Freedom of Expression
| Author | Alan Borovoy |
| Pages | 127-168 |
• 127 •
chapter eight
eedom of Expression
Vilification
I have already related how the Canadian Jewish Congress got in-
volved in a campaign to secure an anti-hate law for Canada. And I also
recounted how, within congress circles, I expressed my opposition to
that campaign. At that time, I was regularly employed by the Labour
Committee and had no particular occasion to go public over my differ-
ences with the congress.
But all that changed when I went to work for the Canadian Civil
Liberties Association (CCLA). It became part of my mandate to register
publicly on the merits of the anti-hate law. And so I finally came “out
of the closet,” so to speak. Within several months of my inception at
CCLA, the Parliament of Canada had a government anti-hate bill on
its agenda. Since a Senate committee was holding hearings on the
bill, that provided a platform for CCLA to register publicly and, of
course, it did. By the time the issue arrived in this way at the doorstep
of Parliament, the neo-Nazi provocations of the mid-1960s had large-
ly abated. Without that backdrop, the abstract discussions regarding
the terms of a bill were incapable of creating a comparable level of
public controversy. Thus, CCLA was able to express its opposition and
emerge nevertheless, essentially unscathed.
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“at the barricades”
But, by the early to mid-1980s, provocations erupted again. This
time, they centred on a particularly repugnant individual, Ernst Zundel,
an immigrant from Germany. His message surpassed the traditional
forms of anti-Semitic invective. He brazenly denied, flat out, that there
had ever been a Holocaust. It’s not hard to imagine the impact of this
message on the Jewish survivors of Nazi persecution. As one writer so
poignantly expressed the matter: It wasn’t enough for yesterday’s Nazis
to extinguish six million Jewish lives, their modern sympathizers seek
to extinguish six million Jewish deaths. The very repugnance of Ernst
Zundel and his message effectively guaranteed that any CCLA effort to
oppose legal censorship in his case would ignite a firestorm of contro-
versy. And that, of course, is exactly what happened.
Initially, the Jewish Congress and its allies considered using the an-
ti-hate law. It was not clear, however, that the denial of the Holocaust
could be treated as the wilful promotion of hatred, within the meaning
of the Criminal Code. In view of that, certain allies of the Jewish Con-
gress raised the very real possibility that the Attorney General of On-
tario would not consent — as the anti-hate law explicitly required before
such a prosecution could proceed.
An independent element of the Jewish community (comprised largely
of Holocaust survivors) retained a lawyer in order to launch proceedings
under the false news section of the Criminal Code. This did not require
the authorization of the Attorney General, and Zundel’s behaviour was
arguably more vulnerable to this section rather than the anti-hate law.
According to the false news provision, it was an offence knowingly to
disseminate false material that was “likely to cause injury . . . to a public
interest.”
Upon being called by the media to comment on the propriety of this
prosecution, I expressed a vigorous dissent. The gist of my argument
was that the false news section was capable of nailing commentators
who did not bear the remotest resemblance to Ernst Zundel. Both in
press interviews and in articles that I published, I provided examples of
the kind of speech that this law was capable of targeting. If denying the
Holocaust could authorize a criminal prosecution, what about denying
the enormity of Stalin’s crimes or denying the magnitude of the Inqui-
sition? I also pointed out how frequently politicians accuse each other
of lying. Indeed, they often tend to exaggerate their own claims and
• 129 •
Chapter Eight: Freedom of Expression
minimize those of their adversaries. In view of the fact that the false
news law nowhere attempts to define the kind of “public interest” that
must be injured, the dangers become obvious.
Even if those accused of this offence would ultimately be cleared
because of inadequate proof that they had knowingly lied, they would
have sustained a serious invasion of their rights. A critical danger to
free speech is the very existence of a law that is capable of threatening
us for engaging in normal democratic debate.
Unfortunately, my public opposition to the Zundel prosecution pro-
voked the torrent of criticism I had expected. Long-time friends and
colleagues within the Jewish community denounced the position I had
taken. Some members of the Jewish community reportedly accused
me of being a “self-hating Jew.” Unavoidably, the CCLA dissent in the
Zundel case fractured the long-standing alliance that had obtained be-
tween the congress and us.
As I recount the details of this regrettable schism, I feel impelled to
qualify my remarks. Despite the magnitude of the public differences
that arose between the Jewish and civil libertarian communities, it
should be noted that, as far as the leadership of the Jewish commun-
ity was concerned, these differences were essentially philosophical, not
personal. During and despite the controversy, I retained my seat on
the congress’s community relations committee. Although the officers
could easily have removed me, they never did. We continued to enjoy a
friendly rapport in our personal interactions.
The Zundel trial (in 1985) turned out to be the disaster that our side
had anticipated. There was a discussion in court over the monstrous
proposition advanced by the accused that Auschwitz was not a Nazi death
camp but a Jewish country club.1 And the prosecutor, not the defence,
called a non-Jewish banker to the stand and asked him if he was being
paid by an international Zionist/Communist/banker/Jewish/Freemason
conspiracy. As Toronto rabbi, W. Gunther Plaut, observed in the after-
math of the trial: If someone calls your mother a whore, that is not a fit
subject for a debate. But the Zundel trial provided a platform — indeed,
a pressure — to vocalize just such absurdities.
In the aftermath of the trial, the media descended upon me. One
after the other called, requesting the CCLA opinion about the merits
of the case. And, in interview after interview, I kept criticizing the false
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