Institute for Historical Review
Ernst Zündel was found guilty by the jury of spreading false news likely to cause mischief to the public interest in social and racial tolerance on Wednesday, May 11, 1988 at 5:00 p.m.
On Friday, May 13, 1988, Judge Ron Thomas sentenced Zündel to nine months in prison. The following are Thomas's reasons for the sentence:
The accused, Ernst Zündel, has been convicted by a jury on the charge of knowingly publishing a false statement which is likely to cause mischief to the public interest in social and racial tolerance. The false statement was in the form of a publication known as Did Six Million Really Die?: The Truth at Last Exposed. The central thesis of the publication was that Jews were not exterminated as a result of official policy of the Nazi regime during the Second World War, the Holocaust is a fraud or myth invented by Jews to enable Israel to collect huge reparation payments from the Republic of West Germany.
The essential elements of the offence were as follows: (1) The wilful or deliberate publication; (2) That the publication was a false statement of fact; (3) That the accused, when he published it, knew it was a false statement of fact; (4) That it was likely to cause mischief to the public interest in social and racial tolerance.
All of those issues, of course, have to be established to the satisfaction of the jury beyond a reasonable doubt. It was clearly for the jury to decide if the central thesis of the pamphlet was a false statement. Evidence was presented at this trial before this jury for more than twelve weeks and there are some 14,000 pages of transcript. The jury's verdict establishes beyond a reasonable doubt that they were satisfied that the central thesis of the publication is a false statement of fact.
During their deliberations, the jury requested assistance with the matter of "public interest." I told the jury that the law of this province is that the maintenance of racial and religious harmony is certainly a matter of public interest. Those were the words used by the Ontario Court of Appeal in the reasons for judgment following Mr. Zündel's earlier conviction in 1985 on this charge. I also told the jury that they would have to find, assuming that all other issues had been established to their satisfaction beyond a reasonable doubt, that the said false statement could have promoted intolerance of or hatred against the Jewish people and that that issue would have to be established beyond a reasonable doubt. But, I went further to say to them that it is not in the public interest to have one segment of the community racially or religiously intolerant against another segment of the community. In essence, an attack on one segment of the community is an attack on the whole community. If one segment is not protected from criminal defamation and libel, that is, accusations of monstrous criminal wrong-doing, a gigantic criminal fraud, the whole community is vulnerable because the next segment is fair game and then the next segment is fair game until you have the prospect of the destruction of the entire community.
This trial was conducted under the laws of this province as they presently exist. The Court of Appeal, in the previous judgment, ruled that freedom of expression was not absolute in Canada. The Court of Appeal looked to judgments and precedents in this country and in the United States in order to resolve this issue which had been argued under the provisions of the Canadian Charter of Rights and Freedoms.
The Court of Appeal, in its judgment, said that the spreading of falsehoods knowingly is the antithesis of seeking truth through the free exchange of ideas. It has no social or moral value which would merit constitutional protection, nor does it aid the working of a parliamentary democracy or further self-fulfilment.
In essence, the verdict of the jury established beyond a reasonable doubt that the false statement of the pamphlet published by the accused could promote intolerance of or hatred against Jews. In other words, the accused was found by a jury of his peers to be a bigot, a person who deliberately is spreading hate in the community.
There are some who might suggest that this case is a suppression of an individual's rights to hold views on a matter of history and that he has been convicted for his belief in the truth. In my view, that is a complete misrepresentation of these proceedings. The accused man hides behind a veil of honest belief in the truth but the jury has exposed him. It is not the Holocaust that is a fraud, it is Ernst Zündel who is a fraud.
In the presentation of the defence, the publication Did Six Million Really Die?: The Truth at Last Exposed became almost lost in the mass of evidence presented by right-wing representatives from the Institute of Historical Review. The essential issue in this case, in my view, was the knowledge of the accused. Did the accused know, at the time he published this pamphlet, that it was false? Frankly, a very difficult matter to prove. The accused did not give evidence on his own behalf and of course that is his right. There was, in the evidence, statements and information given by witnesses to Mr. Zündel prior to publication. This evidence consisted of statements of witnesses who had examined the background of the Holocaust and they passed on their information to him. There were also his statements in the pamphlet which I do not propose to repeat.
There was also evidence of other publications with which he had either been associated or published and those were UFO's: Nazi Secret Weapon? and The Hitler We Loved and Why. Both publications were relevant for the jury's consideration to determine the question of knowledge; a person who would publish documents extolling the beliefs of National Socialism might very well be a person who would knowingly publish a false statement. Also, there was evidence of Mr. Zündel's association with persons who held Neo-Nazi beliefs, his association with individuals from the Institute of Historical Review based in California -- it is obviously a right-wing organization.
The jury examined that evidence and concluded that Mr. Zündel knew it was false. It seems clear to me that they concluded that he believes in the dogma of Adolf Hitler, that he is still a follower of National Socialism and that he will continue to carry on with these beliefs. It is in that context that one must understand the prosecution of this charge and the jury's verdict. The jury have clearly found Ernst Zündel to be a fraud and a bigot. He is prepared to spread hate and the prospects of rehabilitation are nil.
The principles of sentencing are well known. I am required to consider a number of factors including general deterrence, specific deterrence, rehabilitation and, in an appropriate case, society's repudiation of the conduct of the accused.
The accused man is a first offender. He has apparently lived in Canada for a number of years but he, at the present time, still has only landed immigrant status. I am told by his counsel that he applied for Canadian citizenship in 1966 but he was denied citizenship without reasons. I am told that he is married and has two children and he has no prior criminal record. I am also advised that he is gainfully employed.
Now I must say that throughout this trial, although Mr. Zündel did not testify, his conduct in the court room was exemplary, at least from my perspective. I make no comment about any public pronouncements that he may or may not have made outside of the court room, other than to say, from what I saw or heard, he had sufficient respect for the system of justice not to attack the jury's verdict. I am sure he does not accept it, but from anything I have seen or heard, or which has been brought to my attention, he certainly at no time attacked the integrity of the jury. I am not suggesting that I expect he would, but certainly there have been cases recently in this province where that has taken place, much to the disgust of decent and clear-thinking individuals, and I say that Mr. Zündel, in that respect, should be given credit.
The imposition of sentence in this case is extremely difficult. No matter what sentence is imposed, there will be no unanimity. In his previous trial, the trial judge sentenced him to fifteen months imprisonment. However, the circumstances have changed drastically since that time. He was sentenced in early 1985 and in 1987 his appeal was allowed and the new trial ordered. The new trial commenced here prior to the selection of the jury on January 18th, 1988. He has been through the trauma of one lengthy trial and experienced a twelve week/thirteen week trial on the second go-around. The sentence imposed by the Court must give effect to principles of general and specific deterrence. There is no evidence before the Court that Mr. Zündel has actually been able to have any significant part of the community react to his beliefs or to be tainted by his venom.
Frankly, it is Mr. Zündel who is to be pitied. He has been rejected twice by juries. The present jury listened to evidence at great length which was designed to demonstrate that the Holocaust is a total fraud, invented by Jews after the war to rip off the Republic of West Germany. The jury that sat throughout these weeks paid close and almost amazing attention to the evidence. Seldom have I seen, in twenty five years experience in the courts, a jury that was so dedicated to its task during a most difficult and sometimes emotional trial.
There are competing interests, obviously, in this matter but my role is to try and find an appropriate sentence for the offence committed by the accused. He is not to be sentenced here for his beliefs other than as they are relevant and encompassed within the verdict of the jury on the offence with which he was charged.
Persons who would spread hate in this community in order to foster right-wing beliefs which attack the delicate balance of racial and social harmony in our community must be punished. Toronto, unlike any other city in this country, is made up of vast numbers of ethnic groups. The great strength of the city of Toronto is in its ethnic roots. They have brought culture, they have brought character and they have brought fibre to our community, a city that is admired by any person who comes here from any other part of the world. We have an awful lot to be proud of and I believe that this community is a very tolerant community of the views and the lifestyle of others, but this community has no place for persons who want to spew hate for their own purposes. The line must be drawn and the jury drew it in this case.
The principles of sentencing that require the greatest weight in this case are general deterrence and specific deterrence. Stand up, Mr. Zündel.
You will be sentenced to imprisonment for nine months. I don't intend to impose any terms of probation. I don't intend to require you to perform any community service. I simply say to you that it may be that you wish to be a martyr, and I was tempted to frustrate you in that purpose that you have, but I am required to send a message to any other persons like yourself that this community won't tolerate hate mongers. You'll be sentenced to nine months with no other additional penalty. Remove the accused.