Jewish claimants.
The pamphlet proceeds to discuss these issues under the following
German Policy Towards the Jews Prior to the War
German Policy Towards the Jews After the Outbreak of War Population and
Emigration
The Six Million: Documentary Evidence
The Nuremberg Trials
Auschwitz and Polish Jewry
Some Concentration Camp Memoirs
The Nature & Condition of War-time Concentration Camps
The Jews and the Concentration Camps: A Factual Appraisal By the Red
Cross
The Truth At Last: The Work of Paul Rassinier
Under the subheading, "Enormous Fraud", the author of the pamphlet
quotes the following passage from Professor Paul Rassi­nier's book, Le
Perhaps I may be allowed to recall here that the State of Israel was
only founded in May 1948 and that the Jews were nationals of all states
with the exception of Israel, in order to underline the dimensions of a
fraud which defies description in any language; on the one hand Germany
pays to Israel sums which are calculated on six million dead, and on
the other, since at least four-fifths of these six million were
decidedly alive at the end of the war, she is paying substantial sums
by way of reparation to the victims of Hitler's Germany to those who
are still alive in countries all over the world other than Israel and
to the rightful claimants of those who have since deceased, which means
that for the former (I. e. the six million), or in other words, for the
vast majority, she is paying twice.
how many of the 3 million European Jews under German control survived
after 1945? The Jewish Joint Distribution Committee estimated the
number of survivors in Europe to be only one and a half million, but
such a figure is now totally unacceptable. This is proved by the
growing number of Jews claiming compensation from the West German
Government for having allegedly suffered between 1939 and 1945. By
1965, the number of these claimants registered with the West German
Government had tripled in ten years and reached 3,375,000 (Aufbau, June
30th, 1965). Nothing could be a more devas­tating proof of the brazen
fantasy of the Six Million. Most of these claimants are Jews, so there
can be no doubt that the majority of the 3 million Jews who experienced
the Nazi occupation of Europe are, in fact, very much alive. It is a
resounding confirmation of the fact that Jewish casualties during the
Second World War can only be estimated at a figure in thousands. Surely
this is enough grief for the Jewish people? Who has the right to
compound it with vast imaginary slaughter, marking with eternal shame a
great European nation, as well as wringing fraudulent monetary
compensation from them?
Zundel conceded that there were some errors in the pamphlet. For
example, the pamphlet states that Meyer Levin wrote the dialogue of The
Diary of Anne Frank. Zundel admitted that this was not correct. Levin
only wrote a stage adaption of The Diary. Otto Frank, the father of
Anne Frank, was dissatisfied with Levin's work and employed someone
else to do it. Zundel acknowl­edged that there were also some sloppy
errors in the Red Cross report. Zundel swore that he was not aware of
the errors until after he had published the pamphlet. However, he said
that 99% of the pamphlet was accurate, and he stood behind it.
The witnesses called by the Crown were principally directed to the
issue of whether or not six million Jews had died during the Second
World War as a direct result of official German policy of
extermination. A number of witnesses were called who had been
incarcerated in German concentration camps, such as Birkenau,
Auschwitz, and Maidenek; they testified about what they had seen and
what their experiences had been in the camps. The Crown also called Dr.
Raul Hilberg as an expert witness to testify on the subject of the
systematic destruction of Jews by the Germans during World War II. We
will be dealing with Dr. Hilberg's evidence in greater detail later in
these reasons. No direct evidence appears to have been called by the
Crown as to the appellant's knowledge that the statements in the
pamphlets were false.
The appellant's defence at the trial was that he had an honest belief
in the truth of what was written in the pamphlet. He produced a large
number of articles, letters and books which he had read prior to the
publication of the pamphlet and which he claimed accorded with what was
contained in the pamphlet. In addition, the defence called a number of
witnesses, some of whom were qualified to a limited extent as experts,
to prove the truth of the contents of the pamphlet. The appellant swore
that he had read material written by some of these witnesses in
arriving at his belief that the contents of the pamphlet were true.
Finally, the defence called a number of character witnesses to testify
to the good reputation of the appellant in the community.
Although counsel for the appellant advanced a number of grounds of
error, we believe that the following are the only ones that warrant
I Constitutional validity of s. 177 of the Criminal Code
The first ground of appeal raised by the appellant is that s. 177 of
the Criminal Code, which provides for the offence of "spreading false
news", is unconstitutional because it infringes the fundamental
"freedom of expression" guaranteed by the Canadian Charter of Rights
.....
(b) freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication;
A. History of s. 177
Before turning to consider the Charter, it is necessary to examine the
history of the offence of "spreading false news", and the essential
nature of the offence created by s. 177. The present s. 177 reads as
177. 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 is liable
to imprisonment for two years.
The offence of "spreading false news" had a very ancient origin in the
statutes concerning scandalum magnatum, the earliest of which is a
provision of the first Statute of Westminster, 1275, 3 Edw. I, c. 34,
Forasmuch as there have been oftentimes found in the Country Devisors
of Tales, whereby Discord, or Occasion of Discord, hath many times
arisen between the King and his People, or great Men of the Realm; For
the Damage that hath and may thereof ensue, it is commanded, That from
hence­forth, none be so hardy to tell or publish any false News or
Tales, whereby Discord or Occasion of Discord or Slander may grow
between the King and his People, or the great Men of the Realm; and he
that doth so, shall be taken and kept in Prison, until he hath brought
him into the Court, which was the first Author of the Tale.
This and subsequent amending statutes were primarily designed to
protect the peers and other great men against slanderous lies which
might imperil or cause mischief to the public if the perpe­trator were
not punished. Bishop in his text on Criminal Law, 5th ed. (1872), vol.
1, para. 473, states that the statute of Edward I provided a means
whereby the perpetrator could be brought to justice for an offence well
understood by the common law. There is authority that quite apart from
these statutes the common law recognized the publication of false news
to the public detriment as an offence: see Scott, "Publishing False
News", 30 Can. Bar Rev. 37 at p. 40 (1952).
The statute of 3 Edw. I, and the other amending statutes were finally
repealed in 1888. Prior to this time, Stephen had embodied in his
Digest of the Criminal Law, 1st ed. (1877), p. 57, art. 95, which
Spreading False News
Every one commits a misdemeanor who cites or publishes any false news
or tales whereby discord or occasion of discord or slander may grow
between the Queen and her people or the great men of the realm (or
which may produce other mischiefs)
The words in brackets at the end of this article are significant in
view of the words "injury or mischief to any public interest" in the
present s. 177 of the Code.
As the late Professor Scott pointed out in his learned article,
... the Canadian Criminal Code was based on Stephen's Digest and on the
Draft Code he prepared for the British Parliament in 1879. Burbridge,
the draftsman of the Canadian Code of 1892, himself published a Digest
of the Criminal Law of Canada in 1890, founded on Stephen's, and in
article 125 repeats the latter's article 95 verbatim, including the
comment that "The definition is very vague and the doctrine exceedingly
doubtful". Through Burbridge the doctrine, despite its vagueness,
entered our Code, the element of "false news or tales" remaining from
scandalum magnatum and the notion of "discord and slander between the
Queen and her people or the great men of the realm" being generalized
into "injury or mischief" to "any public interest".
Seditious Offences", which was under "Title II: Offences Against Public
126. Every one is guilty of an indictable offence and liable to one
year's imprisonment who wilfully and knowingly publishes any false news
or tale whereby injury or mischief is or is likely to be occasioned to
any public interest.
In the statutory revisions of 1906 (R.S.C. 1906, c. 146) and of 1927
(R.S.C. 1927, c. 36), the provision appeared as s. 136 under the same
general heading and subheading. In the revision of the Criminal Code in
1953-54 (Can.), c. 51, the word "statement" was inserted before the
words "tale or news" and the section was designated as s. 166 and was
reworded as the present wording of s. 177. However, s. 166 appeared in
"Part IV: Sexual Offences, Public Morals and Disorderly Conduct" under
the subheading "Nuisances". The reclassification of the offence from
the category of seditious offences to the category of nuisances may be
of signifi­cance in viewing it as an offence with less serious
potential consequences. In the 1970 revision (R.S.C. 1970, c. C-34),
the provision was renumbered as s. 177 under the same heading and
subheading but there was no change in wording.
(a) wilful publication, and
(b) the publication must be of a statement, tale or news.
(It is not necessary in this appeal to go into the precise difference
in meaning between a statement, tale and news. Counsel for the
respondent conceded that an assertion of fact must be proved which is
capable of being false. The assertion of an opinion is not sufficient.)
(c) The assertion of fact must be false to the knowledge of the person
who publishes it;
(d) it does not have to be proved that the false assertion of fact
actually caused injury or mischief to a public interest. It is
sufficient if it is proved that it was likely to cause such injury or
mischief.
In this appeal the charge specifies that the public interest in
question is the public interest in racial and social tolerance.
There are extremely few reported decisions on s. 177. In R. y. Hoaglin
(1907), 12 C.C.C. 226, the accused published a placard in connection
with a closing-out sale stating he had decided to leave Canada and that
settlers from the United States were not wanted in Canada. This was
done at a time when great efforts were being made to induce settlers
from the United States to come to Canada. He was convicted under a
predecessor of s. 177, the court holding that the publication was
contrary to the public interest.
In R. v. Kirby (1970), 1 C.C.C. (2d) 286, 13 Crim. L.Q. 128, an
underground newspaper published an edition in Montreal parodying the
Gazette and containing a false story that the mayor had been "shot by
[a] dope-crazed hippie". The Quebec Court of Appeal set aside the
conviction of the appellant. It considered that while the night city
editor of the Gazette might have been incon­venienced by the 50 or so
calls received at the Gazette switchboard, there was no injury or
mischief to a public interest. It was not "reasonably sure to cause
trouble and insecurity" (p. 289),
B. Procedure in determining constitutionality of s. 177
With this background it is now necessary to consider whether s. 177 is
unconstitutional because it infringes s. 2(b) of the Charter, the
fundamental freedom of expression. In considering the
consti­tutionality of impugned legislation under the Charter, both the
purpose and the effect of the legislation are relevant. No
funda­mental freedoms are more basic to our democratic way of life,
and more highly prized than the freedoms guaranteed under s. 2(b) of
the Charter. It is the freedom of "expression" with which we are
primarily concerned in this appeal. There is a twofold aspect to this
(a) Is the fundamental freedom of expression an absolute freedom, or is
it a qualified freedom which must give way to certain restrictions in
the interest of society as a whole? If it is a qualified freedom, then
the exact limits of that freedom must be determined.
(b) Once the limits of the freedom of expression have been
deter­mined, then a decision can be made whether those limits have
been breached. If so, then s. 1 of the Charter comes into operation in
order to decide whether the limitations imposed on the freedom are a
reasonable limit which is demonstrably justified in a free and
democratic society.
C. Limits of freedom of expression
It is essential at the outset to consider just exactly what is the
"freedom of expression" which is constitutionally protected. The words
are extremely broad. They are not like rights proscribed under some
other sections of the Charter such as ss. 10, 11(f) and (i). There the
limits of the rights protected are much clearer, and a breach is more
readily apparent and, if a breach has occurred, can be tested under s.
1 of the Charter.
Freedom of expression must necessarily have regard to the corresponding
rights and freedoms of other persons. It contem­plates the existence
of a social order in which other persons must not be denied similar
rights. A simplistic example, which is often given, is that a person is
not at liberty to shout "fire!" in a crowded theatre.
As Dickson C.J.C. stated when delivering the judgment of the Supreme
Court of Canada in R. v. Big M Drug Mart Ltd. 1985 CanLII 69 (S.C.C.),
(1985), 18 C.C.C. (3d) 385 at p. 418, 18 D.L.R. (4th) 321 at p. 354,
Freedom means that, subject to such limitations as are necessary to
protect public safety, order, health, or morals or the fundamental
rights and freedoms of others, no one is to be forced to act in a way
contrary to his beliefs or his conscience.
(Emphasis added.) (See also his dicta to the same effect at p. 425
C.C.C., p. 361 D.L.R.) In that case Chief Justice Dickson was, of
course, addressing his remarks to the limits of the fundamental freedom
of religion under s. 2(a) of the Charter but his remarks are, in our
opinion, apposite for "freedom of expression".
In this appeal it is not necessary to give an all-embracing definition
of "freedom of expression", but merely to decide whether "spreading
false news" within s. 177 of the Code is encompassed within that
fundamental freedom.
When considering the interpretation of the Charter, it is important to
bear in mind the admonition of Chief Justice Dickson in Hunter et al.
v. Southam Inc. 1984 CanLII 33 (S.C.C.), (1984), 14 C.C.C. (3d) 97 at
p. 106, 11 D.L.R. (4th) 641 at p. 650, 2 C.P.R. (3d) 1 at p. 10, [1984]
2 S.C.R. 145 at p. 156, that the proper approach to the definition of
"Its purpose is to guarantee and to protect, within the limits of
reason, the enjoyment of the rights and freedoms it enshrines."
In R. v. Big M Drug Mart Ltd., supra, at pp. 423-4 C.C.C., pp. 359-60
The meaning of a right or freedom guaranteed by the Charter was to be
ascertained by an analysis of the purpose of such a guarantee; it was
to be understood, in other words, in the light of the interests it was
meant to protect.
In my view, this analysis is to be undertaken, and the purpose of the
right or freedom in question is to be sought by reference to the
character and the larger objects of the Charter itself, to the language
chosen to articulate the specific right or freedom, to the historical
origins of the concepts enshrined, and where applicable, to the meaning
and purpose of the other specific rights and freedoms with which it is
associated within the text of the Charter. The interpretation should
be, as the judgment in Southam emphasizes, a generous rather than a
legalistic one, aimed at fulfilling the purpose of the guarantee and
securing for individuals the full benefit of the Charter's protection.
At the same time it is important not to overshoot the actual purpose of
the right or freedom in question, but to recall that the Charter was
not enacted in a vacuum, and must therefore, as this Court's decision
in Law Society of Upper Canada v. Skapinker 1984 CanLII 3 (S.C.C.),
(1984), 11 C.C.C. (3d) 481, 9 D.L.R. (4th) 161, [1984] 1 S.C.R. 357,
illustrates, be placed in its proper linguistic, philosophic and
historical contexts.
Differing reasons have been expressed as to why freedom of expression
should be guaranteed. Some have based it on the theory that the best
way to obtain truth is through the free exchange of ideas. Others have
based it on the theory that free expression of opinion is essential to
the working of a parlia­mentary democracy. A third rationale is that
it furthers self-fulfilment, what Professor Tribe in his American
Constitutional Law (1978), at p. 578, refers to as "the evolution,
definition and proclamation of individual and group identity".
The Supreme Court of Canada appears to have adopted the rationale that
freedom of expression is essential to the working of a parliamentary
democracy.
The historical roots of "freedom of expression" were carefully examined
by McIntyre J. in giving the reasons of the majority of the Supreme
Court of Canada in Retail, Wholesale & Department Store Union, Local
580 et al. v. Dolphin Delivery Ltd. et al., December 18, 1986
(unreported [since reported 1986 CanLII 5 (S.C.C.), [1987] 1 W.W.R.
577]). There the court had to consider whether secondary picketing of a
third party not involved in a labour dispute by members of a trade
union infringed the freedom of expression secured under s. 2(b) of the
Charter. McIntyre J., for a unanimous court on this point, considered
that freedom of expression was not created by the Charter but had been
recognized since early times. He cited in support the works of John
Milton and John Stuart Mill. He was of the opinion that freedom of
expression lay at the roots of parliamentary democracy. At p. 9 [p. 585
It is one of the fundamental concepts that has formed the basis for the
historical development of the political, social and educational
institutions of western society. Representative democracy, as we know
it today, which is in great part the product of free expression and
discussion of varying ideas, depends upon its maintenance and
protection.
He cited in support dicta of Holmes J. in Abrams v. United States
(1919), 250 U.S. 616 at p. 630; of Rand J. in Boucher v. The King, 1950
CanLII 2 (S.C.C.), [1950] 1 D.L.R. 657 at p. 682, [1951] S.C.R. 265 at
p. 288; and Rand J. and Abbott J. respectively in Switzman v. Ealing
and A.-G. Que. 1957 CanLII 2 (S.C.C.), (1957), 117 C.C.C. 129 at pp.
151 and 164, 7 D.L.R. (2d) 337 at pp. 357 and 369, [1957] S.C.R. 285 at
pp. 306 and 326. There Abbott J. had referred to the dicta of Duff
C.J.C. in Re Alberta Legislation, 1938 CanLII 1 (S.C.C.), [1938] 2
D.L.R. 81 at pp. 106-7, [1938] S.C.R. 100 sub nom. Reference re Alberta
Statutes, at pp. 132-3, as strongly supporting what could almost be
described as a constitu­tional position for the concept of freedom of
speech and expression in Canadian law, and then said at p. 166 C.C.C.,
p. 371 D.L.R., p. 328 S.C.R.: "... I am also of opinion that as our
constitutional Act now stands, Parliament itself could not abrogate
this right of discussion and debate".
McIntyre J. concluded that any question as to the constitutional status
of "freedom of expression" had been settled by the decla­ration in s.
2(b) of the Charter that it was now a fundamental freedom.
Historically, freedom of expression has not been an absolute freedom
which gives an unrestricted right of speech or expression. In Re
Alberta Legislation, supra, Sir Lyman P. Duff C.J.C. considered the
constitutionality of a bill of the Alberta Legisla­ture, "to Ensure
the Publication of Accurate News and Information". He stated at p. 107
The right of public discussion is, of course, subject to legal
restrictions; those based upon considerations of decency and public
order, and others conceived for the protection of various private and
public interests with which, for example, the laws of defamation and
sedition are concerned. In a word, freedom of discussion means, to
quote the words of Lord Wright in James v. Commonwealth of Australia,
[1936] A.C. at p. 627, "freedom governed by law."
In Boucher v. The King, Rinfret C.J.C., when considering an appeal from
a conviction for seditious libel stated in a dissenting opinion at p.
... to interpret freedom as license is a dangerous fallacy. Obviously
pure criti­cism, or expression of opinion, however severe or extreme,
is, I might almost say, to be invited. But, as was said elsewhere,
"there must be a point where restriction on individual freedom of
expression is justified and required on the grounds of reason, or on
the ground of the democratic process and the neces­sities of the
present situation".
In Switzman v. Elbling, Rand J. recognized that freedom of expression
was limited and not absolute when he stated at p. 150 C.C.C., p. 356
For the past century and a half in both the United Kingdom and Canada,
there has been a steady removal of restraints on this freedom, stopping
only at perimeters where the foundation of the freedom itself is
threatened. Apart from sedition, obscene writings and criminal libels,
the public law leaves the literary, discursive and polemic use of
language, in the broadest sense, free.
The Canadian Bill of Rights, R. S.C. 1970, App. III, recognizes in s.
1(d) that freedom of speech has existed and shall continue to exist.
The preamble acknowledges the supremacy of God, and the dignity and
worth of the human person, and asserts that freedom can only be founded
upon respect for moral and spiritual values and the rule of law. This
would in turn confirm that freedom of expression which is guaranteed
under the Charter is not absolute.
More recently in Re Fraser and Public Service Staff Relations Board
1985 CanLII 14 (S.C.C.), (1985), 23 D.L.R. (4th) 122, [1985] 2 S.C.R.
455, 19 C.R.R. 152, in considering the extent to which a public servant
could openly criticize government policy, Dickson C.J.C. stated at p.
First, our democratic system is deeply rooted in, and thrives on, free
and robust public discussion of public issues. As a general rule, all
members of society should be permitted, indeed encouraged, to
participate in that discus­sion.
.....
On the other side, however, it is equally obvious that free speech or
expression is not an absolute, unqualified value. Other values must be
weighed with it. Sometimes these other values supplement, and build on,
the value of speech. But in other situations there is a collision. When
that happens the value of speech may be cut back if the competing value
is a powerful one. Thus, for example, we have laws dealing with libel
and slander, sedition and blasphemy. We also have laws imposing
restrictions on the press in the interests of, for example, ensuring a
fair trial or protecting the privacy of minors or victims of sexual
assaults.
[Emphasis added.]
When determining the limits of freedom of expression, a distinction
must be drawn at the outset between "rights" and "freedoms". A "right"
is defined positively as what one can do. A "freedom", on the other
hand, is defined by determining first the area which is regulated. The
freedom is then what exists in the unregulated area - a sphere of
activity within which all acts are permissible. It is a residual area
in which all acts are free of specific legal regulation and the
individual is free to choose. The regulated area will include
restrictions for purposes of decency and public order, and specifically
with respect to the freedom of expression, prohibitions concerning
criminal libel and sedition. It is what Rand J. described in Saumur v.
City of Quebec and A.-G. Que. 1953 CanLII 3 (S.C.C.), (1953), 106
C.C.C. 289 at p. 322, [1953] 4 D.L.R. 641 at p. 670, [1953] 2 S.C.R.
299 at p. 329, as "the residue inside the periphery". This is the
approach to rights and freedoms which was taken in the McRuer Report of
the Royal Commission Inquiry into Civil Rights, Report 2, vol. 4, pp.
1493-96 (1969), and was adopted by Bayda C.J.S. in Re Retail, Wholesale
& Department Store Union, Locals 54.4, 496, 635 & 955 et al. and
Government of Saskatchewan et al. 1985 CanLII 184 (SK C.A.), (1985), 19
D.L.R. (4th) 609 at pp. 616-8, [1985] 5 W.W.R. 97 at pp. 105-8, 39
Sask. R. 193. It is also the approach recently adopted by the Court of
Appeal of British Columbia in Re Cromer and British Columbia Teachers'
Federation et al., July 18, 1986 (unreported) at pp. 12-3 [since
reported 29 D.L.R. (4th) 641 at pp. 649-50, [1986] 5 W.W.R. 638, 4 B.
C. L. R. (2d) 273]. In our opinion it is the right approach.
D. Freedom of speech under the American Constitution
In considering the interpretation to be given to "freedom of
expression" in the Charter, it may be of assistance to examine the
corresponding provisions of the American Constitution and consider how
the American courts have dealt with them. At the outset it is
imperative to bear in mind that there are fundamental structural
differences between our Charter and the American Constitution, and
that, most importantly, the latter has no provision which corresponds
to s. 1 of the Canadian Charter.
The relevant provision of the American Constitution is the First
Amendment which provides in part that "Congress shall make no law ...
abridging the freedom of speech, or of the press ...". The rights of
freedom of speech and freedom of the press have also been held to be
fundamental personal rights and liberties which are protected by the
Fourteenth Amendment from invasion by state action: Chaplinsky v. State
of New Hampshire (1942), 315 U. S. 568. It will be noted that the words
"freedom of speech" rather than "freedom of expression" are used in the
American First Amendment. However, American courts have extended the
protection of the First Amendment to expressive conduct as "sym­bolic
speech", for example, the desecration of a flag: see Spence v.
Washington (1974), 418 U.S. 405.
In the Chaplinsky case, Chaplinsky was convicted of violating a New
Hampshire statute prohibiting the addressing of any offen­sive,
derisive or annoying word to any other person who is lawfully in any
street or other public place, or calling him by any offensive or
derisive name. The Supreme Court of the United States in upholding the
state legislation made it clear that the right of free speech was not
absolute and that the punishment of obscene, profane and libellous
utterances or insulting or fighting words did not raise a
constitutional problem. The interest of society in order and morality
outweighed any slight social value which such speech might have. As
Allowing the broadest scope to the language and purpose of the
Fourteenth Amendment, it is well understood that the right of free
speech is not absolute at all times and under all circumstances. There
are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which has never been thought to raise any
Constitutional problems. These include the lewd and obscene, the
profane, the libelous, and the insulting or "fighting" words - those
which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. It has been well observed that such
utterances are no essential part of any exposition of ideas, and are of
such slight social value as a step to truth that any benefit that may
be derived from them is clearly outweighed by the social interest in
order and morality. "Resort to epithets or personal abuse is not in any
proper sense communication of information or opinion safeguarded by the
Constitution, and its punishment as a criminal act would raise no
question under that instrument." Cantwell y. Connecticut, 310 U.S. 296,
309, 310, 60 S. Ct. 900, 906, 84 L.Ed. 1213, 128 A.L.R. 1352.
Despite the broad language of the First Amendment, it has been held
that neither criminal libel nor obscenity is protected by it. In
Beauharnais v. People of State of Illinois (1952), 343 U.S. 250, 72 S.
Ct. 725, the accused was convicted under an Illinois criminal libel
statute for distributing a leaflet which attacked the Negro race. In
this case a group libel was involved rather than uttering offensive
words to an individual face-to-face as in Chaplinsky, supra. The
majority of the Supreme Court of the United States, in an opinion
delivered by Frankfurter J., relied on its earlier decision in
Chaplinsky and held that libellous utter­ances were not
... it is unnecessary, either for us or for the State courts, to
consider the issues behind the phrase "clear and present danger".
Certainly no one would contend that obscene speech, for example, may be
punished only upon a showing of such circumstances. Libel, as we have
seen, is in the same class.
Justices Jackson, Douglas, Reed and Black dissented. Justice Douglas
My view is that if in any case other public interests are to override
the plain command of the First Amendment, the peril of speech must be
clear and present, leaving no room for argument, raising no doubts as
to the necessity of curbing speech in order to prevent disaster.
Justice Jackson would have applied the "clear and present danger" test.
Punishment of printed words, based on their tendency either to cause
breach of the peace or injury to persons or groups, in my opinion, is
justifiable only if the prosecution survives the "clear and present
danger" test. It is the most just and workable standard yet evolved for
determining criminality of words whose injurious or inciting tendencies
are not demonstrated by the event but are ascribed to them on the basis
of probabilities.
Group libel statutes represent a commendable desire to reduce sinister
abuses of our freedoms of expression - abuses which I have had
occasion to learn can tear apart a society, brutalize its dominant
elements, and persecute, even to extermination, its minorities ...
...our guiding spirit should be that each freedom is balanced with a
responsi­bility, and every power of the State must be checked with
safeguards. Such is the spirit of our American law of criminal libel,
which concedes the power to the State, but only as a power restrained
by recognition of individual rights.
The leading cases that obscenity is not within the areas of
constitutionally protected speech or press are Roth v. United States
(1957), 354 U.S. 476, and Alberts v. State of California. In Roth the
primary constitutional question was whether the federal obscenity
statute in issue violated the First Amendment, whereas in Alberts the
primary constitutional question was whether the obscenity provisions of
the California Penal Code invaded the freedoms of speech and press as
they may be incorporated into the liberty protected from state action
by the due process clause of the Fourteenth Amendment.
Justice Brennan in delivering the opinion of the majority of the court
noted that while the law of obscenity was not so fully developed as the
law of libel, there was sufficient contemporary evidence to show that
obscenity, too, was outside the protection intended for speech and
press. From the history of the First Amendment, its unconditional
phrasing and the early existence of laws as to criminal libel,
blasphemy, profanity and obscenity, he concluded that the First
Amendment was not intended to protect every utterance. At pp. 484-5 he
All ideas having even the slightest redeeming social importance -
unorthodox ideas, controversial ideas, even ideas hateful to the
prevailing climate of opinion - have the full protection of the
guaranties, unless excludable because they encroach upon the limited
area of more important interests. But implicit in the history of the
First Amendment is the rejection of obscenity as utterly without
redeeming social importance. This rejection for that reason is mirrored
in the universal judgment that obscenity should be restrained,
reflected in the international agreement of over 50 nations, in the
obscenity laws of all of the 48 States, and in the 20 obscenity laws
enacted by the Congress from 1842 to 1956. This is the same judgment
expressed by this Court in Chaplinsky v. New Hampshire, 315 U.S. 568,
571-572, 62 S.Ct. 766, 769, 86 L.Ed. 1031... We hold that obscenity is
not within the area of constitutionally protected speech or press.
Justices Douglas and Black dissented and Justice Harlan dissented in
part as to the Roth case only.
The laws of civil and criminal libel in the United States were altered
in meaning and scope after the Beauharnais case with the decisions in
New York Times Co. v. Sullivan (1964), 376 U.S. 254, and Garrison y.
State of Louisiana (1964), 379 U. S. 64. A distinction was drawn
between public officials on the one hand and private individuals on the
other. In the New York Times case, Sullivan, one of the three elected
commissioners of. the City of Montgomery, Alabama, brought a civil
libel action against four individual critics of his official conduct
and the New York Times Company for an advertisement published in the
New York Times. The Supreme Court of the United States held that there
was an absolute immunity for the criticism of the way public officials
do their public duty. Accordingly, the judgment for libel could not be
sustained. The court held that a public official cannot recover unless
it is proven that the libellous statement was made with "actual malice"
- that is, with knowledge that it was false or with reckless
disregard whether it was false or not.
In Garrison v. State of Louisiana, the Supreme Court of the United
States decided that the same rule should apply in the case of a
criminal libel prosecution as in an action for civil libel. In this
case a New Orleans attorney was convicted of issuing a statement
disparaging the judicial conduct of eight judges. He was convicted of
criminal defamation under the Louisiana Criminal Defamation Statute and
his conviction was upheld on appeal. The appellant contended that his
right of expression had been abridged. On a further appeal to the
Supreme Court of the United States, his conviction was reversed. The
Supreme Court applied the same rule as in New York Times Co. v.
Sullivan, supra, that criticism of official conduct of public officials
was constitutionally protected unless it was made with actual malice.
The Louisiana Criminal Libel Statute imposed standards which were
constitutionally invalid as it directed punishment for true statements
which were made with actual malice. It was also unconstitutional
because it punished false statements against public officials if made
with ill will without regard to whether they were made with knowledge
of their falsity or in reckless disregard of whether they are true or
false, or not made in reasonable belief of their truth. Brennan J. in
Moreover, even where the utterance is false, the great principles of
the Constitution which secure freedom of expression in this area
preclude attaching adverse consequences to any except the knowing or
reckless false­hood. Debate on public issues will not be uninhibited
if the speaker must run the risk that it will be proved in court that
he spoke out of hatred; even if he did speak out of hatred, utterances
honestly believed contribute to the free interchange of ideas and the
ascertainment of truth.
Although honest utterance, even if inaccurate, may further the fruitful
exercise of the right of free speech, it does not follow that the lie,
knowingly and deliberately published about a public official, should
enjoy a like immunity ... Calculated falsehood falls into that class of
utterances which "are no essential part of any exposition of ideas, and
are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social
interest in order and morality ...". Chaplinsky v. New Hampshire, 315
U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031. Hence the knowingly
false statement and the false statement made with reckless disregard of
the truth, do not enjoy constitutional protection.
Accordingly, American constitutional cases support the position that
freedom of speech is not an absolute freedom, and that there are
certain well-defined and limited classes of speech such as the obscene
or libellous, or knowingly false statements, which are not
constitutionally protected because any slight social value as a step to
truth that they may entail, is clearly outweighed by the social
interest in order and morality.
E. Does s. 177 of the Code infringe freedom of expression under s. 2(b)
of the Charter
It is not necessary for the purpose of this appeal to define the limits
of the unregulated areas where freedom of expression is supreme. The
pertinent question is whether s. 177 of the Criminal Code properly
forms part of the permissibly regulated area. If it does, then it is
not necessary to consider s. 1 of the Charter. The nub of the offence
in s. 177 is the wilful publication of assertions of a fact or facts
which are false to the knowledge of the person who publishes them, and
which cause or are likely to cause injury or mischief to a public
interest. It is difficult to see how such conduct would fall within any
of the previously expressed rationales for guaranteeing freedom of
expression. Spreading falsehoods knowingly is the antithesis of seeking
truth through the free exchange of ideas. It would appear to have no
social or moral value which would merit constitutional protection. Nor
would it aid the working of parliamentary democracy or further
self-fulfilment. In our opinion an offence falling within the ambit of
s. 177 lies within the permissibly regulated area which is not
constitutionally protected. It does not come within the residue which
comprises freedom of expression guaranteed by s. 2(b) of the Charter.
F. Application of s. 1 of the Charter
If we are in error in concluding that s. 177, which is now classified
in the Criminal Code as a nuisance, properly forms part of the
permissibly regulated area of conduct, then s. 177 would constitute an
infringement of the guaranteed freedom of expression and we would have
to consider whether those limita­tions prescribed by law are
reasonable and demonstrably justified in a free and democratic society
under s. 1 of the Charter. In this connection the onus is on the Crown
as the party claiming that the requirements of s. 1 have been
satisfied.
The two central criteria to be satisfied in the application of s. 1 of
the Charter were laid down by Dickson C.J.C. when delivering the
judgment of the majority of the Supreme Court of Canada in R. v. Oakes
1986 CanLII 46 (S.C.C.), (1986), 24 C.C.C. (3d) 321 at pp. 348-9, 26
D.L.R. (4th) 200 at p. 227, {19861 1 S.C.R. 103. They may be
(1) The objective which the measures responsible for a limit on a
Charter right or freedom are designed to serve, must be of sufficient
importance to warrant overriding a constitutionally protected right or
freedom. The objective must relate to concerns which are pressing and
substantial in a free and democratic society.
(2) The party invoking s. 1 must show that the means chosen to achieve
a permissible objective are reasonable and demonstrably justified. This
involves a form of proportionality test which has three conjunctive
(a) the measures adopted must be carefully designed to achieve the
objective in question. They must be rationally connected to the
objective;
(b) they should impair as little as possible the right or freedom in
question;
(c) there must be a proportionality between the effects of the measures
responsible for limiting the Charter right or freedom, and the
objective identified as of sufficient importance. The more serious the
deleterious effects of a measure, the more important the objective must
be.
The objective of s. 177 is to prohibit the wilful publication of false
statements which the person publishing them knows are false and which
cause, or are likely to cause, injury or mischief to the public
interest. Such an activity is the very opposite of free public
discussion. Stopping such publication by prosecution would seem not
only reasonable but important. Lesser measures would not appear to be
effective. As we have already pointed out, the statutory provision in
England comparable to s. 177 was repealed in 1888. Our attention was
not drawn by counsel to statutory provisions in other democratic
countries in similar terms to s. 177. Section 263 of the Criminal Code
sets forth the offence of publishing a defamatory libel and a higher
penalty is imposed by s. 264 where the person publishing the defamatory
libel knows that it is false. Section 330 of the Criminal Code provides
for the offence of conveying a false message knowing that it is false.
(a) England - Libel Act, 1843 (U. K.), c. 96, ss. 4 and 5.
(b) Victoria - The Wrongs Act 1958 (No. 6420), s. 10, as amended by
the Penalties and Sentences Amendment Act 1983 (No. 9945), s. 3(3).
(c) Western Australia - Criminal Code, 1913, No. 28 (4 Geo. V), s.
360.
(d) Queensland - The Criminal Code Act, 1899 (63 Viet. No. 9), s.
380.
(e) Ireland - Defamation Act, 1961 [No. 40], ss. 11 and 12.
Section 177 would appear to be a reasonable means of achieving the
objective of prohibiting the spread of false news which a person knows
to be false, and which causes or is likely to cause injury or mischief
to a public interest. It impairs freedom of expression as little as is
possible, and any impairment is propor­tionate to the objective to be
achieved. Accordingly, we have concluded that if s. 1 of the Charter is
applicable, s. 177 is a reasonable limit prescribed by law which can be
demonstrably justified in a free and democratic society.
G. Vagueness or overbreadth of s. 177
The final ground of appeal raised with respect to the
constitu­tionality of s. 177 is that it is too vague, or is overly
broad. Vagueness and overbreadth are two concepts. They can be applied
separately, or they may be closely interrelated. The intended effect of
a statute may be perfectly clear and thus not vague, and yet its
application may be overly broad. Alternatively, as an example of the
two concepts being closely interrelated, the wording of a statute may
be so vague that its effect is considered to be overbroad. Vagueness or
overbreadth, for the purpose of determining the permissibly regulated
area of conduct, and whether freedom of expression under s. 2(b) of the
Charter has been breached, may be different from vagueness or
overbreadth for the purpose of applying the criteria in Oakes as to the
appli­cation of s. 1 of the Charter.
This court in R. v. Morgentaler, Smoling and Scott 1985 CanLII 116 (ON
C.A.), (1985), 52 O.R. (2d) 353 at p. 388, 22 C.C.C. (3d) 353 at p.
388, 22 D.L.R. (4th) 641 at p. 676, adopted the principle in Village of
Hoffman Estates et al. y. Flipside, Hoffman Estates Inc. (1982), 455
U.S. 489 at p. 495, that if a person's conduct clearly falls within the
prescription of a statute, then that person cannot complain of the
vagueness of the statute as applied to others. To succeed on the basis
of vagueness, a person would have to show that the statute is vague in
all its applications as, for example, if there were no specified
standard of conduct.
When a freedom protected by the Charter is breached, then in applying
s. 1, the limits placed on that freedom must be reasonable limits
prescribed by law. The limits must be ascer­tainable and
understandable and articulated with some precision. They cannot be
Re Ontario Film & Video Appreciation Society and Ontario Board of
Censors (1983), 41 O.R. (2d) 583 at p. 592, 147 D.L.R. (2d) 58 at p.
68, 34 C.R. (3d) 73; affirmed 45 O.R. (2d) 80n, 5 D.L.R. (4th) 766n, 38
C.R. (3d) 271 (Ont. C.A.).
In Re Luscher and Deputy Minister, Revenue Canada, Customs & Excise
reflex, (1985), 17 D.L.R. (4th) 503, [1985] 1 F.C. 85, 45 C.R. (3d) 81,
the Federal Court of Appeal allowed an appeal from a county court judge
upholding the decision of the Deputy Minister prohibiting the
importation of a book under a tariff item as immoral or indecent. As
Hugessen J. said in delivering the judgment of the court at p. 506
In my opinion, one of the first characteristics of a reasonable limit
prescribed by law is that it should be expressed in terms sufficiently
clear to permit a determination of where and what the limit is. A limit
which is vague, ambiguous, uncertain, or subject to discretionary
determination is, by that fact alone, an unreasonable limit. If a
citizen cannot know with tolerable certainty the extent to which the
exercise of a guaranteed freedom may be restrained, he is likely to be
deterred from conduct which is, in fact, lawful and not prohibited.
Uncertainty and vagueness are constitutional vices when they are used
to restrain constitutionally protected rights and freedoms. While there
can never be absolute certainty, a limitation of a guaranteed right
must be such as to allow a very high degree of predictability to the
legal consequences.
The decision in Luscher would appear to involve a case of overbreadth
rather than vagueness.
In Re Information Retailers Ass'n of Metropolitan Toronto Inc. and
Municipality of Metropolitan Toronto reflex, (1985), 52 O.R. (2d) 449,
22 D.L.R. (4th) 161, 32 M. P. L. R. 49, this court considered a
municipal by-law which required persons selling adult books or
magazines to obtain a licence. Adult books or magazines included those
which appealed to erotic or sexual appetites or inclinations, but also
portrayed or depicted, as a principal feature or character­istic, one
or more specifically defined bodily areas. The court held that the
by-law was overly broad and that the infringement on the fundamental
freedom of expression was disproportionate to the objective of the
enactment which was to discourage or limit the exposure of children to
sexually-oriented pictorial material. At p. 472 O.R., p. 184 D.L.R.,
In the case of this by-law, whether it be seen as overbroad or vague
(and an element of vagueness is intrinsic in overbroad legislation) the
vice is essen­tially the same: it lacks a definition proportionate to
its aim which would give those governed by it and those who administer
it a reasonable opportunity to know what is covered by it, and to act
accordingly.
Bearing in mind the above authorities, the terminology of s. 177 would
not appear to be vague or overly broad. It is conceded that it is
limited to a statement of fact or facts. This statement must be known
by the person publishing it to be false. It is not applicable to a
statement made honestly, negligently, or recklessly. The statement must
cause or be likely to cause injury or mischief. Causation or the
likelihood or probability of causation of injury or mischief are
concepts within the ambit of the criminal law. The only question then
is whether the fact that the injury or mischief must be to a "public
interest" makes the section too broad. There are a great many offences
in which one aspect or another of the public interest is central. The
definition of a crime in the judgment of Rand J. in Reference re
Validity of s. 5(a) of Dairy Industry Act, 1948 CanLII 2 (S.C.C.),
[1949] 1 D.L.R. 433 at pp. 472-3, [1949] S.C.R. 1 at pp. 49-50, is
A crime is an act which the law, with appropriate penal sanctions,
forbids; but as prohibitions are not enacted in a vacuum, we can
properly look for some evil or injurious or undesirable effect upon the
public against which the law is directed. That effect may be in
relation to social, economic or political inter­ests; and the
legislature has had in mind to suppress the evil or to safeguard the
interest threatened.
.....
Is the prohibition then enacted with a view to a public purpose which
can support it as being in relation to criminal law? Public peace,
order, security, health, morality: these are the ordinary though not
exclusive ends served by that law ...
In our opinion, the words "injury or mischief to a public inter­est"
are not vague or overly broad in their context bearing in mind that
they are used in relation to a statement known by the accused to be
false. The maintenance of racial and religious harmony is certainly a
matter of public interest in Canada. The accused and those who
administer the law would have a reasonable opportunity to know what was
covered by s. 177 and to act accordingly. Furthermore, the specific
charge which the accused faced was expressly limited to the public
interest in racial and social toler­ance, so he was left in no doubt
as to the alleged manner in which his conduct was offensive.
H. Conclusion on constitutional validity of s. 177
Accordingly, in our opinion, s. 177 of the Criminal Code is not
unconstitutional as infringing the fundamental freedom of expression in
s. 2(b) of the Charter on the grounds of vagueness or overbreadth.
II The challenge for cause
It is alleged that the trial judge erred by refusing the defence
application to challenge the potential jurors for cause, in view of
prejudicial pretrial publicity generated by the prosecution.
On a motion made by defence counsel following the appellant's
arraignment but before any plea was taken, the presiding judge
conducted a pretrial voir dire. In the course of the voir dire the
appellant was sworn and testified, as the sole witness, regarding the
pretrial publicity concerning him. Section 567(1)(b) of the Criminal
567(1) A prosecutor or an accused is entitled to any number of
challenges on the ground that
.....
(b) a juror is not indifferent between the Queen and the accused ...
On the voir dire the appellant filed many articles published before the
trial in the Globe and Mail which identified the appellant as a
distributor of neo-Nazi, anti-Semitic hate literature. One such article
quoted political personalities describing the appellant as "one of the
world's big purveyors of Nazi propa­ganda" (Globe and Mail, June 15,
1983).
Other articles taken from the Toronto Sun and the Ottawa Citizen were
filed. They described action by the Postmaster-General to suspend the
appellant's mail privileges (later reinstated) and included comments by
the federal Minister of Justice on proposed legislation to curb hate
literature, with particular reference to the appellant.
Other materials filed included two articles reporting picketing by the
appellant and his group of the film "The Boys from Brazil", which is
said to describe the cloning of Hitler; and a number of articles in
different publications referring to large demonstrations by Jewish
groups at the appellant's home in Toronto and referring to the views of
a group known as the Canadian Holocaust Remem­brance Association which
focused on the appellant. The appellant described these materials as
standard Zionist rhetoric.
In addition, the appellant produced media reports of confronta­tions
between the appellant's group and hostile demonstrators at the earlier
court proceedings, and the explosion of a pipe bomb causing
considerable property damage near the appellant's garage in September,
1984. The appellant also produced on the voir dire a tape recording of
a CBC broadcast on the television programme the "National" which he
claims was a distortion of a press conference that he had given. There
was also evidence of a large demonstration of up to 2,000 people
outside of the appellant's home, and of demonstrations at the
court-house on the occasion of earlier appearances, which culminated in
a violent confrontation outside the Metropolitan court-house on the
first morning of the trial.
The evidence presented on the voir dire was meant to support the
appellant's endeavour to establish his right to question the
prospective jurors on their potential prejudice. The appellant's
purpose was to demonstrate that members of identifiable groups
entertained ill will towards him and therefore could not be
dispas­sionate and impartial jurors.
A. The questions
In his reasons for ruling, given orally after the first ruling on the
Charter, the learned trial judge summarized the evidence given by the
apellant on the voir dire and referred to the scenes of physical
violence between the appellant and his followers and members of the
Jewish Defence League. He quoted the questions which counsel for the
1. Can you consider and will your mind allow consideration of the
question of whether there were gas chambers in Germany for the
extermination of Jews? Yes or no.
2. Can you impartially consider the question of gas chambers and the
Holocaust and remove from your mind the massive publicity of it to
decide the case on the evidence put before you in this court and only
on such evidence? Yes or no.
3. Do you believe that the Jews of today are God's chosen people or
especially favoured by God? Yes or no.
4. Do you believe the Holocaust happened as depicted by the media, and
would you be able to remove that idea from your mind and consider the
question solely on the evidence presented in court? Yes or no.
5. Do you have any moral, religious or other beliefs relating to Jews
or the Holocaust such that you would convict or acquit regardless of
the law or evidence? Yes or no.
6. Do you have any moral, religious or other beliefs relating to
Freemasons such that you would convict or acquit regardless of the law
or evidence? Yes or no.
7. Have you, because of religious or moral beliefs, or because of what
you have heard, read or seen in the media, formed any opinion as to the
guilt or innocence of the accused? Yes or no.
8. Despite any beliefs or opinions, would you be able to set aside
those beliefs or opinions and reach a verdict of guilty or not guilty
solely on the evidence and the law you receive in this courtroom? Yes
or no.
9. Do you have any abiding prejudices against German people?
In addition, counsel for the accused had asked the trial judge, in his
opening remarks to the jury panel, to excuse anyone from the jury panel
(1) is a Jewish person or is employed by Jewish persons or is a close
relative of a Jewish person;
(2) is a Freemason or is employed by a Freemason or is a close friend
or relative of a Freemason;
(3) is personally acquainted with the accused in such a way that he
favours or dislikes the accused so much that he would be unable,
through preju­dice, to look impartially upon the accused or judge his
guilt or innocence solely on the evidence in court;
(4) speaks or understands some English, but has difficulty
understanding it fully.
After making reference to the decision of Osler J. in R. v. Crosby
(1979), 49 C.C.C. (2d) 255, the learned trial judge noted that there
had not been any "notorious episode in the community". In that case,
Osler J,, in refusing to permit counsel to challenge for cause on the
It seems to me that, in the absence of any notorious episode in a
community of the type I have mentioned, to permit challenges of this
kind to go forward simply on the ground that man is prejudiced and that
black and white may frequently be prejudiced against each other is to
admit to a weakness in our nation and in our community which I do not
propose to acknowledge.
Should the fact that an accused belongs to a particular, even a highly
visible minority group lead automatically to a searching examination of
prospective jurors on their views there would be few criminal cases
today in which such challenges would not be justified.
The learned trial judge concluded that allowing the proposed questions
would prevent a substantial segment of the community from sitting as
jurors. After quoting excerpts from the leading case in this province
on the subject of challenge for cause, R. v. Hubbert (1975), 11 O. R.
(2d) 464, 29 C.C.C. (2d) 279, 31 C. R. N. S. 27; affirmed 15 O.R. (2d)
324n, 33 C.C.C. (2d) 207n, [1977] 2 S.C.R. 267, the learned trial judge
I conclude with the observation that the evidence I have heard and read
shows that the accused, perhaps through his own deliberate acts, has
attracted much publicity and notoriety upon himself. His positions on
sensi­tive, emotion-provoking subjects certainly achieved that result,
in my view. That alone, however, should not compel the exercise of my
judicial discretion to permit any of these questions to be put. Each
and every proposed question, I find, offends the principles set out in
R. v. Hubbert. There is no evidentiary connection between the attracted
notoriety and the reasonable prospect that any prospective juror,
regardless of his or her racial origin or religious belief, or for any
other reason, would be unable to impartially return a verdict in this
trial based solely and only upon the evidence led thereat.
.....
Mr. Zundel elected trial by jury. No one forced him to elect that mode
of trial. He has an absolute right to be tried by a jury of his peers.
Having so elected, the public notoriety he has attracted to himself
does not, of itself, in the absence of anything further, entitle him to
use any of these questions to challenge his prospective jurors for
cause in order to tailor his own jury to suit him.
Following the dismissal of his application the appellant was arraigned
and pleaded not guilty to the charges. In his opening remarks to the
If there is any prospective juror here who is a member of, or who is
related by blood or marriage to anyone else who is a member of any
group or organi­zation which uses violent confrontation in public
places in support of or in opposition to the ideas of other groups, and
if by the reason of that membership or your relationship you feel that
you would be unable to judge and act as a judge or as a juror who, as a
judge, impartially, and solely and only upon the evidence that you have
heard, then you will please so indicate in the same manner as I have
already indicated.
If there is anything that you have heard, seen or read about this case
that would prevent you from impartially deciding a verdict solely and
only upon the evidence led in this courtroom, then of course you don't
come to the case free of preconceived notions or prejudice, and you
will please so indicate.
Notwithstanding anything I have said, if there is any member of your
number who is a prospective juror whose present views concerning the
guilt or innocence of this accused are so strongly fixed that an
impartial assessment of the evidence heard only in this trial would be
impossible or difficult, if the answer to this question or to any of
the other questions I have posed is yes, if your name is called please
indicate that when you come to the book to be sworn.
It is clear, from the analysis made by this court in R. v. Hubbert,
supra, at pp. 476-7 O.R., pp. 291-2 C.C.C., that where the suggestion
is made that publicity concerning the alleged offence has been
widespread, there may be a danger that the mind of a prospective juror
may be influenced and biased in such a way that he would be unable to
give an impartial verdict.
There is no doubt, and the learned trial judge found as a fact in the
instant case, that there had been considerable pretrial publicity in
the media, generally adverse to the appellant. In our respectful view,
the learned trial judge erred in stressing the absence of a notorious
episode and elevating it as a sine qua non requirement to a successful
application to allow the proposed questions in the challenge for cause.
While a notorious episode would be a factor to be considered in an
application of this kind, we do not think that Osler J. ever intended
it to be an absolute requirement. In the present case, in any event,
the series of well-publicized confrontations continuing up to the time
of trial would, in our view, qualify as notorious episodes.
Similarly, the fact that the appellant's conduct attracted publicity
and notoriety upon himself is not sufficient to automati­cally
disallow certain questions to be put to the jury. The judge's
discretion must be exercised judicially. The real question is whether
the particular publicity and notoriety of the accused could potentially
have the effect of destroying the prospective juror's indifference
between the Crown and the accused. In this context indifference means
"absence of feeling for or against": the Shorter Oxford English
Dictionary, 3rd ed. The equivalent is a now rare expression
"indifferency" meaning "absence of bias, prejudice or favour ..."
(ibid.).
The reference in the judge's ruling to the absence of an eviden­tiary
connection between the publicity and notoriety and the challenge to the
prospective juror's lack of indifference is, with respect, based on a
misconception. It is not for the presiding judge to rule on the
"evidentiary connection" but for the trier selected for that purpose.
In addition, the trial judge's statement that the accused "would not be
allowed to tailor-make his own jury" was incorrect, inasmuch as any
challenge for cause by the defence would have been tried by the triers
selected from the jury panel pursuant to the provisions of s. 569(2) of
the Criminal Code.
Having recognized these errors, it is only fair to point out that
counsel for the appellant, in his recorded submissions and in framing
the questions, was in large part responsible for the adverse ruling. It
is apparent on the record that Crown counsel at trial was prepared to
concede that certain questions could properly be asked of each
prospective juror. In particular, Qq. 7 and 8, if the reference to
"religious or moral belief", or "opinions" had been deleted, would have
been appropriate questions in seeking to determine whether the pretrial
publicity and the accused's notoriety had made it impossible for the
prospective juror to render an impartial verdict. This near-agreement
was referred to by the trial judge in his ruling in the following
As I understand it, Crown counsel and defence counsel may well have
come close to agreement that subject to my order, Qq. 7 and 8 might be
permitted, but they have been totally unable to agree with respect to
the balance of the questions that I have just read.
It appears from his submissions and proposed questions that defence
counsel at trial was attempting to disqualify all Freemasons and Jewish
members of the panel as jurors in the case. The assumption that Jewish
people or Freemasons form part of a homogeneous group with an identity
of interest capable of subverting their impartiality in a criminal case
is unwarranted and formed the basis of proposed Qq. 3, 5 and 6 in the
first group of questions and grounds 1 and 2 in the proposed remarks to
the jury panel. It is contrary to established practice, in this
province, to attempt to challenge jurors for cause on general grounds
such as race, religion, political belief, or opinions: see R. v.
Hubbert, supra, at pp. 475-6 O.R., p. 290 C.C.C.. Similarly, a
challenge on the basis of membership in a minority group is not
permissible in Canada.
Mr. Christie, counsel for the appellant, defended the propriety of
these questions by referring to questions which were approved by the
then Associate Chief Justice of the High Court in the 1984 prosecution
against Dr. Henry Morgentaler and others: R. v. Morgentaler, October
15, 1984 (unreported). We were provided with a certified transcript of
the three main questions which were framed following a long discussion
in chambers and which were asked of each prospective juror in the case.
All three questions inquired of the prospective juror whether he or she
had any religious, moral or other beliefs or opinions relating to
abortion that would interfere with the juror's ability to render a true
verdict. Mr. Christie also relied on the ruling made by Ewaschuk J. in
R. v. Rowbotham et al. (1984), 12 C.C.C. (3d) 189, where prospective
jurors were asked first, by defence counsel, whether they had a strong
dislike for the narcotic marijuana or hashish. As a corollary to this
question the Crown then asked whether they had a strong view in favour
of the legalization or use of marijuana or hashish. In either case, the
jurors were asked whether their views would prevent them from rendering
a true verdict based on the evidence given at trial. The rationale for
A general as opposed to a particular challenge may arise because of
extensive pretrial publicity or, as here, because of strong personal
views held by various members of the public on such controversial
matters as drugs, obscenity or abortion. The goal is to obtain a fair
trial for both sides based only on the evidence at trial and not on
jurors' personal prejudices.
Counsel for the appellant relied on the rulings in Morgentaler and
Rowbotham, made since the Hubbert decision, as supporting his proposed
set of questions on the challenge for cause. In partic­ular, he claims
to have framed his questions by reference to the questions allowed by
Parker A. C.J. H. C. in Morgentaler. There is some similarity in the
questions' reference to religious, moral or other beliefs. We must
point out, however, that the propriety of the questions used in the
challenge for cause in the Morgentaler case was never made an issue and
thus was not reviewed in the Crown appeal to this court.
In the present case, the defence motion was directed, in part, towards
the exclusion of Jewish people on the grounds that they would not
render a true verdict as to the occurrence of the Holocaust. The
majority of the proposed questions were improperly worded, and
therefore properly rejected by the learned trial judge. This rejection
should not have been the end of the matter, so as to foreclose any
challenge for cause.
In our view, although the presiding judge correctly refused the
questions as framed, he ought, in the circumstances, to have advised
counsel that he was not precluded from rephrasing certain of the
proposed questions in a manner which would have been in accordance with
the guidelines laid down in R. v. Hubbert.
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, when the grounds of challenge are properly specified in
accordance with s. 567(1)(b) of the Criminal Code and made before the
juror is sworn. We are concerned that the failure of the presiding
judge to advise counsel that he was at liberty to amend some of the
questions may have resulted in the denial of a fundamental right;
counsel was entitled to determine whether any potential juror was, by
reason of the pretrial publicity and the notoriety of the appellant,
sufficiently impartial. In our opinion the appellant was effectively
denied that fundamental right.
It was conceded by counsel, in the course of the argument, that the
challenge for cause was not repeated when each juror came forward to be
sworn, according to the correct practice. We agree, however, that once
the trial judge had refused the defence permission to ask any of the
proposed questions, and failed to give an opportunity to amend, the
defence was, in effect, prevented from exercising its right to
challenge for cause. A trial judge cannot, in the exercise of a
discretion which he undoubtedly possesses in the area of admitting
grounds of challenge for cause and settling the questions, effectively
curtail the statutory right to challenge for cause.
The warning later given by the trial judge, requesting that individual
members of the panel disqualify themselves under certain circumstances,
was insufficient to correct the erroneous denial of the statutory right
of challenge for cause. The issue of impartiality or indifference is
one that Parliament has entrusted to the two triers, not to the
conscience of the individual prospective juror.
We are all of the view that the appellant was deprived of his right to
have a jury selected according to law, whose impartiality or appearance
of impartiality could not be impugned. This error was compounded by the
judge's refusal to order a ban on the publication of both the
submissions made and of the ruling on the motion, as was done in R. v.
Keegstra, April 9, 1985 (unreported), which may have also prejudiced
the appellant's right to an impartial jury.
In our view this ground of appeal has merit and should be considered
with the other grounds in the disposition of the appeal.
III The admissibility of Dr. Hilberg's evidence
One of the principal grounds of appeal is that the opinion evidence of
Dr. Raul Hilberg to the effect that over five million Jews were
systematically annihilated by the Nazi government of Germany, was
inadmissible since Dr. Hilberg's evidence was based on hearsay.
With a view to establishing the systematic annihilation of millions of
Jews by the Nazi government of Germany, the Crown adduced the
eyewitness evidence of several survivors of Nazi concentration camps as
to what occurred in those camps, as well as the expert evidence of Dr.
Hilberg that over five million European Jews were killed, pursuant to
Nazi government policy.
It will be helpful to an understanding of Dr. Hilberg's evidence and
the legal issues that arise therefrom to outline that evidence briefly,
and to outline the nature of the eyewitness evidence. It is also
convenient to outline briefly at this time the evidence of Dr.
Faurisson who was permitted to give expert testimony for the defence on
the same basis upon which Dr. Hilberg was permitted to testify for the
Crown.
A. The eyewitness evidence
The eyewitness evidence, in the main, although not exclusively, related
to Auschwitz, which was a complex of camps. Auschwitz I was the main
camp. Auschwitz II, a subsidiary camp, was also known as Birkenau. The
evidence of several of the eyewitnesses essentially was that Jews were
collected at various places in Austria, Hungary, Poland and
Czechoslovakia and transported by cattle-car to Birkenau. At Birkenau
there was a wooden ramp about one-half mile long adjacent to the
railroad siding. When a train arrived carrying prisoners, members of
the SS ordered the prisoners to get out of the cars and to leave their
luggage behind. Some of the eyewitnesses testified that a selection
process, frequently conducted by Dr. Mengele, then began. The
able-bodied men and women were directed to one side in separate groups.
The old, the sick and the children were either marched off in the
direction of the crematoria at Birkenau or were loaded into lorries or
dump trucks which then left in the direction of Birkenau, returning in
a short time for another load. The men and the young women remained on
the ramp. One group of SS marched the men off to Auschwitz I and
another group of SS took the remaining women to the women's camp. There
were four crematoria in Birkenau. The gas chambers were adjacent to the
crematoria. After a transport of prisoners arrived, a buzzing sound
from the crematoria could be heard and smoke and flames could be seen
coming from the chimneys. The smoke and flames rarely stopped when
there was a great influx of prisoners. When the capacity of the
crematoria was exceeded the bodies were buried in pits.
Dr. Rudolf Vrba, one of the eyewitnesses, is an associate professor of
pharmacology at the University of British Columbia. He testified that
on June 20, 1942, he was put in a cattle truck and taken to Auschwitz
where he remained until 1944, when he escaped and returned to Slovakia.
For the first two months he was in Auschwitz I, where he worked at a
nearby construction site. The daily mortality rate at the construction
site was 5% to 10% of the total work-force. It is clear from his
evidence that the high mortality rate was due to privation and brutal
treatment. After about two months a typhus epidemic broke out and the
work was stopped. The prisoners were medically examined. Those who
failed the examination were loaded into lorries which left the camp,
and Dr. Vrba never saw them again.
He was then transferred to Birkenau. He said that he was assigned to a
work-force called the Kanada Kommando. This group would be sent to the
railroad siding when a transport was arriving. The job of the Kanada
Kommando was to sort the luggage and clean the cattle-cars after the
prisoners had been removed. Dr. Vrba testified that one of his jobs was
to load cannisters of Zyklon gas into a green military van with a large
red cross on the side prior to the arrival of a train. In December,
1942, in connection with his duties he was taken to Birkenau where he
saw pits containing burned bone fragments and the slightly burned heads
of children. He frequently visited a friend, Fred Wetzler, who was in
charge of the mortuary. From the mortuary he could see Crematorium II.
There were occasions when he saw several hundred people go into the
building. A corporal from the sanitation service would climb up to the
roof of a low structure or bunker, don a gas mask and empty one or two
tins of Zyklon into each vent in the roof. Dr. Vrba computed that
1,765,000 people were killed at Auschwitz while he was there and a
total of 2.5 million people were killed at Auschwitz during the war.
Dennis Urstein was born in Vienna. He was arrested and eventually taken
to Auschwitz. He also worked with the Kanada Kommando and met the
trains. He testified that in February, 1943, he and a group of
prisoners were driven to a building. A sergeant or a corporal donned a
gas mask and he heard a loud "hum" coming from the door of the building
they were facing. He knew this was a crematorium because of the smoke
stack. The corporal or sergeant then opened the door. Mr. Urstein and
the other prisoners were issued large hooks and ordered to remove the
bodies. They went through a small corridor to the gas chamber where he
saw a large number of bodies entangled with one another; the children,
generally, were on the bottom. They dragged the bodies out and then
they were ordered to wash the gas chamber.
Henry Leader was born in Poland. He testified that in 1941, several
thousand people were rounded up and transported to Maidanek
concentration camp. After several weeks he was assigned to assist in
carrying bodies from the gas chamber to the crematorium which at
Maidanek was about 350 yards from the gas chamber. The bodies would be
thrown from the gas chamber onto a ramp, loaded in wagons and taken to
the crematorium. The people inside the gas chamber dragging the bodies
out wore masks. The witness testified that in June, 1943, he was taken
from Maidanek to Birkenau. At Birkenau he could look through a wire
fence in the direction of the crematorium. He daily saw transports of
people arrive at the crematorium in dump trucks. On some days six or
seven trucks would arrive at a time. A truck would carry about 100
persons. The people were taken from the trucks to the gas chamber. He
never saw any of those people come out again. As the Russian Army
advanced, the prisoners were transported by cattle-car to Mauthausen in
Austria. He estimated that 35% of the prisoners perished en route.
Chester Tomaszewski was born in Poland. He was not Jewish. He was
arrested in October, 1939, and sent to Dachau concen­tration camp. He
was subsequently transferred to Mauthausen­Gussen in Austria. Gussen
is a satellite camp of Mauthausen. There were about 300 Jews in the
camp when he arrived. The entire Jewish population of the camp was
eliminated in a few weeks. One of the devices used by the guards was to
order a Jewish prisoner to pick up a stone outside the line of guards
and then to shoot him when he carried out the order.
B. Dr. Hilberg's evidence
The trial judge, as previously indicated, ruled after holding a voir
dire that Dr. Hilberg was qualified to testify as an expert witness on
the Holocaust. The judge expressly and immediately instructed the jury
that they were not bound to accept the opinion of an expert. He again
instructed the jury in his charge that they were free to accept or
reject the evidence of expert witnesses.
Dr. Hilberg is a professor at the University of Vermont where he
teaches courses in international relations, American foreign policy and
the Holocaust. He defined the Holocaust as the annihi­lation by
physical means of the Jews in Europe during the Nazi regime, 1933-1945.
He was appointed by the president of the United States to the United
States Holocaust Memorial Council and to the President's Commission on
The Holocaust. He testified that in his research he relied primarily on
documents and secondarily on the statements of witnesses who had direct
knowledge of the subject-matter.
During the war the United States seized a large part of the records of
the Nazi regime from 1933 to 1945. These records were physically kept
at the Federal Records Centre in Alexandria, Virginia. Dr. Hilberg was
employed for a time by the United States Government at the centre and
had direct access to these records. Many of the documents that he
examined were civil service or ministry documents. Some were military
documents, some were SS or party documents and some were industrial
documents. The documents used at the Nuremberg trials were taken from
this collection. He testified that, in addition, he has examined
documents in the archives of foreign countries where smaller
collections are available.
The major war criminals such as Goering were tried by the International
Military Tribunal established by a treaty to which about 20 countries
were parties. The judges were American, British, Russian and French.
Twelve subsequent trials involving high-ranking military officers, top
corporation executives, top members of the ministerial bureaucracy and
high-ranking SS personnel, were presided over by American judges. The
trials are referred to collectively as the Nuremberg trials; however,
the Nuremberg Trial refers to the trial before the International
Military Tribunal. Dr. Hilberg testified that he has read the
transcripts of the evidence and examined the documents intro­duced in
evidence at the Nuremberg Trial before the International Military
Tribunal and also the transcripts of the proceedings at the subsequent
Nuremberg trials before the American Military Tribunal. He commenced a
study of the Holocaust in 1948, and is the author of a book, "The
Destruction of The European Jews" which was first published in 1961; a
second and larger edition was expected to be published shortly.
Dr. Hilberg stated in cross-examination that he was of the opinion that
there was an oral order for the extermination of the Jews given by
Adolf Hitler in 1941. He testified that there was a plan within the
German high command for the "treatment of populations" in the territory
to be occupied in the U.S.S.R. This plan was submitted to Hitler who
indicated that he wished certain changes to be made. The changes were
made in April, 1941, and the directive was then resubmitted to Hitler.
According to the document written by General Jodl, and which is in the
West German Archives, Hitler said that he wanted the "Jewish-Bolshevik
Commissars" liquidated. Dr. Hilberg interpreted the order to mean that
Hitler wanted the Jewish people and the Bolshevik Commissars to be
liquidated.
When the German armies crossed the border into the Soviet Union they
were accompanied by battalion-size units of security police. These
units, called Einsatzgruppen, reported back on a daily basis, detailing
the number of people killed, of whom, according to the reports, 90% to
95% were Jews. Dr. Hilberg reasoned that one would not set up four
units of Einsatzgruppen aggregating 3,000 men to kill a handful of
Bolshevik Commissars, and therefore the clear intent of Hitler's oral
directive was that the Jews in the territory to be occupied should be
annihilated. Dr. Hilberg conceded that other historians take the view
that there was not a Hitler order.
It was Dr. Hilberg's opinion that the word "resettlement" became the
term used in the correspondence in World War II records to refer to the
process of deporting Jews to death camps. He characterized a death camp
as one set up for the specific purpose of killing people, Dr. Hilberg
said that Belzec, Treblinka, and Chelmno were used exclusively for
killing people. These camps were small and had no facilities of any
kind for production. Sobibor was also a death camp, but late in 1943, a
facility for making ammunition was established there.
Dr. Hilberg testified in cross-examination that Auschwitz was composed
of three camps - Auschwitz, Birkenau and Monowitz. The three camps
were also known as Auschwitz I, II and III. There was a gas chamber in
Auschwitz I. Two gas chambers were established in Birkenau in 1942. In
1943, four massive structures were built in Birkenau; these structures
contained gas chambers and crematoria. When the capacity of the
crematoria was exceeded the bodies were burned in pits outside the
building. There were, Dr. Hilberg testified, three gas chambers at
Maidanek. Belzec initially had three gas chambers but they were
expanded in 1942 to six. Chelmno was equipped with gas vans which used
carbon monoxide to kill prisoners. Treblinka had carbon monoxide gas
chambers.
Dr. Hilberg testified that he had also examined railroad schedules in
wartime Germany. They played an important role in his research. They
indicate, according to him, that the camps were located near places
where the Jewish population was the most dense. The Gestapo, as the
shipping agents, had to pay the German railways for each person
transported and, consequently, it was in the financial interest of the
Gestapo to make the trips as short as possible. The railway schedules
make clear that the transportees had to be counted because payment to
the railways had to be made for each person. It was highly significant
to Dr. Hilberg that suddenly there were hundreds of thousands of people
going to Treblinka and Sobibor which on the maps are small villages;
and of greater significance that the trains were returning empty.
Hoess, the commandant at Auschwitz, was a witness at Nuremberg and said
that 2,500,000 people were killed at Auschwitz. However, Dr. Hilberg
said that this figure was too high and he estimated that approximately
one million people were killed in the gas chambers at Auschwitz II
(Birkenau). According to Dr. Hilberg's estimate over five million Jews
were killed during the Nazi regime, of whom approximately three million
died in camps. The vast majority of those persons killed in camps were
killed in gas chambers, but several hundred thousand in those camps
were shot or died of deprivation or disease. In addition, approximately
1,300,000 or 1,400,000 Jews were shot in systematic operations such as
those conducted by the Einsatz­gruppen in the occupied U.S.S.R.,
Galicia and Serbia. The remainder, according to reports by the SS
statistician Korherr and the reports of Jewish councils in various
ghettos sent to German agencies, died from conditions in those ghettos.
Dr. Hilberg testified that of the Jewish population in Poland of
approximately 3,350,000 as of September, 1939, the death toll
attributable to the Holocaust was close to three million. His estimate
of the pre-war Jewish population in Poland appears to have been based
on the 1931 Polish census extrapolated to 1939. He testified in
cross-examination that of the pre-war population of approximately
3,350,000, there were only 50,000 Jews in Poland in 1945, excluding the
175,000 repatriates from the Soviet Union. He said there was a record
of those repatriated.
Dr. Hilberg testified that he found the pamphlet published by the
appellant to be a "concoction, contradiction, untruth mixed with
half-truths". He was asked by Crown counsel at the trial to comment on
various parts of the pamphlet and in substance he testified that those
parts contained misstatements and were false. In particular he said
that he never gave the figure of 896,892 Jews killed, attributed in the
pamphlet to the "Jewish statistician Raul Hilberg".
Dr. Hilberg was extensively cross-examined as to his reliance, in his
book, on one Gerstein, an SS officer. Dr. Hilberg agreed that some of
the statements made by Gerstein were not credible. He said, however,
that some parts of Gerstein's statements were credible and some were
corroborated. He said he used only those parts of his statements that
were credible, and that authors like himself develop a certain amount
of expertise in the use of material. Dr. Hilberg also testified that
the figure of 1.7 million Jews killed at Auschwitz contained in the War
Refugee Board Report, of which Dr. Vrba is a co-author, was too high.
C. Dr. Robert Faurisson
Ceri Thomas
2006-12-31 17:08:30 UTC
Permalink
Hey what Billy? This goon keeps posting rants and never a responce. There
is no point in him posting things like that, if he's to cowardly to debate
or converse in an explanation to his statements. Wether it be with or
against his veiws.
Post by Bill Smith
Hey Now
On Sat, 30 Dec 2006 08:31:24 GMT, "Ceri Thomas"
Post by Ceri Thomas
How fucking dare you say we don't want to talk. It's you who doesn't want to
talk, you just lecture and preach, you fucking piece of worthless shit.
I noticed your MSN group is gone and is under investigation for hate crimes
and copyright theft, glad I never joined that jail bait group. You should
hold your meetings in pubs and rally that work shall set you free like other
fucknut you remind me of. Leave this forum as what you write can be used
against you if your not careful. Those laws you hate do have vastly more
powers than you wether you like them or not. Lots of what you've posted here
does fall against the anti-hate laws, discrimination and uttering threats to
insight revolt in most western based countries including Canada.
Why don't you just say the sky is falling the sky is falling and get it over
with, that your a fucknut and move the fuck on.
We face world War 3 because people like you have not the stomach to
talk about the issues. Instead the Bnaibrith shuts down genuine
religions and the Jesuits help the Catholic church become a one world
religion. Nobody has time to dance around the truth because your
Catholic or jewish or both.
I am not racist the Jewish people are not responsible for a few
Jewish freemason. Just like the catholic people are not responsible
for the head of their church. They still should disown the
leadership!!!
www.arcticbeacon.com
Make sure if we ever meet remind me what you said here so I can
ignore you when you need help.
Post by Rab
I have issues with Freemasonry as well, but your posts certainly don't do
anything other than give these folks more credibility.
Just search freemason in Canadian courts ...very interesting
http://www.canlii.org/bc/cas/bcpc/2006/2006bcpc210.html
just search freemason, freemasonry
Court of Appeal for Ontario
R. v. Zundel
Date: 19870123
BY THE COURT:-The appellant Ernst Zundel was charged with the
commission of two offences contrary to s. 177 of the Criminal Code,
1. ERNST ZUNDEL stands charged that he, during the year 1981, at the
Munic­ipality of Metropolitan Toronto in the Judicial District of
York, did publish a statement or tale that he knows is false, namely
the article "The West, War, and Islam", and the said article is likely
to cause mischief to the public interest in social and racial
tolerance, contrary to the Criminal Code.
2. ERNST ZUNDEL stands further charged that he, in or about the year
1981, at the Municipality of Metropolitan Toronto in the Judicial
District of York, did publish a statement or tale, namely "Did Six
Million Really Die?" that he knows is false and that is likely to cause
mischief to the public interest in social and racial tolerance,
contrary to the Criminal Code.
After a seven-and-one-half week trial before the Honourable Judge Locke
and a general sessions jury, the appellant was acquitted on count 1 but
convicted on count 2. On March 25, 1985, he was sentenced to 15 months'
imprisonment together with three years' probation. It was a term of the
probation order that he would not publish, directly or indirectly,
anything on the subject of the Holocaust or any subject related to the
Holocaust. The appellant is appealing both conviction and sentence.
Although, as will be seen from our reasons, we are of the opinion that
the Honourable Judge Locke committed some errors during the course of
the trial and in his charge to the jury, we believe fairness requires
that we should acknowledge at the outset that this was a difficult and
complex trial. There was little case-law to guide the learned judge in
the interpretation and appli­cation of s. 177. In addition, he was
required almost daily to make rulings on difficult and involved
questions of law. For instance, the trial began with a challenge by
counsel for the accused to the validity of s. 177 on the ground that it
was inconsistent with s. 2(b) of the Canadian Charter of Rights and
Freedoms. This was followed immediately by an application by counsel
for the accused to have certain questions put by the trial judge to the
jury panel at large and to permit counsel to challenge prospective
jurors for cause by asking them a list of questions which he had
prepared. In all instances, the trial judge made his rulings promptly,
giving full and detailed reasons. While we do not always agree with his
rulings, the way in which he made them has greatly assisted us in the
determination of this appeal.
Since Crown counsel attached some significance to the appel­lant's
acquittal on count 1 of the indictment, we believe that before turning
to count 2, we should say a few words about the pamphlet that formed
the subject-matter of the first count. In 1981, the appellant wrote and
distributed a rambling, diffuse, four-page pamphlet entitled, "The
West, War and Islam!". In essence, the pamphlet alleged that a
conspiracy existed among International Zionists, International Secret
Societies (particularly Freemasonry), International Bankers, and
International Commu­nists to use their control of Western media "to
misinform, to miseducate and to instill hatred against the Islamic
peoples". The pamphlet appealed to the Islamic nations to rectify the
situation by assisting in the creation "of an independent, worldwide
inform­ation network capable of countering the now unopposed Zionist
disinformation and hate propaganda". It ended with an indirect appeal
to the Islamic world to contribute money to the appellant and his
organization so that they could commence a public inform­ation
campaign immediately. The appellant mailed the pamphlet to people
outside Canada from Morocco to Pakistan. It was not distributed in
Canada.
Count 2 of the indictment on which the appellant was convicted related
to the publication by the appellant of a 32-page pamphlet entitled,
"Did Six Million Really Die? Truth At Last Exposed:". The appellant
gave evidence at his trial. The following is a brief outline of the
background facts as related by him which led up to the publication of
the pamphlet.
The appellant was born in 1939 in the Black Forest region of Germany.
His father was a soldier in the German army in World War II, and except
for sporadic visits, was away from home until 1948. The appellant
related in detail the hardships that he experi­enced as a boy during
and after the war in Germany.
After finishing school in Germany, the appellant in 1958 decided to
immigrate to Canada. He chose Canada because it had a volunteer army
and the appellant did not wish to be drafted. On arrival in Canada, he
obtained employment as a graphic artist. He swore that up until 1960,
he firmly believed that the Germans had killed six million Jews during
World War II.
In 1959 the appellant married a French-Canadian girl. There were two
children of the marriage: Pierre, born in 1960, and Hans, born in 1967.
Shortly after the birth of Pierre, he and his wife moved to Montreal
where the appellant started his own business. He lived in Montreal for
nine years. He testified that he had a thriving business in Montreal,
and the business did so well that he was able to take off several
months each year and travel. In the course of his travels, he went all
over Europe, Canada and the United States making investigations
concerning German conduct during the Second World War. Gradually he
became more and more interested in the story that six million Jews had
been killed by the Germans during the war. By 1977, he said that his
interest in the subject had become "overwhelming",
The appellant outlined for the jury the elaborate and detailed
investigations he made into the truth of the allegation that six
million Jews were killed by the Germans during World War II, commencing
with his discussions in the 1960s in West Germany with Joseph Ginsburg,
the author of a German book called Schuld and Schicksal. As a result of
his investigations, the appellant said that he intended to write a book
to set the record straight. He gave the following testimony concerning
I had been involved in a study of this topic for a long time, and I had
planned to write something on this topic, but always held back because
it's such a distasteful subject to me. And I just couldn't get myself
to write it, and then I heard of a booklet in Europe called, "Did Six
Million Really Die?" out of England. I wrote to the publisher, got a
copy of the booklet in English. Then I received one in French, in
Dutch, in Flemish. There were later editions in Swedish, in Finnish, in
German I already said. I think there is one in Hungarian, and one in
Rumanian. I saw at that time before I ever thought of publishing it
four or five different languages of this booklet, so I naturally read
through this booklet and I thought that it was in a nice condensed form
virtually what I had intended to write myself, because I thought
something like that should be written. Most of the revisionist
literature of the day, like Rassinier, fairly thick tomes, and I have
learned one thing being in the graphic arts, that people like to read
less and less, especially serious stuff. So I felt this was a good
vehicle, of the best that I had seen. And Dr. App with whom I was at
that time working and had been selling some of his publica­tions, "The
Six Million Swindle", for instance, and another booklet called, "A
Straight Look at the Third Reich", and Christopherson's booklet, "The
Auschwitz Lie", I thought that the Harwood booklet was superior to all
the three or four which I was selling at the time.
In the beginning, the appellant imported the pamphlet from England and
distributed it in Canada; however, this did not prove satisfactory as
the English publisher did not package it properly. He then obtained an
American source for the pamphlet and made arrangements for the printing
of a Canadian edition. He added to the title the words, "Truth At Last
Exposed", and he wrote a foreword and a postscript. The publisher would
not, however, permit him to make any change in the format or in the
contents of the pamphlet.
Although the appellant's evidence as to when he published the pamphlet
is rather vague, and although the indictment states that it was "in or
about the year 1981", counsel for the appellant at the commencement of
the trial admitted, in response to a request from Crown counsel to
avoid the calling of a witness, that "Mr. Zundel published the article
and wrote a foreword and postscript to that article and distributed it
in Canada in 1983". The trial proceeded on this basis.
The appellant testified that he sold some copies of the pamphlet. He
said that he also sent copies free of charge to every member of
Parliament, to every Catholic priest in Ontario and Quebec, to every
Protestant minister in Ontario, to all radio stations, television
stations and newspaper editors in Ontario, and to every high school
history teacher in Ontario.
The pamphlet purports to be written by one Richard Harwood. At the end
RICHARD HARWOOD is a writer and specialist in political and diplomatic
aspects of the Second World War. At present he is with the University
of London. Mr. Harwood turned to the vexed subject of war crimes under
the influence of Professor Paul Rassinier, to whose monumental work
this little volume is greatly indebted. The author is now working on a
sequel in this series on the Main Nuremberg Trial, 1945-46.
Zundel testified that he discovered in 1982 or 1983 that Richard
Harwood was a pseudonym and that the author's real name was Richard
Verrai. Zundel said that, according to his information, Verrai was a
graduate student of one of London's universities in history. Zundel
tried to get Verrai to give evidence at the trial, but Verral refused
as he had married a Jewish girl and had given up political work.
In addition to printed material, the pamphlet contains some photographs
and a map showing the location of German concen­tration camps during
World War II. The general theme of the pamphlet is summed up in the
In the following chapters the author has, he believes, brought together
irrefutable evidence that the allegation that 6 million Jews died
during the Second World War, as a direct result of official German
policy of extermina­tion, is utterly unfounded. This conclusion,
admittedly an unpopular one, resulted from an inquiry which was begun
with no pre-conceived opinions, beyond a general notion that the
statistical possibility of such huge casualties was perhaps open to
doubt, as well as an awareness that political capital was being made
from the implications of this alleged atrocity. A great deal of careful
research into this question, however, has now convinced me beyond any
doubt that the allegation is not merely an exaggeration but an
invention of post-war propaganda.
.....
So far as the Jewish people themsleves [sic] are concerned, the
deception has been an incalculable benefit. Every conceivable race and
nationality had its share of suffering in the Second World War, but
none has so successfully elaborated it and turned it to such great
advantage. The alleged extent of their persecution quickly advised
sympathy for the Jewish national homeland they had sought for so long;
after the War the British Government did little to prevent Jewish
emigration to Palestine which they had declared illegal, and it was not
long afterwards that the Zionists wrested from the Government the land
of Palestine and created their haven from persecution, the State of
Israel. Indeed, it is a remarkable fact that the Jewish people emerged
from the Second World War as nothing less than a triumphant minority.
Dr. Max Nussbaum, the former chief rabbi of the Jewish community in
Berlin, stated on April 11, 1953: "The position the Jewish people
occupy today in the world - despite the enormous losses - is ten
times stonger [sic] than what it was twenty years ago." It should be
added, if one is to be honest, that this strength has been much
consolidated financially by the supposed massacre of the Six Million,
undoubtedly the most profitable atrocity allegation of all time. To
date, the staggering figure of six thousand million pounds has been
paid out in compensation by the Federal Government of West Germany,
mostly to the State of Israel (which did not even exist during the
Second World War), as well as to individual Jewish claimants.
The pamphlet proceeds to discuss these issues under the following
German Policy Towards the Jews Prior to the War
German Policy Towards the Jews After the Outbreak of War Population and
Emigration
The Six Million: Documentary Evidence
The Nuremberg Trials
Auschwitz and Polish Jewry
Some Concentration Camp Memoirs
The Nature & Condition of War-time Concentration Camps
The Jews and the Concentration Camps: A Factual Appraisal By the Red
Cross
The Truth At Last: The Work of Paul Rassinier
Under the subheading, "Enormous Fraud", the author of the pamphlet
quotes the following passage from Professor Paul Rassi­nier's book, Le
Perhaps I may be allowed to recall here that the State of Israel was
only founded in May 1948 and that the Jews were nationals of all states
with the exception of Israel, in order to underline the dimensions of a
fraud which defies description in any language; on the one hand Germany
pays to Israel sums which are calculated on six million dead, and on
the other, since at least four-fifths of these six million were
decidedly alive at the end of the war, she is paying substantial sums
by way of reparation to the victims of Hitler's Germany to those who
are still alive in countries all over the world other than Israel and
to the rightful claimants of those who have since deceased, which means
that for the former (I. e. the six million), or in other words, for the
vast majority, she is paying twice.
how many of the 3 million European Jews under German control survived
after 1945? The Jewish Joint Distribution Committee estimated the
number of survivors in Europe to be only one and a half million, but
such a figure is now totally unacceptable. This is proved by the
growing number of Jews claiming compensation from the West German
Government for having allegedly suffered between 1939 and 1945. By
1965, the number of these claimants registered with the West German
Government had tripled in ten years and reached 3,375,000 (Aufbau, June
30th, 1965). Nothing could be a more devas­tating proof of the brazen
fantasy of the Six Million. Most of these claimants are Jews, so there
can be no doubt that the majority of the 3 million Jews who experienced
the Nazi occupation of Europe are, in fact, very much alive. It is a
resounding confirmation of the fact that Jewish casualties during the
Second World War can only be estimated at a figure in thousands. Surely
this is enough grief for the Jewish people? Who has the right to
compound it with vast imaginary slaughter, marking with eternal shame a
great European nation, as well as wringing fraudulent monetary
compensation from them?
Zundel conceded that there were some errors in the pamphlet. For
example, the pamphlet states that Meyer Levin wrote the dialogue of The
Diary of Anne Frank. Zundel admitted that this was not correct. Levin
only wrote a stage adaption of The Diary. Otto Frank, the father of
Anne Frank, was dissatisfied with Levin's work and employed someone
else to do it. Zundel acknowl­edged that there were also some sloppy
errors in the Red Cross report. Zundel swore that he was not aware of
the errors until after he had published the pamphlet. However, he said
that 99% of the pamphlet was accurate, and he stood behind it.
The witnesses called by the Crown were principally directed to the
issue of whether or not six million Jews had died during the Second
World War as a direct result of official German policy of
extermination. A number of witnesses were called who had been
incarcerated in German concentration camps, such as Birkenau,
Auschwitz, and Maidenek; they testified about what they had seen and
what their experiences had been in the camps. The Crown also called Dr.
Raul Hilberg as an expert witness to testify on the subject of the
systematic destruction of Jews by the Germans during World War II. We
will be dealing with Dr. Hilberg's evidence in greater detail later in
these reasons. No direct evidence appears to have been called by the
Crown as to the appellant's knowledge that the statements in the
pamphlets were false.
The appellant's defence at the trial was that he had an honest belief
in the truth of what was written in the pamphlet. He produced a large
number of articles, letters and books which he had read prior to the
publication of the pamphlet and which he claimed accorded with what was
contained in the pamphlet. In addition, the defence called a number of
witnesses, some of whom were qualified to a limited extent as experts,
to prove the truth of the contents of the pamphlet. The appellant swore
that he had read material written by some of these witnesses in
arriving at his belief that the contents of the pamphlet were true.
Finally, the defence called a number of character witnesses to testify
to the good reputation of the appellant in the community.
Although counsel for the appellant advanced a number of grounds of
error, we believe that the following are the only ones that warrant
I Constitutional validity of s. 177 of the Criminal Code
The first ground of appeal raised by the appellant is that s. 177 of
the Criminal Code, which provides for the offence of "spreading false
news", is unconstitutional because it infringes the fundamental
"freedom of expression" guaranteed by the Canadian Charter of Rights
.....
(b) freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication;
A. History of s. 177
Before turning to consider the Charter, it is necessary to examine the
history of the offence of "spreading false news", and the essential
nature of the offence created by s. 177. The present s. 177 reads as
177. 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 is liable
to imprisonment for two years.
The offence of "spreading false news" had a very ancient origin in the
statutes concerning scandalum magnatum, the earliest of which is a
provision of the first Statute of Westminster, 1275, 3 Edw. I, c. 34,
Forasmuch as there have been oftentimes found in the Country Devisors
of Tales, whereby Discord, or Occasion of Discord, hath many times
arisen between the King and his People, or great Men of the Realm; For
the Damage that hath and may thereof ensue, it is commanded, That from
hence­forth, none be so hardy to tell or publish any false News or
Tales, whereby Discord or Occasion of Discord or Slander may grow
between the King and his People, or the great Men of the Realm; and he
that doth so, shall be taken and kept in Prison, until he hath brought
him into the Court, which was the first Author of the Tale.
This and subsequent amending statutes were primarily designed to
protect the peers and other great men against slanderous lies which
might imperil or cause mischief to the public if the perpe­trator were
not punished. Bishop in his text on Criminal Law, 5th ed. (1872), vol.
1, para. 473, states that the statute of Edward I provided a means
whereby the perpetrator could be brought to justice for an offence well
understood by the common law. There is authority that quite apart from
these statutes the common law recognized the publication of false news
to the public detriment as an offence: see Scott, "Publishing False
News", 30 Can. Bar Rev. 37 at p. 40 (1952).
The statute of 3 Edw. I, and the other amending statutes were finally
repealed in 1888. Prior to this time, Stephen had embodied in his
Digest of the Criminal Law, 1st ed. (1877), p. 57, art. 95, which
Spreading False News
Every one commits a misdemeanor who cites or publishes any false news
or tales whereby discord or occasion of discord or slander may grow
between the Queen and her people or the great men of the realm (or
which may produce other mischiefs)
The words in brackets at the end of this article are significant in
view of the words "injury or mischief to any public interest" in the
present s. 177 of the Code.
As the late Professor Scott pointed out in his learned article,
... the Canadian Criminal Code was based on Stephen's Digest and on the
Draft Code he prepared for the British Parliament in 1879. Burbridge,
the draftsman of the Canadian Code of 1892, himself published a Digest
of the Criminal Law of Canada in 1890, founded on Stephen's, and in
article 125 repeats the latter's article 95 verbatim, including the
comment that "The definition is very vague and the doctrine exceedingly
doubtful". Through Burbridge the doctrine, despite its vagueness,
entered our Code, the element of "false news or tales" remaining from
scandalum magnatum and the notion of "discord and slander between the
Queen and her people or the great men of the realm" being generalized
into "injury or mischief" to "any public interest".
Seditious Offences", which was under "Title II: Offences Against Public
126. Every one is guilty of an indictable offence and liable to one
year's imprisonment who wilfully and knowingly publishes any false news
or tale whereby injury or mischief is or is likely to be occasioned to
any public interest.
In the statutory revisions of 1906 (R.S.C. 1906, c. 146) and of 1927
(R.S.C. 1927, c. 36), the provision appeared as s. 136 under the same
general heading and subheading. In the revision of the Criminal Code in
1953-54 (Can.), c. 51, the word "statement" was inserted before the
words "tale or news" and the section was designated as s. 166 and was
reworded as the present wording of s. 177. However, s. 166 appeared in
"Part IV: Sexual Offences, Public Morals and Disorderly Conduct" under
the subheading "Nuisances". The reclassification of the offence from
the category of seditious offences to the category of nuisances may be
of signifi­cance in viewing it as an offence with less serious
potential consequences. In the 1970 revision (R.S.C. 1970, c. C-34),
the provision was renumbered as s. 177 under the same heading and
subheading but there was no change in wording.
(a) wilful publication, and
(b) the publication must be of a statement, tale or news.
(It is not necessary in this appeal to go into the precise difference
in meaning between a statement, tale and news. Counsel for the
respondent conceded that an assertion of fact must be proved which is
capable of being false. The assertion of an opinion is not sufficient.)
(c) The assertion of fact must be false to the knowledge of the person
who publishes it;
(d) it does not have to be proved that the false assertion of fact
actually caused injury or mischief to a public interest. It is
sufficient if it is proved that it was likely to cause such injury or
mischief.
In this appeal the charge specifies that the public interest in
question is the public interest in racial and social tolerance.
There are extremely few reported decisions on s. 177. In R. y. Hoaglin
(1907), 12 C.C.C. 226, the accused published a placard in connection
with a closing-out sale stating he had decided to leave Canada and that
settlers from the United States were not wanted in Canada. This was
done at a time when great efforts were being made to induce settlers
from the United States to come to Canada. He was convicted under a
predecessor of s. 177, the court holding that the publication was
contrary to the public interest.
In R. v. Kirby (1970), 1 C.C.C. (2d) 286, 13 Crim. L.Q. 128, an
underground newspaper published an edition in Montreal parodying the
Gazette and containing a false story that the mayor had been "shot by
[a] dope-crazed hippie". The Quebec Court of Appeal set aside the
conviction of the appellant. It considered that while the night city
editor of the Gazette might have been incon­venienced by the 50 or so
calls received at the Gazette switchboard, there was no injury or
mischief to a public interest. It was not "reasonably sure to cause
trouble and insecurity" (p. 289),
B. Procedure in determining constitutionality of s. 177
With this background it is now necessary to consider whether s. 177 is
unconstitutional because it infringes s. 2(b) of the Charter, the
fundamental freedom of expression. In considering the
consti­tutionality of impugned legislation under the Charter, both the
purpose and the effect of the legislation are relevant. No
funda­mental freedoms are more basic to our democratic way of life,
and more highly prized than the freedoms guaranteed under s. 2(b) of
the Charter. It is the freedom of "expression" with which we are
primarily concerned in this appeal. There is a twofold aspect to this
(a) Is the fundamental freedom of expression an absolute freedom, or is
it a qualified freedom which must give way to certain restrictions in
the interest of society as a whole? If it is a qualified freedom, then
the exact limits of that freedom must be determined.
(b) Once the limits of the freedom of expression have been
deter­mined, then a decision can be made whether those limits have
been breached. If so, then s. 1 of the Charter comes into operation in
order to decide whether the limitations imposed on the freedom are a
reasonable limit which is demonstrably justified in a free and
democratic society.
C. Limits of freedom of expression
It is essential at the outset to consider just exactly what is the
"freedom of expression" which is constitutionally protected. The words
are extremely broad. They are not like rights proscribed under some
other sections of the Charter such as ss. 10, 11(f) and (i). There the
limits of the rights protected are much clearer, and a breach is more
readily apparent and, if a breach has occurred, can be tested under s.
1 of the Charter.
Freedom of expression must necessarily have regard to the corresponding
rights and freedoms of other persons. It contem­plates the existence
of a social order in which other persons must not be denied similar
rights. A simplistic example, which is often given, is that a person is
not at liberty to shout "fire!" in a crowded theatre.
As Dickson C.J.C. stated when delivering the judgment of the Supreme
Court of Canada in R. v. Big M Drug Mart Ltd. 1985 CanLII 69 (S.C.C.),
(1985), 18 C.C.C. (3d) 385 at p. 418, 18 D.L.R. (4th) 321 at p. 354,
Freedom means that, subject to such limitations as are necessary to
protect public safety, order, health, or morals or the fundamental
rights and freedoms of others, no one is to be forced to act in a way
contrary to his beliefs or his conscience.
(Emphasis added.) (See also his dicta to the same effect at p. 425
C.C.C., p. 361 D.L.R.) In that case Chief Justice Dickson was, of
course, addressing his remarks to the limits of the fundamental freedom
of religion under s. 2(a) of the Charter but his remarks are, in our
opinion, apposite for "freedom of expression".
In this appeal it is not necessary to give an all-embracing definition
of "freedom of expression", but merely to decide whether "spreading
false news" within s. 177 of the Code is encompassed within that
fundamental freedom.
When considering the interpretation of the Charter, it is important to
bear in mind the admonition of Chief Justice Dickson in Hunter et al.
v. Southam Inc. 1984 CanLII 33 (S.C.C.), (1984), 14 C.C.C. (3d) 97 at
p. 106, 11 D.L.R. (4th) 641 at p. 650, 2 C.P.R. (3d) 1 at p. 10, [1984]
2 S.C.R. 145 at p. 156, that the proper approach to the definition of
"Its purpose is to guarantee and to protect, within the limits of
reason, the enjoyment of the rights and freedoms it enshrines."
In R. v. Big M Drug Mart Ltd., supra, at pp. 423-4 C.C.C., pp. 359-60
The meaning of a right or freedom guaranteed by the Charter was to be
ascertained by an analysis of the purpose of such a guarantee; it was
to be understood, in other words, in the light of the interests it was
meant to protect.
In my view, this analysis is to be undertaken, and the purpose of the
right or freedom in question is to be sought by reference to the
character and the larger objects of the Charter itself, to the language
chosen to articulate the specific right or freedom, to the historical
origins of the concepts enshrined, and where applicable, to the meaning
and purpose of the other specific rights and freedoms with which it is
associated within the text of the Charter. The interpretation should
be, as the judgment in Southam emphasizes, a generous rather than a
legalistic one, aimed at fulfilling the purpose of the guarantee and
securing for individuals the full benefit of the Charter's protection.
At the same time it is important not to overshoot the actual purpose of
the right or freedom in question, but to recall that the Charter was
not enacted in a vacuum, and must therefore, as this Court's decision
in Law Society of Upper Canada v. Skapinker 1984 CanLII 3 (S.C.C.),
(1984), 11 C.C.C. (3d) 481, 9 D.L.R. (4th) 161, [1984] 1 S.C.R. 357,
illustrates, be placed in its proper linguistic, philosophic and
historical contexts.
Differing reasons have been expressed as to why freedom of expression
should be guaranteed. Some have based it on the theory that the best
way to obtain truth is through the free exchange of ideas. Others have
based it on the theory that free expression of opinion is essential to
the working of a parlia­mentary democracy. A third rationale is that
it furthers self-fulfilment, what Professor Tribe in his American
Constitutional Law (1978), at p. 578, refers to as "the evolution,
definition and proclamation of individual and group identity".
The Supreme Court of Canada appears to have adopted the rationale that
freedom of expression is essential to the working of a parliamentary
democracy.
The historical roots of "freedom of expression" were carefully examined
by McIntyre J. in giving the reasons of the majority of the Supreme
Court of Canada in Retail, Wholesale & Department Store Union, Local
580 et al. v. Dolphin Delivery Ltd. et al., December 18, 1986
(unreported [since reported 1986 CanLII 5 (S.C.C.), [1987] 1 W.W.R.
577]). There the court had to consider whether secondary picketing of a
third party not involved in a labour dispute by members of a trade
union infringed the freedom of expression secured under s. 2(b) of the
Charter. McIntyre J., for a unanimous court on this point, considered
that freedom of expression was not created by the Charter but had been
recognized since early times. He cited in support the works of John
Milton and John Stuart Mill. He was of the opinion that freedom of
expression lay at the roots of parliamentary democracy. At p. 9 [p. 585
It is one of the fundamental concepts that has formed the basis for the
historical development of the political, social and educational
institutions of western society. Representative democracy, as we know
it today, which is in great part the product of free expression and
discussion of varying ideas, depends upon its maintenance and
protection.
He cited in support dicta of Holmes J. in Abrams v. United States
(1919), 250 U.S. 616 at p. 630; of Rand J. in Boucher v. The King, 1950
CanLII 2 (S.C.C.), [1950] 1 D.L.R. 657 at p. 682, [1951] S.C.R. 265 at
p. 288; and Rand J. and Abbott J. respectively in Switzman v. Ealing
and A.-G. Que. 1957 CanLII 2 (S.C.C.), (1957), 117 C.C.C. 129 at pp.
151 and 164, 7 D.L.R. (2d) 337 at pp. 357 and 369, [1957] S.C.R. 285 at
pp. 306 and 326. There Abbott J. had referred to the dicta of Duff
C.J.C. in Re Alberta Legislation, 1938 CanLII 1 (S.C.C.), [1938] 2
D.L.R. 81 at pp. 106-7, [1938] S.C.R. 100 sub nom. Reference re Alberta
Statutes, at pp. 132-3, as strongly supporting what could almost be
described as a constitu­tional position for the concept of freedom of
speech and expression in Canadian law, and then said at p. 166 C.C.C.,
p. 371 D.L.R., p. 328 S.C.R.: "... I am also of opinion that as our
constitutional Act now stands, Parliament itself could not abrogate
this right of discussion and debate".
McIntyre J. concluded that any question as to the constitutional status
of "freedom of expression" had been settled by the decla­ration in s.
2(b) of the Charter that it was now a fundamental freedom.
Historically, freedom of expression has not been an absolute freedom
which gives an unrestricted right of speech or expression. In Re
Alberta Legislation, supra, Sir Lyman P. Duff C.J.C. considered the
constitutionality of a bill of the Alberta Legisla­ture, "to Ensure
the Publication of Accurate News and Information". He stated at p. 107
The right of public discussion is, of course, subject to legal
restrictions; those based upon considerations of decency and public
order, and others conceived for the protection of various private and
public interests with which, for example, the laws of defamation and
sedition are concerned. In a word, freedom of discussion means, to
quote the words of Lord Wright in James v. Commonwealth of Australia,
[1936] A.C. at p. 627, "freedom governed by law."
In Boucher v. The King, Rinfret C.J.C., when considering an appeal from
a conviction for seditious libel stated in a dissenting opinion at p.
... to interpret freedom as license is a dangerous fallacy. Obviously
pure criti­cism, or expression of opinion, however severe or extreme,
is, I might almost say, to be invited. But, as was said elsewhere,
"there must be a point where restriction on individual freedom of
expression is justified and required on the grounds of reason, or on
the ground of the democratic process and the neces­sities of the
present situation".
In Switzman v. Elbling, Rand J. recognized that freedom of expression
was limited and not absolute when he stated at p. 150 C.C.C., p. 356
For the past century and a half in both the United Kingdom and Canada,
there has been a steady removal of restraints on this freedom, stopping
only at perimeters where the foundation of the freedom itself is
threatened. Apart from sedition, obscene writings and criminal libels,
the public law leaves the literary, discursive and polemic use of
language, in the broadest sense, free.
The Canadian Bill of Rights, R. S.C. 1970, App. III, recognizes in s.
1(d) that freedom of speech has existed and shall continue to exist.
The preamble acknowledges the supremacy of God, and the dignity and
worth of the human person, and asserts that freedom can only be founded
upon respect for moral and spiritual values and the rule of law. This
would in turn confirm that freedom of expression which is guaranteed
under the Charter is not absolute.
More recently in Re Fraser and Public Service Staff Relations Board
1985 CanLII 14 (S.C.C.), (1985), 23 D.L.R. (4th) 122, [1985] 2 S.C.R.
455, 19 C.R.R. 152, in considering the extent to which a public servant
could openly criticize government policy, Dickson C.J.C. stated at p.
First, our democratic system is deeply rooted in, and thrives on, free
and robust public discussion of public issues. As a general rule, all
members of society should be permitted, indeed encouraged, to
participate in that discus­sion.
.....
On the other side, however, it is equally obvious that free speech or
expression is not an absolute, unqualified value. Other values must be
weighed with it. Sometimes these other values supplement, and build on,
the value of speech. But in other situations there is a collision. When
that happens the value of speech may be cut back if the competing value
is a powerful one. Thus, for example, we have laws dealing with libel
and slander, sedition and blasphemy. We also have laws imposing
restrictions on the press in the interests of, for example, ensuring a
fair trial or protecting the privacy of minors or victims of sexual
assaults.
[Emphasis added.]
When determining the limits of freedom of expression, a distinction
must be drawn at the outset between "rights" and "freedoms". A "right"
is defined positively as what one can do. A "freedom", on the other
hand, is defined by determining first the area which is regulated. The
freedom is then what exists in the unregulated area - a sphere of
activity within which all acts are permissible. It is a residual area
in which all acts are free of specific legal regulation and the
individual is free to choose. The regulated area will include
restrictions for purposes of decency and public order, and specifically
with respect to the freedom of expression, prohibitions concerning
criminal libel and sedition. It is what Rand J. described in Saumur v.
City of Quebec and A.-G. Que. 1953 CanLII 3 (S.C.C.), (1953), 106
C.C.C. 289 at p. 322, [1953] 4 D.L.R. 641 at p. 670, [1953] 2 S.C.R.
299 at p. 329, as "the residue inside the periphery". This is the
approach to rights and freedoms which was taken in the McRuer Report of
the Royal Commission Inquiry into Civil Rights, Report 2, vol. 4, pp.
1493-96 (1969), and was adopted by Bayda C.J.S. in Re Retail, Wholesale
& Department Store Union, Locals 54.4, 496, 635 & 955 et al. and
Government of Saskatchewan et al. 1985 CanLII 184 (SK C.A.), (1985), 19
D.L.R. (4th) 609 at pp. 616-8, [1985] 5 W.W.R. 97 at pp. 105-8, 39
Sask. R. 193. It is also the approach recently adopted by the Court of
Appeal of British Columbia in Re Cromer and British Columbia Teachers'
Federation et al., July 18, 1986 (unreported) at pp. 12-3 [since
reported 29 D.L.R. (4th) 641 at pp. 649-50, [1986] 5 W.W.R. 638, 4 B.
C. L. R. (2d) 273]. In our opinion it is the right approach.
D. Freedom of speech under the American Constitution
In considering the interpretation to be given to "freedom of
expression" in the Charter, it may be of assistance to examine the
corresponding provisions of the American Constitution and consider how
the American courts have dealt with them. At the outset it is
imperative to bear in mind that there are fundamental structural
differences between our Charter and the American Constitution, and
that, most importantly, the latter has no provision which corresponds
to s. 1 of the Canadian Charter.
The relevant provision of the American Constitution is the First
Amendment which provides in part that "Congress shall make no law ...
abridging the freedom of speech, or of the press ...". The rights of
freedom of speech and freedom of the press have also been held to be
fundamental personal rights and liberties which are protected by the
Fourteenth Amendment from invasion by state action: Chaplinsky v. State
of New Hampshire (1942), 315 U. S. 568. It will be noted that the words
"freedom of speech" rather than "freedom of expression" are used in the
American First Amendment. However, American courts have extended the
protection of the First Amendment to expressive conduct as "sym­bolic
speech", for example, the desecration of a flag: see Spence v.
Washington (1974), 418 U.S. 405.
In the Chaplinsky case, Chaplinsky was convicted of violating a New
Hampshire statute prohibiting the addressing of any offen­sive,
derisive or annoying word to any other person who is lawfully in any
street or other public place, or calling him by any offensive or
derisive name. The Supreme Court of the United States in upholding the
state legislation made it clear that the right of free speech was not
absolute and that the punishment of obscene, profane and libellous
utterances or insulting or fighting words did not raise a
constitutional problem. The interest of society in order and morality
outweighed any slight social value which such speech might have. As
Allowing the broadest scope to the language and purpose of the
Fourteenth Amendment, it is well understood that the right of free
speech is not absolute at all times and under all circumstances. There
are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which has never been thought to raise any
Constitutional problems. These include the lewd and obscene, the
profane, the libelous, and the insulting or "fighting" words - those
which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. It has been well observed that such
utterances are no essential part of any exposition of ideas, and are of
such slight social value as a step to truth that any benefit that may
be derived from them is clearly outweighed by the social interest in
order and morality. "Resort to epithets or personal abuse is not in any
proper sense communication of information or opinion safeguarded by the
Constitution, and its punishment as a criminal act would raise no
question under that instrument." Cantwell y. Connecticut, 310 U.S. 296,
309, 310, 60 S. Ct. 900, 906, 84 L.Ed. 1213, 128 A.L.R. 1352.
Despite the broad language of the First Amendment, it has been held
that neither criminal libel nor obscenity is protected by it. In
Beauharnais v. People of State of Illinois (1952), 343 U.S. 250, 72 S.
Ct. 725, the accused was convicted under an Illinois criminal libel
statute for distributing a leaflet which attacked the Negro race. In
this case a group libel was involved rather than uttering offensive
words to an individual face-to-face as in Chaplinsky, supra. The
majority of the Supreme Court of the United States, in an opinion
delivered by Frankfurter J., relied on its earlier decision in
Chaplinsky and held that libellous utter­ances were not
... it is unnecessary, either for us or for the State courts, to
consider the issues behind the phrase "clear and present danger".
Certainly no one would contend that obscene speech, for example, may be
punished only upon a showing of such circumstances. Libel, as we have
seen, is in the same class.
Justices Jackson, Douglas, Reed and Black dissented. Justice Douglas
My view is that if in any case other public interests are to override
the plain command of the First Amendment, the peril of speech must be
clear and present, leaving no room for argument, raising no doubts as
to the necessity of curbing speech in order to prevent disaster.
Justice Jackson would have applied the "clear and present danger" test.
Punishment of printed words, based on their tendency either to cause
breach of the peace or injury to persons or groups, in my opinion, is
justifiable only if the prosecution survives the "clear and present
danger" test. It is the most just and workable standard yet evolved for
determining criminality of words whose injurious or inciting tendencies
are not demonstrated by the event but are ascribed to them on the basis
of probabilities.
Group libel statutes represent a commendable desire to reduce sinister
abuses of our freedoms of expression - abuses which I have had
occasion to learn can tear apart a society, brutalize its dominant
elements, and persecute, even to extermination, its minorities ...
...our guiding spirit should be that each freedom is balanced with a
responsi­bility, and every power of the State must be checked with
safeguards. Such is the spirit of our American law of criminal libel,
which concedes the power to the State, but only as a power restrained
by recognition of individual rights.
The leading cases that obscenity is not within the areas of
constitutionally protected speech or press are Roth v. United States
(1957), 354 U.S. 476, and Alberts v. State of California. In Roth the
primary constitutional question was whether the federal obscenity
statute in issue violated the First Amendment, whereas in Alberts the
primary constitutional question was whether the obscenity provisions of
the California Penal Code invaded the freedoms of speech and press as
they may be incorporated into the liberty protected from state action
by the due process clause of the Fourteenth Amendment.
Justice Brennan in delivering the opinion of the majority of the court
noted that while the law of obscenity was not so fully developed as the
law of libel, there was sufficient contemporary evidence to show that
obscenity, too, was outside the protection intended for speech and
press. From the history of the First Amendment, its unconditional
phrasing and the early existence of laws as to criminal libel,
blasphemy, profanity and obscenity, he concluded that the First
Amendment was not intended to protect every utterance. At pp. 484-5 he
All ideas having even the slightest redeeming social importance -
unorthodox ideas, controversial ideas, even ideas hateful to the
prevailing climate of opinion - have the full protection of the
guaranties, unless excludable because they encroach upon the limited
area of more important interests. But implicit in the history of the
First Amendment is the rejection of obscenity as utterly without
redeeming social importance. This rejection for that reason is mirrored
in the universal judgment that obscenity should be restrained,
reflected in the international agreement of over 50 nations, in the
obscenity laws of all of the 48 States, and in the 20 obscenity laws
enacted by the Congress from 1842 to 1956. This is the same judgment
expressed by this Court in Chaplinsky v. New Hampshire, 315 U.S. 568,
571-572, 62 S.Ct. 766, 769, 86 L.Ed. 1031... We hold that obscenity is
not within the area of constitutionally protected speech or press.
Justices Douglas and Black dissented and Justice Harlan dissented in
part as to the Roth case only.
The laws of civil and criminal libel in the United States were altered
in meaning and scope after the Beauharnais case with the decisions in
New York Times Co. v. Sullivan (1964), 376 U.S. 254, and Garrison y.
State of Louisiana (1964), 379 U. S. 64. A distinction was drawn
between public officials on the one hand and private individuals on the
other. In the New York Times case, Sullivan, one of the three elected
commissioners of. the City of Montgomery, Alabama, brought a civil
libel action against four individual critics of his official conduct
and the New York Times Company for an advertisement published in the
New York Times. The Supreme Court of the United States held that there
was an absolute immunity for the criticism of the way public officials
do their public duty. Accordingly, the judgment for libel could not be
sustained. The court held that a public official cannot recover unless
it is proven that the libellous statement was made with "actual malice"
- that is, with knowledge that it was false or with reckless
disregard whether it was false or not.
In Garrison v. State of Louisiana, the Supreme Court of the United
States decided that the same rule should apply in the case of a
criminal libel prosecution as in an action for civil libel. In this
case a New Orleans attorney was convicted of issuing a statement
disparaging the judicial conduct of eight judges. He was convicted of
criminal defamation under the Louisiana Criminal Defamation Statute and
his conviction was upheld on appeal. The appellant contended that his
right of expression had been abridged. On a further appeal to the
Supreme Court of the United States, his conviction was reversed. The
Supreme Court applied the same rule as in New York Times Co. v.
Sullivan, supra, that criticism of official conduct of public officials
was constitutionally protected unless it was made with actual malice.
The Louisiana Criminal Libel Statute imposed standards which were
constitutionally invalid as it directed punishment for true statements
which were made with actual malice. It was also unconstitutional
because it punished false statements against public officials if made
with ill will without regard to whether they were made with knowledge
of their falsity or in reckless disregard of whether they are true or
false, or not made in reasonable belief of their truth. Brennan J. in
Moreover, even where the utterance is false, the great principles of
the Constitution which secure freedom of expression in this area
preclude attaching adverse consequences to any except the knowing or
reckless false­hood. Debate on public issues will not be uninhibited
if the speaker must run the risk that it will be proved in court that
he spoke out of hatred; even if he did speak out of hatred, utterances
honestly believed contribute to the free interchange of ideas and the
ascertainment of truth.
Although honest utterance, even if inaccurate, may further the fruitful
exercise of the right of free speech, it does not follow that the lie,
knowingly and deliberately published about a public official, should
enjoy a like immunity ... Calculated falsehood falls into that class of
utterances which "are no essential part of any exposition of ideas, and
are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social
interest in order and morality ...". Chaplinsky v. New Hampshire, 315
U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031. Hence the knowingly
false statement and the false statement made with reckless disregard of
the truth, do not enjoy constitutional protection.
Accordingly, American constitutional cases support the position that
freedom of speech is not an absolute freedom, and that there are
certain well-defined and limited classes of speech such as the obscene
or libellous, or knowingly false statements, which are not
constitutionally protected because any slight social value as a step to
truth that they may entail, is clearly outweighed by the social
interest in order and morality.
E. Does s. 177 of the Code infringe freedom of expression under s. 2(b)
of the Charter
It is not necessary for the purpose of this appeal to define the limits
of the unregulated areas where freedom of expression is supreme. The
pertinent question is whether s. 177 of the Criminal Code properly
forms part of the permissibly regulated area. If it does, then it is
not necessary to consider s. 1 of the Charter. The nub of the offence
in s. 177 is the wilful publication of assertions of a fact or facts
which are false to the knowledge of the person who publishes them, and
which cause or are likely to cause injury or mischief to a public
interest. It is difficult to see how such conduct would fall within any
of the previously expressed rationales for guaranteeing freedom of
expression. Spreading falsehoods knowingly is the antithesis of seeking
truth through the free exchange of ideas. It would appear to have no
social or moral value which would merit constitutional protection. Nor
would it aid the working of parliamentary democracy or further
self-fulfilment. In our opinion an offence falling within the ambit of
s. 177 lies within the permissibly regulated area which is not
constitutionally protected. It does not come within the residue which
comprises freedom of expression guaranteed by s. 2(b) of the Charter.
F. Application of s. 1 of the Charter
If we are in error in concluding that s. 177, which is now classified
in the Criminal Code as a nuisance, properly forms part of the
permissibly regulated area of conduct, then s. 177 would constitute an
infringement of the guaranteed freedom of expression and we would have
to consider whether those limita­tions prescribed by law are
reasonable and demonstrably justified in a free and democratic society
under s. 1 of the Charter. In this connection the onus is on the Crown
as the party claiming that the requirements of s. 1 have been
satisfied.
The two central criteria to be satisfied in the application of s. 1 of
the Charter were laid down by Dickson C.J.C. when delivering the
judgment of the majority of the Supreme Court of Canada in R. v. Oakes
1986 CanLII 46 (S.C.C.), (1986), 24 C.C.C. (3d) 321 at pp. 348-9, 26
D.L.R. (4th) 200 at p. 227, {19861 1 S.C.R. 103. They may be
(1) The objective which the measures responsible for a limit on a
Charter right or freedom are designed to serve, must be of sufficient
importance to warrant overriding a constitutionally protected right or
freedom. The objective must relate to concerns which are pressing and
substantial in a free and democratic society.
(2) The party invoking s. 1 must show that the means chosen to achieve
a permissible objective are reasonable and demonstrably justified. This
involves a form of proportionality test which has three conjunctive
(a) the measures adopted must be carefully designed to achieve the
objective in question. They must be rationally connected to the
objective;
(b) they should impair as little as possible the right or freedom in
question;
(c) there must be a proportionality between the effects of the measures
responsible for limiting the Charter right or freedom, and the
objective identified as of sufficient importance. The more serious the
deleterious effects of a measure, the more important the objective must
be.
The objective of s. 177 is to prohibit the wilful publication of false
statements which the person publishing them knows are false and which
cause, or are likely to cause, injury or mischief to the public
interest. Such an activity is the very opposite of free public
discussion. Stopping such publication by prosecution would seem not
only reasonable but important. Lesser measures would not appear to be
effective. As we have already pointed out, the statutory provision in
England comparable to s. 177 was repealed in 1888. Our attention was
not drawn by counsel to statutory provisions in other democratic
countries in similar terms to s. 177. Section 263 of the Criminal Code
sets forth the offence of publishing a defamatory libel and a higher
penalty is imposed by s. 264 where the person publishing the defamatory
libel knows that it is false. Section 330 of the Criminal Code provides
for the offence of conveying a false message knowing that it is false.
(a) England - Libel Act, 1843 (U. K.), c. 96, ss. 4 and 5.
(b) Victoria - The Wrongs Act 1958 (No. 6420), s. 10, as amended by
the Penalties and Sentences Amendment Act 1983 (No. 9945), s. 3(3).
(c) Western Australia - Criminal Code, 1913, No. 28 (4 Geo. V), s.
360.
(d) Queensland - The Criminal Code Act, 1899 (63 Viet. No. 9), s.
380.
(e) Ireland - Defamation Act, 1961 [No. 40], ss. 11 and 12.
Section 177 would appear to be a reasonable means of achieving the
objective of prohibiting the spread of false news which a person knows
to be false, and which causes or is likely to cause injury or mischief
to a public interest. It impairs freedom of expression as little as is
possible, and any impairment is propor­tionate to the objective to be
achieved. Accordingly, we have concluded that if s. 1 of the Charter is
applicable, s. 177 is a reasonable limit prescribed by law which can be
demonstrably justified in a free and democratic society.
G. Vagueness or overbreadth of s. 177
The final ground of appeal raised with respect to the
constitu­tionality of s. 177 is that it is too vague, or is overly
broad. Vagueness and overbreadth are two concepts. They can be applied
separately, or they may be closely interrelated. The intended effect of
a statute may be perfectly clear and thus not vague, and yet its
application may be overly broad. Alternatively, as an example of the
two concepts being closely interrelated, the wording of a statute may
be so vague that its effect is considered to be overbroad. Vagueness or
overbreadth, for the purpose of determining the permissibly regulated
area of conduct, and whether freedom of expression under s. 2(b) of the
Charter has been breached, may be different from vagueness or
overbreadth for the purpose of applying the criteria in Oakes as to the
appli­cation of s. 1 of the Charter.
This court in R. v. Morgentaler, Smoling and Scott 1985 CanLII 116 (ON
C.A.), (1985), 52 O.R. (2d) 353 at p. 388, 22 C.C.C. (3d) 353 at p.
388, 22 D.L.R. (4th) 641 at p. 676, adopted the principle in Village of
Hoffman Estates et al. y. Flipside, Hoffman Estates Inc. (1982), 455
U.S. 489 at p. 495, that if a person's conduct clearly falls within the
prescription of a statute, then that person cannot complain of the
vagueness of the statute as applied to others. To succeed on the basis
of vagueness, a person would have to show that the statute is vague in
all its applications as, for example, if there were no specified
standard of conduct.
When a freedom protected by the Charter is breached, then in applying
s. 1, the limits placed on that freedom must be reasonable limits
prescribed by law. The limits must be ascer­tainable and
understandable and articulated with some precision. They cannot be
Re Ontario Film & Video Appreciation Society and Ontario Board of
Censors (1983), 41 O.R. (2d) 583 at p. 592, 147 D.L.R. (2d) 58 at p.
68, 34 C.R. (3d) 73; affirmed 45 O.R. (2d) 80n, 5 D.L.R. (4th) 766n, 38
C.R. (3d) 271 (Ont. C.A.).
In Re Luscher and Deputy Minister, Revenue Canada, Customs & Excise
reflex, (1985), 17 D.L.R. (4th) 503, [1985] 1 F.C. 85, 45 C.R. (3d) 81,
the Federal Court of Appeal allowed an appeal from a county court judge
upholding the decision of the Deputy Minister prohibiting the
importation of a book under a tariff item as immoral or indecent. As
Hugessen J. said in delivering the judgment of the court at p. 506
In my opinion, one of the first characteristics of a reasonable limit
prescribed by law is that it should be expressed in terms sufficiently
clear to permit a determination of where and what the limit is. A limit
which is vague, ambiguous, uncertain, or subject to discretionary
determination is, by that fact alone, an unreasonable limit. If a
citizen cannot know with tolerable certainty the extent to which the
exercise of a guaranteed freedom may be restrained, he is likely to be
deterred from conduct which is, in fact, lawful and not prohibited.
Uncertainty and vagueness are constitutional vices when they are used
to restrain constitutionally protected rights and freedoms. While there
can never be absolute certainty, a limitation of a guaranteed right
must be such as to allow a very high degree of predictability to the
legal consequences.
The decision in Luscher would appear to involve a case of overbreadth
rather than vagueness.
In Re Information Retailers Ass'n of Metropolitan Toronto Inc. and
Municipality of Metropolitan Toronto reflex, (1985), 52 O.R. (2d) 449,
22 D.L.R. (4th) 161, 32 M. P. L. R. 49, this court considered a
municipal by-law which required persons selling adult books or
magazines to obtain a licence. Adult books or magazines included those
which appealed to erotic or sexual appetites or inclinations, but also
portrayed or depicted, as a principal feature or character­istic, one
or more specifically defined bodily areas. The court held that the
by-law was overly broad and that the infringement on the fundamental
freedom of expression was disproportionate to the objective of the
enactment which was to discourage or limit the exposure of children to
sexually-oriented pictorial material. At p. 472 O.R., p. 184 D.L.R.,
In the case of this by-law, whether it be seen as overbroad or vague
(and an element of vagueness is intrinsic in overbroad legislation) the
vice is essen­tially the same: it lacks a definition proportionate to
its aim which would give those governed by it and those who administer
it a reasonable opportunity to know what is covered by it, and to act
accordingly.
Bearing in mind the above authorities, the terminology of s. 177 would
not appear to be vague or overly broad. It is conceded that it is
limited to a statement of fact or facts. This statement must be known
by the person publishing it to be false. It is not applicable to a
statement made honestly, negligently, or recklessly. The statement must
cause or be likely to cause injury or mischief. Causation or the
likelihood or probability of causation of injury or mischief are
concepts within the ambit of the criminal law. The only question then
is whether the fact that the injury or mischief must be to a "public
interest" makes the section too broad. There are a great many offences
in which one aspect or another of the public interest is central. The
definition of a crime in the judgment of Rand J. in Reference re
Validity of s. 5(a) of Dairy Industry Act, 1948 CanLII 2 (S.C.C.),
[1949] 1 D.L.R. 433 at pp. 472-3, [1949] S.C.R. 1 at pp. 49-50, is
A crime is an act which the law, with appropriate penal sanctions,
forbids; but as prohibitions are not enacted in a vacuum, we can
properly look for some evil or injurious or undesirable effect upon the
public against which the law is directed. That effect may be in
relation to social, economic or political inter­ests; and the
legislature has had in mind to suppress the evil or to safeguard the
interest threatened.
.....
Is the prohibition then enacted with a view to a public purpose which
can support it as being in relation to criminal law? Public peace,
order, security, health, morality: these are the ordinary though not
exclusive ends served by that law ...
In our opinion, the words "injury or mischief to a public inter­est"
are not vague or overly broad in their context bearing in mind that
they are used in relation to a statement known by the accused to be
false. The maintenance of racial and religious harmony is certainly a
matter of public interest in Canada. The accused and those who
administer the law would have a reasonable opportunity to know what was
covered by s. 177 and to act accordingly. Furthermore, the specific
charge which the accused faced was expressly limited to the public
interest in racial and social toler­ance, so he was left in no doubt
as to the alleged manner in which his conduct was offensive.
H. Conclusion on constitutional validity of s. 177
Accordingly, in our opinion, s. 177 of the Criminal Code is not
unconstitutional as infringing the fundamental freedom of expression in
s. 2(b) of the Charter on the grounds of vagueness or overbreadth.
II The challenge for cause
It is alleged that the trial judge erred by refusing the defence
application to challenge the potential jurors for cause, in view of
prejudicial pretrial publicity generated by the prosecution.
On a motion made by defence counsel following the appellant's
arraignment but before any plea was taken, the presiding judge
conducted a pretrial voir dire. In the course of the voir dire the
appellant was sworn and testified, as the sole witness, regarding the
pretrial publicity concerning him. Section 567(1)(b) of the Criminal
567(1) A prosecutor or an accused is entitled to any number of
challenges on the ground that
.....
(b) a juror is not indifferent between the Queen and the accused ...
On the voir dire the appellant filed many articles published before the
trial in the Globe and Mail which identified the appellant as a
distributor of neo-Nazi, anti-Semitic hate literature. One such article
quoted political personalities describing the appellant as "one of the
world's big purveyors of Nazi propa­ganda" (Globe and Mail, June 15,
1983).
Other articles taken from the Toronto Sun and the Ottawa Citizen were
filed. They described action by the Postmaster-General to suspend the
appellant's mail privileges (later reinstated) and included comments by
the federal Minister of Justice on proposed legislation to curb hate
literature, with particular reference to the appellant.
Other materials filed included two articles reporting picketing by the
appellant and his group of the film "The Boys from Brazil", which is
said to describe the cloning of Hitler; and a number of articles in
different publications referring to large demonstrations by Jewish
groups at the appellant's home in Toronto and referring to the views of
a group known as the Canadian Holocaust Remem­brance Association which
focused on the appellant. The appellant described these materials as
standard Zionist rhetoric.
In addition, the appellant produced media reports of confronta­tions
between the appellant's group and hostile demonstrators at the earlier
court proceedings, and the explosion of a pipe bomb causing
considerable property damage near the appellant's garage in September,
1984. The appellant also produced on the voir dire a tape recording of
a CBC broadcast on the television programme the "National" which he
claims was a distortion of a press conference that he had given. There
was also evidence of a large demonstration of up to 2,000 people
outside of the appellant's home, and of demonstrations at the
court-house on the occasion of earlier appearances, which culminated in
a violent confrontation outside the Metropolitan court-house on the
first morning of the trial.
The evidence presented on the voir dire was meant to support the
appellant's endeavour to establish his right to question the
prospective jurors on their potential prejudice. The appellant's
purpose was to demonstrate that members of identifiable groups
entertained ill will towards him and therefore could not be
dispas­sionate and impartial jurors.
A. The questions
In his reasons for ruling, given orally after the first ruling on the
Charter, the learned trial judge summarized the evidence given by the
apellant on the voir dire and referred to the scenes of physical
violence between the appellant and his followers and members of the
Jewish Defence League. He quoted the questions which counsel for the
1. Can you consider and will your mind allow consideration of the
question of whether there were gas chambers in Germany for the
extermination of Jews? Yes or no.
2. Can you impartially consider the question of gas chambers and the
Holocaust and remove from your mind the massive publicity of it to
decide the case on the evidence put before you in this court and only
on such evidence? Yes or no.
3. Do you believe that the Jews of today are God's chosen people or
especially favoured by God? Yes or no.
4. Do you believe the Holocaust happened as depicted by the media, and
would you be able to remove that idea from your mind and consider the
question solely on the evidence presented in court? Yes or no.
5. Do you have any moral, religious or other beliefs relating to Jews
or the Holocaust such that you would convict or acquit regardless of
the law or evidence? Yes or no.
6. Do you have any moral, religious or other beliefs relating to
Freemasons such that you would convict or acquit regardless of the law
or evidence? Yes or no.
7. Have you, because of religious or moral beliefs, or because of what
you have heard, read or seen in the media, formed any opinion as to the
guilt or innocence of the accused? Yes or no.
8. Despite any beliefs or opinions, would you be able to set aside
those beliefs or opinions and reach a verdict of guilty or not guilty
solely on the evidence and the law you receive in this courtroom? Yes
or no.
9. Do you have any abiding prejudices against German people?
In addition, counsel for the accused had asked the trial judge, in his
opening remarks to the jury panel, to excuse anyone from the jury panel
(1) is a Jewish person or is employed by Jewish persons or is a close
relative of a Jewish person;
(2) is a Freemason or is employed by a Freemason or is a close friend
or relative of a Freemason;
(3) is personally acquainted with the accused in such a way that he
favours or dislikes the accused so much that he would be unable,
through preju­dice, to look impartially upon the accused or judge his
guilt or innocence solely on the evidence in court;
(4) speaks or understands some English, but has difficulty
understanding it fully.
After making reference to the decision of Osler J. in R. v. Crosby
(1979), 49 C.C.C. (2d) 255, the learned trial judge noted that there
had not been any "notorious episode in the community". In that case,
Osler J,, in refusing to permit counsel to challenge for cause on the
It seems to me that, in the absence of any notorious episode in a
community of the type I have mentioned, to permit challenges of this
kind to go forward simply on the ground that man is prejudiced and that
black and white may frequently be prejudiced against each other is to
admit to a weakness in our nation and in our community which I do not
propose to acknowledge.
Should the fact that an accused belongs to a particular, even a highly
visible minority group lead automatically to a searching examination of
prospective jurors on their views there would be few criminal cases
today in which such challenges would not be justified.
The learned trial judge concluded that allowing the proposed questions
would prevent a substantial segment of the community from sitting as
jurors. After quoting excerpts from the leading case in this province
on the subject of challenge for cause, R. v. Hubbert (1975), 11 O. R.
(2d) 464, 29 C.C.C. (2d) 279, 31 C. R. N. S. 27; affirmed 15 O.R. (2d)
324n, 33 C.C.C. (2d) 207n, [1977] 2 S.C.R. 267, the learned trial judge
I conclude with the observation that the evidence I have heard and read
shows that the accused, perhaps through his own deliberate acts, has
attracted much publicity and notoriety upon himself. His positions on
sensi­tive, emotion-provoking subjects certainly achieved that result,
in my view. That alone, however, should not compel the exercise of my
judicial discretion to permit any of these questions to be put. Each
and every proposed question, I find, offends the principles set out in
R. v. Hubbert. There is no evidentiary connection between the attracted
notoriety and the reasonable prospect that any prospective juror,
regardless of his or her racial origin or religious belief, or for any
other reason, would be unable to impartially return a verdict in this
trial based solely and only upon the evidence led thereat.
.....
Mr. Zundel elected trial by jury. No one forced him to elect that mode
of trial. He has an absolute right to be tried by a jury of his peers.
Having so elected, the public notoriety he has attracted to himself
does not, of itself, in the absence of anything further, entitle him to
use any of these questions to challenge his prospective jurors for
cause in order to tailor his own jury to suit him.
Following the dismissal of his application the appellant was arraigned
and pleaded not guilty to the charges. In his opening remarks to the
If there is any prospective juror here who is a member of, or who is
related by blood or marriage to anyone else who is a member of any
group or organi­zation which uses violent confrontation in public
places in support of or in opposition to the ideas of other groups, and
if by the reason of that membership or your relationship you feel that
you would be unable to judge and act as a judge or as a juror who, as a
judge, impartially, and solely and only upon the evidence that you have
heard, then you will please so indicate in the same manner as I have
already indicated.
If there is anything that you have heard, seen or read about this case
that would prevent you from impartially deciding a verdict solely and
only upon the evidence led in this courtroom, then of course you don't
come to the case free of preconceived notions or prejudice, and you
will please so indicate.
Notwithstanding anything I have said, if there is any member of your
number who is a prospective juror whose present views concerning the
guilt or innocence of this accused are so strongly fixed that an
impartial assessment of the evidence heard only in this trial would be
impossible or difficult, if the answer to this question or to any of
the other questions I have posed is yes, if your name is called please
indicate that when you come to the book to be sworn.
It is clear, from the analysis made by this court in R. v. Hubbert,
supra, at pp. 476-7 O.R., pp. 291-2 C.C.C., that where the suggestion
is made that publicity concerning the alleged offence has been
widespread, there may be a danger that the mind of a prospective juror
may be influenced and biased in such a way that he would be unable to
give an impartial verdict.
There is no doubt, and the learned trial judge found as a fact in the
instant case, that there had been considerable pretrial publicity in
the media, generally adverse to the appellant. In our respectful view,
the learned trial judge erred in stressing the absence of a notorious
episode and elevating it as a sine qua non requirement to a successful
application to allow the proposed questions in the challenge for cause.
While a notorious episode would be a factor to be considered in an
application of this kind, we do not think that Osler J. ever intended
it to be an absolute requirement. In the present case, in any event,
the series of well-publicized confrontations continuing up to the time
of trial would, in our view, qualify as notorious episodes.
Similarly, the fact that the appellant's conduct attracted publicity
and notoriety upon himself is not sufficient to automati­cally
disallow certain questions to be put to the jury. The judge's
discretion must be exercised judicially. The real question is whether
the particular publicity and notoriety of the accused could potentially
have the effect of destroying the prospective juror's indifference
between the Crown and the accused. In this context indifference means
"absence of feeling for or against": the Shorter Oxford English
Dictionary, 3rd ed. The equivalent is a now rare expression
"indifferency" meaning "absence of bias, prejudice or favour ..."
(ibid.).
The reference in the judge's ruling to the absence of an eviden­tiary
connection between the publicity and notoriety and the challenge to the
prospective juror's lack of indifference is, with respect, based on a
misconception. It is not for the presiding judge to rule on the
"evidentiary connection" but for the trier selected for that purpose.
In addition, the trial judge's statement that the accused "would not be
allowed to tailor-make his own jury" was incorrect, inasmuch as any
challenge for cause by the defence would have been tried by the triers
selected from the jury panel pursuant to the provisions of s. 569(2) of
the Criminal Code.
Having recognized these errors, it is only fair to point out that
counsel for the appellant, in his recorded submissions and in framing
the questions, was in large part responsible for the adverse ruling. It
is apparent on the record that Crown counsel at trial was prepared to
concede that certain questions could properly be asked of each
prospective juror. In particular, Qq. 7 and 8, if the reference to
"religious or moral belief", or "opinions" had been deleted, would have
been appropriate questions in seeking to determine whether the pretrial
publicity and the accused's notoriety had made it impossible for the
prospective juror to render an impartial verdict. This near-agreement
was referred to by the trial judge in his ruling in the following
As I understand it, Crown counsel and defence counsel may well have
come close to agreement that subject to my order, Qq. 7 and 8 might be
permitted, but they have been totally unable to agree with respect to
the balance of the questions that I have just read.
It appears from his submissions and proposed questions that defence
counsel at trial was attempting to disqualify all Freemasons and Jewish
members of the panel as jurors in the case. The assumption that Jewish
people or Freemasons form part of a homogeneous group with an identity
of interest capable of subverting their impartiality in a criminal case
is unwarranted and formed the basis of proposed Qq. 3, 5 and 6 in the
first group of questions and grounds 1 and 2 in the proposed remarks to
the jury panel. It is contrary to established practice, in this
province, to attempt to challenge jurors for cause on general grounds
such as race, religion, political belief, or opinions: see R. v.
Hubbert, supra, at pp. 475-6 O.R., p. 290 C.C.C.. Similarly, a
challenge on the basis of membership in a minority group is not
permissible in Canada.
Mr. Christie, counsel for the appellant, defended the propriety of
these questions by referring to questions which were approved by the
then Associate Chief Justice of the High Court in the 1984 prosecution
against Dr. Henry Morgentaler and others: R. v. Morgentaler, October
15, 1984 (unreported). We were provided with a certified transcript of
the three main questions which were framed following a long discussion
in chambers and which were asked of each prospective juror in the case.
All three questions inquired of the prospective juror whether he or she
had any religious, moral or other beliefs or opinions relating to
abortion that would interfere with the juror's ability to render a true
verdict. Mr. Christie also relied on the ruling made by Ewaschuk J. in
R. v. Rowbotham et al. (1984), 12 C.C.C. (3d) 189, where prospective
jurors were asked first, by defence counsel, whether they had a strong
dislike for the narcotic marijuana or hashish. As a corollary to this
question the Crown then asked whether they had a strong view in favour
of the legalization or use of marijuana or hashish. In either case, the
jurors were asked whether their views would prevent them from rendering
a true verdict based on the evidence given at trial. The rationale for
A general as opposed to a particular challenge may arise because of
extensive pretrial publicity or, as here, because of strong personal
views held by various members of the public on such controversial
matters as drugs, obscenity or abortion. The goal is to obtain a fair
trial for both sides based only on the evidence at trial and not on
jurors' personal prejudices.
Counsel for the appellant relied on the rulings in Morgentaler and
Rowbotham, made since the Hubbert decision, as supporting his proposed
set of questions on the challenge for cause. In partic­ular, he claims
to have framed his questions by reference to the questions allowed by
Parker A. C.J. H. C. in Morgentaler. There is some similarity in the
questions' reference to religious, moral or other beliefs. We must
point out, however, that the propriety of the questions used in the
challenge for cause in the Morgentaler case was never made an issue and
thus was not reviewed in the Crown appeal to this court.
In the present case, the defence motion was directed, in part, towards
the exclusion of Jewish people on the grounds that they would not
render a true verdict as to the occurrence of the Holocaust. The
majority of the proposed questions were improperly worded, and
therefore properly rejected by the learned trial judge. This rejection
should not have been the end of the matter, so as to foreclose any
challenge for cause.
In our view, although the presiding judge correctly refused the
questions as framed, he ought, in the circumstances, to have advised
counsel that he was not precluded from rephrasing certain of the
proposed questions in a manner which would have been in accordance with
the guidelines laid down in R. v. Hubbert.
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, when the grounds of challenge are properly specified in
accordance with s. 567(1)(b) of the Criminal Code and made before the
juror is sworn. We are concerned that the failure of the presiding
judge to advise counsel that he was at liberty to amend some of the
questions may have resulted in the denial of a fundamental right;
counsel was entitled to determine whether any potential juror was, by
reason of the pretrial publicity and the notoriety of the appellant,
sufficiently impartial. In our opinion the appellant was effectively
denied that fundamental right.
It was conceded by counsel, in the course of the argument, that the
challenge for cause was not repeated when each juror came forward to be
sworn, according to the correct practice. We agree, however, that once
the trial judge had refused the defence permission to ask any of the
proposed questions, and failed to give an opportunity to amend, the
defence was, in effect, prevented from exercising its right to
challenge for cause. A trial judge cannot, in the exercise of a
discretion which he undoubtedly possesses in the area of admitting
grounds of challenge for cause and settling the questions, effectively
curtail the statutory right to challenge for cause.
The warning later given by the trial judge, requesting that individual
members of the panel disqualify themselves under certain circumstances,
was insufficient to correct the erroneous denial of the statutory right
of challenge for cause. The issue of impartiality or indifference is
one that Parliament has entrusted to the two triers, not to the
conscience of the individual prospective juror.
We are all of the view that the appellant was deprived of his right to
have a jury selected according to law, whose impartiality or appearance
of impartiality could not be impugned. This error was compounded by the
judge's refusal to order a ban on the publication of both the
submissions made and of the ruling on the motion, as was done in R. v.
Keegstra, April 9, 1985 (unreported), which may have also prejudiced
the appellant's right to an impartial jury.
In our view this ground of appeal has merit and should be considered
with the other grounds in the disposition of the appeal.
III The admissibility of Dr. Hilberg's evidence
One of the principal grounds of appeal is that the opinion evidence of
Dr. Raul Hilberg to the effect that over five million Jews were
systematically annihilated by the Nazi government of Germany, was
inadmissible since Dr. Hilberg's evidence was based on hearsay.
With a view to establishing the systematic annihilation of millions of
Jews by the Nazi government of Germany, the Crown adduced the
eyewitness evidence of several survivors of Nazi concentration camps as
to what occurred in those camps, as well as the expert evidence of Dr.
Hilberg that over five million European Jews were killed, pursuant to
Nazi government policy.
It will be helpful to an understanding of Dr. Hilberg's evidence and
the legal issues that arise therefrom to outline that evidence briefly,
and to outline the nature of the eyewitness evidence. It is also
convenient to outline briefly at this time the evidence of Dr.
Faurisson who was permitted to give expert testimony for the defence on
the same basis upon which Dr. Hilberg was permitted to testify for the
Crown.
A. The eyewitness evidence
The eyewitness evidence, in the main, although not exclusively, related
to Auschwitz, which was a complex of camps. Auschwitz I was the main
camp. Auschwitz II, a subsidiary camp, was also known as Birkenau. The
evidence of several of the eyewitnesses essentially was that Jews were
collected at various places in Austria, Hungary, Poland and
Czechoslovakia and transported by cattle-car to Birkenau. At Birkenau
there was a wooden ramp about one-half mile long adjacent to the
railroad siding. When a train arrived carrying prisoners, members of
the SS ordered the prisoners to get out of the cars and to leave their
luggage behind. Some of the eyewitnesses testified that a selection
process, frequently conducted by Dr. Mengele, then began. The
able-bodied men and women were directed to one side in separate groups.
The old, the sick and the children were either marched off in the
direction of the crematoria at Birkenau or were loaded into lorries or
dump trucks which then left in the direction of Birkenau, returning in
a short time for another load. The men and the young women remained on
the ramp. One group of SS marched the men off to Auschwitz I and
another group of SS took the remaining women to the women's camp. There
were four crematoria in Birkenau. The gas chambers were adjacent to the
crematoria. After a transport of prisoners arrived, a buzzing sound
from the crematoria could be heard and smoke and flames could be seen
coming from the chimneys. The smoke and flames rarely stopped when
there was a great influx of prisoners. When the capacity of the
crematoria was exceeded the bodies were buried in pits.
Dr. Rudolf Vrba, one of the eyewitnesses, is an associate professor of
pharmacology at the University of British Columbia. He testified that
on June 20, 1942, he was put in a cattle truck and taken to Auschwitz
where he remained until 1944, when he escaped and returned to Slovakia.
For the first two months he was in Auschwitz I, where he worked at a
nearby construction site. The daily mortality rate at the construction
site was 5% to 10% of the total work-force. It is clear from his
evidence that the high mortality rate was due to privation and brutal
treatment. After about two months a typhus epidemic broke out and the
work was stopped. The prisoners were medically examined. Those who
failed the examination were loaded into lorries which left the camp,
and Dr. Vrba never saw them again.
He was then transferred to Birkenau. He said that he was assigned to a
work-force called the Kanada Kommando. This group would be sent to the
railroad siding when a transport was arriving. The job of the Kanada
Kommando was to sort the luggage and clean the cattle-cars after the
prisoners had been removed. Dr. Vrba testified that one of his jobs was
to load cannisters of Zyklon gas into a green military van with a large
red cross on the side prior to the arrival of a train. In December,
1942, in connection with his duties he was taken to Birkenau where he
saw pits containing burned bone fragments and the slightly burned heads
of children. He frequently visited a friend, Fred Wetzler, who was in
charge of the mortuary. From the mortuary he could see Crematorium II.
There were occasions when he saw several hundred people go into the
building. A corporal from the sanitation service would climb up to the
roof of a low structure or bunker, don a gas mask and empty one or two
tins of Zyklon into each vent in the roof. Dr. Vrba computed that
1,765,000 people were killed at Auschwitz while he was there and a
total of 2.5 million people were killed at Auschwitz during the war.
Dennis Urstein was born in Vienna. He was arrested and eventually taken
to Auschwitz. He also worked with the Kanada Kommando and met the
trains. He testified that in February, 1943, he and a group of
prisoners were driven to a building. A sergeant or a corporal donned a
gas mask and he heard a loud "hum" coming from the door of the building
they were facing. He knew this was a crematorium because of the smoke
stack. The corporal or sergeant then opened the door. Mr. Urstein and
the other prisoners were issued large hooks and ordered to remove the
bodies. They went through a small corridor to the gas chamber where he
saw a large number of bodies entangled with one another; the children,
generally, were on the bottom. They dragged the bodies out and then
they were ordered to wash the gas chamber.
Henry Leader was born in Poland. He testified that in 1941, several
thousand people were rounded up and transported to Maidanek
concentration camp. After several weeks he was assigned to assist in
carrying bodies from the gas chamber to the crematorium which at
Maidanek was about 350 yards from the gas chamber. The bodies would be
thrown from the gas chamber onto a ramp, loaded in wagons and taken to
the crematorium. The people inside the gas chamber dragging the bodies
out wore masks. The witness testified that in June, 1943, he was taken
from Maidanek to Birkenau. At Birkenau he could look through a wire
fence in the direction of the crematorium. He daily saw transports of
people arrive at the crematorium in dump trucks. On some days six or
seven trucks would arrive at a time. A truck would carry about 100
persons. The people were taken from the trucks to the gas chamber. He
never saw any of those people come out again. As the Russian Army
advanced, the prisoners were transported by cattle-car to Mauthausen in
Austria. He estimated that 35% of the prisoners perished en route.
Chester Tomaszewski was born in Poland. He was not Jewish. He was
arrested in October, 1939, and sent to Dachau concen­tration camp. He
was subsequently transferred to Mauthausen­Gussen in Austria. Gussen
is a satellite camp of Mauthausen. There were about 300 Jews in the
camp when he arrived. The entire Jewish population of the camp was
eliminated in a few weeks. One of the devices used by the guards was to
order a Jewish prisoner to pick up a stone outside the line of guards
and then to shoot him when he carried out the order.
B. Dr. Hilberg's evidence
The trial judge, as previously indicated, ruled after holding a voir
dire that Dr. Hilberg was qualified to testify as an expert witness on
the Holocaust. The judge expressly and immediately instructed the jury
that they were not bound to accept the opinion of an expert. He again
instructed the jury in his charge that they were free to accept or
reject the evidence of expert witnesses.
Dr. Hilberg is a professor at the University of Vermont where he
teaches courses in international relations, American foreign policy and
the Holocaust. He defined the Holocaust as the annihi­lation by
physical means of the Jews in Europe during the Nazi regime, 1933-1945.
He was appointed by the president of the United States to the United
States Holocaust Memorial Council and to the President's Commission on
The Holocaust. He testified that in his research he relied primarily on
documents and secondarily on the statements of witnesses who had direct
knowledge of the subject-matter.
During the war the United States seized a large part of the records of
the Nazi regime from 1933 to 1945. These records were physically kept
at the Federal Records Centre in Alexandria, Virginia. Dr. Hilberg was
employed for a time by the United States Government at the centre and
had direct access to these records. Many of the documents that he
examined were civil service or ministry documents. Some were military
documents, some were SS or party documents and some were industrial
documents. The documents used at the Nuremberg trials were taken from
this collection. He testified that, in addition, he has examined
documents in the archives of foreign countries where smaller
collections are available.
The major war criminals such as Goering were tried by the International
Military Tribunal established by a treaty to which about 20 countries
were parties. The judges were American, British, Russian and French.
Twelve subsequent trials involving high-ranking military officers, top
corporation executives, top members of the ministerial bureaucracy and
high-ranking SS personnel, were presided over by American judges. The
trials are referred to collectively as the Nuremberg trials; however,
the Nuremberg Trial refers to the trial before the International
Military Tribunal. Dr. Hilberg testified that he has read the
transcripts of the evidence and examined the documents intro­duced in
evidence at the Nuremberg Trial before the International Military
Tribunal and also the transcripts of the proceedings at the subsequent
Nuremberg trials before the American Military Tribunal. He commenced a
study of the Holocaust in 1948, and is the author of a book, "The
Destruction of The European Jews" which was first published in 1961; a
second and larger edition was expected to be published shortly.
Dr. Hilberg stated in cross-examination that he was of the opinion that
there was an oral order for the extermination of the Jews given by
Adolf Hitler in 1941. He testified that there was a plan within the
German high command for the "treatment of populations" in the territory
to be occupied in the U.S.S.R. This plan was submitted to Hitler who
indicated that he wished certain changes to be made. The changes were
made in April, 1941, and the directive was then resubmitted to Hitler.
According to the document written by General Jodl, and which is in the
West German Archives, Hitler said that he wanted the "Jewish-Bolshevik
Commissars" liquidated. Dr. Hilberg interpreted the order to mean that
Hitler wanted the Jewish people and the Bolshevik Commissars to be
liquidated.
When the German armies crossed the border into the Soviet Union they
were accompanied by battalion-size units of security police. These
units, called Einsatzgruppen, reported back on a daily basis, detailing
the number of people killed, of whom, according to the reports, 90% to
95% were Jews. Dr. Hilberg reasoned that one would not set up four
units of Einsatzgruppen aggregating 3,000 men to kill a handful of
Bolshevik Commissars, and therefore the clear intent of Hitler's oral
directive was that the Jews in the territory to be occupied should be
annihilated. Dr. Hilberg conceded that other historians take the view
that there was not a Hitler order.
It was Dr. Hilberg's opinion that the word "resettlement" became the
term used in the correspondence in World War II records to refer to the
process of deporting Jews to death camps. He characterized a death camp
as one set up for the specific purpose of killing people, Dr. Hilberg
said that Belzec, Treblinka, and Chelmno were used exclusively for
killing people. These camps were small and had no facilities of any
kind for production. Sobibor was also a death camp, but late in 1943, a
facility for making ammunition was established there.
Dr. Hilberg testified in cross-examination that Auschwitz was composed
of three camps - Auschwitz, Birkenau and Monowitz. The three camps
were also known as Auschwitz I, II and III. There was a gas chamber in
Auschwitz I. Two gas chambers were established in Birkenau in 1942. In
1943, four massive structures were built in Birkenau; these structures
contained gas chambers and crematoria. When the capacity of the
crematoria was exceeded the bodies were burned in pits outside the
building. There were, Dr. Hilberg testified, three gas chambers at
Maidanek. Belzec initially had three gas chambers but they were
expanded in 1942 to six. Chelmno was equipped with gas vans which used
carbon monoxide to kill prisoners. Treblinka had carbon monoxide gas
chambers.
Dr. Hilberg testified that he had also examined railroad schedules in
wartime Germany. They played an important role in his research. They
indicate, according to him, that the camps were located near places
where the Jewish population was the most dense. The Gestapo, as the
shipping agents, had to pay the German railways for each person
transported and, consequently, it was in the financial interest of the
Gestapo to make the trips as short as possible. The railway schedules
make clear that the transportees had to be counted because payment to
the railways had to be made for each person. It was highly significant
to Dr. Hilberg that suddenly there were hundreds of thousands of people
going to Treblinka and Sobibor which on the maps are small villages;
and of greater significance that the trains were returning empty.
Hoess, the commandant at Auschwitz, was a witness at Nuremberg and said
that 2,500,000 people were killed at Auschwitz. However, Dr. Hilberg
said that this figure was too high and he estimated that approximately
one million people were killed in the gas chambers at Auschwitz II
(Birkenau). According to Dr. Hilberg's estimate over five million Jews
were killed during the Nazi regime, of whom approximately three million
died in camps. The vast majority of those persons killed in camps were
killed in gas chambers, but several hundred thousand in those camps
were shot or died of deprivation or disease. In addition, approximately
1,300,000 or 1,400,000 Jews were shot in systematic operations such as
those conducted by the Einsatz­gruppen in the occupied U.S.S.R.,
Galicia and Serbia. The remainder, according to reports by the SS
statistician Korherr and the reports of Jewish councils in various
ghettos sent to German agencies, died from conditions in those ghettos.
Dr. Hilberg testified that of the Jewish population in Poland of
approximately 3,350,000 as of September, 1939, the death toll
attributable to the Holocaust was close to three million. His estimate
of the pre-war Jewish population in Poland appears to have been based
on the 1931 Polish census extrapolated to 1939. He testified in
cross-examination that of the pre-war population of approximately
3,350,000, there were only 50,000 Jews in Poland in 1945, excluding the
175,000 repatriates from the Soviet Union. He said there was a record
of those repatriated.
Dr. Hilberg testified that he found the pamphlet published by the
appellant to be a "concoction, contradiction, untruth mixed with
half-truths". He was asked by Crown counsel at the trial to comment on
various parts of the pamphlet and in substance he testified that those
parts contained misstatements and were false. In particular he said
that he never gave the figure of 896,892 Jews killed, attributed in the
pamphlet to the "Jewish statistician Raul Hilberg".
Dr. Hilberg was extensively cross-examined as to his reliance, in his
book, on one Gerstein, an SS officer. Dr. Hilberg agreed that some of
the statements made by Gerstein were not credible. He said, however,
that some parts of Gerstein's statements were credible and some were
corroborated. He said he used only those parts of his statements that
were credible, and that authors like himself develop a certain amount
of expertise in the use of material. Dr. Hilberg also testified that
the figure of 1.7 million Jews killed at Auschwitz contained in the War
Refugee Board Report, of which Dr. Vrba is a co-author, was too high.
C. Dr. Robert Faurisson
Uncle Clover
2006-12-30 15:29:13 UTC
Permalink
With folks railing against it like you, you are a living advertisement for the
merits of joining the group. Does that happen to be your goal? :-?
--
L8r,

Uncle Clover


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The hardest person to say, "No!" to is to one's own self.
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Who we were is meaningless in the face of who we are, and
who we are is but a stepping stone to who we shall become
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