In response to the latest news, ever more censorious, coming from our Great White Neighbor in the North", a ZGram recipient wrote:
"In Idaho we refer to (Canada) as Soviet Socialist Republic of Canuckistan."
Again, let me set up the clip for today's ZGram about the "Truth is no defense!" issue the Supreme Court of Canada did not see fit to hear in the Zundelsite dispute.
I take these excerpts from the document submitted to the Supreme Court of Canada, dated June 28, 2000. In order to make it comprensible and readable, I have excised much of the case law cited, but the entire document will be archived shortly on the Zundelsite for students and legal scholars who follow this case.
STATEMENT OF FACT
1. The applicant is the respondent in a proceeding before the Human Rights Tribunal concerning two complaints laid against him under section 13(1) of the Canadian Human Rights Act for documents appearing on an Internet World Wide Website located in the United States known as the "Zundelsite." The complaints allege that the documents are likely to expose persons of the Jewish faith and ethnic origin to hatred and contempt. (...)
2. A Human Rights Tribunal was appointed on February 6, 1997 consisting of Claude Pensa, Chairman, Reva E. Devins and Harish C. Jain to hear the complaints.
3. On May 11, 1998 the Canadian Human Rights Commission (hereinafter referred to as "the CHRC") called Dr. Frederick Schweitzer of Manhattan College in the United States as an expert witness in Jewish history and anti-Semitism.
4. Dr. Schweitzer testified in chief on May 11 and 12, 1998 and was cross-examined, between numerous objections, interruptions and lengthy legal argument, by the applicant's counsel on May 12, 13, 14, 15, 25, 26 and 27, 1998. (...)
7. Dr. Schweitzer defined anti-Semitism in his memorandum to mean hatred, fear, and hostility for Jews that results or is likely to result in harm to Jews. (p. 25 of Application)
8. The essence of Dr. Schweitzer's testimony was that the materials on the Zundelsite provided to him by the CHRC were lethal anti-Semitism because they replicated the motifs of historic anti-Semitism over a period of 1,000 years and he believed that the basis of anti-Semitism was utterly false. He stated that the Zundelsite reproduced the falsehoods and accusations against the Jews over 1,000 years and more; they were false then and they were false now. (...)
9. During the cross-examination of Dr. Schweitzer, applicant's counsel attempted to elicit admissions from the witness that the impugned statements in the "Zundelsite" were true.
10. Dr. Schweitzer testified in his cross-examination that truth is not anti-Semitic and that the truth or falsity of the statement was one of the factors he took into account in determining whether or not the impugned statements were anti-Semitic.
In layman's words:
During initial cross-examination of Dr. Schweitzer, who as a witness for the prosecution, insisted that he had found "lethal anti-semitism" on the Zundelsite, and that Ernst Zündel was "Hitler Number Two," the Zundel defense argued that the statements on the Zundelsite were true and could be proven to be true, and that there was a difference in statements based on truth and unfounded statement causing "hatred and contempt for Jews" not grounded in true facts.
That's when the "Truth is no defense!" ruling came down like a hammer on an anvil, and ***the defense was not allowed to marshall evidence that the documents on the Zundelsite were based on facts and truth.*** At that point, a meaningful defense became impossible.
Claude Pensa, Chairperson of the Canadian Human Rights Tribunal that sat in judgment of the Zundelsite, summarized this obscene "Truth is no defense" ruling as follows:
"It is the finding of this Tribunal that truth is not an issue before us. Parliament has spoken. The use of telephone messages for purposes prohibited by section 13 of the Act cannot be justified by asserting that such messages are truthful. The sole issue is whether such communications are likely to expose a person or persons to hatred or contempt.
Accordingly, cross-examination directed to the issue of truthfulness of such statements or the calling of evidence in that regard will not be permitted." (Transcript p. 3049; p. 64 of Application)
16. In its written ruling, the Tribunal held:
We find this passage from Taylor to be instructive in that, consistent with a focus on effect rather than intent, it is the effect of the message on the recipient, and ultimately on the person or group vilified, that is the focus of the analysis. The truth in some absolute sense really plays no role. Rather, it is the social context in which the message is delivered and heard which will determine the effect that the communication will have on the listener. It is not the truth or falsity per se that will evoke the emotion but rather how it is understood by the recipient. The objective truth of the statement is ultimately of no consequence if the subjective interpretation, by virtue of tone, social context and medium is one which 'arouses unusually strong and deep-felt emotions of detestation, calumny and vilification.' Therefore, in our view, whether the message is true or not is immaterial. Whether it is perceived to be true or credible may very well add to its impact, but its actual basis in truth is outside the scope of this inquiry." (p. 127 of Application)
17. It held further:
"Parliament has spoken and determined what the scope for legitimate criticism will be, at least in so far as messages are communicated telephonically. Messages will transgress our social consensus on what is to be tolerated in the circumstances specified in s. 13(1) of the Act. At the risk of stating the obvious, the scope for negative criticism is limited to comments which are either silent or neutral regarding membership in a group identifiable on a prohibited ground, or which do not promote hate or contempt. If the message 'is likely to expose a person or persons to hatred or contempt' then, insofar as those individuals are targeted on the basis of a prohibited ground under the Act, the comments are no longer legitimate criticism." (p. 129 of Application)
"In our view, questions as to the truth or falsity of the statements found on the Zundel site (sic) add nothing to our ability to determine the issues before us, and potentially will add a significant dimension of delay, cost and affront to the dignity of those who are alleged to have been victimized by these statements." (p. 129-130 of Application)
Decision of the Tribunal (Application, pp. 122-130)
In a submission to the Supreme Court of Canada for leave to hear if truth was a defense open to an accused against someone who ***claimed that his or her feelings were hurt because he or she perceived himself to be the target of hatred or contempt***, the Zundel team argued as follows:
POINTS IN ISSUE
18. The issues are as follows:
(a) Is the truth of statements which are the subject of a complaint under section 13 of the Canadian Human Rights Act relevant to a determination of whether or not the statements constitute hatred or contempt and did denial of the right to call such evidence and to cross-examine Dr. Schweitzer thereon deprive the applicant of due process and a fair hearing contrary to the principles of natural justice, section 7 of the Canadian Charter of Rights and Freedoms and section 2 of the Canadian Bill of Rights? (...)
26. It is respectfully submitted that the Human Rights Tribunal misapprehended the meaning of the Keegstra and Taylor cases and that its ruling to foreclose all evidence of the truth of the impugned statements was an error in law.
27. In Keegstra, the Supreme Court summarized the values protected by freedom of expression and the relation of truth to hate propaganda:
"At the core of freedom of expression lies the need to ensure that truth and the common good are attained, whether in scientific and artistic endeavors or in the process of determining the best course to take in our political affairs. Since truth and the ideal form of political and social organization can rarely, if at all, be identified with absolute certainty, it is difficult to prohibit expression without impending the free exchange of potentially valuable information. Nevertheless, the argument from truth does not provide convincing support for the protection of hate propaganda. Taken to its extreme, this argument would require us to permit the communication of all expression, it being impossible to know with absolute certainty which factual statements are true, or which ideas obtain the greatest good. The problem with this extreme position, however, is that the greater the degree of certainty that a statement is erroneous or mendacious, the less its value in the quest for truth. Indeed, expression can be used to the detriment of our search for truth; the state should not be the sole arbiter of truth, but neither should we overplay the view that rationality will overcome all falsehoods in the unregulated marketplace of ideas. There is very little chance that statements intended to promote hatred against an identifiable group are true, or that their vision of society will lead to a better world. To portray such statements as crucial to truth and the betterment of the political and social milieu is therefore misguided." (p. 184)
"As I have said already, I am of the opinion that hate propaganda contributes little to the aspirations of Canadians or Canada in either the quest for truth, the promotion of individual self-development, or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged." (p. 187) (emphasis added)
R. v. Keegstra (1990), 1 C.R. (4th) 129 (S.C.C.)
28. The Supreme Court has repeatedly stated that truth is one of the core values underlying the protection of freedom of expression. It has summarized these values as follows: (1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment for the sake of both those who convey a meaning and those to whom meaning is conveyed.
Ford v. Quebec (Attorney General),  2 S.C.R. 712 at p. 764-767 Irwin Toy Ltd. v. Quebec (Attorney General),  1 S.C.R. 927 at pp. 976-977 R. v. Keegstra (1990), 1 C.R. (4th) 129 (S.C.C.) at p. 156
29. This was affirmed in the applicant's case before the Supreme Court regarding the "false news" law where the majority held: "The purpose of the guarantee is to permit free expression to the end of promoting truth, political or social participation, and self-fulfillment. That purpose extends to the protection of minority beliefs which the majority regard as wrong or false."
R. v. Zundel,  2 S.C.R. 731 at p. 752 (...)
31. It follows that it is a defence to s. 13(1) of the CHRA to show that the statements complained of are true or substantially true. True statements are at the core of the freedom of expression guarantee and are accorded the highest protection. If a defendant's statements are true, they unquestionably contribute to the values of free expression and do not constitute hate propaganda. Any defendant must therefore have the right to prove the truth of his statements.
32. These submissions were supported by the CHRC's own witness, Dr. Frederick Schweitzer who testified that truth is not hatred. He testified repeatedly that truth was an important factor which he took into account in forming his opinion that the impugned statements constituted "lethal anti-Semitism" which could cause harm to Jews. He believed that the statements in the Zundelsite were false and therefore constituted part of an ongoing historical defamation of the Jews.
33. Notwithstanding Dr. Schweitzer's testimony that the Zündelsite materials were false and that this was the basis for his opinion that they constituted lethal anti-Semitism, the Tribunal ruled that the applicant's counsel could not cross-examine the witness on the truth of the Zundelsite materials. By denying this right to cross-examination, the Tribunal denied the applicant the right to natural justice and a fair hearing. It is submitted that this denial of natural justice caused the Tribunal to lose jurisdiction and justified the immediate application for judicial review by the applicant. (...)
35. The Supreme Court of Canada held in R. v. Levogiannis,  4 S.C.R. 475 that:
"The goal of the court process is truth seeking and, to that end, the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth."
36. The form of our judicial system follows its function of discovering the truth. Witnesses are required to take an oath, the essence of which was an appeal to a Supreme Being in whose existence the person taking the oath believed, and whom he also believed to be a rewarder of truth and an avenger of falsehood. Jowitt's Dictionary of English Usage gives the meaning, "an appeal to God to witness the truth of a statement."
40. The quest for truth has been the basis of advances in knowledge, be it in history, the sciences or technology. Truth has a deep spiritual, emotional and psychological significance to humans. It is the foundation for all harmonious social relationships. No genuine reconciliation between peoples, be they Black and White, or German and Jew, is possible without truth as a foundation.
Issue of National Importance:
43. The case raises an extremely important issue which has national importance, namely, are those accused under the CHRA (and by extension under any provincial human rights legislation outlawing hate speech) of exposing identifiable groups to hatred entirely precluded from calling evidence as to the truth of the statements? This issue goes to the core of the values held by Canadians and their reflection within human rights law. There must be some means of establishing a distinction between legitimate criticism and hatred or contempt. This issue goes to the heart of the values protected under section 2(b) of the Canadian Charter of Rights and Freedoms. If truth is one of the major values protected by section 2(b) as repeatedly held by this Court, then the complete denial to an accused person under human rights legislation of the right to call evidence establishing truth is a denial of one of the most fundamental rights in a democratic society.
As readers of my ZGram already know, the Supreme Court of Canada did not see fit to put some lawful brakes on "Human Rights" Tribunals' human rights abuses. After I learned of the ruling, I wrote to one of the Zundel legal researchers who had worked long and hard to make an airtight argument:
"I am in a state of shock. Ernst says he is very calm inside. He has done what he can do, and there was nothing more to do. You must be devastated."
This legal scholar wrote me back:
"No. I'm not devastated. We did what we could to the best of our ability. We could do no more. We left no stone unturned.
"We should have won the Devins appeal. We should have won the telephonic appeal. We should have won the Bell Canada "bias" appeal. We should have won the truth appeal. That we won none of these cases, which deal with the core values of our law, means that Canada must now go down the very tragic road that many other societies have gone down.
"Ernst lost nothing in the end. He was a prophet who tried to warn them. They will now pay the consequences."
Thought for the Day:
December 17, 2000ess Tribunals' "To these bureaucrats and their overseers, we are all Palestinians."
(Letter to the Zundelsite)
Back to Table of Contents of the Dec. 2000 ZGrams