“Do not rejoice when your enemy falls,” counsels the book of Proverbs.
That may have been a hard sell when news of Ernst Zundel’s death in Germany reached Canada earlier this month.
Zundel, who’s been described as the world’s foremost purveyor of Holocaust denial literature, wrote titles such as, The Hitler We Loved and Why, and distributed hate literature, including Richard Harwood’s 1974 booklet, Did Six Million Really Die? The Truth At Last.
Zundel delighted in his notoriety and needled the Jewish community with glee. From his infamous “bunker” in Toronto’s Cabbagetown neighbourhood, he continued to publish viciously anti-Semitic tracts and courted publicity relentlessly, even running for the federal Liberal leadership in 1968. In the days before the Internet, media exposure was his oxygen.
In time, serious debate arose in Jewish circles over whether legal action should be taken. Hardly anyone said Zundel shouldn’t be punished. The issue was whether going public would provide him with the platform he craved and embolden his fellow neo-Nazis, and whether, in the long run, it would hurt the community. Was it better to let him and his dark ideas shrivel in the light of truth, or to try to bring the full extent of the law down upon him?
Numerous prominent voices, including civil libertarian Alan Borovoy and high-profile criminal lawyer Edward Greenspan, spoke out against prosecution.
In the end, Zundel faced two trials that resulted in convictions and an ultimate acquittal when the Supreme Court of Canada narrowly struck down the “false news” section of the Criminal Code, under which he was charged. It was his native Germany that finally jailed him for inciting racial hatred.
But those who recall the Toronto trials, in 1985 and 1988, will also remember the blaring newspaper headlines of swimming pools at Auschwitz and no evidence of gas chambers. That hurt many in the Jewish community and seemed to vindicate those who had warned against using open courts.
With Zundel’s demise comes questions that have had the benefit of 30 years’ consideration:
Was it, in the end, a good idea to prosecute him? Did his hatred help raise awareness of the Holocaust for the better? And just what is his legacy?
Zundel’s lifework of denying the Holocaust was “an abject failure,” stated Sidney Zoltak, co-president of Canadian Jewish Holocaust Survivors and Descendants.
‘Prosecuting Zundel under the false news prohibition, rather than hate laws, may have been unwise’
“Today, Holocaust education is firmly entrenched in school curricula around the world and Holocaust remembrance is ingrained in Western culture,” Zoltak told The CJN in an email. “The memory of the Holocaust will long outlast Zundel’s legacy of anti-Semitism, hatred and evil.”
In Zundel’s heyday, Prof. Michael Marrus, a historian at the University of Toronto, was one of the people who advised against prosecution.
The legal route “left a bad taste” among civil libertarians and others who feared it handed Zundel and his acolytes the publicity they craved, Marrus recalled.
Arguably, “the better path was to instil consciousness of the Holocaust through the weapons of history and memory: survivors’ testimony, research, writing and education,” he added.
As he did in the 1980s, Marrus argued that putting hatemongers in jail, or banning them from speaking, are among “the least successful” strategies for dealing with them.
Even so, knowledge of the Holocaust is now “powerfully anchored in the collective consciousness,” Marrus said. Zundel’s name, he conceded, “is on the road to a justified oblivion.”
Prosecuting Zundel under the false news prohibition, rather than hate laws, may have been unwise, said McGill University sociologist Morton Weinfeld.
On the other hand, there is evidence that media coverage of Zundel and, contemporaneously, of the trial of Holocaust-denying Alberta schoolteacher James Keegstra, did not increase anti-Semitism, “and in fact helped raise awareness of the threat of Holocaust denial in the Canadian Jewish and general public,” Weinfeld said.
Zundel changed Canadian law, but was it for the better?
Section 181 of the Criminal Code, under which he was charged, stated that anyone “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 liable to imprisonment for a term not exceeding two years.”
In 1992, the Supreme Court ruled 4-3 that the section infringed on freedom of expression as outlined in the Charter of Rights and Freedoms.
The court could not have foreseen that 25 years later, false news would morph into fake news.
The court’s ruling “pretty well cemented in place the concept that it’s hard under the Criminal Code to get a conviction on the falseness of words written or spoken. It’s not impossible, but it’s hard,” said lawyer Mark Freiman, a former deputy attorney-general of Ontario and the last president of the Canadian Jewish Congress.
‘Zundel’s actions led people to re-discover the Canadian Human Rights Act’
On the other hand, Zundel awakened people “to the need to do something about language, the kind of activity he was engaged in and the demonstrable harm this kind of propaganda can have,” Freiman said.
In 2013, there were two legal milestones related to issues seen in Zundel’s case. The Supreme Court ruled that hate speech provisions in Canadian human rights legislation is a constitutionally valid limit on freedom of expression. The court upheld the controversial legal concept of speech that is “likely to expose” certain groups to hatred.
That summer, free speech advocates claimed victory when a private member’s bill calling for the repeal of Section 13 of the Canadian Human Rights Act – the so-called “hate speech provision” – passed and became law. Its passage meant that Canadians could no longer bring complaints to the federal Human Rights Commission over “the communication of hate messages by telephone or on the Internet.”
It was under Section 13 of the Canadian Human Rights Act that Zundel was taken to the Canadian Human Rights Commission over his website, but he fled to the United States before the commission could wrap up its work.
Zundel’s actions “led people to re-discover the Canadian Human Rights Act,” Freiman said. He “narrowed what’s available under criminal law, but expanded what’s available under other administrative areas” – but only if governments enact them, he noted.
What would happen if Zundel were charged under today’s hate laws?
“It would be very difficult to get a conviction under hate speech laws,” said Freiman. “I don’t think that much has changed.”
For Toronto’s Max Eisen, an Auschwitz survivor who has accompanied March of the Living groups back to the death camp more than 20 times, Zundel’s legacy is a double-edged sword.
On the one hand, Zundel got Eisen and other survivors out on the speaking circuit. He was “a wake-up call for me,” Eisen said. “I got involved and started to talk in the early 1990s.”
But today, “we have many Zundels around, and how we get used to these things, it just frightens me,” he lamented. “I’m shocked every day when the lies become truth. We need to stand up and speak out.”
In the end, Zundel’s legacy may not amount to much. “I don’t think Zundel left a legacy, unless it was just for the skinheads and people who believed the Holocaust never happened. But for the public in general, I think he’s a nobody,” said well-known Toronto Holocaust survivor and educator Gerda Frieberg.
That sentiment seemed to be echoed by Prof. Marrus, who said he suspects the first question his students will ask is: “Ernst who?