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Going to court with Ernst Zündel

In a new memoir, a veteran civil libertarian describes how the prosecution of a Holocaust denier put Canadian free-speech activists in a morally agonizing position..

In a new memoir, a veteran civil libertarian describes how the prosecution of a Holocaust denier put Canadian free-speech activists in a morally agonizing position..

National Post

A. Alan Borovoy – 20th February 2014

In 1985, when Holocaust-denier Ernst Zündel was being prosecuted in Ontario for his publication Did Six Million Really Die?, the courtroom was transformed into a forum for discussing the defendant’s monstrous views — such as his claim that Auschwitz was not a Nazi death camp but rather a Jewish country club.

It was a surreal scene: At one point, the prosecutor, not the defence, actually called a non-Jewish banker to the stand, and asked him if (as Zündel suggested in his various conspiracy theories) he was being paid off by an international Communist/banker/Jewish/Freemason cabal. As a Toronto rabbi observed in the aftermath of the trial: If someone calls your mother a whore, that is not a fit subject for a debate. Yet the Zündel trial provided a platform to vocalize all sorts of equally grotesque accusations against the Jews. The staging of such courtroom spectacles is one of the reasons that many civil libertarians are opposed to the criminal prosecution of hatemongers such as Ernst Zündel.

By 1985, I had been general counsel for the Canadian Civil Liberties Association (CCLA) for 17 years. In the aftermath of the trial (Zündel was found guilty, but the verdict was later overturned on a technicality, and he was tried again in 1988), the media descended upon me. Reporters called one after another, requesting the CCLA’s opinion about the merits of the case. And, in interview after interview, I criticized the overly broad law that had been used as a basis for Zündel’s prosecution — Criminal Code Section 181, which criminalized “Every one who willfully 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” (The Supreme Court of Canada struck down this law as unconstitutional in 1992).

After a day of unending interviews, I remember feeling especially worn out. It wasn’t just that my civil-liberties-focused viewpoint was unpopular; I was used to that. I also was struck by the hurt that I believed my comments were causing to many Holocaust survivors.

A few days after the trial, I was invited to appear on an open-line radio program that was devoted to the case. At one point, the moderator announced that Ernst Zündel himself was on the line and, right after the ensuing commercial, he would be given a chance to speak with me. Fortunately, the commercial gave me an opportunity to think through how I was going to handle the situation. Of course, I had no wish to speak with him, either publicly or privately. After the commercial, Zündel expressed praise and admiration for my various public comments on his case — all of which made me squirm in my chair. When the microphone was handed to me, I simply said, “While I feel obliged to defend Mr. Zundel’s legal rights, I have no comparable obligation to treat him with respect.” With that, we pulled the plug on him. I did not talk directly with him then or, to my knowledge, at any other time.

When the Zündel case reached the Ontario Court of Appeal in 1986, the CCLA had a decision to make. Would we seek leave to intervene to challenge the constitutionality of the false-news law? If we did, we were likely to aggravate our already tense relationship with our long-time Jewish allies. If we failed to seek such leave, we risked passing up a critical opportunity to attack a potentially repressive law.

Ultimately, we determined that we had to challenge the law. And in fact, there was very little opposition on our board to the proposed action. Most of us had resolved some time earlier that a civil-liberties organization worth its salt could not be deterred from standing up for its principles because of concerns for its popularity.

There was, however, at least one board member who took strong exception to our contemplated intervention: McGill University law professor and internationally acclaimed human-rights expert Irwin Cotler. Although he wasn’t able to attend our board meetings to register his objections personally, he wrote us from his home in Montreal. The gist of his argument was that we should not risk dignifying a malevolence such as Zündel. Better to defer our attack on the false-news law until another case came along.

The board’s response to Cotler was that the real world is not so neat. There’s no way to know when a more appropriate case would arise. In the meantime, the legitimate free speech of many constituencies could be threatened by the continued existence of the false-news law. We believed that we had to challenge it at the first opportunity. Accordingly, we rejected the idea of postponement and decided on immediate action.

Nevertheless, we still felt a need to ensure that our legal position was not interpreted as an alliance between the Zündel camp and the CCLA. Indeed, as civil libertarians, we felt it was important that we emphasize our hostility to what Zündel and his followers represented.

Zündel’s lawyer, Douglas Christie, prompted our next move. At the time, he was representing not only Ernst Zundel on a false-news charge but also a former Alberta high school teacher, James Keegstra, on a hate-propaganda charge under (what is now) Section 319 of the Criminal Code. A number of comments attributed to Christie in the mass media created the impression that he not only defended his clients’ legal rights but also endorsed their social views.

Not long before we filed our motion in court, I wrote to Mr. Christie, requesting a clarification of his position. My letter set out a number of his contentious quotes. In one of them, for example, he had been quoted as stating that his relationship with Keegstra began when he telephoned him “simply to commend the man’s courage in fighting for what he believed in.” We asked Christie whether this report was accurate. When a man such as Keegstra “abuses his position of trust as a teacher to preach hatred to a captive audience of teenaged students,” we noted in the letter, “his alleged courage is hardly the most significant thing about him.” We carefully distinguished between defending Keegstra’s legal rights and seeking him out “for moral commendation.”

Acknowledging, as we did, the propriety of lawyers vigorously defending the rights of their clients “in or out of the courtroom,” we nevertheless noted that the situation is different when “those lawyers go outside of court to espouse their clients’ social views.” At that point, we said, it was permissible to judge the situation “not as one where lawyers were speaking for their clients, but as one where individuals were speaking for themselves.” (We acknowledged the out-of-court right of lawyers to champion their clients’ views, but insisted that, if they did so, we would be “entitled to treat them by the same standards as those by which we would treat their clients.”)

His reply contended that our letter was a “serious attempt to interfere” with his actions as counsel for Zündel and Keegstra. He said that he would refer our letter to his own lawyer. That exchange of letters occurred during the summer of 1986. We never heard from his lawyer.

Since that time, Christie opposed virtually every CCLA effort to intervene in his cases. He appeared less than moved by the fact that, in many of those situations, our legal arguments would have served the interests of his clients. In most of those situations, however, we were granted leave to intervene, despite his objections.

Sometime later, Doug Christie and I wound up together on a CBC television show. The show dealt with a case where Christie and I had opposing views — and, needless to say, I found that situation a much more comfortable one. But I had some uneasiness about appearing on TV with him, anyway. I was afraid that, despite our differences, the mere fact that we were in the same frame might create an impression of collegiality. Thankfully, after watching the show, my friend Louis Greenspan assured me that my contempt for Christie was conspicuous, and so my fears were unfounded.

When I first arrived on the set, the producer asked me whether I had met Doug Christie who, at some distance to my right, was getting up with his hand outstretched to shake mine. Without even looking at Christie, I waved him down with my hand and told the producer that I knew who he was. In view of my letter to Christie and my instructions to CCLA counsel, I dared not shake his hand.

In 1990, a few years later, the Supreme Court of Canada ruled on the Keegstra case, and upheld the constitutionality of Canada’s anti-hate law by a narrow margin. When the press asked me for a comment, I noted that, by the time the case reached the Supreme Court, Keegstra had been removed from the classroom, disqualified from the teaching profession, and ousted as mayor of Eckville, Alberta. By then, he was working as a garage mechanic. And so, in addition to the free-speech-chilling implications of the Court’s Keegstra decision, it was gratuitous given all that already had happened.

“In my view,” I said, “he should have been allowed to wallow in the obscurity he so richly deserves.”


[Ed] – I suppose we should be grateful that Burovoy he supports free speech, but the tone is totally hysterical. The only ‘hate’ comes from the System.



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