R. v. Zundel, 1987 CanLII 121 (ON CA) (original) (raw)
58 O.R. (2d) 129
61 O.R. (2d) 588 *
[1987] O.J. No. 52
ONTARIO
COURT OF APPEAL
HOWLAND C.J.O., BROOKE, MARTIN, LACOURCIERE AND HOULDEN JJ.A.
23RD JANUARY 1987.
* An application for leave to appeal from this decision was dismissed by the Supreme Court of Canada (Dickson C.J., McIntyre and La Forest JJ.) June 4, 1987. S.C.C. File No. 20310. S.C.C. Bulletin, 1987, pp. 500, 934. This information also was published as a Note at 61 O.R. (2d) 588.
Constitutional law -- Charter of Rights -- Freedom of expression -- Publishing false news -- Offence to publish statement that person knows is false and that is likely to cause injury or mischief to public interest -- Offence lying within permissibly regulated area which is not constitutionally protected by guarantee to freedom of expression -- Offence not falling within any rationale for guaranteeing freedom of expression -- In any event offence constituting reasonable limit -- Offence also not too vague or overly broad -- Cr. Code, s. 177 -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
In determining the limits of a freedom guaranteed by the Canadian Charter of Rights and Freedoms, such as freedom of expression under s. 2(b) of the Charter, a distinction must be drawn between rights and freedoms. While a right is defined positively as what a person can do, a freedom is defined by determining 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. The regulated area will include restrictions for purposes of decency and public order and specifically with respect to freedom of expression, prohibitions concerning criminal libel and sedition. The offence created by s. 177 of the Criminal Code which provides that "everyone 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", properly forms part of the permissibly regulated area and does not violate the guarantee to freedom of expression. Different rationales have been expressed as to why freedom of expression should be guaranteed. One theory is that the best way to obtain truth is through the free exchange of ideas. Another theory is that freedom of expression of opinion is essential to the working of a parliamentary democracy. It has been considered that freedom of expression furthers self- fulfilment. The essence of the offence in s. 177, however, is the wilful publication of assertions of fact which are false to the knowledge of the person who publishes them and which will cause or are likely to cause injury or mischief to a public interest. It is difficult to see how such conduct could fall within any of those rationales. Spreading 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 and would not aid the working of parliamentary democracy or further self-fulfilment. Accordingly, the offence falling within the ambit of s. 177 lies within the permissibly regulated area which is not constitutionally protected. In any event, even if s. 177 constituted an infringement of freedom of expression as guaranteed by s. 2(b), nevertheless it is a reasonable limit prescribed by law which is reasonable and demonstrably justified in a free and democratic society within the meaning of s. 1 of the Charter. The objective of s. 177 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 is reasonable and important. The activity sought to be prohibited by s. 177 is the opposite of free public discussion. Lesser measures would not appear to be effective. The provision impairs freedom of expression as little as possible and any impairment is proportionate to the objective to be achieved.
Finally, s. 177 of the Criminal Code is not too vague or overly broad. The offence is limited to a statement of fact which is 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 of or probability of causation of injury or mischief are concepts within the ambit of the Criminal Code. The fact that the offence is tied to a "public interest" does not make the section too broad. There are many offences within which one aspect or another of the public interest is central. 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.
Criminal Law -- Jury -- Empanelling -- Challenge for cause -- Due to pretrial publicity -- Accused charged with offences arising out of anti-Semitic publications -- Case attracting substantial publicity and notoriety -- Accused himself responsible for considerable amount of publicity -- Trial judge erred in refusing to permit challenge for cause on basis of pretrial publicity and notoriety of accused -- Cr. Code, s. 567.
The accused was charged with two offences contrary to s. 177 of the Criminal Code of spreading false news as a result of his anti-Semitic publications. The accused and his trial had attracted a considerable amount of notoriety and publicity. Thus there had been a number of demonstrations and confrontations sparked either by the accused or his opponents. At the opening of the trial, counsel for the accused sought to challenge potential jurors for cause and proposed a series of questions most of which focused on the moral or religious background or beliefs of the potential jurors. The trial judge held that the questions were improper. He was also of the view that there was no evidentiary connection between the attracted notoriety and the reasonable prospect that any prospective juror, regardless of his racial origin or religious belief, or for any other reason, would be unable to impartially return a verdict. The trial judge then in his opening remarks to the jury panel gave them a caution inviting any prospective juror who had strong views that would make it difficult for them to reach an impartial verdict to disqualify himself. On appeal by the accused from his conviction, held, the appeal should be allowed and a new trial ordered.
Where it is sought to challenge jurors for cause on the basis of adverse pretrial publicity, there is no requirement that there has been a particular notorious episode before such a challenge for cause be permitted. While a notorious episode would be a fact to be considered on such an application, this did not constitute an absolute requirement. In any event, the series of well-publicized confrontations continuing up to the time of the trial would qualify as notorious episodes in this case. Further, the fact that the accused'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 being 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. Further, it was not for the judge to find whether or not there was an evidentiary connection between the publicity and notoriety and the juror's lack of indifference. Rather, it is the triers who determine the validity of the challenge who are selected for that purpose. On the other hand, defence counsel was himself in a large part responsible for the adverse ruling. Many of the questions which were sought to be asked seeking to challenge jurors for cause on general grounds such as race, religion, political belief or opinion were improper. Accordingly, those questions were properly rejected by the trial judge. The rejection should not, however, have foreclosed any challenge for cause. Although the trial judge correctly refused the questions as framed he ought in the circumstances to have advised counsel for the accused that he was not precluded from rephrasing certain of the proposed questions in a manner which would have been in accordance with the law. 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. The failure of the trial judge to advise counsel that he was at liberty to amend some of the questions may have resulted in 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 accused, sufficiently impartial. In this case, the accused was effectively denied that fundamental right. 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 to 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.
Evidence -- Opinion evidence -- Procedure -- Accused charged with publishing false statement as result of publication of pamphlet denying Holocaust -- Crown calling witness found to be expert on Holocaust -- Witness giving opinion as to killing of Jews as matter of Nazi policy -- Witness basing opinion on review of documents created at time and used during Nuremberg trials and on accounts of witnesses -- Opinion of expert entitled to weight although based on hearsay -- Hearsay upon which opinion based subject to exceptions to hearsay rule.
Evidence -- Hearsay -- Exceptions to rule -- Accused charged with spreading false news as result of publication of pamphlet denying Holocaust -- Crown calling expert witness on Holocaust -- Expert's opinion based on review of documents and accounts of witnesses -- Expert's opinion entitled to weight although based on hearsay evidence as exception to hearsay rule applicable.
Evidence -- Hearsay -- Exceptions to rule -- Events of general history provable by accepted historical treatises -- Conditions for admissibility that historical event one to which it would be unlikely that living witnesses could be obtained and that matter must be one of general interest -- Treatises concerning Holocaust falling within exception -- Similarly expert historian may testify as to existence of such historical events relying upon material to which any careful and competent historian would resort.
Evidence -- Hearsay -- Exceptions to rule -- Expert witness may give evidence based on material of general nature widely used and acknowledged as reliable by experts in field -- Expert concerning Holocaust giving opinion based on research of documents and accounts of eyewitnesses -- Such material that to which any careful and competent historian would resort -- Opinion evidence falling within hearsay exception and admissible.
The accused was charged with the offence contrary to s. 177 of the Criminal Code of spreading false news as a result of his publication of a pamphlet denying that the Holocaust occurred. The Crown called as a witness an expert on the Holocaust who gave his opinion concerning the systematic killing by the Nazi government in Germany of Jews during the Second World War. The Crown also adduced the eyewitness evidence of several survivors of Nazi concentration camps as to what occurred in those camps. The expert 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. Some of the documents had been used during the Nuremberg trials. The expert had as well read the transcripts of evidence and examined the documents introduced in evidence at the Nuremberg trials and had written a book on the Holocaust. On his appeal from conviction the accused argued that the evidence of the expert was inadmissible as it was founded on hearsay. While the appeal by the accused was allowed on other grounds, the Court of Appeal also dealt with the admissibility of this evidence.
Held, the evidence was admissible. While an expert may take into account the statements of others in forming his opinion, where the facts upon which he relies for the formation of his opinion are not proved, then the opinion is of no weight. However, this rule that expert evidence based on hearsay is of no weight is inapplicable to an expert opinion based on hearsay to which an exception to the hearsay rule applies. In this case there were two exceptions to the hearsay rule which were applicable. First, events of general history may be proved by accepted historical treatises on the basis that they represent community opinion or reputation with respect to an historical event of general history provided that the historical event is one to which it would be unlikely that living witnesses could be obtained, and that the matter is one of general interest so that it can be said that there is a high probability that the matter underwent general scrutiny as the reputation, evidenced by the historical treatises, was formed. Provided that an historical treatise on the Holocaust would have been admissible under this exception, it follows that an expert historian may testify as to the existence of the same historical event relying upon material to which any careful and competent historian would resort. In fact, the testimony of the historian is superior to the admission of the historical treatise since the expert can be cross-examined. Conditions for the application of this exception to the events of the Holocaust were satisfied. The events sought to be proved by the expert's opinion occurred more than 40 years ago and while there were some survivors of the Nazi concentration camps it was unlikely that living witnesses responsible for formulating the Nazi government policy or carrying it out could be obtained. It was self-evident that the matters on which the expert expressed his opinion were of general interest. While the expert's evidence did not strictly fall within the exception to the hearsay rule since the expert's opinion did not purport to be based upon reputation or community opinion but rather was primarily based on the examination and analysis of documents, nevertheless, the opinion was properly admitted. Exceptions to the hearsay rule, generally speaking, are based upon necessity and the circumstantial guarantee of trustworthiness of the evidence to which the exception applies. The materials upon which the expert relied came into existence contemporaneously with the historical event in issue and were not created in contemplation of litigation. They formed part of the source material of history to which any careful and competent historian would resort and thus did satisfy the requirement of trustworthiness. It was open to the courts in the circumstances to expand this hearsay exception and the expert opinion was admissible even though primarily based on documentary material, to prove the existence of the Holocaust. The second exception which was relevant was that an expert witness may give evidence based on material of a general nature which is widely used and acknowledged as reliable by experts in that field. The material upon which the expert relied in forming his opinion was material to which any careful and competent historian would resort. Having regard to the fact that his opinion related to an historical event of international interest, and the unlikelihood of obtaining living witnesses who had firsthand knowledge of Nazi government policy and its implementation with respect to the subject-matter of the Holocaust which lay at the foundation of this case, the expert's opinion evidence, in the circumstances of this case, also fell within this hearsay exception and was therefore admissible on that basis. Moreover, the case for the Crown as to the existence of the Holocaust did not rest solely on the expert's evidence in view of the testimony of the survivors.
Evidence -- Judicial notice -- Historical facts -- Accused charged with publishing false statement as result of publication of pamphlet denying Holocaust -- Trial judge properly exercising discretion in refusing to take judicial notice of existence of Holocaust -- If judicial notice taken trial judge required to so declare to jury -- Such direction would have been gravely prejudicial to defence that accused did not know pamphlet was false -- Cr. Code, s. 177.
Judicial notice may be taken of an historical fact and, in deciding whether or not to take judicial notice, the court may on its own initiative consult historical works or documents. The court may also be referred to such works and documents and hear sworn testimony. Further judicial notice may be taken not only of an evidential fact but of a fact in issue. The judge does, however, have a wide discretion as to matters of which he will take judicial notice and may take judicial notice of matters which he cannot be required to notice. Thus while it may have been open to the trial judge presiding at the trial of an accused charged with spreading false news contrary to s. 177 of the Criminal Code as the result of the accused's publication of a pamphlet denying the existence of the Holocaust, to take judicial notice that the Holocaust occurred, the trial judge had a discretion not to take judicial notice of that matter. Since the generally accepted view is that where the court takes judicial notice of a matter the judicial notice is final, the trial judge, had he taken judicial notice of the existence of the Holocaust, would have been required to so declare to the jury and to direct them to find that the Holocaust existed. Since the accused's defence in part was that he believed that the Holocaust had not occurred, such a direction to the jury would have been gravely prejudicial in so far as it would influence the drawing of the inference concerning the accused's knowledge of the falsity of the pamphlet.
Criminal Law -- Publishing false news -- Elements of offence -- Offence to publish statement knowing that it is false -- Accused charged as result of publication of pamphlet denying existence of Holocaust -- Trial judge directing jury that issue whether Crown had proved that accused had no honest belief in truth of pamphlet -- Constitutes misdirection -- Issue not whether accused published pamphlet with no honest belief in its truth but whether Crown had proved that accused knew it was false when he published it -- Cr. Code, s. 177.
It is an essential element of the offence contrary to s. 177 of the Criminal Code of publishing false news that the statement of fact published by the accused was false to his knowledge at the time of publication. Thus, on the trial of an accused on a charge contrary to s. 177 of the Criminal Code arising out of his publication of a pamphlet denying the existence of the Holocaust, it constituted misdirection for the trial judge to direct the jury that one of the essential issues in the case was whether or not the Crown had proved beyond a reasonable doubt that the accused had no honest belief in the essential truth of the pamphlet. The issue for the jury was not whether the accused published the pamphlet with no honest belief in its truth, but whether the Crown had proved beyond a reasonable doubt that he knew it was false when he published it. The publication of a false document with no honest belief in its truth, not caring whether it is true or false, would constitute recklessness with respect to its falsity, but not knowledge of its falsity. The offence of knowingly publishing false statements under s. 177 of the Criminal Code, however, requires proof of actual knowledge of the falsity of the statements. Recklessness as to the truth or falsity of the statements would not be sufficient. Moreover, the prejudicial effect of this misdirection would be increased where the jury was not instructed that it was not necessary for a belief to be honest that it be reasonable.
Criminal Law -- Publishing false news -- Elements of offence -- Offence requiring publication of false statement -- Mere expressions of opinion not coming within ambit of offence -- Accused charged as result of publication of pamphlet denying existence of Holocaust -- Trial judge not in specific terms directing jury that expressions of opinion not within prohibition -- Substantial portion of trial taken up with attempt by accused to prove Holocaust did not occur -- Jury could not come to any other conclusion but that pamphlet considered in its entirety contained assertion of fact and not merely opinion -- Cr. Code, s. 177.
Criminal Law -- Verdict -- Inconsistent verdicts -- Accused charged with two counts of publishing false statement likely to cause injury to public interest -- Charges arising out of publication of pamphlet alleging Zionist conspiracy and pamphlet alleging that Holocaust did not exist -- Public interest allegedly involved that of social and racial tolerance -- Evidence indicating that former pamphlet never circulated in Canada -- Acquittal on such count not inconsistent with conviction on other count -- Open to jury to conclude that former pamphlet not likely to cause mischief to specified public interest -- Cr. Code, s. 177.
Criminal Law -- Trial -- Conduct of trial -- Allegation that comments and interventions by trial judge and reprimands to defence counsel including threat to cite him for contempt creating appearance of unfair trial -- Trial judge having right and duty to ensure that trial conducted in proper manner in accordance with rules of evidence and rules of procedure -- Not shown that conduct of trial by judge created an appearance of unfair trial.
Evidence -- Documentary evidence -- Business records -- Accused charged with publishing false statement as result of publication of pamphlet denying existence of Holocaust -- Pamphlet making extensive reference to report of International Committee of the Red Cross published in 1948 -- Trial judge permitting Crown counsel to adduce evidence from 1978 report by International Committee concerning use of its documents in relation to Holocaust -- No evidence that latter document made in usual and ordinary course of business by International Committee of the Red Cross -- Evidence not admissible under Canada Evidence Act provision respecting business records -- Canada Evidence Act, R.S.C. 1970, c. E-10, s. 30.
Evidence -- Documentary evidence -- Public documents -- Accused charged with publishing false statement as result of publication of pamphlet denying existence of Holocaust -- Crown permitted to play film made by armed forces of United States -- Evidence adduced as to making of film in course of advance by allied armies into Germany -- Film factually explicit and relevant to show that statements made in pamphlet false -- Trial judge however erred in permitting introduction of narrative accompanying film -- Narrative hearsay and not admissible under public documents exception to hearsay rule -- Narrator and author of narrative unknown and source of information frequently not revealed -- Narrative more than statement of fact as to what film shows and in part recitation of information from unrevealed sources -- While person making narrative may have done so pursuant to duty such duty not within narrow scope of public duty exception to hearsay rule.
Criminal Law -- Publishing false news -- Proof of offence -- Accused charged with publishing false statement as result of publication of pamphlet denying existence of Holocaust -- Accused testifying and attempting to file as exhibits German books and pamphlets he had read as evidence of belief in truth of statements in pamphlet -- Trial judge refusing to permit accused to file books as exhibits unless had been translated into English and also refusing to permit accused to testify as to contents of books unless in English -- Constitutes error -- Accused should have been allowed to say in English what he derived from each of his sources and to file them as exhibits -- Such evidence clearly relevant and admissible as going to honesty of accused's belief -- Cr. Code, s. 177.
APPEAL by the accused from his conviction for publishing false news contrary to s. 177 of the Criminal Code.
R. v. Morgentaler, Smoling and Scott (1985), 1985 CanLII 116 (ON CA), 52 O.R. (2d) 353, 22 C.C.C. (3d) 353, 22 D.L.R. (4th) 641, 48 C.R. (3d) 1, 17 C.R.R. 223, apld R. v. Big M Drug Mart Ltd. (1985), 1985 CanLII 69 (SCC), 18 C.C.C. (3d) 385, 18 D.L.R. (4th) 321, [1985] 1 S.C.R. 295, [1985] 3 W.W.R. 481, 37 Alta. L.R. (2d) 97, 60 A.R. 161, 13 C.R.R. 64, 58 N.R. 81, 85 C.L.L.C. D7819981814,023; Retail, Wholesale & Department Store Union, Local 580 et al. v. Dolphin Delivery Ltd. et al., 1986 CanLII 5 (SCC), [1987] 1 W.W.R. 577; Re Alberta Legislation, 1938 CanLII 1 (SCC), [1938] 2 D.L.R. 81, [1938] S.C.R. 100 sub nom. Reference re Alberta Statutes; affd 1938 CanLII 251 (UK JCPC), [1938] 4 D.L.R. 433, [1938] 3 W.W.R. 337, [1939] A.C. 117, [1938] W.N. 349, discd Hunter et al. v. Southam Inc. (1984), 1984 CanLII 33 (SCC), 14 C.C.C. (3d) 97, 11 D.L.R. (4th) 641, 2 C.P.R. (3d) 1, [1984] 2 S.C.R. 145, 41 C.R. (3d) 97, [1984] 6 W.W.R. 577, sub nom. Director of Investigation & Research of Combines Investigation Branch et al. v. Southam Inc., 33 Alta. L.R. (2d) 193, 55 A.R. 291, 27 B.L.R. 297, 9 C.R.R. 355, 84 D.T.C. 6467, 55 N.R. 241; Re Fraser and Public Service Staff Relations Board (1985), 1985 CanLII 14 (SCC), 23 D.L.R. (4th) 122, [1985] 2 S.C.R. 455, 19 C.R.R. 152, 9 C.C.E.L. 233, 63 N.R. 161, 85 C.L.L.C. D7819981814,003; Chaplinsky v. State of New Hampshire (1942), 315 U.S. 568; Beauharnais v. People of State of Illinois (1952), 343 U.S. 250, 72 S. Ct. 725; New York Times Co. v. Sullivan (1964), 376 U.S. 254; Garrison v. State of Louisiana (1964), 379 U.S. 64; R. v. Oakes (1986), 1986 CanLII 46 (SCC), 24 C.C.C. (3d) 321, 26 D.L.R. (4th) 200, 53 O.R. (2d) 719n, [1986] 1 S.C.R. 103, 50 C.R. (3d) 1, 65 N.R. 87, consd Other cases referred to R. v. Hoaglin (1907), 1907 CanLII 146 (NWT SC), 12 C.C.C. 226; R. v. Kirby (1970), 1970 CanLII 1080 (QC CA), 1 C.C.C. (2d) 286, 13 Crim. L.Q. 128; Abrams v. United States (1919), 250 U.S. 616; Boucher v. The King, 1950 CanLII 2 (SCC), [1950] 1 D.L.R. 657, [1951] S.C.R. 265; Switzman v. Elbling and A.-G. Que. (1957), 1957 CanLII 2 (SCC), 117 C.C.C. 129, 7 D.L.R. (2d) 337, [1957] S.C.R. 285; Saumur v. City of Quebec and A.-G. Que. (1953), 1953 CanLII 3 (SCC), 106 C.C.C. 289, [1953] 4 D.L.R. 641, [1953] S.C.R. 299; Re Retail, Wholesale & Department Store Union, Locals 544, 496, 635 & 955 et al. and Government of Saskatchewan et al. (1985), 1985 CanLII 184 (SK CA), 19 D.L.R. (4th) 609, [1985] 5 W.W.R. 97, 39 Sask. R. 193, 21 C.R.R. 287, 85 C.L.L.C. D7819981814,054; Re Cromer and British Columbia Teachers' Federation et al. (1986), 1986 CanLII 143 (BC CA), 29 D.L.R. (4th) 641, [1986] 5 W.W.R. 638, 4 B.C.L.R. (2d) 273; Spence v. Washington (1974), 418 U.S. 405; Roth v. United States (1957), 354 U.S. 476; Village of Hoffman Estates et al. v. Flipside, Hoffman Estates Inc. 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(2d) 279, 31 C.R.N.S. 27, 15 N.R. 143; affd 1977 CanLII 15 (SCC), 15 O.R. (2d) 324n, 1976 CanLII 1457 (SCC), 33 C.C.C. (2d) 207n, [1977] 2 S.C.R. 267, 38 C.R.N.S. 381, 15 N.R. 139, apld R. v. Crosby (1979), 1979 CanLII 2932 (ON SC), 49 C.C.C. (2d) 255, expld Other cases referred to R. v. Rowbotham et al. (1984), 1984 CanLII 3566 (ON SC), 12 C.C.C. (3d) 189 Ares v. Venner (1970), 1970 CanLII 5 (SCC), 14 D.L.R. (3d) 4, [1970] S.C.R. 608, 12 C.R.N.S. 349, 73 W.W.R. 347, apld R. v. Abbey (1982), 1982 CanLII 25 (SCC), 68 C.C.C. (2d) 394, 138 D.L.R. (3d) 202, [1982] 2 S.C.R. 24, 29 C.R. (3d) 193, [1983] 1 W.W.R. 251, 39 B.C.L.R. 201, 43 N.R. 30, consd Other cases referred to Myers v. Director of Public Prosecutions, [1965] A.C. 1001; Re Federal Republic of Germany and Rauca (1982), 1982 CanLII 3177 (ON SC), 38 O.R. (2d) 705, 70 C.C.C. (2d) 416, 141 D.L.R. (3d) 412, 30 C.R. (3d) 97, 2 C.R.R. 131; affd 1983 CanLII 1774 (ON CA), 41 O.R. (2d) 225, 4 C.C.C. (3d) 385, 145 D.L.R. (3d) 638, 34 C.R. (3d) 97, 4 C.R.R. 42 R. v. Potts (1982), 1982 CanLII 1751 (ON CA), 36 O.R. (2d) 195, 66 C.C.C. (2d) 219, 134 D.L.R. (3d) 227, 26 C.R. (3d) 252, 14 M.V.R. 72; leave to appeal to S.C.C. refused C.C.C. loc. cit., 43 N.R. 270n, consd Other cases referred to Read et al. v. Bishop of Lincoln, [1892] A.C. 644; R. v. Bartleman (1984), 1984 CanLII 547 (BC CA), 13 C.C.C. (3d) 488, 12 D.L.R. (4th) 73, 55 B.C.L.R. 78; McQuaker v. Goodard, [1940] 1 K.B. 687 R. v. Havard (1914), 11 Cr. App. R. 2, consd Other cases referred to Bigaouette v. The King (1926), 1926 CanLII 46 (SCC), 47 C.C.C. 271, [1927] 1 D.L.R. 1147, [1927] S.C.R. 112; R. v. Moreau (1986), 1986 CanLII 4618 (ON CA), 26 C.C.C. (3d) 359, 51 C.R. (3d) 209; Sansregret v. The Queen (1985), 1985 CanLII 79 (SCC), 18 C.C.C. (3d) 223, 17 D.L.R. (4th) 577, [1985] 1 S.C.R. 570, 45 C.R. (3d) 193, [1985] 3 W.W.R. 701, 35 Man. R. (2d) 1, 58 N.R. 123 R. v. McShannock (1980), 1980 CanLII 2973 (ON CA), 55 C.C.C. (2d) 53, consd Cases referred to R. v. Valley (1986), 1986 CanLII 4609 (ON CA), 26 C.C.C. (3d) 207 Finestone v. The Queen (1953), 1953 CanLII 81 (SCC), 107 C.C.C. 93, [1953] 2 S.C.R. 107, 17 C.R. 211, apld Statutes referred to Canada Evidence Act, R.S.C. 1970, c. E-10, s. 30 Canadian Bill of Rights, s. 1(d) Canadian Charter of Rights and Freedoms, ss. 1, 2(a), (b), 10, 11(f), (i) Criminal Code, 1892 (Can.), c. 29, s. 126 Criminal Code, R.S.C. 1906, c. 146, s. 136 Criminal Code, R.S.C. 1927, c. 36, s. 136 Criminal Code, 1953-54 (Can.), c. 51, s. 166 Criminal Code, R.S.C. 1970, c. 34, ss. 177, 263, 264, 330, 386, 567(1)(b), 569(2), 613(1)(b)(iii) (am. 1985, c. 19, s. 143(1)) Statute of Westminster, 1275, 3 Edw. I, c. 34
Douglas H. Christie, for accused, appellant.
Douglas C. Hunt, Q.C., Peter D. Griffiths and David Paul
Finley, for the Crown, respondent.
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. 177on 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 und 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 Verral. Zundel said that, according to his information, Verral was a graduate student of one of London's universities in history. Zundel tried to get Verral 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 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 europeen (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. v. Hoaglin (1907), 1907 CanLII 146 (NWT SC), 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), 1970 CanLII 1080 (QC CA), 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), 1985 CanLII 69 (SCC), 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 Charterbut 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), 1984 CanLII 33 (SCC), 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), 1984 CanLII 3 (SCC), 11 C.C.C. (3d) 481, 9 D.L.R.
(4th) 161, 1984 CanLII 3 (SCC), [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 (SCC), [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 (SCC), [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. Elbling and A.-G. Que. (1957), 1957 CanLII 2 (SCC), 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 (SCC), [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), 1985 CanLII 14 (SCC), 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), 1953 CanLII 3 (SCC), 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 544, 496, 635 & 955 et al. and Government of Saskatchewan et al. (1985), 1985 CanLII 184 (SK CA), 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 1986 CanLII 143 (BC CA), 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 v. 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 v. 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), 1986 CanLII 46 (SCC), 24 C.C.C. (3d) 321 at pp. 348-9, 26 D.L.R. (4th) 200 at p. 227, [1986] 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. 264where 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 Vict. 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), 1985 CanLII 116 (ON CA), 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. v. 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), 1983 CanLII 1923 (ON SC), 41 O.R. (2d) 583 at p. 592, 147 D.L.R. (2d) 58 at p. 68, 34 C.R. (3d) 73; affirmed 1984 CanLII 1824 (ON CA), 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 (1985), 1985 CanLII 5600 (FCA), 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 (1985), 1985 CanLII 2223 (ON CA), 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 (SCC), [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), 1979 CanLII 2932 (ON SC), 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), 1975 CanLII 53 (ON CA), 11 O.R. (2d) 464, 29 C.C.C. (2d) 279, 31 C.R.N.S. 27; affirmed 1977 CanLII 15 (SCC), 15 O.R. (2d) 324n, 1976 CanLII 1457 (SCC), 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), 1984 CanLII 3566 (ON SC), 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 Codeand 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 Mauthausen-Gussen 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
Dr. Robert Faurisson is a professor at a university in France called Lyon II. In 1970, he appears to have received a doctorate in literature and life science at the University of Paris, Sorbonne. His specialty is document criticism. He testified that he became interested in the "Gas Chamber question" in 1960. He studied Reitlinger's book, "The Final Solution" and revisionist Paul Rassinier's books on the Holocaust. He studied the Nuremberg documents in the American Archives and in the Auschwitz Museum. He said on the radio in France that the alleged Hitler gas chambers and the alleged genocide of the Jews are one and the same historical lie, and the principal beneficiaries are Israel and the Zionists. It appears from his evidence that as a result of this statement he was found guilty of group defamation of Jews and received a sentence of three months which was suspended.
The trial judge, at the conclusion of a voir dire, ruled that Dr. Faurisson should be permitted to testify as an expert witness on the same basis as Dr. Hilberg was allowed to testify, namely, whether the German Government from 1933 to 1945 deliberately embarked on a scheme to exterminate Jews in Europe.
Dr. Faurisson testified that the photograph in the pamphlet entitled "Healthy and Cheerful Inmates Released from Dachau" appears in a book published by "The International Committee of Dachau" in Brussels. Dr. Faurisson said that there was no proof of the existence of even one gas chamber at Auschwitz or Birkenau, and if there were no gas chambers it was impossible to support the figure of the annihilation of six million Jews.
He said that the "story" of the gas chambers rests on three pillars: (1) the War Refugee Board Report (co-authored by Dr. Vrba); (2) Rudolph Hoess, and (3) Kurt Gerstein. He gave his reasons for discrediting these sources, some of which are the following: The War Refugee Board Report says 1,765,000 Jews were killed at Auschwitz and it says 150,000 were from France, but a book by Serge Klarsfeld says 75,721 Jews were deported from France to all camps. Rudolph Hoess, the commandant at Auschwitz, says 2.5 million Jews were killed in the gas chambers at Auschwitz, but Dr. Hilberg says only one million were killed there. The statements of Gerstein are totally unbelievable. Gerstein says Hitler was personally present at Belzec; all historians agree he was not.
He also said it was surprising that there is no document containing the policy of extermination, having regard to the German policy of documenting everything. He expressed the opinion that during the war the total number of people who died in all the concentration camps was from 200,000 to 350,000 of whom 50,000 died at Auschwitz.
Dr. Faurisson said that the statement in the pamphlet that the Red Cross did not find any evidence of extermination camps would be correct if the author had said that "during the war" the Red Cross did not find any evidence of extermination camps. He stated that in his opinion the Harwood Article in the pamphlet is basically true on three points: the Anne Frank Diary is a "fake"; there was no genocide; and there were no gas chambers.
Dr. Faurisson said he had published plans obtained from the Auschwitz Museum. The appellant saw these plans in Los Angeles in 1978 where Dr. Faurisson had presented a paper on the technical impossibility of the "gassings" having taken place. He testified that he had informed the appellant of his opinion with respect to the gas chambers.
D. Whether the opinion evidence of Dr. Hilberg was inadmissible as founded on hearsay
Counsel for the appellant contended that the evidence of Dr. Hilberg was inadmissible since it was founded on hearsay. As a general proposition, it appears to be established that while an expert may take into account the statements of others in forming his opinion, where the facts upon which he relies for the formation of his opinion are not proved, the opinion is of no weight. In R. v. Abbey (1982), 1982 CanLII 25 (SCC), 68 C.C.C. (2d) 394, 138 D.L.R. (3d) 202, [1982] 2 S.C.R. 24 (S.C.C.), Mr. Justice Dickson, delivering the judgment of the court, said at p. 412 C.C.C., p. 220 D.L.R.:
It was appropriate for the doctors to state the basis for their opinions and in the course of doing so, to refer to what they were told not only by Abbey but by others, but it was error for the judge to accept as having been proved the facts upon which the doctors had relied in forming their opinions. While it is not questioned that medical experts are entitled to take into consideration all possible information in forming their opinions, this in no way removes from the party tendering such evidence the obligation of establishing, through properly admissible evidence, the factual basis on which such opinions are based. Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist.
(Emphasis added.)
There are, however, certain well-established qualifications to the rule that expert evidence based on hearsay is of no weight. The rule is inapplicable to an expert opinion based on hearsay to which an exception to the hearsay rule applies: see Rosemary Pattenden, "Expert Opinion Evidence Based on Hearsay", [1982] Crim. L.Rev. 85 at p. 89.
There are two exceptions to the hearsay rule which are relevant, and in the circumstances of this case, are, in our opinion, mutually supportive. The first is that events of general history may be proved by accepted historical treatises on the basis that they represent community opinion or reputation with respect to an historical event of general interest. The historical event must be one to which it would be unlikely that living witnesses could be obtained, and in addition, the matter must be one of general interest, so that it can be said that there is a high probability that the matter underwent general scrutiny as the reputation, evidenced by the historical treatises, was formed: see Wigmore On Evidence, 3rd ed., vol. 5, p. 462; McCormick on Evidence, 3rd ed., p. 906.
Dean Wigmore suggests that the paucity of rulings on this exception to the hearsay rule is probably due to the fact that if the event is of such general interest as to render an accepted historical treatise admissible, the fact is of such notoriety as to permit the court to take judicial notice of it:
Wigmore, 3rd ed., vol. 5, p. 464. This exception to the hearsay rule and judicial notice are closely related, as we shall later develop.
If an historical treatise is admissible to prove an historical fact of general public interest, we think it should logically follow, if the conditions for this exception to the hearsay rule are met, that an expert historian may testify as to the existence of an historical event relying upon material to which any careful and competent historian would resort. The testimony of an expert historian is, in our view, superior to the admission of an historical treatise, because the expert can be cross-examined.
In our opinion the first condition for the application of the exception, namely, that the historical event must be one to which it would be unlikely that living witnesses could be obtained, was satisfied in this case. The events sought to be proved by Dr. Hilberg's opinion occurred more than 40 years ago, and while there are survivors of the Nazi concentration camps, some of whom were called as witnesses, it is unlikely that living witnesses responsible for formulating the policy of the Nazi government or carrying out the policies in relation to the events alleged, could be obtained. That the events upon which Dr. Hilberg expressed an expert opinion are of general interest is self-evident. The public nature and, indeed, the interest of the world community in the events to which Dr. Hilberg's opinion related is evident from all the Nuremberg trials, which evidence a form of community opinion.
Dr. Hilberg's opinion did not, however, purport to be based upon reputation or community opinion. His opinion was primarily based on an examination and analysis of the documents which he described. Dr. Hilberg's evidence, consquently, did not fall strictly within the exception to the hearsay rule that historical events of general interest may be proved by accepted historical treatises which may be assumed to evidence reputation or public opinion as to the historical event sought to be proved.
Exceptions to the hearsay rule, generally speaking, are based upon (a) necessity, and (b) the circumstantial guaranty of the trustworthiness of the evidence to which the exception applies.
The materials upon which Dr. Hilberg relied came into existence contemporaneously with the historical event in issue and were not created in contemplation of litigation. They are part of the source material of history to which any careful and competent historian would resort and thus satisfy the requirement of trustworthiness.
The courts have in the past been willing to expand the hearsay exceptions when the evidence sought to be introduced has met the conditions of necessity and trustworthiness. In Ares v. Venner (1970), 1970 CanLII 5 (SCC), 14 D.L.R. (3d) 4, [1970] S.C.R. 608, 73 W.W.R. 347, the Supreme Court of Canada held that hospital records, including nurses' notes, made by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. Mr. Justice Hall, speaking for the Supreme Court of Canada, said at p. 14 D.L.R., p. 622 S.C.R.: "The question has not been free from doubt. The need for a restatement of the hearsay rule has long been acknowledged, but differences of opinion exist as to how the change should come about."
Mr. Justice Hall adopted the minority view of Lord Donovan and Lord Pearce in Myers v. Director of Public Prosecutions, [1965] A.C. 1001, and quoted with approval passages from the speeches of Lord Donovan and Lord Pearce. He said at p. 15 D.L.R., pp. 623-5 S.C.R.:
Lord Donovan presented the case for extension of the rule by judicial decision in these words [at p. 1047]:
"I am aware that your Lordships view these consequences with uneasiness. Nevertheless it was urged on behalf of the appellant that this House is powerless to prevent them. The argument is that the records themselves are hearsay: that legislation would be required to make them admissible evidence: that the admission of this evidence would have to be hedged around with safeguards lest untrustworthy evidence comes in by the same door: and that all this is the province of Parliament.
"My Lords, I feel the force of the argument but I remain unconvinced. The common law is moulded by the judges and it is still their province to adapt it from time to time so as to make it serve the interests of those it binds. Particularly is this so in the field of procedural law. Here the question posed is -- 'Shall the courts admit as evidence of a particular fact authentic and reliable records by which alone the fact may be satisfactorily proved?' I think the courts themselves are able to give an affirmative answer to that question."
He was supported by Lord Pearce who said [at pp. 1040-2]:
"I find it impossible to accept that there is any 'dangerous uncertainty' caused by obvious and sensible improvements in the means by which the Court arrives at the truth. One is entitled to choose between the individual conflicting obiter dicta of two great judges and I prefer that of Jessel M.R. His dictum was as follows, 1 P.D. 154, 241: 'Now I take it the principle which underlies all these exceptions is the same. In the first place, the case must be one in which it is difficult to obtain other evidence, for no doubt the ground for admitting the exceptions was that very difficulty. In the next place the declarant must be disinterested; that is, disinterested in the sense that the declaration was not made in favour of his interest. And, thirdly, the declaration must be made before dispute or litigation, so that it was made without bias on account of the existence of a dispute or litigation which the declarant might be supposed to favour. Lastly, and this appears to me one of the strongest reasons for admitting it, the declarant must have had peculiar means of knowledge not possessed in ordinary cases.' On that expression of principle he admitted the extension which has been acted on ever since in the Probate Division.
'That, I respectfully think, is the correct method of approach, particularly to a problem that deals with the court's method of ascertaining truth. As new situations arise it adapts its practice to deal with the situation in accordance with the basic and established principles which lie beneath the practice. To exalt the practice above the principle would be a surrender to formalism. Since this branch of the law is so untidy, there is but little appeal in 'the demon of formalism which tempts the intellect with the lure of scientific order.' "
In our view, the expert opinion of Dr. Hilberg, even though primarily based on the documentary material described by him, which was hearsay, was admissible to prove the existence of the Holocaust.
The second exception which is relevant in this case is that an expert witness may give evidence based on material of a general nature which is widely used and acknowledged as reliable by experts in that field. This exception, however, has hitherto been confined to a few narrow classes of cases such as, for example, mortality tables and a standard pharmaceutical guide: see Pattenden, "Expert Opinion Evidence Based on Hearsay", [1982] Crim. L.Rev. 85 at pp. 90-1; Cross on Evidence, 6th ed. (1985), at p. 452.
Professor Pattenden also refers to a related and overlapping exception which she expresses as follows at p. 93 (footnotes omitted):
Fifthly, to some extent all opinion evidence by an expert contains hearsay. Very few experts acquire their specialist skills entirely through first-hand experience. Provided the hearsay on which the expert relies is of a sufficiently general nature to be regarded as part of the corpus of knowledge with which an expert in his field can be expected to be acquainted, no objection will be taken to his evidence on this ground. Referring to the evidence of an expert valuer Megarry J. said in English Exporters Pty. Ltd. v. Eldonwall [[1973] 1 Ch. 415 at 420]:
"As an expert witness, the valuer is entitled to express his opinion about matters within his field of competence. In building up his opinions about values, he will no doubt have learned much from transactions in which he has himself been engaged, and of which he could give first-hand evidence. But he will also have learned much from many other sources, including much of which he could give no first-hand evidence. Textbooks, journals, reports of auctions and other dealings, and information obtained from his professional brethren and others, some related to particular transactions and some general and indefinite, will all have contributed their share ... [T]he opinion ... is none the worse because it is in part derived from the matters of which he could give no direct evidence ..."
This exception to the hearsay rule (for such it surely is) is largely based on necessity, but a recognition of the greater ability of the expert than the court to evaluate the reliability of background hearsay may also be a factor.
(Emphasis added.)
In the United States, Federal and Revised Uniform Rule (1974) 703, contemplates a broad hearsay exception peculiar to experts. In McCormick on Evidence, 3rd ed., the authors state at pp. 909-10 (footnotes omitted):
An expert witness may, under Federal and Revised Uniform Rule (1974) 703, base an opinion on facts or data that are not "admissible in evidence" if of a type reasonably relied upon by experts in the field. An expert must, of course, be allowed to disclose to the trier of fact the basis facts for his opinion, as otherwise the opinion is left unsupported in midair with little if any means for evaluating its correctness. This raises the apparent anomaly that the expert may testify to evidence even though it is inadmissible. The anomaly disappears, however, when the language of the rule is given its proper meaning that the expert himself may give the necessary foundation testimony for the introduction of basis testimony that traditionally would have been inadmissible without producing numerous other witnesses. It does not mean that the expert becomes the sole judge of the admissibility of the basis facts: they must still be of a type reasonably relied upon by experts in the field, and they are subject to such general evidentiary principles as exclusion for prejudice or irrelevancy. Subject to the foregoing comments, the basis facts may be testified to by the expert, and accordingly they are in evidence. The effect of Rule 703 has been to create a hearsay exception, or perhaps dispense with the requirement of firsthand knowledge, as the case may be.
It is unnecessary for the purpose of this case to decide whether there is a hearsay exception peculiar to experts as broad as that contemplated under Federal Rule 703 in the United States. The material upon which Dr. Hilberg relied in forming his opinion was material to which, as we have previously indicated, any careful and competent historian would resort. Having regard to the fact that his opinion related to an historical event of international interest, and the unlikelihood of obtaining living witnesses who had first-hand knowledge of Nazi government policy and its implementation with respect to the subject-matter of the Holocaust which lies at the foundation of the case, we are satisfied that Dr. Hilberg's opinion evidence, in the circumstances of this case, also fell within this hearsay exception and was therefore admissible on that basis.
We observe that Dr. Hilberg gave expert evidence in Re Federal Republic of Germany and Rauca (1982), 1982 CanLII 3177 (ON SC), 38 O.R. (2d) 416, 70 C.C.C. (2d) 416, 141 D.L.R. (3d) 412; affirmed 1983 CanLII 1774 (ON CA), 41 O.R. (2d) 225, 4 C.C.C. (3d) 385, 145 D.L.R. (3d) 638. That case involved an application by the Federal Republic of Germany for the extradition of Helmut Rauca who was accused of aiding and abetting the murder of approximately 10,500 persons in October, 1941, in Lithuania. The decision of Evans C.J.H.C., sitting as an extradition judge, ordering the extradition of Rauca was affirmed by this court. The evidence of Dr. Hilberg is referred to by the court: 41 O.R. at pp. 232 and 234, 4 C.C.C. at pp. 391-2 and 394, 145 D.L.R. at pp. 645 and 647. Dr. Hilberg gave evidence in that case, inter alia, that the Reich Security Main Office or R.S.H.A. was one of 12 main offices in the State Security Service and Police. It combined the Security Service and the Security Police. The Security Police was subdivided into two main police forces: the criminal police and the State Police or Gestapo. According to Dr. Hilberg, the R.S.H.A. maintained, in areas that were being invaded, mobile units known as Einsatzgruppen. The Einsatzgruppen were subdivided into units called Einsatzkommandos comprising roughly 150 persons. The Einsatzgruppen were civil units, not military units and were thus subject to civil rather than military authority. It would seem clear that Dr. Hilberg, in forming his opinion, necessarily relied on documents or other hearsay information. The admissibility of his evidence does not, however, appear to have been the subject of argument.
It will be recalled that Dr. Hilberg testified that in his research he relied primarily on documents and secondarily on persons who had direct observation of the subject-matter. In the present case, the Crown called several eyewitnesses who testified as to what occurred in Nazi concentration camps, and at least two of those witnesses, it will be recalled, gave evidence of direct observation of the destruction of prisoners on a large scale in gas chambers. Other eyewitnesses testified to large numbers of people being taken to crematoria and not emerging, from which it could reasonably be inferred in light of the other eyewitness testimony that those persons were killed in the gas chambers and the bodies burned in the crematoria or in pits. Having regard to the systematic way in which prisoners were killed at different camps, according to the eyewitness testimony, it would be reasonably open to the jury to infer that the killings were a matter of Nazi government policy and were not isolated occurrences undertaken by camp commandants on their own initiative. Thus, the case for the Crown as to the existence of the Holocaust did not rest solely on Dr. Hilberg's evidence.
IV Judicial notice
Counsel for the Crown contended that the trial judge erred in rejecting the Crown's application that he take judicial notice of the Holocaust and, accordingly, the appellant suffered no prejudice even if the evidence of Dr. Hilberg was inadmissible.
At the end of the Crown's case, Crown counsel requested that the judge take judicial notice of the Holocaust. The judge in his ruling rejecting the Crown's application stated that the Crown had requested the court to take judicial notice of two things. Firstly, that millions of Jews were annihilated in Europe during the years 1933 to 1945 because of a "premeditated policy of the hierarchy of Nazi Germany". Secondly, the means of annihilation included mass shootings of Jews, their deliberate starvation, privation and death by gassing. The judge, after careful consideration of lengthy submissions by both Crown counsel and defence counsel, said that, however tempted he might be to grant the Crown's application, it would have the effect, in the eyes of the public, as well as perhaps in the eyes of the jury and the accused, of not providing the accused with an opportunity to make full answer and defence. To grant the motion would have the effect of "substantially eliminating a portion of the duty incumbent on the Crown in so far as the guilt of the accused is concerned".
The application to the court to take judicial notice of the Holocaust was renewed after the conclusion of the defence evidence on the basis that the bulk of the defence evidence had related to the appellant's belief in the truth of the pamphlet and that there was no evidence called "to cast a doubt" on the two matters that the court had earlier been requested to notice. The court in rejecting the second application stated that the Crown alleged that the accused had published something that was inherently false and the Crown had the burden of proving that allegation.
The doctrine of judicial notice is clearly stated by Thorson J.A., speaking for this court in R. v. Potts (1982), 1982 CanLII 1751 (ON CA), 36 O.R. (2d) 195, 66 C.C.C. (2d) 219, 134 D.L.R. (3d) 227 (leave to appeal to the Supreme Court of Canada refused May 17, 1982, C.C.C. loc. cit., 43 N.R. 270n), where he said at p. 201 O.R., pp. 225-6 C.C.C., pp. 233-4 D.L.R.:
... generally speaking, a Court may properly take judicial notice of any fact or matter which is so generally known and accepted that it cannot reasonably be questioned, or any fact or matter which can readily be determined or verified by resort to sources whose accuracy cannot reasonably be questioned.
It was the view of both Thayer and Wigmore that taking judicial notice of a fact or matter does not import that the matter is indisputable; it is not necessarily anything more than a prima facie recognition of the matter as true without the offering of evidence by the party who should ordinarily have done so, but the opponent is not prevented from disputing the matter by evidence, if he believes it disputable: see Thayer, A Preliminary Treatise on Evidence at the Common Law (1898), pp. 308-9; Wigmore on Evidence, 3d. ed., vol. 9, p. 535.
The generally accepted modern view, however, is that where the court takes judicial notice of a matter, the judicial notice is final: see Morgan, "Judicial Notice" (1944), 57 Harv. L. Rev. 269; Nokes, "The Limits of Judicial Notice" (1958), 74 L.Q. Rev. pp. 59-63; McNaughton, "Judicial Notice -- Excerpts Relating to the Morgan-Wigmore Controversy" (1961), 14 Vand. L. Rev. 779. When a court takes judicial notice of a fact, it declares that it will find the fact exists or direct the jury to do so: see Cross on Evidence, 6th ed., pp. 62-3.
It is well established that the court may take judicial notice of an historical fact. The court may, on its own initiative, consult historical works or documents, or the court may be referred to them: see Read et al. v. Bishop of Lincoln, [1892] A.C. 644; R. v. Bartleman (1984), 1984 CanLII 547 (BC CA), 13 C.C.C. (3d) 488 at pp. 491-2, 12 D.L.R. (4th) 73 at p. 77, 55 B.C.L.R. 78 (B.C.C.A.). The court may even hear sworn testimony before judicial notice is taken: see McQuaker v. Goddard, [1940] 1 K.B. 687.
As Professor Cross points out, the distinction between the process of taking judicial notice and the reception of evidence begins to fade when the judge makes inquiries before deciding to take judicial notice of a matter. He points out that if learned treatises are consulted, it is not easy to say whether evidence is being received under an exception to the hearsay rule or whether the judge is equipping himself to take judicial notice. The resemblance of taking judicial notice to the reception of evidence is even more marked when sworn testimony is heard before judicial notice is taken. He concludes, however, that even where the processes of taking judicial notice and receiving evidence approximate most closely, they are essentially different: see Cross on Evidence, 6th ed., pp. 67-8. The essential difference is that when the judge is equipping himself to take judicial notice, the hearsay rule does not apply.
Professor Morgan in his famous article, previously mentioned, states at pp. 286-7:
The party seeking judicial notice has the burden of convincing the judge that (a) the matter is so notorious as not to be the subject of dispute among reasonable men or (b) the matter is capable of immediate accurate demonstration by resort to readily accessible sources of indisputable accuracy. There is no artificial limit upon the sources of information which he may furnish the judge, and none upon those which the judge may consult of his own motion. The opponent likewise is not restricted by rules of evidence in offering, or inducing the judge to consult, reliable repositories of relevant data. If the judge believes it doubtful whether the matter falls within the domain of judicial notice, or if the sources available are inadequate, he leaves the subject within the domain of evidence, and all the ordinary rules applicable to the process of resolving an ordinary issue of fact are enforced.
Professor Pattenden also states that a judge can take judicial notice of an opinion which rests on hearsay: [1982] Crim. L. Rev. at pp. 91-2 and 96.
Judicial notice may be taken of an evidential fact or a fact in issue: see Thayer, A Preliminary Treatise on Evidence At The Common Law, at p. 306; Phipson on Evidence, 13th ed., p. 26. The judge here was requested to take judicial notice of a fact in issue which was an essential element of the Crown's case. The judges, however, have a wide discretion as to matters of which they will take judicial notice and may notice matters which they cannot be required to notice: see Thayer, A Preliminary Treatise on Evidence at the Common Law, p. 309; Phipson on Evidence, 13th ed., p. 26.
In the present case, the prosecution was required to prove, inter alia, (a) that the pamphlet was false, and (b) that the appellant subjectively knew that it was false. There was no direct evidence of the appellant's knowledge of the falsity of the pamphlet, such as an admission, and, indeed, the defence position was (a) that it was true and (b) even if it was not true the appellant honestly believed it to be true. The Crown, in order to succeed, was required to prove by circumstantial evidence of inference that the appellant knew the pamphlet was false. If the jury on the evidence concluded that the existence of the Holocaust was so notorious as to be indisputable by reasonable men and women, that would be a circumstance, but only a circumstance, from which the jury might infer that the appellant knew that the pamphlet was false, but the jury would not be required to draw that inference. However, if the trial judge had taken judicial notice of the existence of the Holocaust, he would have been required to so declare to the jury and to direct them to find that the Holocaust existed, which would have been gravely prejudicial to the defence in so far as it would influence the drawing of the inference concerning the appellant's knowledge of the falsity of the pamphlet. In our view, the judge exercised his discretion judicially in refusing to take judicial notice of the Holocaust.
Since we have held that the evidence of Dr. Hilberg was admissible, it is unnecessary to consider whether we might properly take judicial notice of those matters of which the trial judge declined to take judicial notice, and invoke s. 613(1)(b)(iii) of the Code with respect to the alleged error in admitting Dr. Hilberg's evidence.
V Judge's charge
A. Whether the judge erred on his charge as to proof of knowledge
Much of this seven-week trial was taken up by the efforts of the defence either through cross-examination or by the calling of witnesses to show that the Holocaust did not occur, that there were no gas chambers in concentration camps, and hence prisoners could not have been killed in them; and that, save as to two honest errors, noted previously, the pamphlet was essentially true.
The defence also introduced evidence that the appellant believed that the pamphlet was true. The appellant testified as to the reasons for his belief that the pamphlet was true and the defence called a number of witnesses to support his testimony.
The judge early in his charge dealt with the mental element required to be proved by the Crown. He instructed the jury that the Crown was required to prove beyond a reasonable doubt the element of intent. He told the jury that, "the Latin for 'intent' is 'mens rea'. When that is translated back into English it means simply a guilty mind". He further charged the jury that if the Crown failed to prove the necessary intent beyond a reasonable doubt, they were required to acquit. In determining intent the jury were required, he said, to consider all the surrounding circumstances and the evidence they had heard. He then instructed the jury with respect to the common sense inference that a person usually intends the natural consequences of his acts. After explaining the provisions of s. 177 of the Criminal Code to the jury, he reviewed for them the elements of the offence charged which were required to be proved by the Crown beyond a reasonable doubt. He correctly instructed the jury that the Crown was required to prove beyond a reasonable doubt that the appellant wilfully published the pamphlet, that the pamphlet in its essentials was false, and that the appellant knew that the pamphlet in its essential elements was false -- that is, essentially untrue.
The trial judge defined "wilfully" in terms of the extended definition of s. 386 of the Code. This extended definition was inapplicable to s. 177 but no real prejudice to the appellant resulted from that error since the accused admitted the publication of the pamphlet, the subject of count 2, and he was acquitted on count 1. The word "wilfully" in s. 177 relates to the publication of the alleged false statement.
The trial judge then indicated to the jury that he considered that the basic issue regarding the pamphlet, "Did Six Million Really Die?" was whether the jury were satisfied that the appellant had published the pamphlet, and if so, whether he did it in a wilful manner and that he had, at the time he published the pamphlet, no honest belief in its essential truth. Shortly afterwards, he instructed the jury that there was no burden on the accused to prove anything and the Crown was required to prove that the appellant did not have an honest belief in the content of the pamphlet.
The judge then summarized both the Crown and defence position with respect to the existence of the Holocaust. Next he turned to the issue of the falsity of the pamphlet and the appellant's knowledge of its falsity. He said:
In order to prove that the accused knew the contents of ex. 1 were false and he deliberately, wilfully published that exhibit notwithstanding, the Crown points in his address, which I will cover at a later stage, to the reasons why the accused, from the Crown's view, at least, knew the contents to be false.
The defence, on the other hand, does not admit the falsity of ex. 1 save in narrow locations. The defence says the Crown has failed to prove that the contents of ex. 1 are essentially false. The defence submits that Mr. Zundel, having corresponded with many people in many parts of the world, accumulated much information on the subject of what is said to be the Holocaust. He has gathered that information together and has used it, published it after he read it, and he honestly believed it, both before and at the time he made the publication.
The defence takes the position that there are serious, honest questions concerning whether gas chambers existed to kill Jews, whether there was a deliberate policy on the part of Nazi Germany to exterminate Jews, whether there existed a plot by Zionists to extract money from Germany to enrich Israel, and that this resulted in the hoax of the six million.
The defence further says that Mr. Zundel holds all of these things as honest beliefs. In the result, after having spoken about and having seen the information acquired by people such as Mr. Felderer from Sweden, Mr. Christopherson from Germany, Dr. Lindsey, the chemist from Texas, Iowa, and Dr. Faurisson from France, to name only a few, the Crown has failed to prove that the accused did not have an honest belief in what he published in ex. 1.
The trial judge referred to the exhibits received in evidence during the Crown's case and stated that they related to the issue of the truth or falsity of the pamphlet and related to the issue of whether it had been proved that the appellant wilfully published the pamphlets knowing the essential content of each to be false. He then turned to the defence exhibits and stated that they related to whether the appellant had an honest belief in the truth of the essential elements of the pamphlet. The trial judge said:
All those books and all of those exhibits are now evidence. They contain, as I say, a myriad of opinions. They have been admitted into evidence so that if you, as jurors, wish to do so, you may employ them in whole or in part, as you shall decide, to conclude the weight, if any, that you will place on the evidence that you heard from the accused as to whether or not the Crown has proven that Mr. Zundel did not have an honest belief in the essential truth of exs. 1 and 2.
. . . . .
You alone, members of the jury, will decide whether or not the evidence discloses that Mr. Zundel relied on these books, the opinions of the authors, and other sources containing opinions, in order to acquire the honest belief that the Holocaust is a myth and a hoax, and to acquire the honest belief that Zionists, aided by Christians and Western bankers, have conspired to put down financially and to hold in bondage the Islamic people.
On the other hand it is for you alone to decide whether or not the total evidence discloses that the Crown has proven that all of these sources have been used merely as a reason to confirm beliefs already long since held without the necessity of having to refer to the books or the authors or to the other sources in order to acquire the belief.
The learned trial judge then carefully and fully reviewed the evidence for the jury. He first put to the jury the position of the defence, and concluded by saying:
For all of the reasons that he gave, including what I have repeated and for a number of submissions I have not repeated, it is Mr. Christie's [defence counsel] submission that both of these counts should be dismissed because they have not been proven, and that Mr. Zundel, who does not have to prove anything, has disclosed an honest belief in the truth of the contents.
He then summarized the position of the Crown, in the course of which he said:
It is submitted to you that this accused is not some sort of a harmless eccentric. Mr. Zundel is dangerous. He does not fall under the same category, in the submission of the Crown, as Mr. Felderer and others who testified. The accused could not possibly have an honest belief in the truth of either one of the two exhibits. For that reason, your verdict should be guilty with respect to both counts in the indictment.
He concluded this part of his charge by saying:
There are really two issues. Did the Holocaust occur? Speaking only for myself, and it is for you to say and no one else, it would seem that the evidence before you is overwhelming that it did.
In so far as the issue of the honesty of the belief, it is not necessary that I make any comment on that.
The jury, after they had been deliberating for some time, returned and requested "a re-statement of the judge's charge re the legal interpretation of s. 177". The trial judge then read s. 177 to the jury and commented upon its purpose in a manner which is unexceptional. He instructed the jury that the Crown was required to prove that the appellant published the pamphlet, "Did Six Million Really Die?" and must prove that the content in its essentials was false. He further correctly instructed them that the Crown must prove that the appellant knew when he published the pamphlet that the essential contents were false. The judge, however, later said:
It is not sufficient that either or both exs. 1 and 2 be ill-advised, stupid, in bad taste, intolerant, bigoted or disagreeable. The Crown must prove on the evidence led throughout the whole of the trial that Mr. Zundel, at the time he published either or both exhibits, if you find that he did, did not have an honest belief in the essential truth of each.
I hasten to point out that merely because a person says that he or she possessed an honest belief in the truth of something does not necessarily make it so. Regard must be had by each of you, as jurors, to what really, if anything, formed a basis of the honest belief in the essential parts of each exhibit.
(Emphasis added.)
He concluded this portion of his further charge in response to the jury's request by saying:
I said that while it is for you and no one else to say, it seems to me that the basic issues regarding both exhibits are clear. The issues are these: Upon the total evidence led in this trial, are each of you satisfied that the evidence discloses that Mr. Zundel published both exhibits? If he did, when he published both did he publish them in a wilful manner as I have described it with no honest belief in the essential truth of each?
(Emphasis added.)
With the greatest deference to the learned trial judge who conducted a difficult trial in an admirable manner, he erred in instructing the jury that one of the two basic issues was whether the evidence showed that the appellant published the pamphlet with no honest belief in its truth. Unfortunately, this was the final instruction to the jury and thus enhanced the importance of the misdirection. The issue was not whether the appellant published the pamphlet with no honest belief in its truth, but whether the Crown had proved beyond a reasonable doubt that he knew it was false when he published it.
An honest belief that the pamphlet was true would, of course, negative knowledge of its falsity. The absence of an honest belief in its truth taken together with all the circumstances would permit the jury to draw the inference that the appellant knew that it was false, but it would be necessary for the jury to draw the inference. The absence of an honest belief in the truth of the pamphlet simpliciter is not, however, the same thing as knowledge of its falsity. The state of mind of one who publishes a false document with no honest belief in its truth, not caring whether it is true or false, is recklessness with respect to its falsity, not knowledge of its falsity. The trial judge, it is true, on several occasions correctly instructed the jury that the Crown was required to prove that the appellant knew that the document was essentially false. He also correctly instructed them that the appellant's defence was that he honestly believed the pamphlet to be true. However, even if the appellant's defence was rejected, it was still incumbent on the Crown to prove that he knew the pamphlet was false.
The judge's charge, in our view, taken in its entirety and having regard particularly to the further charge in response to the jury's question, might reasonably have conveyed to the jury that knowledge of the falsity of the pamphlet and the absence of an honest belief in its truth were the same thing, and that the issue to be decided was whether the Crown had proved that the appellant did not have an honest belief in the truth of the pamphlet. It is not what the judge intended to convey but the impression that his words might reasonably convey to the jury that is the decisive matter: Bigaouette v. The King (1926), 1926 CanLII 46 (SCC), 47 C.C.C.. 271 at p. 272, [1927] 1 D.L.R. 1147 at p. 1148, [1927] S.C.R. 112 at p. 114.
Where recklessness with respect to an element of the offence suffices for criminal liability, absence of an honest belief in the existence of that element and indifference to whether it exists constitutes the necessary recklessness. For example, in cases of sexual assault, absence of an honest belief that the complainant is consenting, and indifference to whether or not she is consenting, constitutes the necessary recklessness with respect to the element of consent: see R. v. Moreau (1986), 1986 CanLII 4618 (ON CA), 26 C.C.C. (3d) 359 at p. 374, 51 C.R. (3d) 209 at p. 226 (Ont. C.A.). On the other hand, honest belief in consent negatives recklessness as to that element.
The offence of knowingly publishing false statements under s. 177 of the Code, however, requires proof of actual knowledge of the falsity of the statements. Recklessness as to the truth or falsity of the statement is insufficient. Wilful blindness is, of course, the equivalent of actual knowledge. Mr. Justice McIntyre in Sansregret v. The Queen (1985), 1985 CanLII 79 (SCC), 18 C.C.C. (3d) 223, 17 D.L.R. (4th) 577, [1985] 1 S.C.R. 570, speaking for the Supreme Court of Canada, defined wilful blindness as follows at p. 235 C.C.C., p. 588 D.L.R.:
Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability of recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry.
Even if the doctrine of wilful blindness were applicable in this case, the jury were not charged on that doctrine.
Patently, on a charge of unlawful possession of stolen goods knowing them to be stolen, absence of an honest belief that they were not stolen cannot be equated with knowledge that the goods were stolen. In R. v. Havard (1914), 11 Cr. App. R. 2, the accused was charged with feloniously receiving stolen property. The chairman of the sessions had instructed the jury that if a man is reckless and does not care he is just as guilty as if he received the property knowing at the time there was something wrong with it. Ridley J., speaking for the English Court of Criminal Appeal, quashing the conviction, said at p. 3:
... it is not sufficient to say that if a man is reckless and does not care, he is just as guilty as if he received the property, knowing at the time that there was something wrong with it. We do not agree with that; the proper direction is that the jury must take into consideration all the circumstances in which the goods were received, and must say if the appellant, at the time when he received the goods, knew that they had been stolen.
The English Law Commission Working Paper No. 84 (London:
HMSO, 1982), which was filed by the Crown as part of its material on the appeal, is illuminating with respect to the difference between knowledge of the falsity of a statement and the absence of an honest belief as to its truth. The Law Commission provisionally concluded that an offence was needed to penalize those cases where, in addition to the presence of a public interest in prosecution, the defendant had published a deliberately defamatory false statement which was known by him to be false (p. 662). The commission noted that between the person who publishes an untrue statement knowing it to be false, and the person who does so believing it to be true on reasonable grounds, there is a wide area of gradations. The commission considered, (1) honest belief in the truth of the statement; (2) negligence; (3) recklessness; (4) no belief in the truth of the defamatory statement, and (5) knowledge or belief in the falsity of the statement, and concluded that only the fifth category should be criminal. The commission stated at p. 660:
This category of "no honest belief" seems to us to be too wide. If the accused publishes what he knows to be false, he has published a lie. If the accused publishes a damaging and defamatory statement, without any positive belief in its truth, his state of mind may vary between, on the one hand, one which differs hardly at all from knowledge of falsity, when he knows that in all probability the allegation is false; and, on the other hand, one no worse than ordinary negligence, where he has formed no belief that the allegation is true, but thinks that it probably is true, and that its importance justifies publication.
The commission said at pp. 661-2:
The final stage in the area between honest innocence and deliberate publication of what is known to be false is the deliberate publication of what is known or believed to be false. [The Commission's emphasis.] Only the person who published what he knew or believed to be a lie would be guilty. This is a significantly narrower range of possible liability than those hitherto considered: there is a significant distinction between an absence of belief in the truth of a defamatory statement and a belief in its untruth.
(Our emphasis.)
We agree. The prejudicial effect of the learned trial judge's error in his charge was increased by the fact that the jury were nowhere instructed that it was not necessary for a belief to be honest, that it be reasonable. The unreasonableness of the belief is merely an item of evidence to support an inference that the belief was not honestly held. The more unreasonable the alleged belief is, the easier it is to draw the inference that it was not honestly held. The jury was, of course, entitled to reject the appellant's evidence that he honestly believed the pamphlet was true, and to infer from all the circumstances that he knew it was false, but they were not required to draw that inference. A careful direction with respect to proof of knowledge was required.
We should add, in fairness to the trial judge, that no objection was taken by defence counsel to the judge's charge in this respect and, indeed, it was not urged as a ground of appeal, but was raised by the court during the argument.
We are all of the view that the misdirection which had the effect of equating proof of absence of honest belief in the truth of the pamphlet with proof of knowledge that it was false constituted a serious error and was gravely prejudicial to the appellant.
B. Whether the judge erred in failing to direct the jury that expressions of opinion are not within s. 177
Counsel for the appellant contended that the pamphlet, "Did Six Million Really Die?" is a "theory, thesis, argument or debate"; that it does not purport to be a statement, tale, or news, and hence is not within s. 177. It was conceded by Crown counsel before us that s. 177 applies only to assertions of fact which can be established to be false, as opposed to expressions of pure opinion. He contended, however, that there were assertions of a factual nature in the pamphlet which were capable of proof or disproof in a criminal trial. Crown counsel at the trial and also in his closing argument to the jury stated that s. 177 prohibited false statements, not opinions.
Although there are individual items or passages in the pamphlet which, considered separately, might properly be characterized as opinions, we consider that it was open to the jury to find that the pamphlet, considered as a whole, asserted as a fact that Jews were not exterminated as a result of government policy during the Nazi regime, that the Holocaust did not occur and it is an invention or a hoax to enable Israel and Jews to collect huge reparation payments from Germany. We think that it was made plain to the jury that the fundamental basis of the Crown's case was that the pamphlet falsely asserted that there was no Holocaust, that it was a myth. The judge made it clear to the jury that precisely what the document conveyed was a question of fact for them to decide.
Counsel for the appellant further contended, as we understand his argument, that the learned trial judge erred in failing to instruct the jury that s. 177 did not proscribe the publication of mere expressions of opinion, but prohibited only the publication of false statements of fact. The trial judge did not in terms instruct the jury in relation to the pamphlet that the publication of mere statements of opinion, as opposed to statements of fact, were not within s. 177. We consider that it would have been desirable for him to have so instructed the jury, but in all the circumstances we do not consider that this omission, standing alone, would be fatal.
The judge correctly analyzed for the jury the elements of the offence under s. 177 save for his omission to instruct the jury that ''a statement, tale or news" did not extend to the mere statement of opinion. He instructed the jury that the Crown was required to prove that the pamphlet was essentially false, and we think that a reasonable jury could not come to any conclusion other than the pamphlet considered in its entirety contained an assertion of fact that the Holocaust did not occur and that it was an invention. Indeed, as we have previously pointed out, a great deal of time was expended by the defence in attempting to prove that there was no extermination of Jews as a result of government policy, that there were no gas chambers in the Nazi concentration camps or deliberate mass killings of Jews by other means as a matter of Nazi government policy.
VI Whether the acquittal on count 1 was inconsistent with the conviction on count 2
Counsel for the appellant contended that the conviction on count 2 was inconsistent with the acquittal on count 1. We do not agree. In R. v. McShannock (1980), 1980 CanLII 2973 (ON CA), 55 C.C.C. (2d) 53, this court said at pp. 55-6:
Where an indictment contains more than one count and the jury convicts on one count and acquits on another count an inconsistency in the verdicts does not of necessity require the conviction to be set aside. The onus is on the appellant to show that the verdicts are so at odds that no reasonable jury who understood the evidence could have properly arrived at that verdict. We think that the onus on the peculiar facts of this case has been discharged. Where on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis the illogicality of the verdict tends to indicate that the jury must have been confused as to the evidence or must have reached some sort of unjustifiable compromise.
In the present case, there was a difference in the evidence on the two counts. It cannot be said that the verdicts are so at odds that they cannot be reconciled on any rational basis. Moreover, the appellant admitted the publication of the pamphlet, "Did Six Million Really Die?". The evidence was that the pamphlet, "The West, War and Islam" was mailed in sealed envelopes to people in the Middle East. We think in all the circumstances it was open to the jury to conclude that the pamphlet, "Did Six Million Really Die?" caused or was likely to cause mischief to the public interest specified in the indictment and that, "The West, War and Islam" did not or was not likely to cause that mischief.
Accordingly, this ground of appeal fails.
VII The judge's conduct of the trial
Counsel for the appellant contended that the comments of the trial judge, his interventions and his reprimands of defence counsel, including a threat to cite him for contempt, created the appearance of an unfair trial. We have recently pointed out that the test is whether the trial would appear to be unfair to a reasonable person who had been present throughout the proceedings: see R. v. Valley (1986), 1986 CanLII 4609 (ON CA), 26 C.C.C. (3d) 207; leave to appeal to the Supreme Court of Canada refused, April 22, 1986, loc. cit.
In our view, the trial judge did not (i) appear to put the weight and influence of his position on the side of the Crown; (ii) prevent defence counsel from fully presenting the appellant's defence or discharging his duty to the appellant, or (iii) prevent or hinder the appellant from giving his evidence in his own way or indicate his disbelief of the appellant during his testimony. The trial judge had the right and the duty to ensure that the trial was conducted in a proper manner in accordance with the rules of evidence and the rules of procedure governing criminal trials. We do not consider that his reprimands to defence counsel in the circumstances were unjustifiable or created the appearance of an unfair trial.
VIII The address of Crown counsel
A further ground of appeal that merits brief comment relates to the address of Crown counsel. Counsel for the appellant contended that the address to the jury of Crown counsel was inflammatory and deprived the appellant of a fair trial. It is not unfair to say that both defence counsel and Crown counsel closed their addresses on a somewhat emotional note. The address of Crown counsel, generally speaking, was not improper. Even if there were some rather emotional passages near the end which may have gone somewhat beyond what is proper in an address by Crown counsel, we do not think that they were likely to deprive the appellant of a fair and impartial consideration of his case by the jury, which deliberated for many hours.
IX Improper admission and rejection of evidence
The appellant submits that the trial judge erred in the admission of certain evidence and documents and in rejecting certain evidence tendered by the appellant. He also submits that certain questions asked by Crown counsel in cross- examination of the appellant were improper and should not have been allowed by the trial judge. The following are the matters complained of.
A. The Red Cross document
In the opening statement of the introductory chapter of the pamphlet, "Did Six Million Really Die?" it is stated:
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.
In support of this and other statements in the pamphlet, the author relies heavily on his interpretation of a "Report of the International Committee of the Red Cross on its Activities during the Second World War", Geneva, 1948, and the pamphlet contains a number of quotations from the report. In the final chapter headed "Conclusion", the author makes further reference to the International Red Cross and states:
Doubtless, several thousand Jewish persons did die in the course of the Second World War, but this must be seen in the context of a war that cost many millions of innocent victims on all sides. To put the matter in perspective, for example, we may point out that 700,000 Russian civilians died during the siege of Leningrad, and a total of 2,050,000 German civilians were killed in Allied air raids and forced repatriation after the war. In 1955, another neutral Swiss source, Die Tat of Zurich (January 19th, 1955), in a survey of all Second World War casualties based on figures of the International Red Cross, put the "Loss of victims of persecution because of politics, race or religion who died in prisons and concentration camps between 1939 and 1945" at 300,000, not all of whom were Jews, and this figure seems the most accurate assessment.
To refute these statements the Crown requested permission to read excerpts from a document published by the Press and Information Division of the International Committee of the Red Cross at Geneva, Switzerland. The document is dated February 1, 1978, and is titled "False Propaganda". In the publication the International Committee of the Red Cross denies compiling any statistics as to the number of persons who died in German concentration camps during the Second World War.
To introduce the document, the Crown relied on a witness employed by the Canadian Red Cross Society. The witness testified that the 1978 document was received by the Canadian Red Cross Society and kept in its files. However, it was clear from the testimony of the witness that the International Committee of the Red Cross is a completely separate body from the Canadian Red Cross Society. The International Committee of the Red Cross is a private, non-political institution composed of a maximum of 25 Swiss citizens. It acts as a neutral intermediary in humanitarian matters during international conflicts. The witness could say nothing as to how, why, or by whom the document had been prepared. He said, "I wanted it to be very clear to this court that I'm not entitled to speak on behalf of the International Committee of the Red Cross ...".
Relying on s. 30 of the Canada Evidence Act, R.S.C. 1970, c. E-10, as amended, the trial judge permitted the witness to read the following portion of the pamphlet to the jury (in accordance with Crown counsel's request, he deleted the word "falsely" in front of the word "attributed"):
Consequently the ICRC [International Committee of the Red Cross] considers it must make clear the fact that it has never published -- or even compiled -- statistics of this kind which are being attributed to it. The work of the ICRC is to help war victims, not to count them. In any case, how could its delegates have obtained data for such statistics? They were able to enter only a few concentration camps, and then only in the final days of the war. Everything the ICRC tried to do for the inmates of those camps, and what it finally managed to do, is related in its report entitled "The Work of the ICRC for Civilian Detainees in German Concentration Camps from 1939 to 1945" (available in English, French and German).
The document was not filed as an exhibit and only the above portion was read into evidence.
With respect, we believe that the trial judge erred in admitting the excerpt from the document into evidence. Assuming that oral evidence would have been admissible in respect of the matters covered by the excerpt and that the document was a business record, there was no evidence that the document was made in the usual and ordinary course of business by the International Committee of the Red Cross, and hence the excerpt was not admissible under s. 30.
Although the document was of limited probative value to show that the appellant knew that the contents of the pamphlet were false when he published it, it did have an important probative value in showing that the contents of the pamphlet were false, and it is for this reason that counsel for the appellant objects to the admission of the excerpt into evidence.
B. The film "Nazi Concentration Camps"
The appellant also submits that the trial judge erred in admitting into evidence a film and accompanying narrative. The film was entitled "Nazi Concentration Camps". It was made by the armed forces of the United States of America and has, since the conclusion of the trials at Nuremberg, been kept in the National Archives of the United States of America. An affidavit made by James B. Donovan, a naval officer on the legal staff of the United States Chief of Counsel for the Prosecution of Major European War Criminals, was filed in support of its admissibility. In the affidavit, the deponent states that it was his duty and responsibility to direct and supervise the photographic evidence to be used in the prosecution of major war criminals. He deposed that the film was made under his direction in the course of his official duty and with a co- director, another naval officer, in charge of all non-legal aspects. As to the actual making of the film, other certificates and affidavits were attached to the affidavit referred to. They include a certified copy of a statement by Robert H. Jackson, Chief of Counsel for the United States of America, stating that the film was compiled from films made by military photographers serving with the allied armies as they advanced into Germany and were made pursuant to an order issued by General Dwight D. Eisenhower, Supreme Commander, Allied Expeditionary Forces. There is also an affidavit by George C. Stevens, Lieutenant-Colonel, in the U.S. army, which states that "[t]he accompanying narration is a true statement of the facts and circumstances under which these pictures were made". And there is an affidavit by E.R. Kellogg, Lieutenant, United States Navy, stating that the film is composed of 6,000 ft. selected from some 80,000 ft. of film, all of which he had reviewed and all of which was similar in character to the excerpts.
The trial judge permitted the film to be shown to the jury and subsequently he admitted the narrative together with the affidavit of James B. Donovan and the other affidavits and exhibits to be filed as an exhibit at the trial. On the face of the narrative there appeared a stamp showing that the document had been marked as an exhibit in evidence before the International Military Tribunal at Nuremberg in Germany on November 29, 1945. But the fact that the film and the narrative were admissible under laws fashioned for those proceedings does not, of course, ipso facto make either of them admissible in evidence in this trial.
The film and the narrative went together as evidence to the jury. The film is composed of scenes of German concentration camps at or about the time of their liberation. It shows the facilities and their conditions, the inmates and their condition and, in addition, contains many scenes which are evidence as to the number of prisoners who died and the possible causes of their deaths. The film is factually explicit and was relevant to show that many of the statements made in the pamphlet were false. But the narrative goes beyond what is shown and contains a great deal of information about facts stated in the pamphlet. This additional information is hearsay and inadmissible unless it falls within some exception to the hearsay rule. It is useful to illustrate the hearsay nature of the narrative by a few examples:
Leipsig Concentration Camp
More than 200 political prisoners were burned to death in this concentration camp near Leipsig. Others among the original total of 350 inmates were shot down by German Elite guards as they dashed from the prison huts to celebrate the arrival of American troops outside the city. The atrocity story is told by the few who managed to survive. They relate how 12 SS troopers and a Gestapo agent lured 220 starving prisoners into a big wooden building in this camp, sprayed the structure with an inflammable liquid and then applied the torch. Machine guns set up at various vantage points mowed down many victims who ran from the burning building. Some miraculously escaped the hail of bullets but were electrocuted by the live wires of the fence which was the final hurdle for those fleeing the flames.
. . . . .
Ohrdruf Concentration Camp
At this concentration camp in the Gotha area, the Germans starved, clubbed and burned to death more than 4,000 political prisoners over a period of 8 months.
. . . . .
Hadamar [an alleged insane asylum]
. . . . .
Meanwhile, at the graveyard attached to the institution, bodies are exhumed for autopsy. Twenty thousand are buried here. Fifteen thousand who died in the lethal gas chamber were cremated and their ashes interred.
Death books found hidden in the wine cellar of the Hadamar institution revealed part of the story of the mass killings. The bulky volumes contained thousands of death certificates. "Profession Unknown", "Nationality Unknown" was written after each name.
. . . . .
The investigating officers were told that the Nazis never bothered to determine whether a victim may have survived the overdosage. Instead all were hustled off to the graveyard and buried in piles of 20 to 24.
The prisoners are removed to await trial. A Hadamar judge told the investigators that when the 10,000th victim died, the institution heads and Nazi officials staged a celebration.
Buchenwald Concentration Camp
Pictorial evidence of the almost unprecedented crimes perpetrated by the Nazis at Buchenwald Concentration Camp. The story, in written form, is contained in the official report of the Prisoner of War and Displaced Persons Division of the United States Group Control Council, which has been forwarded from Supreme Allied Headquarters to the War Department in Washington. It states that 1,000 boys under 14 years of age are included among the 20,000 still alive at the camp, but the survivors are males only and that the recent death rate was about 200 a day.
. . . . .
The report lists the surviving inmates as representing every European nationality. It says the camp was founded when the Nazi Party first came into power, in 1933, and has been in continuous operation ever since, although its largest populations date from the beginning of the present war. One estimate put the camp's normal complement at 80,000.
In the official report, the Buchenwald camp is termed an "extermination factory". The means of extermination:
starvation, complicated by hard work; abuse; beatings and tortures; incredibly crowded sleeping conditions and sicknesses of all types. By these means, the report continues, many tens of thousands of the best leadership personnel of Europe have been exterminated.
. . . . .
Dachau Concentration Camp
. . . . .
Dachau, near Muenchen, one of the oldest of the Nazi prison camps. It is known that from 1941 to 1944 up to 30,000 people were entombed here at one time, and 30,000 were present when the Allies reached Dachau. The Nazis said it was a prison for political dissenters, habitual criminals and religious enthusiasts.
In addition to the above, the origins of the narration of the film are obscure. The evidence on the voir dire at trial revealed this:
Q. So it's obvious that the narration was provided after the film was made; is that right?
A. Right.
Q. Are you able to say that the person who narrated the films was there when it was made?
A. I can't say that.
Q. So the narration may very well be the result of somebody else giving their observations; he wasn't even there when it was made.
A. Perhaps, but there are several affidavits accepted by the Military Tribunal which attest to the veracity of the film.
Statements made by public officers in the discharge of their official duty and recorded in public documents may be admitted by way of an exception to the hearsay rule. The scope of this exception was discussed by Rand J. in Finestone v. The Queen (1953), 1953 CanLII 81 (SCC), 107 C.C.C. 93, [1953] 2 S.C.R. 107, 17 C.R. 211. Finestone concerned the admissibility of a customs bill of lading produced from the records of a collector of customs in New York on a charge of violation of export regulations. It was sought to adduce the bill to prove the truth of its contents.The bill had a signed endorsement indicating that the goods were shipped from the United States destined to a European country. The bill had been prepared for the admittance of the goods to the United States from Canada and was required by the laws of that country. At trial, the bill was admitted in evidence to prove that the goods had been shipped from the United States to a European city and so violated the authority of the shipper which was limited to shipping the goods from the United States to South America. Rand J. said, at pp. 94-5 C.C.C., p. 109 S.C.R.:
The argument made to us somewhat confused the admissibility of an entry made strictly in the course of business and one made pursuant to a public duty. The rule in relation to the latter does not seem ever to have been doubted. As early as 1785 in R. v. Aickles, 1 Leach Cr. L. 390 at p. 392, 168 E.R. 297, it is said: "The law reposes such a confidence in public officers that it presumes they will discharge their several trusts with accuracy and fidelity; and therefore whatever acts they do in discharge of their public duty may be given in evidence and shall be taken to be true, under such a degree of caution as the nature and circumstances of each case may appear to require".
In Doe d. France v. Andrews (1850), 15 Q.B. 756 at p. 759, 117 E.R. 644, Erle J. says: "It depends upon the public duty of the person who keeps the register to make such entries in it, after satisfying himself of their truth."
In Irish Society v. Bishop of Derry (1846), 12 Cl. & Fin. 641 at p. 668, 8 E.R. 1561, Parke B. says: "The Bishops, in making the return, discharged a public duty, and faith is given that they would perform their duty correctly: the return is therefore admissible, on the same principle on which other public documents are received."
In Richardson v. Mellish (1824), 2 Bing. 229 at p. 240, 130 E.R. 294, in admitting a list showing the names, capacities and descriptions of all persons embarked on a ship, Best C.J., overruling an objection, said: "For the purpose of proving the damage, the plaintiff put in a list returned by a captain under the authority of 53 G. 3, c. 155, s. 15, 16. It is contended, that that paper was not evidence against third parties. I am decidedly of opinion that there is no foundation for that objection. This is a public paper made out by a public officer under a sanction and responsibility which impel him to make that paper out accurately; and that being the case, it is admissible in evidence on the principle on which the sailing instructions, the list of convoy, and the list of the crew of a ship are admissible."
The grounds for this exception to the hearsay rule are the inconvenience of the ordinary modes of proof and the trustworthiness of the entry arising from the duty, and that they apply much more forcefully in the complex governmental functions of today is beyond controversy. They have equal force in the case of an entry made pursuant to a duty under a foreign as well as a domestic law: People v. Reese (1932), 258 N.Y. 89 (Cardozo Ch. J.).
In our respectful view, the narrative is not in the class of statements to which the public duty exception to the hearsay rule applies and the trial judge was wrong in holding to the contrary. The narrator is unknown; the author of the narrative is unknown; and the source of the information is frequently not revealed. The narrative is more than a statement of fact as to what the film shows. It is, at least in part, a recitation of information from unrevealed sources as to facts which preceded the making of the film, in some instances, by many years. It may be that the person making the narrative did so pursuant to a duty but, in our respectful view, it was not a duty within the narrow scope of the public duty exception to the hearsay rule.
It was also submitted that the narrative was admissible pursuant to the ancient document exception to the hearsay rule. This exception to the hearsay rule is usually taken to apply to property deeds and similar instruments. The rule is not applicable to documents such as this one: 5 Wigmore on Evidence, 3rd ed., Section1573.
Accordingly, we are of the opinion that the trial judge was wrong in holding that the narrative was admissible in evidence.
C. Photographs, models and German books
In support of his defence that he had an honest belief that what was said in the pamphlet, "Did Six Million Really Die?" was true, the appellant relied upon some photographs of concentration camps, models that he had prepared and some books in the German language. He complains that the trial judge improperly refused to let him introduce these items in evidence before the jury.
As to the photographs, the issue came up in this way. In 1978 the appellant met Ditlieb Felderer. The appellant and Mr. Felderer shared an interest in the alleged atrocities in the concentration camps. Mr. Felderer is a native of Sweden. He carried on his own investigation into the atrocities in German concentration camps because he was a Jehovah's Witness and it was alleged that some 60,000 Witnesses met their deaths in these camps. Mr. Felderer's investigation took place between 1968 and 1981. This witness said he visited many of the camps during that time. He testified that his research made him familiar with the war-time layouts and locations in the camps where the atrocities were said to have been carried out. He said that he entered these places and there discovered evidence that a good deal of what was alleged was a hoax and could not have happened. On these visits Mr. Felderer documented his findings by taking photographs. He said that he made these photographs available to the appellant. The appellant said that he had studied the photographs, believed them to be accurate and relied on them in forming his opinion that what was said in the pamphlet, "Did Six Million Really Die?" was true.
The defence sought to introduce the photographs in evidence when Mr. Felderer testified and again when the appellant testified. The trial judge refused to admit them. He held that Mr. Felderer could testify as to the information he had gleaned from his studies and as to the fact that he had taken photographs in the course of his research, but he refused to permit the photographs to be filed as exhibits because they were made some 30 years after events of which Mr. Felderer could not give direct evidence. The trial judge held that the photographs were irrelevant, notwithstanding that the appellant swore that he went to Sweden, examined the photographs and that they were part of the information on which he formed his opinion that the facts in the pamphlet were true. With respect, we think the trial judge erred and that the photographs were relevant to the defence which the appellant put forward at his trial, namely, that he had an honest belief in the truth of the contents of the pamphlet. Accordingly, they should have been admitted in evidence.
The models that the appellant wished to present to the jury arose in this way. The appellant testified that prior to his arrest, he prepared certain models himself in order to understand the allegations concerning Auschwitz, but they were not to scale. After he was arrested, he commissioned a professional model maker to make new models to scale. The models were based on plans that he received from Dr. Robert Faurisson. The appellant wished to introduce into evidence three models of the crematoria building at Auschwitz through the maker of the models and to have Dr. Faurisson confirm that the scene depicted was the crematoria building. The trial judge refused to admit the evidence on the ground that it had been created after the appellant's arrest and was irrelevant to show the honesty of the appellant's belief at the time that he published the pamphlet.
The appellant testified that the new models were consonant with the models he had prepared prior to his arrest and were based on plans that he had received from Dr. Faurisson in 1979. The appellant was permitted by the trial judge to testify about the models, but was not permitted to file them as exhibits. Although we do not believe that it is a matter of great importance, in our opinion, the appellant should have been permitted to file the models and to explain them for the jury in order to show his honest belief in the contents of the pamphlet when he published it.
Finally, the appellant asserts that the trial judge erred in refusing to permit him to file as exhibits certain German books and pamphlets written in the German language. German is the appellant's native tongue. Indeed, he said, "half my intellectual life I was reading only German books". The trial judge would not permit the appellant to file books and pamphlets in the German language which he alleged he had read in arriving at the conclusion that the contents of the pamphlet, "Did Six Million Really Die?" were true. In effect, the trial judge held that all the appellant could do was indicate that he read and relied upon the particular works, but he could not file them as exhibits unless they had been translated into English. He instructed the appellant's counsel:
"I think that you can put to the witness that he's read the book and he relied on it. I think that is all that you can put unless you elect to file it. You have elected to file the books; they are going in as long as they are in English. You can go that far."
The following is an example of the effect of the restriction:
Q. Did you rely on that book?
A. Yes I did.
Q. Why?
A. Because it is a book about the injustices as I considered them done to these people in Dachau and Lansberg.
Q. Where is Lansberg?
A. Lansberg is a famous prison that Hitler was imprisoned there.
The Court: Just a moment. What have I finished saying?
Mr. Christie: I didn't ask about the book.
The Court: He relied on it. Now you say what the book says.
Mr. Christie: He has other sources.
The Court: Then ask him about the other sources, not that.
In our respectful opinion the trial judge erred in placing this restriction on the appellant in his attempt to establish all of the sources he relied upon in forming his opinion. The appellant should have been allowed to say in English what he derived from each of those sources and, for what they were worth, to file them as exhibits. They were clearly relevant and admissible as going to the honesty of the appellant's belief.
D. Cross-examination of the appellant
At the trial Crown counsel was permitted to cross-examine the appellant as to his political views about National Socialism in Germany under the dictatorship of Hitler. The defence put forward was that it was the honest belief of the appellant that the statements in the pamphlet were true. In our view, the trial judge quite properly permitted Crown counsel to cross- examine the appellant on other publications with which he had been associated, which publications involved issues similar to those underlying the pamphlet in question, especially issues of National Socialism and the Jewish people. For example, he was asked, "and you today still agree with the programs put forward by Hitler in the 1940s, 30s?"; he answered the question. We think that the cross-examination, including questions such as the one referred to, were relevant to test the appellant's credibility and also to show motive. If the appellant believed in National Socialism, it is more likely that he would knowingly publish falsehoods to foster and protect those beliefs.
E. Conclusion on admissibility of documents and cross- examination of appellant
In the result, we agree with the appellant's submission that the trial judge erred in admitting inadmissible evidence and documents and rejecting admissible evidence that the appellant attempted to lead in his defence. We reject the appellant's submissions that the trial judge erred with respect to the questions asked of the appellant in cross-examination.
Judgment of the court
We are of the opinion that, because of the errors we have noted -- particularly those relating to the selection of the jury and the misdirection on the essential elements of the offence -- there must be a new trial. We do not believe that it would be appropriate in the circumstances to apply the curative provisions of s. 613(1)(b)(iii) of the Code. Accordingly, the appeal will be allowed, the conviction quashed, and a new trial ordered on count 2 of the indictment.
Appeal allowed; new trial ordered.