COMMENTARY The Zundel trial: a long legal fight to confront racism By SEAN GRIFFIN na little less than two weeks, Ontario | District Court Judge Hugh Locke will once again confront Ernst Zundel in a Toronto courtroom. On Mar. 1, Auschwitz survivor Sabina Citron was successful in winning an almost unprecedented convic- tion against Zundel on charges she laid five years ago under Section 177 of the Criminal Code which stated that the hate literature publisher knowingly published false news likely to cause harm to social harmony with his publication “Did Six Million Really Die?” Although the jury acquitted him on a second count involving another book, Zundel could still face up to two years imprisonment when Judge Locke sentences him Mar. 25. He could also be deported back to Germany. Both punishments are long overdue. But it is clear that the sentencing will not close the book on what has been one of the most disturbing trials in Canadian history. Whatever Zundel’s fate, the issues it has raised have yet to be fully debated. In fact, the Zundel trial points directly to the failure of the Canadian justice system to confront racism and anti-Semitism and to deal with them as crimes, not issues of mis- guided free speech. For days, as the events in the courtroom progressed through January and February, it seemed as if the Holocaust itself was on trial as Zundel’s defence counsel, Douglas Christie, twisted the cross-examination of concentration camp survivors into an inqui- sition directed at the victims themselves. At the end, despite the conviction, Zundel pro- claimed that he had received a million dol- lars worth of free publicity. Even in laying the charges, Citron was forced to resort to a little used Section of the Criminal Code allowing her to proceed with private charges (which, because they involved an indictable offence, obliged the attorney-general to take the case). Her organization, the Holocaust Remembrance Association, had sought repeatedly to get Ontario Attorney-General Roy McMurtry to press charges under Section 281 of the code — which refers to promoting hatred against an identifiable group — but he had just as repeatedly refused. Thus from the beginning, it took the courage of Citron to press her own case against Zundel when the state had abdi- cated its responsibility to prosecute. Significantly, B.C. Attorney-General Garde Gardom had written McMurtry in 1979 and asked him to press charges then against Zundel’s Samisdat publishers. But McMurtry declined then, too, arguing that a conviction would be difficult, if not impossible to obtain. A year later, in 1980, the new B.C. Attorney-General Allan Wil- liams himself refused to proceed under the same Section against the Ku Klux Klan in a. : he question remains, amplified by the Zundel trial: if the law protecting citizens against racism and hate litera- ture is inadequate, why have the attorneys- general in Ontario and B.C. — and anywhere else — not demanded federal action to make them tougher? Part of the answer to that question is that official circles in Canada, like those in Bri- tain and the U.S. have always quietly toler- ated ultra-right groups. But Canada has also never fully accepted its obligation under the various treaties to which she is signatory that call for outlawing of all forms of racial and national hatred. Nor has Canada, apparently, accepted the verdict set down by the Nuremberg trials of 1945-46 which outlined, in hundreds of thousands of pages of sworn 10 e PACIFIC TRIBUNE, MARCH 13, 1985 evidence, the terrible details of the Holo- caust. In his case, Crown prosecutor Peter Grif- fiths sought to have Judge Locke take “judicial notice” of the Holocaust — to rule that it was an event of such universally accepted historical fact that jurors should accept it as such. To buttress his case, he called several concentration camp survivors to testify. - But because he called them first before making his motion, Judge Locked ruled that he could not take judicial notice, argu- ing that it would not be fair without giving the defence the opportunity to respond. hatever legal authority the deci- sion rested on, Judge Locke could not change the historical fact of the Holocaust. That has been estab- lished in the mountains of documents, pho- tographs and films and the days, weeks and months of testimony at Nuremberg. In effect, a legal technicality forced the whole issue into the narrow confines of a courtroom where Christie could turn the anti-Semitism of Zundel and his associates into a pseudo-historical debate. The technicality compounded the earlier flaw in the case: if the-attorney-general laid charges under Section 281, the Holocaust. would not have been at issue in the trial. That concentration camp survivors were forced to “prove” the horror they had lived through is appalling. But there was a new public awareness that emerged from the trial and the publicity surrounding it. Certainly the moving testimony of the survivors provided a glimpse of living his- tory to two generations of Canadians who have grown up since World War II. It touched off discussions on racism and anti- Semitism in schools and universities across the country — discussions in which the dignity of the survivors could only stand in stark contrast to the near-obsene questions flung at them by Christie. Similarly, in throwing the spotlight on the record of Nazi war crimes, the trial also played a part in compelling the Mulroney government to appoint a commission to investigate Nazi war ciminals in Canada. _ Still, some commentators, echoing Zun- del’s own claims, have argued that the trial only served to give the hate literature pub- lisher more publicity — that his own audience was small before but because of the trial it grew immensely. In fact, Zundel’s audience was — and is — substantial. He mails his hate litera- ture to 45 countries from Toronto and maintains connections with numerous ultra-right and neo-fascist groups through- out the world. As one of his international associates, Ditlieb Felderer of Sweden, testified, much of the material is directed at school children. James Keegstra — who himself faces charges of promoting hatred — proved that in the classroom when he used Zundel’s material to teach his Eckville, Alberta high school students that the Holocaust “did not happen.” Certainly, Zundel’s anti-Semitic message went out to many more people as a result of the coverage of the trial. At the same time, Canadians were able to see beyond the anonymous pedlar of Holocaust tracts and — at least where media coverage allowed it — to see an anti-Semite who admired Adolf Hitler, who promoted Aryan supremacy and maintained connec- tions with neo-fascist groups abroad. There could be few people who would __-poROiTO a cates : oa two NAT Above: newspaper headlines: coverage was superficial and often misleading. At right, Zundel (r) with James Keegstra. not find repugnant — perhaps even fright- ening — the image of Zundel and his hard- hat-clad followers emerging like storm troopers from a cellar door and marching in a phalanx to the courthouse. Without the trial, most Canadians might not have known of the hate literature pedlar in their midst — and would almost cer- tainly not haveknown that his operation is one of the biggest in the world. Worse than ignorance, however, is the fact that the reluctance — or refusal — of governments to proceed with charges against groups like Zundel’s has tended to give a public legitimacy to them — legit- imacy that Zundel, for example, would not have in his native Germany. = It has tended to create the false impres- sion that hate literature is not a crime against society but a crime against specific groups such as Jews or Blacks — and therefore they should be the ones to seek redress. Worst of all, it has tended to create the idea that the propagation of racism and anti-Semitism is not a criminal matter but an issue of free speech. ot surprisingly, that is Zundel’s crusade in the wake of his con- viction. But the issue of free speech has also been raised by others, from right wing columnists to civil libertarians. The same arguments were raised five years ago — and numerous times before that — in the debate over the demand to outlaw the Ku Klux Klan. The answers remain emphatically the same. There can be no question of giving free speech to a racist or a neo-fascist whose objective it is to abuse or eliminate the human rights of whatever group is ‘his target, whether Jews, Blacks or Asians. Racism and anti-Semitism are crimes against humanity and at least three interna- tional treaties which Canada has signed ‘ obliges this country to treat them as such. The 1963 treaty on the Elimination of All Forms of Racial Discrimination, for exam- ple, declares that racism is a punishable offence under law and stipulates: “All states shall take immediate legislative and other measures to prosecute and/or outlaw organizations which promote or incite racial discrimination.” As for the document Zundel was charged for distributing, a glimpse at the introduc- tion leaves no room for doubt about its racism: “Many countries of the Anglo- Saxon world, notably Britain and America, are today facing the gravest danger in their history, the danger posed by the alien races in their midst,” it states. It was racism that inspired the publica- tion of the tract that Zundel distributes. To call that free speech — even to give the material the credentials of “revisionist history” — is not only wrong but offen- sive. If the trial pointed to the shortcomings of the Canadian justice system, it also demon- strated the shallowness of the media. CBC, with its thoughtful Journal docu- mentary outlining Zundel’s pro-Nazi views and emphasizing the historical fact of the Holocaust, stood as the exception amidst coverage that was nearly always superficial and frequently misleading. Stories referred to “expert” witnesses for the defence when their expertise, even as declared by the court, was in a field quite apart form the subject of their testimony. Thus an anti-Semitic diatribe was given the credentials of credible evidence. Newspaper accounts referred to the trial as the “Holocaust Hoax” trial, reinforcing Zundel’s argument that the veracity of the Holocaust was on trial. And _ several witnesses — including bigoted columnist Doug Collins — were quoted extensively as if the issue really was the truth of the Holocaust. There was virtually no attempt to provide background material, including the testi- mony at Nuremburg or the record of other countries in prosecuting distributors of hate literature. And almost no one took note of the fact that racism and anti-Semitism are crimes, ut in the end, as Sabina Citron stated, “The trial caused a lot of © anguish and hard work — but it had to be done.” Indeed it did — and if there are regrets, it is only because the pro- cess took so long and that it had to be Citron, not the state, that took the initiative. As this country’s relative silence on the 40th anniversary of the victory over fascism has demonstrated, Canada has allowed the historical record to blur on the Holocaust, -on Nazi war crimes and the meaning of the defeat of fascism. But that record needs to be put once again in public view — in part to ensure that it does not happen again and to ensure that we know, Sill of us, what groups like Zundel’s are all about. Canada also has an obligation to prose- cute racists, anti-Semities and pedlars of hate literature and it should not have to fall to the victims to initiate proceedings. Those are crimes against humanity, against society — and society, through the Crown, should prosecute them vigorously. If legisla- tion as it currently stands is not adequate, then it should, be amended. Three cases now pending, including the one involving Keeg- stra, may, in fact, highlight the need for such — change. Towards that end, the trial of Zundel could be a crucial first step. It certainly should not be the last.