THE CHAIRPERSON: I have just a couple of questions, Mr. Weber.

You have contributed an article to the Zundel publication which has been referred to. Do you regularly contribute to it or was that a unique occasion?

THE WITNESS: I am glad you asked the question, and I want to make something very clear.

I never, in the sense, contributed anything to the Zundelsite. Someone, I don't know who, downloaded some material from our IHR site and put it on the Zundelsite. We freely make material available to anyone who wishes to reprint or otherwise circulate it.

I don't recall or even know of any specific permission that was asked to reprint material from our site or from the Journal on the Zundelsite. It is a matter of standing policy that we invite and encourage anyone to reproduce material from our site or from the Journal as long as credit is given. To the best of my knowledge, there was no specific inquiry made by anyone to have the material that comes from me or from our site put on the Zundelsite.

THE CHAIRPERSON: I see. In the past have you ever been asked to contribute anything to the Zundelsite?

THE WITNESS: I have never been asked to contribute anything to the Zundelsite. In fact, I was surprised to learn, I forget when it was, that there even was some material by me on the Zundelsite. I didn't know about it ahead of time.

THE CHAIRPERSON: Thank you. How long have you known Mr. Zundel?

THE WITNESS: In person, I guess, since 1988 when I testified at the time of the trial.

THE CHAIRPERSON: You are the Director of the IHR.

THE WITNESS: That's right.

THE CHAIRPERSON: It has a publication, the Journal. What other activities does it have?

THE WITNESS: It publishes books. It holds meetings. It distributes video and audio tapes and distributes books. Most of the books that the IHR sells are not published by the IHR; they are published by other publishers. Many of the books sold by the IHR are published by the IHR as well.

THE CHAIRPERSON: Is it fair to say that its predominant activity is in relation to historical revisionism and the Holocaust?

THE WITNESS: It is important to make a distinction between historical revisionism and Holocaust revisionism. I think it is fair to say that the majority of the activity of the IHR is not devoted to the Holocaust. The majority of the books that are published or distributed by the IHR and the tapes we distribute do not deal with the Holocaust.

It is a very large part of what the IHR deals with, as was brought out yesterday. In this issue of the Journal that is being submitted here, most of the articles do not deal with the Holocaust issue.

THE CHAIRPERSON: In my examination of the Index ‑‑ and perhaps I am wrong ‑‑ it seems to me that of the roughly 12 articles six were devoted to Holocaust revisionism. Is that fair?

THE WITNESS: It may be that that is the number. The major articles deal with the Hiroshima bombing.

THE CHAIRPERSON: You mean in terms of scope of the individual articles?

THE WITNESS: Yes. I would say that the percentage of material dealing with the Holocaust in the Journal is higher by far than the percentage of books and tapes that we sell through the IHR on this one issue.

THE CHAIRPERSON: Concerning what is being advanced as your expertise in historical revisionism, this is all self-taught, is it not?

THE WITNESS: Absolutely not. I see what you are saying; you mean just with regard to the Holocaust issue.

THE CHAIRPERSON: It is not in relation to your formal qualifications. Your formal qualifications are as a historian, and your thesis was on the Hapsburg regime.

THE WITNESS: It was actually on 1930s and 1940s Hungarian intellectual themes.

THE CHAIRPERSON: It is about European history.

THE WITNESS: Right.

THE CHAIRPERSON: You are being held out as an authority on historical revisionism, including Holocaust revisionism.

THE WITNESS: Right.

THE CHAIRPERSON: And that is something that you have undertaken from your studies since your formal qualification.

THE WITNESS: That is not unfair. That is similar to a number of other historians who have written on this subject, who are, as it were, self-taught. Raul Hilberg, arguably the leading Holocaust historian in the United States, is entirely self-taught on this issue. He has no formal education in the Holocaust issue; he did this entirely on his own. His degree and his background is in political science.

THE CHAIRPERSON: I understand; I am not testing that. There are schools where historical revisionism is on the curriculum?

THE WITNESS: Historical revisionism is really just a way of looking at history. It just means that one takes a critical look at history. All history is revisionist in the sense that history is looked at critically or from a new point of view.

Historical revisionism is not a special school that is taught. It is just part of how we look at history. The distinction is that historical revisionism was a distinct trend, especially in the 1920s, 1930s and 1940s with regard to the origins of the First World War, and it came to be applied to a dissident or non-governmental look at world wars in general.

For example, historical revisionism includes a look at the Vietnam War which is contrary, you might say, to the official view. Historical revisionism with regard to the Hiroshima bombing is only historical revisionist in the sense that it rejects the official view of that.

THE CHAIRPERSON: I am speaking of places of learning where the specific rubric of revisionism is used.

THE WITNESS: It is not used as a specific rubric, no. In fact, I have some qualms about using it because I like to feel that all legitimate and serious historical scholarship is revisionist.

There is no question that all over the United States, all over the world, many, many historians take views on issues similar to the ones that we do.

THE CHAIRPERSON: I am talking about historians who use the term "revisionism." You use it, and I suppose other historians use it as well.

THE WITNESS: It's a little bit, sir, like saying ‑‑ there might be a historical journal that says that it is a conservative or a liberal historical journal. There is no specific branch of historiography in universities that would say, "We are liberal historiography or conservative or Marxist historiography." It is not divided that way.

There may be journals that present a view of history that might be either Marxist or liberal or conservative, but it is not divided that way in the academic world.

THE CHAIRPERSON: Thank you. Is there anything arising from that, Mr. Rosen?

MR. ROSEN: Not from me, thank you.

THE CHAIRPERSON: Mr. Christie, please.

RE-EXAMINATION

MR. CHRISTIE:

Q. In your cross-examination yesterday you were accused of sophistry by Mr. Rosen for the way you cited portions of documents or books to support statements made in some essays that you had written.

Is it or is it not a common practice for professional historians and other scholars to cite sources in this way?

A. It is a very common practice to cite sources in the way that I cited them, as I did in the case of the affidavit by Sergeant Coward. I am quoting it as a kind of admission against interest.

Very often, in citing testimony in a trial or citing works of history, one will take a portion of a book or a testimony and cite that as evidence for one's own point of view, even though the person making the argument in a book or in a testimony may have a point of view very different from the one that I or another person is holding in citing that. That is very commonly done.

Raul Hilberg in his major work on the Holocaust issue cites any number of sources, including the memoir of Otto Eichmann or Mein Kampf to say, "This is what Hitler or Eichmann says on this particular issue," but he doesn't quote the entire context of the thing because that is not the point he is trying to do.

A better example might be citations from the testimony of witnesses at the Nuremberg trials. A person will cite testimony by one of the German defendants to make a point, but they don't cite all the other things that are said by the defendant on that point because that is not what the purpose of it is.

It is a very common practice in historiography to cite a portion of a document or a testimony in validation of a particular point. It is not at all unusual. In fact, it is more fair to do that in that way than it is to make a statement without any supporting justification or references whatsoever, as I mentioned that Arno Mayer did in his book on "The Final Solution" in which he provides no footnotes whatsoever.

Q. In relation to the affidavit of Sergeant Coward, it was pointed out to you that in other parts of his affidavit he had said that everyone knew and that certain people knew, and that the portion you quoted, although it was there, was contradictory to the suggestions made in other parts of the affidavit. You were asked if that was misleading, and you said "no."

Why is it no misleading?

A. It is not misleading because I am only citing one portion of his affidavit which, in fact, does justify what I said in this short leaflet, that there were leaflets dropped on Auschwitz in Polish and German saying that people were being gassed there. What Coward says at that point does justify what I said.

It is not misleading; it is just not. It does support what I said it says.

Q. What is your position regarding all the other things that he said in the affidavit?

A. I could spend a great deal of time analyzing the entire document, but it is an affidavit issued several years after the events took place, in the context of a trial in which clearly he is trying to make as strong a case as he can against the defendants. I think the main defendant was a man named Duerrfeld whom he refers to in the document.

As I think was brought out the other day with specific reference to gassings or gas chambers, what Coward says in his affidavit is entirely hearsay. He doesn't have any personal knowledge of gassings or gas chambers.

As I mentioned the other day, one of the most striking things about the affidavit is that, even though he spent this time at Auschwitz, he seems totally unaware that there was any special treatment or mistreatment of Jews as Jews in the Auschwitz complex.

Q. Was the portion that you quoted, where Sergeant Coward refers to seeing leaflets, hearsay?

A. No, that was one part of the affidavit which is not hearsay. He says he personally read and saw leaflets that were dropped by Allied war planes around the camp in Polish and German, stating that people were being gassed there at the camp. That was the one significant portion of the affidavit that was not hearsay.

Q. You were asked about Walter Laqueur's book and references you had made to it where you cited evidence there that persons were released from Auschwitz in support of the proposition that, if there were exterminations there, there would not be releases.

You said that you cite other evidence for that now. Could you tell us what other evidence you cite for that now.

A. I cited Laqueur's book primarily because at that time it was a fairly readily available source in English. Laqueur's own evidence for that statement is an article that appeared in the German historical quarterly, Vierteljahresheft fuer Zeitgeschichte. Because it was in German and because this was a leaflet for English-speaking readers, I cited Laqueur.

Since that time I have revised the leaflet to refer to that specific point by citing a book called "Anatomy of the Auschwitz Death Camp" which gives more detail on that particular point. It gives more specifics about the numbers of releases and where they were released to. Again, that is a leaflet.

The other day a good question was asked: How does one know whether a piece of writing should be evaluated as scholarly or as polemical? That is a difficult thing to say, but generally one just trusts the reader to understand that, when something is fairly short, it is not a scholarly book and that a book that is scholarly and lengthy and detailed should be evaluated differently from a short leaflet.

Q. In being confronted with the Laqueur book, it was brought to your attention that some parts of the book referred to undertakings never to reveal anything on the release from prison and that no one believed those who were released.

Did you examine that and consider it in relation to your quoted portion?

A. Yes, of course, but it is entirely understandable that the Germans had prisoners who were at Auschwitz sign such a statement because the work of Auschwitz was a military secret or very important in the German military effort. Auschwitz 3, one of the important camps at Auschwitz, was an important centre for the manufacture of synthetic gasoline during the war made from coal, for example. Just a routine thing, the Germans insisted that prisoners who were in facilities like this sign these statements that they were not to reveal it.

However, the importance is that a person who is at Auschwitz and may be released back to Holland, for example, even though his neighbours may not believe him, certainly had the opportunity if he wished to write up a lengthy statement or paper about his experiences and send it to representatives of neutral countries that were in Europe during the Second World War, a point that Laqueur goes into in great detail in other portions of his book.

Contrary to the impression that many people have, it was very hard to keep secrets in Europe during the Second World War. Neutral countries like Switzerland or Sweden had not only embassies but consulates all over. The International Red Cross had representatives. The Vatican had representatives. In addition to prisoners that were released, there were many German civilian labourers in the Auschwitz complex who went back and forth, in and out of the camp.

It is very difficult, as Laqueur himself points out in another portion of the book, to reconcile the notion on the one hand that Auschwitz was this top secret extermination centre and, on the other hand, that it was so accessible during the war to so many people.

Q. You were confronted in cross-examination with Sylvia Rothchild's book in which what you referred to as Marika Frank's testimony was reported.

First of all, you were accused of misleading by referring to it as testimony. What method would you say would exist to distinguish between court testimony and verbal accounts in your own bibliography?

A. I don't understand. You mean in the source references?

Q. I guess so.

A. I suppose anyone can see that the reference in my footnotes to each of those two statements or testimonies, if you will, makes a distinction. The first one refers to court testimony, and the second one refers to a book. One can see that.

The word "testimony" is commonly used in a context outside of a judicial hearing.

Q. It was put to you that Marika Frank Abrams was writing 52 years after the fact and that you should have referred to that in her lack of recall or reference to or knowledge of gas chambers. Did you have any reason for not mentioning that it was written 52 years after the fact?

A. Partly, I suppose, space. One of the most incredible things is that generally the tendency after a period of time is to, as it were, "remember" things in exactly the opposite way. Many people ‑‑ and this has been pointed out by a number of Jewish historians ‑‑ as time goes on imagine themselves having been at places that they were not or imagine things often as being worse than they were, rather than the other way of actually conceding, "I didn't really know at the time that people were being gassed."

In fact, there is a tendency usually of survivors of any kind of experience in wartime and so forth to embellish or exaggerate the horrors of what they underwent rather than to diminish them.

Q. If she had experience or knowledge of gas chambers, would she have forgotten after 52 years?

A. It would be hard to believe, especially in light of how much it has been talked about since that time, that she would forget such a thing.

Q. You were accused of misleading in relation to the reference to Arno Mayer's book. In Arno Mayer's book was there any reference to gas chambers or reference to proof of their existence?

A. Arno Mayer, it should be understood, came under tremendous criticism for having written ‑‑

MR. ROSEN: I have to object, with respect. This is not proper re-examination.

MR. CHRISTIE: Let me understand.

I understand that there was an accusation that he had misled in citing Arno Mayer's book in some article. At page 365 he is alleged to have misled by citing. That was, as I recall, a reference to ‑‑ maybe I should look at the exact article.

I think it is SW-3. That is the accusation of misleading in relation to the statement that more died of natural causes than unnatural causes. In my understanding, the distinction is between dying from natural and normal causes and being killed by shooting, hanging, phenol injection or gassing.

Therefore, I was inquiring as to whether the witness had any knowledge of evidence that would contradict that or if he had misled by withholding such evidence in his knowledge of Arno Mayer's position respecting gassing, which was one of the ‑‑

THE CHAIRPERSON: We will allow it.

MR. CHRISTIE: Thank you.

Q. From your knowledge of Arno Mayer's book, would it be misleading to have presented the portion of his book which says that more people died of natural than of unnatural causes, specifically in relation to the unnatural cause of gassing?

A. I don't remember what page it is on, but in that same book Arno Mayer makes the astonishing admission that evidence for gassings at Auschwitz is, I think he says, rare and unreliable. This is in stark contrast to the claim that was made for many decades, including at Nuremberg, that evidence for gassings was supposedly not rare and unreliable but, to the contrary, abundant and very reliable.

In that regard, Arno Mayer's skepticism or his revisionism, if you will, of the claims that people were killed by the millions supposedly at Auschwitz in gas chambers is a very striking one. It is a great contrast to the story we have been told. Precisely for that reason Arno Mayer came under tremendous criticism from Jewish organizations and Jewish writers for making this, as it were, concession to the revisionist view of the subject.

It is not just on the one page that was cited by Mr. Rosen.

Q. You were also accused of misleading in that in the portion you cited from Arno Mayer's book, and it was read to you, it referred to cremation statistics. Why did you not quote or refer to the cremation statistics in your article?

A. Arno Mayer's references to the number of people who were or could have been cremated at Auschwitz are completely wrong. Anyone familiar with and who studied the cremation facilities at Birkenau and who knows about cremation can readily establish that these figures, which are not unique to Arno Mayer ‑‑ they are quoted elsewhere ‑‑ are entirely impossible.

I was really struck that the Director of the Calgary crematory facility who testified in the Zundel trial in 1988 dealt with precisely those claims and said they were preposterous or impossible.

Cremation is a complicated and involved process, and the facilities at Birkenau were simply unable, as Jean-Claude Pressac and a number of other anti-revisionist historians have conceded in recent years.

Q. In your evidence yesterday assertions were made that the Institute for Historical Review ‑‑ and I don't mean to misquote ‑‑ is basically a bunch of quacks and that no reputable historian gives them any credence. There was a suggestion that there was no support from recognized scholars at all. You went through the masthead, and it speaks for itself.

What persons of recognized historical scholarship have either identified with, spoken at, or in any way supported the IHR and its work?

A. In addition to the scholars who are listed on the masthead, I would mention that one speaker at an IHR conference was John Toland who is the author of numerous respected works of history and for one of them he received a Pulitzer Prize in the United States for non-fiction for a work of history he did. He spoke at an IHR conference.

David Irving has spoken at several IHR conferences. He is the author of numerous best-selling and highly acclaimed works of history dealing with the Second World War, modern 20th century history.

Another speaker was Ideo Mikei. He is a retired professor at Japan's National Defence Academy. He spoke at an IHR conference.

One of the books published by the IHR, written by Henri Roques ‑‑ it was a doctoral thesis that was translated ‑‑ was praised by Hugh Trevor Roper who is recognized as one of the outstanding or most prominent British historians on Second World War history. Hugh Trevor Roper called it an entirely legitimate, praiseworthy work of ‑‑

THE CHAIRPERSON: Which work?

THE WITNESS: This is a book called "The Confessions of Kurt Gerstein" by a Frenchman named Henri Roques. It was a doctoral thesis that was translated into English, and we published it.

Kurt Gerstein has been widely cited as one of the main sources or witnesses about gassings. Henri Roques' thesis dealt in great critical detail with the so-called evidence or confessions of Kurt Gerstein who committed suicide in 1945.

Hugh Trevor Roper praised this work.

In addition to that, a number of recognized scholars have been published in the Journal of Historical Review, including Jewish scholars. One I might mention is a professor in Oklahoma named Howard Stein who wrote an essay for the Journal on how the Holocaust campaign is used for self-serving purposes and that it is actually dangerous to Jewish interests in the long run, he feels.

In addition to that, I regularly receive and have received many letters from scholars and historians who support the work of the IHR but are very afraid of making that support known publicly, precisely because of the tremendous climate of intimidation that exists in the United States and especially in Europe affecting anyone who publicly supports Holocaust revisionism in particular.

As you know, in a number of countries it is actually illegal to publicly contest the official Holocaust extermination story. That is why it takes great courage and bravery for scholars to publicly express support for the Institute for Historical Review. The support of the IHR by recognized scholars is much greater than even the public support that has been given would indicate.

Q. You mentioned Henri Roques. Has he anything to do with the Journal of Historical Review?

A. Yes, he is on the masthead of the Journal of Historical Review. He has spoken at IHR conferences.

MR. FREIMAN: I have to rise at this point. I don't know how a litany now of supposedly famous historians can possible arise on re-examination, complete with the setting out of their credentials in circumstances where no one can now cross-examine.

THE CHAIRPERSON: The entry point that he placed before us is in connection with the course of cross-examination which tended to question the integrity of the IHR as an organization of reputable historical renown, I suppose. I am going to allow this within limits.

MR. CHRISTIE: That was my last question in that area anyway.

Q. It was asserted to you in cross-examination that Holocaust revisionists constitute pariahs, to put it as succinctly as I can, a group of very unusual eccentrics who either from a level of reasons or from delusion claim to false beliefs. I am not misphrasing what I think the presented arguments were. It was stated at one point that they are a very small percentage of scholars. Is that true?

A. It's a small percentage, I suppose, as would be true of any group of historiography that is dissident. What is extraordinary is how much support we get despite the tremendous involvement ‑‑

Q. I didn't ask you that, so I don't you had better go into that.

A. It is not a large percentage of historians in general, but it is a significant one.

Q. In your view, does the percentage of numbers affect the validity of historiography?

A. It is irrelevant whether the percentage of scholars and historians supporting a given view is a high one or a low one. Historiography scholarship would never make any advance at all if there was constantly an evaluation of the merits of a given view of history according to what the popularity of it is among historians.

Historiography and scholarship of all kinds must take place within an atmosphere that permits even a single historian who presents a startling different view to express it and argue it. Charles Darwin and Darwinism would never have been accepted if Charles Darwin had not been a single man to put forth a thesis that at the time was considered outrageous. That is what happens throughout all of not only historical but scholarship in other fields as well.

Q. In one part of your cross-examination you were asked ‑‑ there was an allegation, I think, with regard to the work of Eugen Kogon, and there was some discussion about an article in the Journal of Historical Review about Japan. At some point you said there was more justification for interning Jews in Nazi Germany than there was for interning Japanese in America. You said that there were hundreds of murders and sabotage and arson carried out by Jews against Germans prior to September-October 1941.

Specifically, what were you referring to in relation to that ‑‑ what murder, what sabotage and what arson are you talking about by Jews in Europe?

A. I know that for many people it sounds extraordinary or amazing that one can say that there was some justification by German authorities for rounding up Jews and treating them as a separate group and putting them in concentration camps. I don't support that necessarily, but in times of war governments often do very brutal, very sweeping things, treating groups of people in a very harsh and separate way.

Specifically in this regard, the treatment of the Jews has to be understood in the context of an ongoing struggle that was taking place between Jews and Germans. In 1933, as I alluded, as soon as Hitler came to power, major Jewish organizations organized a worldwide economic boycott and declared a kind of war against Germany. In March 1933 the London Daily Express ran a report on this under the headline "Judaity declares war on Germany."

In 1936 a young Jew named David Frankfurter assassinated a German official in Davos, Switzerland. In 1938 another young Jew named Hershl Gruenspan went into the German embassy in Paris and assassinated a German diplomat there.

That may seem like not much to justify very much, but just in that one regard in 1982 the Government of Israel carried out an invasion of Lebanon on the pretext that their ambassador in London had been the victim of an assassination attempt by a Palestinian.

THE CHAIRPERSON: We are getting pretty far afield here. Let's not talk about Lebanon in 1982. The specific question was in relation to 1933. We take the point that you have made, but I don't think we need to have a historical review.

THE WITNESS: In addition, there were many other acts of partisan or underground warfare, sabotage, attacks and so forth. I can go into detail about that; there is much more to be said on that subject.

MR. CHRISTIE:

Q. What were you speaking of when you spoke of alleged acts of murder, sabotage and arson carried out by Jews? Do you mean Frankfurter and Gruenspan?

A. Those are two, but more before September-October 1941 Jewish underground organizations and sabotage organizations had already been set up in France, in Poland, in the occupied Soviet territories, specifically Jewish ones, as any number of Jewish Holocaust historians have affirmed and have even expressed some pride about.

Q. In the first day of your cross-examination your entire article from 1978 was read, and I don't intend to go over it by any means. In the course of it, I think it is fair to say that you were accused of being a racist and a bigot.

What I would like to do is refer to Exhibit SW-1 and I would like to refer to page 6554, lines 10 to 23.

A. I don't have it readily ‑‑

Q. You are not going to have it unless I am allowed to ask this question.

THE CHAIRPERSON: What are you going to be asking?

MR. CHRISTIE: I was going to ask him, in the context of his beliefs about race, did he say that?

We had a cross-examination line by line; we went through the whole thing to that point. I just want to ask him if this accurately reflects his beliefs about race then and now.

THE CHAIRPERSON: Perhaps the witness should step outside for a moment.

‑‑- Witness Withdraws

MR. CHRISTIE: Let me say that I think I put it this way. I have found my notes now:

It was that Mr. Weber would testify that the effect of revisionism brings a humanizing and rational perspective to the Holocaust account by offsetting the dogmatic aspects that put Jews in a category of human suffering beyond all other humans. In other words, it is my submission that I will endeavour to show through Mr. Weber's evidence that the debate and discussion about the Holocaust has a salutary effect on Jews. It is not something productive of antisemitism; it is productive of a greater understanding and compassion for Jews in the long run. That does not mean that every Jewish advocate for the Holocaust will be happy with the debate; that never is the case, but in the long run Mr. Weber's experience is that there is not a greater animosity created by virtue of discussing the subject from this rational perspective, but a greater humanizing influence and a greater understanding and eventually compassion for Jews.

My submission is that, without debate and discussion about the Holocaust, there would hardly need to be so much written about it. It is an important historical event in our time and it is an event that involves intense emotion.

MR. KURZ: Mr. Chair, I apologize for interrupting Mr. Christie. The question is whether Mr. Weber should be in the room.

THE CHAIRPERSON: We excluded you, Mr. Weber. Thank you.

The word I have down is "important", and I am not sure what you said after that.

MR. CHRISTIE: I said that the Holocaust is an important event in our time; that, in order for adequate discussion to occur, it cannot just be presented in one-dimensional, dogmatic terms with only one version of the event accepted and entrenched by law, which is the effective result if revisionist views cannot be expressed.

He will also, I think, be able to put in context many of the statements of the Zundelsite in relation to this discussion and what he will call the Holocaust Lobby.

In my submission, he will be giving evidence that will show the existence of a very threatening and frightening academic oppressive force in that even those representatives of groups in this room, he will say, participate in the attempted suppression of debate and discussion, and that this is contrary to the best interests of Jews, contrary to goodwill, and destructive of feelings of humanity and compassion. It is, in fact, productive of antisemitism to deny debate on the subject.

He will state that revisionist scholarship helps the public to see Jews as well as non-Jews as sharing in the suffering of humanity in much the same say, caught in the tragic events of what is not an inexplicable chapter of history but one that needs to be analyzed rationally and explained to bring about increased tolerance and understanding, certainly between Germans and Jews but between people of all races. To understand how these tragedies occurred is necessary to overcome feelings of hatred and animosity.

The opinions of Dr. Schweitzer in this case ‑‑ and I hope I am not oversimplifying, but inevitably will in some ways not do justice to his evidence. In some sense, it is accurate to say that Dr. Schweitzer asserted that the Zundelsite documents are just an ongoing part of the continuum of historic antisemitism, that there is no rational element and no redeeming virtue, value or content to that which is expressed in the documents in HR-2.

Mr. Weber, on the other hand, will suggest that opinions of Dr. Schweitzer about the alleged hateful content of the Zundelsite are wrong, and he will be able to explain why it is important in context to have open and vehement debate on these historic issues.

It is clear that Dr. Schweitzer certainly has more academic credentials than Mr. Weber; there is no debate about that, but that is not the only criterion, of course, for qualification of any expert. The best evidence of an expert is the rational quality of their opinion, in the end tested by cross-examination.

I can think of no case in my experience where a witness' qualifications have been so severely tested, so frankly confronted and opposed and vehemently opposed for two days. It is quite remarkable. In all of that time, in my submission, Mr. Weber presented a rational position which, whether one accepts it or not, was not presented with malice or bigotry. He seemed to be, in my submission, fairly candid about things that might be embarrassing ‑‑ for example, his racial views which might be, and no doubt will be, argued as a reason to disqualify him.

It is very strange in this situation that Mr. Zundel is accused of being a Nazi and a racist and a bigot; eventually, no doubt, that will be one of the accusations. In his defence, no one who agrees with him can escape the same accusations; therefore, he can have no witnesses. That would seem to be the logic of the argument. He can have no experts. He might have other kooks like himself, but no experts.

My submission basically is that the world is comprised of many people with different opinions, some that are vehemently opposed to others. There are those who would categorize as racist anyone who thinks there are racial distinctions and would say that such people have no right to speak or organize.

I vaguely remember such a slogan outside of a meeting once. It struck me then and it strikes me now as valid to submit to you, as I would to them, first of all: How do you know without hearing them that they are racist and precisely what kind of racist? What are they? Is all racism equally diabolical that we do not listen to them first? Secondly, assuming that they were racists, even of the worst kind, have they a right to rational opinions, however feeble or erroneous, and can they not be defeated in argument? If they can, then they have a right to speak and organize and to do so in our society like anyone else.

It would be equally invalid to argue, for instance, that anyone who spoke in defence of communism could not do so because of Stalin, Stalin being a murderer ‑‑ and maybe not racist, although some people said he acted as if he was. One could never advocate a position that was associated with the crimes of a dictator of that position or of someone with authority in that type of political arrangement.

It would be, in my submission, the wrong way to disqualify people because, after all, if only experts who agreed with one side were qualified, there would be no room or even possibility for debate in a rational sense and, as we are speaking in a human rights context, hopefully to bring about harmony between different points of view even on the issue of race. In my submission, it is probably better to allow whatever rational expression there may be in defence of a position than to say, a priori, because of a definition, be it racist or non-racist, that one cannot have that point of view and cannot express it.

I am saying that, if the first day of cross-examination proves anything, it proves that Mr. Weber is truthful and that he had racialist views, and he still has racialist views. He says that he believes in the integrity of races, the separation, if you want to put it that way, and that there are racial differences.

If that was enough to disqualify someone, then I would think it would disqualify most except for those who are dishonest. It would disqualify a lot more than we would at first think, because most people would never have the courage to admit that they held such views. But Mr. Weber did.

In my submission, it does not disgrace or discredit him ‑‑ and certainly it has nothing to do with his opinions vis-à-vis the Second World War or history or revisionism or the Holocaust. No doubt, it might be argued to the contrary, but in my submission his own evidence was that it really has nothing to do with revisionism.

Dr. Schweitzer had never been qualified to testify in any court before and, to my knowledge, there has never been a determination that the history of antisemitism was a field of expertise known to law. But every day we learn new things; every day things are expanded, and the history of antisemitism was accepted as a legitimate field of expertise. Beyond it, of course, he gave us the history of the world, his views of the Christian religion, and a great many other things, much of which no doubt he believes but much of which might be beyond the scope of his expertise, but was allowed. I agree that I didn't object to everything in that regard.

What I am submitting is this. Before you is a witness who was qualified in an Ontario court in 1988 in the very same area that we are considering today ‑‑ that is, Holocaust revisionism. I have the judgment of the Court in the exact words, I think. If there is any doubt about it, I would be willing to provide it. I brought copies of everything that preceded his qualification.

As you know, I was surprised to find that what I had thought came before actually came after. The cross-examination on his publication in 1988 came after his qualification. No doubt my friends will argue that, had those questions been asked beforehand, he would not have been qualified. That is an argument which I would suggest is not on good grounds because there is no doubt that the Crown had that in their hands beforehand and qualified him nonetheless or did not introduce that type of cross-examination. Had they, it really does not impeach his qualifications; it impeaches, perhaps, his credibility, and that is a different issue.

MEMBER DEVINS: It actually supports your point in that it goes to credibility, not admissibility of the evidence.

MR. CHRISTIE: That is what I understood at the time, and I understood that was why they did it that way. In the old days, it used to be clear in my mind, but now maybe I misunderstand things more than I did then.

It seems with respect to that that he was qualified in this area because "Did Six Million Really Die?" was a publication that was in issue in that case, and it is very much a part of this case. In fact, I think it is the first item in HR-2.

It seemed then that it was relevant; it seemed then that it was true that he was qualified to speak on the subject by a court. Nothing has really changed. There have been other documents added, but I think, with respect, the thrust of the case is very much the same. It is Holocaust revisionism or the way it is expressed ‑‑ I don't know quite which; in the end we will hear the argument. Is it in our society a legitimate form of expression?

There are other aspects to this case that involve this witness directly. Some of the things that he has written, like the "Jewish Soap" article and the article that he was cross-examined on about Auschwitz ‑‑ these were actually written by him. These are publications of the Institute for Historical Review, of which he is the Director. Those are certainly things that he might testify to as matters of fact. They certainly would not entitle him to go beyond those simple facts to discuss the basis of them or their relationship and his experiences with them in the debate about these issues in history.

In effect, he is one of the attempts of the Respondent to answer Dr. Schweitzer's views. He has, in my submission, read more widely on the subject of the Second World War and the Holocaust in particular than Dr. Schweitzer who had really no knowledge, and claimed no expert knowledge that I know of, about the subject.

This is an area which, of course, is quite controversial, but Dr. Schweitzer said that, had there been truth to what was published, he would have taken the view that it was not part of the stream of historic antisemitism. Of course, I maintain that, even if truth is not a defence here, if an expert witness says that truth would disqualify it from his own categorization, then truth becomes relevant not to the truth or falsity being a defence but to prove that what is alleged to be part of the stream of historic antisemitism is actually outside of it because there may be truth to it.

That is a matter which you would have tell me whether I can lead evidence on or not, but I would submit that that is one of the areas that Mr. Weber would be able to assist with in regard to some of the statements that are in HR-2.

The other aspect of it is that, even if it were not possible by virtue of your ruling to say that some aspects of the Zundelsite documents were historically accurate, he could still, in my submission, put it in the context of what is an ongoing valid historical debate ‑‑ that is, in my submission, to put it in the social context in which a reasonable person would view it.

The reasonable person ‑‑ and the test, hopefully, is applicable here. That is something which has not, as far as I know, been judicially determined. If a reasonable person were to hear a shouting match in a historical context about a historical issue, they might take a different view of it in relation to whether or not it exposes someone to hatred, contempt or ridicule by virtue of race, religion, ethnic origin, et cetera.

Seen in a historical debate context, strongly-worded expressions of opinion are not necessarily directed at persons by reason of race, religion or ethnic origin or necessarily in the reasonable person's mind productive of or exposing to hatred, contempt or ridicule on the basis of race, religion or ethnic origin. In the context of historical debate ‑‑ a valid ongoing one; not some fictitious possibility, but a real debate ‑‑ it would be, in my submission, that one who is a reasonable person would see it as part of a controversy about history, not a controversy about race.

After all, when we talk about history, we cannot avoid talking about race and we cannot avoid talking about religion. We cannot, for example, discuss the Spanish Inquisition without talking about religion and exposing some people in a religious context to hatred or contempt incidental to and separate from the primary thrust of the historic discussion. Nor could you talk about the Reformation, nor could you talk about the conflicts between Islam and Christianity in the 800s in France without discussing things that incidentally and accidentally could have those effects, but primarily are directed to the discussion of a legitimate historical controversy.

Of course, intent is not an issue in these proceedings; we understand that. Even if there were some elements of animosity from some other movie, so to speak, in the mind of some speaker about a historic topic, that would not necessarily disqualify the validity of the observation of an expert who would testify about matters that put it in the context of a historic debate or controversy.

This witness has testified for, I think, at least a week ‑‑ and I mean testified under cross-examination just as strenuous as the cross-examination here ‑‑ about a line-by-line analysis of "Did Six Million Really Die?" It was partly to prove truth, but it was also to prove that it is part of an ongoing and serious inquiry into truth ‑‑ not to say that anybody is telling the whole truth, not to say that anybody knows the truth completely. We all try to see things through a glass darkly perhaps.

THE CHAIRPERSON: He seems to have come to his philosophy not from the point of view of a scholarly pilgrimage but through study. We go back and we see what happened to him at the age of 18. He is, like St. Paul, struck from his horse and comes up with a point of view of the world.

MR. CHRISTIE: Yes, that is true.

THE CHAIRPERSON: That point of view seems to have fastened or consolidated his view of history.

MR. CHRISTIE: That is very possibly true; I don't deny that.

I would say that it is quite likely that this is true of most of us, that we have certain predilections. Say, for example, we are born into a family of MacDonalds and we are brought up nursing hatred of Campbells from our mother's milk, if we happen to be Scottish, or, if we happen to be Jews, brought up in an atmosphere of suspicion and fear and anxiety about the treatment we receive from Gentiles. We have a predilection created by our background.

Very few of us are as honest about it as Mr. Weber. I don't deny that it is quite possible that his views about race, his views about Germany, his sensitivities created by his stay in Germany, which was attacked by Mr. Rosen, may be the foundation of his bias. If so, he is much more honest about his bias, in my submission, than Dr. Schweitzer who, after all, wrote his first book for the Anti-Defamation League of B'nai Brith, one of the parties here. He, too, of course, has a bias. He has a very strong view about Christianity. He didn't write an essay on how he got those views, and we don't have the right ‑‑ and, frankly, I think it is irrelevant once it is established that we have a bias. I don't think we can say that, therefore, everything someone says, because they have a bias, is untrue. It might be suspect. It has to be weighed with the evidence of whatever bias is provable.

It is quite consistent with both logic and common sense and human nature that Mr. Weber acquired perhaps a sympathy for Germans and a predilection to take another view. He may have had what a lot us have, the sympathy factor for losers. You will find that there is a common thread through many of the articles in the IHR Journal; it is sympathy for the losers in war, such as the Japanese. You will find articles about the Confederates; you could also say that is because they are racist, but it might not apply too much to the Japanese. It is a predilection to look on the other side of a controversy, and the worst form of controversy in our world is war. It is the most violent and the most devastating and permanent.

THE CHAIRPERSON: The views he expressed at an early age were basically views about race which have not changed. You will remember the expression about the Bourbons: They have learned nothing and forgotten nothing, He has not changed his views over all this time.

I am not suggesting that that is inappropriate. As a historian, he can take a point of view. The fact of the matter is that it is not a classical description of a historian.

MR. CHRISTIE: Is there a classical description of a historian? I would suggest that maybe from a liberal point of view one takes the position that all historians are liberal in that they are neutral ‑‑ emotionally, racially, culturally neutral.

Really, in all honesty, if we were frank about it, I think most of us would have to admit that we have some biases in favour of some cultures, maybe even in favour of some races.

Let's put it this way. Assuming that he is biased in favour of the White race or feels a legitimate, or illegitimate, fear of its demise or disappearance ‑‑ and that certainly was a theme reflected in his 1978 article. Does that disqualify him as an expert historian?

If there is a point of view to be argued for, and maybe there is, that the White race has a right to have its advocates, there are definitely today recognized scholars who espouse Native culture. In universities we are gradually developing Native Studies courses. What are they? People who don't sympathize with Natives? Of course they do. They will present views that White society destroyed valid Native culture, that it was indigenous, that it was beautiful, that it was harmonious, that it was harmless, that it never made war, that it didn't oppress people like Whites do. This is quite common.

It is not abnormal for people to have bias, even legitimate experts. Why are they allowed to have a bias? Because, in order to have balance, we cannot have everybody agreeing to be neutral. We have to have some advocates for one position and some advocates for another, or we don't have an argument; we have an agreement not to disagree. That is not even discussion. We don't even have a rational discussion.

If everybody takes the view that race is irrelevant, then those who take the view that it isn't will never be allowed to have an opportunity to participate ‑‑ and there are those who say they should not be allowed to.

I suggest that, to disqualify people on the basis of a previous and present view that races are different, that their differences are important and valuable ‑‑ there is no suggestion that should disqualify them from being entitled to participate in debates about historical issues.

One cannot separate history from either race or religion in any real way. It is true, for instance, that in the Second World War we interned people not because they were from Japan or Japanese citizens, but because they were Japanese by race. We did it. Was that justified? Certainly many people say "no", but if somebody said "yes," would they be disentitled to present their case because we automatically assume they are racists and, therefore, they are wrong?

Then we do not have a discussion in any real way that comes anywhere close to the truth.

It would be wrong to disqualify people who had racist views. It would be wrong to disqualify people who had anti-racist views or people who had anti-White views. There may be very valid reasons for those views. We can never find those reasons if we disqualify them in advance because we say, "They don't like Whites; therefore, they cannot speak." If they had reasons for their dislike, we would never hear them and we would never know whether they were valid or not. We could never even discuss them, I guess.

I agree that there is clear evidence, probably strong evidence, that Mr. Weber has a racial bias which he has been frank about.

For instance, in many universities they speak about the Eurocentric historical analysis and how biased that has been and unfair to Afro-Americans. There are now Afro-American Studies, and there are people who advocate the Afro-American point of view. This is not necessarily sufficient to disqualify anyone from having not only a valid point of view but an expert point of view which would be, after all, a point of view that actually has more factual information than, for example, those of us who are not familiar with the debate.

That is basically all that is necessary to qualify someone as an expert, that they know more than a judge does. That is not to say that judges don't know a great deal, but there are many aspects of life, many areas of history, for example, where historians or people who have studied in the field, which would be the same thing, know more than those who have not. We don't all know everything. Some of us admit that we know virtually nothing, but that doesn't make us either idiots or incapable of learning.

In fact, I, who claim to know virtually nothing, would say that the essence of an expert is someone who has knowledge, who can assist you to know more about the subject of which they speak than you would have known if you did not talk to them.

THE CHAIRPERSON: The general principle is that the witness is an expert if he or she has something to offer to assist the Court or the Tribunal.

MR. CHRISTIE: Whether they are skilled with some particular knowledge. It doesn't mean that it is right knowledge or wrong knowledge or good knowledge or bad knowledge. It is knowledge and, when we hear it, then we can assess whether it is right, wrong or bad.

Therefore, it would be an a priori disqualification to say that racists cannot be experts or that those who have a preference or sympathy for the German side in the war or sympathy for Nazis cannot be experts. If such were the disqualification process, we would, hopefully, have been able to succeed that those who have sympathy for Jews would be disqualified, and that would be a preposterous proposition.

Dr. Weber, it seemed, quite clearly had a sympathy for Jews. No doubt, he has ‑‑

MR. FREIMAN: Dr. Schweitzer you mean.

MR. CHRISTIE: What did I say?

MR. FREIMAN: Dr. Weber, a double error.

MR. CHRISTIE: It's not the first and it won't be the last ‑‑ as to survival only.

The essence of Dr. Weber's evidence was not totally unbiased.

MR. FREIMAN: You said "Dr. Weber" again.

MR. CHRISTIE: I am getting in the habit here.

THE CHAIRPERSON: We are going to give you a chance to untie your tongue.

MR. CHRISTIE: Thank you.

‑‑- Short Recess at 11:25 a.m.

‑‑- Upon resuming at 11:47 a.m.

MR. CHRISTIE: I would like to carry on for a few moments on the subject of precisely how expertise is not necessarily based upon general acceptance or upon majority opinion or academic qualifications.

Just looking at a few examples, Thomas Edison did not have a degree in electrical engineering. Henry Ford did not have a degree in mechanical engineering. Alexander Graham Bell did not have a degree in telephony.

THE CHAIRPERSON: He would have to have one today.

MR. CHRISTIE: He would today, but he would still be an expert even if he were called today on the subject with which he was familiar.

With regard to history, in particular the Holocaust, Elie Wiesel, although he would not be called a Holocaust historian, certainly writes on the subject and would be considered an expert in aspects of it. He is not either a historian, certainly not a history professor. He was at one time a newspaper reporter.

Gerald Reidlinger who was the first to write on the subject with any great depth was an art dealer. Raul Hilberg was a political scientist. Deborah Lipstadt was a teacher of religion. All of these people are well-known, recognized historians of this particular subject.

In any area of history, traditionally you will find examples of people who write about it or involve themselves in study of it because of interest. The history of the death of John Fitzgerald Kennedy could not be written without books by Mark Lane, a lawyer who wrote about it, or Oliver Stone the film-maker. These are people who have had specific interest in the area which they are experts.

It is basically true to say that throughout history those who have had unorthodox opinions have been often the forerunners of change. For example, even Sigmund Freud had difficult experiences trying to overcome the orthodoxy of the psychiatric profession in his day. Until he did, of course, he was considered an outcast, a pariah practically, and did not find it easy to become accepted.

The subject of Holocaust studies in universities did not become a recognized study until around 1985. There are several universities who still don't have studies specifically in that field. It is not something one could have a long-standing academic experience with.

In general terms, victors write history and the vanquished become revisionists. That is true of almost every war, in fact. It is only recently, with the emergence of Scots' nationalism, that the version of history that would be presented by, for instance, Edward I, has been reversed. Now the English are the bad oppressors and the Scots are just valiant freedom fighters.

This is what happens over time and sometimes more quickly than in others. Seven hundred years is a long time.

My submission is that in the area of history revisionism is inherently necessary and it is also necessary that those who are not specifically trained in that area would have to be recognized when they have worked and studied in that area to acquire their expertise.

I was going to just refer briefly to Marquard. In my submission, it is about as much as I need to produce to demonstrate that at least ‑‑ I will just give you copies of this case. I will only refer to the headnote and, in my submission, that is all that is necessary.

In the judgment of Madam Justice McLachlin for the Court, she makes the point ‑‑ and I suggest that it is very clear and well established:

"The only requirement for the admission of expert opinion is that the 'expert witness possesses special knowledge and experience going beyond that of the trier of fact.'"

Then she cites R. v. Beland.

"Deficiencies in the expertise go to weight, not admissibility. As stated by Sopinka, Lederman and Bryant, The Law of Evidence in Canada ‑‑"

I know that is trite but, in my submission, it seems that from time to time it has to be reiterated, as it was in 1993 in the Supreme Court, that that is the only requirement. It is not so much a matter of credibility as admissibility, and I submit that that is very clear.

The case of Rice v. Sockett is actually referred to in Marquard, I believe, at one point. It is an Ontario Court of Appeal judgment which I want to refer to briefly. Rice v. Sockett is an old case, but it has been referred to many times with approval.

The judgment states at page 85:

"The term 'expert,' from experti, says Bouvier, 'signifies instructed by experience.'

'The expert witness is one possessed of special knowledge or skill in respect of a subject upon which he is called to testify:' Words and Phrases Judicially Defined, volume 3, page 2594.

Dr. John Lawson, in 'The Law of Expert and Opinion Evidence,' 2nd edition, at p. 74, lays down as Rule 22, 'Mechanics, artisans and workmen are experts as to matters of technical skill in their trades, and their opinions in such cases are admissible'; citing numerous authorities and illustrations.

'The derivation of the term "expert" implies that he is one who by experience has acquired special or peculiar knowledge of the subject of which he undertakes to testify, and it does not matter whether such knowledge has been acquired by study of scientific works or by practical observation; and one who is an old hunter, and has thus had much experience in the use of firearms, may be as well qualified to testify as to the appearance which a gun recently fired would present as a highly educated and skilled gunsmith'."

That is just a general statement, but I think it is of some value in submitting to you that Mr. Weber's evidence is as valuable, in fact more germane, more pertinent and more on the point, than Dr. Schweitzer's evidence simply because it is dealing with the essence of the case. It is dealing with the historic significance of revisionism generally.

I have one other authority I would like to provide on the subject. It is the publication called "The Expert, A Practitioner's Guide" published by Carswell. It covers the subject of both relevance and admissibility.

I think it helps to observe the statements on page 1-10 on qualifying the expert. Essentially, it reiterates what is said in Marquard.

"The first step involved in bringing out the evidence of an expert witness is to demonstrate to the court that the witness has particular or special knowledge in the area in which he or she proposes to testify. This knowledge may have been acquired either through study or experience. It is essential to qualify an expert witness in this manner because usually the main purpose of calling the witness is to testify about matters which are beyond the knowledge and experience of the trier of fact."

They cite Rice v. Sockett.

May I say that the subject of the Second World War and the subject of the Holocaust is something that we have all heard about and we all have strong views about. Many of the facts and circumstances behind it are not necessarily well-known. For that reason, this witness has unique skill and ability in that regard.

Of course, that can be tested, as it was in his qualification process, by reference to anything that he has cited. That is exactly what I would expect my friends to do. However, I would submit that his experience in this area is beyond that of most of us. Certainly most reasonable people would not know as much about the subject as he does.

Essentially, that is all I have to say. Thank you for hearing me. Those are my reasons for submitting that this expert should be qualified to testify in the areas I have suggested.

THE CHAIRPERSON: Thank you. Mr. Freiman, please.

MR. FREIMAN: Thank you.

ARGUMENT ON BEHALF OF CANADIAN HUMAN RIGHTS COMMISSION

MR. FREIMAN: I will try to be brief because I expect that Mr. Rosen, who conducted the bulk of the cross-examination, will have interesting and important things to say based on the details of his cross-examination. I only want to make some observations on general propositions.

It will be my submission that the proposed expert should not be admitted, first of all, because he has no credentials; secondly, because he has no relevant evidence; and, thirdly, because he has no credibility ‑‑ no credibility to the point of not being in the least bit helpful and, in fact, being the opposite of helpful to this Tribunal.

Let me begin by reviewing. Mr. Christie has done me the good turn of putting before you the book called "The Expert" by Messrs Matthews, Pink, Tupper and Wells. He chose not to give you my book, but it is probably better that he did because this is a better book than mine is.

For one thing, it gives us right on the first page an outline ‑‑ and we have dealt with this in previous cases, and I didn't think it would be necessary to review it. Very conveniently, at page

1-2 the authors set out what the test is ‑‑ not the test in Marquard, not the test in some 19th century case dealing with whether a workman can be an expert, but the test set out by Mr. Justice Sopinka of the Supreme Court of Canada in Mohan, which is "the" authority.

The authors tell us that, in order to be admissible, expert evidence must be (1) relevant; (2) not inadmissible on policy grounds; (3) necessary in assisting the court; (4) not rendered inadmissible by any other exclusionary rule; and (5) delivered by a properly qualified expert.

It is my submission that all five of those rules work against this proffered expert.

Before I try to demonstrate that, I note that at page 1-3 the authors make a special note of the issue of exclusion on policy grounds. At paragraph 2.2 on page 1-3 they write:

"Relevance is a threshold requirement for the admission of expert evidence as it is for the admission of all other evidence ‑‑"

THE CHAIRPERSON: I am sorry, where are you?

MR. FREIMAN: I am at page 1-3, paragraph 2.2.

THE CHAIRPERSON: Thank you.

MR. FREIMAN: Paragraph 2.2 states:

"Relevance is a threshold requirement for the admission of expert evidence as it is for the admission of all other evidence. In order to be relevant, evidence must first of all be logically relevant. This means that the evidence must be so related to a fact in issue that it tends to establish it."

Let's keep that thought in mind when we start to look at the area in which this witness is proffered and the areas of evidence that he proposes to testify about.

At paragraph 2.3 the authors:

"In R. v. Mohan, the Supreme Court of Canada explained that evidence which is logically relevant may be excluded if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value, or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability."

On the issue of reliability, we go over to page 1-4, the second-last paragraph on the page:

"Expert evidence based upon novel scientific theories is particularly likely to be excluded on policy grounds because there is a danger of such evidence having an effect on the trier of fact which is out of proportion to its reliability. To guard against this danger one of the factors considered in determining the admissibility of expert evidence is whether it passes a threshold test of reliability."

Paragraph 2.4 at page 1-5 states:

"For a long time the test of admissibility of expert evidence was whether the evidence was relevant and helpful."

In my submission, that was in fact the test that His Honour Judge Thomas, as he then was, had recourse to in determining whether to admit this witness as an expert in 1988.

"However, in R. v. Mohan the Supreme Court of Canada decided that the word 'helpful' sets too low a standard and held that the word 'necessary' should be used instead. The court explained that what is required is that the evidence 'be necessary in the sense that it provide information "which is likely to be outside the experience and knowledge of a judge or jury."'

This requirement is based in part upon the fact that because it is 'cloaked under the mystique of science' expert evidence has the potential to overwhelm the trier of fact and thus to be accorded more weight than it deserves."

The text goes on to discuss numerous cases in which the Court has excluded evidence for precisely that reason.

Let me see if we can use all of those tests and look at what has been proffered to us and what we should do with it. First, let me start with point No. 5, a properly qualified expert.

This man is put forward as an expert in Holocaust history, Holocaust revisionism and the relations between Germans and Jew in modern times, and he is put forward as an expert in history. He sits before you in his Brooks Bros. jacket and shirt and tie and in his very calm, measured voice tells you, "We historians do this" and "We historians do that" and "Historians as a whole believe such and such." He comes forward to you as a historian properly qualified to testify about Holocaust history, Holocaust revisionism and relations between Jews and Germans in modern times.

What are the proper credentials for a historian? I submit that in the ordinary course we look to see whether the person has proper credentials in the form of academic degrees, proper experience in teaching, proper experience in the form of learning, of having learned the subject or at least of having taught the subject, and we look to the opinion of his peers to see that he has properly been accredited and accepted as a historian.

We do not look to the opinions of electrical engineers or retired physicists or the whole host of self-taught amateur historians who grace the pages of the Journal of Historical Review as the Editorial Board. We ask whether other historians, the people who are recognized as historians by historians, have also recognized this person.

What do we see with this witness? First, we see that he holds no Ph.D. He stops at the M.A. level and does not proceed to a Ph.D, so he has not completed what in today's terms is the sine qua non for acceptability as a professional historian. He has an M.A.

The M.A. is not in Holocaust history, not in Holocaust revisionism and not in relations between Jews and Germans. The M.A. is what happened in the 1930s in parts of the former Hapsburg Empire ‑‑ an interesting topic no doubt, but not a topic for which he is being proffered as an expert.

Perhaps he can demonstrate that he has taught these subjects at reputable academic institutions and has been accepted as a teacher. The only teaching this man has done was, as I understand it, for about six weeks in Ghana where he taught English to high school students and, after six weeks, decided that, although he was on a period of indefinite hire, he had had enough. So he has no teaching experience in the area in which he says he is a qualified expert.

What about what others think of him? First of all, his publications, such as they are, are not, as he says himself, in a refereed publication. Why should that bother us? He has published in this Journal of Historical Review and he has published dozens of articles in this Journal of Historical Review, so why shouldn't we look at that?

The essence of academic publication ‑‑ and I wonder if Mr. Christie could oblige me by perhaps speaking a little less loudly.

THE CHAIRPERSON: Proceed, Mr. Freiman.

MR. FREIMAN: Thank you.

The reason that one looks to refereed publications is that in a refereed publication one's peers, people who hold the same or better academic qualifications, go over what is intended to be said and decide whether it meets certain academic standards. Only if it meets those standards is the matter published. That is how debate and that is how knowledge is furthered in the academic community.

When you publish in a refereed journal, there is the imprimatur of the institution and of the qualified experts who serve on its Editorial Board as to its reliability. That is how the academic community advances itself.

We have no refereed publications whatsoever. Indeed, we have the opposite. We have two organizations of American historians who specifically deal with the purported subject matter in which this man professes expertise. First, we have the American Historical Association which condemns Holocaust denial.

Mr. Weber tells us, "Oh, no, not me; I am not a Holocaust denier. I am a Holocaust revisionist. I don't deny the existence of the Holocaust." But, when you listen to what he says, it is another one of these slippery definitional problems, because he does deny the essence. He has on numerous occasions testified, including before Mr. Justice Thomas ‑‑ and, if I need to, I will find it in the transcript ‑‑ that his view is that the essence of the standard view of the Holocaust is false.

Mr. Rosen has assisted me. In the transcript which is SW-1, I believe, at page 6563 ‑‑ and this is the cross-examination on some of his publications. This is an article written in "Spotlight" in 1979. At line 15 the witness is shown the article:

"Q. You agree that that's an article you wrote?

A. Yes.

Q. Would you agree that it says: 'Virtually the entire body of "evidence" and "documentation" offered today for the alleged extermination of six million Jews by the Germans was first presented to the world at a series of elaborately-staged trials held in Germany in the aftermath of World War Two'?

And he says "yes."

"Q. 'The victorious Allies held thousands of German military and civilian leaders before the Show Trials on absurd and hypocritical charges of "war crimes" and "crimes against humanity". It was these "trials" which first gave the "Holocaust" story legitimacy and worldwide publicity. A tremendous public relations campaign conducted ever since has engraved that story so deeply into the public consciousness that to challenge it

is ‑‑"

MEMBER DEVINS: Before you go on, is this before us or simply the article?

MR. FREIMAN: The entire transcript is before you.

MEMBER DEVINS: I understand that, but I understood that what we were doing was reading in sections of articles that he had written rather than the responses he gave.

MR. ROSEN: I also specifically asked him in relation to that article the questions and answers that followed, including the portion two pages later where he admits ‑‑ my friend has my copy.

You will recall that I put to him the questions and answers, and it ends at page 6565:

"Q. So you don't say 'important aspects'; you say 'reveals just how fraudulent the entire story is'. That's what you said?

A. That's a little overstated. Look, Mr. Pearson, it's not really crucial or essential at what point I came to reject the entire Holocaust story. I said that it was about a year later ‑‑"

Et cetera.

I put that specifically to him as his position, and he adopted the answers to those questions, as part of my cross-examination.

MR. FREIMAN: That is where I was going. In 1988 he admitted that at some point, about a year later, in about 1980, he came to reject the entire Holocaust story.

MR. CHRISTIE: If there is going to be reference to this, I think, in fairness ‑‑ the transcript is here, and I guess I can reply to it.

THE CHAIRPERSON: Yes.

MR. FREIMAN: He says that he is not a Holocaust denier, but at some point he came to dismiss the entire Holocaust story.

Regardless of the quibbling, the statement by the American Historical Association, which condemns Holocaust denial, is directly applicable to his views. But even if we could quibble as to whether ‑‑ and Mr Weber claims that he is still a member of the AHA and that they couldn't possibly mean him: "Who, me? They must mean some other people that are being criticized."

There is no way he can get around the statement of the Organization of American Historians. In my submission, it is unusual, to say the least, to have an entire body of historians, their Executive, unanimously denounce a position associated with an institution, an institution for which he is the Director and the Editor of the Journal, when it says:

"All of us, however, agree on several important things. Our debate was never over how we evaluate the arguments of the IHR. We all abhor on both moral‑‑"

And this is important.

"‑‑ and scholarly grounds the substantive arguments of the Institute for Historical Review."

Mr. Weber is not happy with this. He says it is not logical, that it is over-broad, that it is not specific. But if anything is being rejected, it is him.

THE CHAIRPERSON: Let's go back to what Mr. Christie argued, that Alexander Graham Bell, Thomas Edison, Sigmund Freud ‑‑

MR. FREIMAN: And Charles Darwin ‑‑

THE CHAIRPERSON: It begs the question, does it not, of whether those people at that particular time would have been accepted as experts.

MR. FREIMAN: Actually, it doesn't really. Taking Mr. Weber's own example of Charles Darwin, perhaps the Panel can take judicial notice of the absolutely commonly known fact that Charles Darwin was not alone. There was a race to the publications office between him and Mr. Wallace to see who was going to get there first. It is peculiar that a historian doesn't even know that.

There is no question that Charles Darwin was accepted. He was argued with, but no body of historians, no body of scientists, unanimously said that on scholarly ground this was outside the pale. It is almost unprecedented.

THE CHAIRPERSON: I am not sure I made my point clear.

According to law, Freud would not have been accepted in a court of law as an expert because he was propounding something that was not supported by the majoritarian view at that time.

MR. FREIMAN: If that is the case and if it is an error, it will be an unfortunate error to exclude him, but it would be an even more unfortunate error to give credentials and to accept people who are not experts under the guise of expertise.

If one needs any demonstration of that, one need only look to the history of what happened as a result of the acceptance of this witness in 1988. One sees now on each of these pamphlets ‑‑ and I am going to argue in a minute that that is what they are; they are pamphlets and they are polemics; they are not historical study ‑‑ there is in bold print, as there is on the first line of Mr. Weber's CV, as there was in the first words uttered by Mr. Christie in presenting this witness, the assertion that in 1988 for five days Mr. Weber testified as an acknowledged expert before the District Court of Ontario ‑‑

MEMBER DEVINS: Does the degree to which his acceptance as an expert in some future date really have much bearing on our determination as to whether we are prepared to accept him as an expert now? I take it that is where your argument is going.

MR. FREIMAN: In my submission, yes, it should be something that should concern this Panel. It should be something that the Panel should give some weight to or some thought to. It is not determinative. The fact that there is a genuine expert who might misuse the fact of his expertise subsequently cannot stop him from being seen as an expert.

When you have someone who is so far from being an expert that, if there is any doubt whatsoever ‑‑

MEMBER DEVINS: Who could be an expert in Holocaust revisionism, as self-defined by this witness? What I am really pursuing here is: Even if this witness' main thesis has been rejected by most historians, doesn't that go to the issue of credibility on whatever it is that he seeks to give evidence on, not to whether he is an expert within the parameters of self-definition that he has given with respect to his field of expertise?

MR. FREIMAN: Let's take a pejorative example, and I will take it as wide as possible, and I am not to be understood as making the allegation that this is the position of the witness. I want to make that clear from the beginning.

Let us assume that the subject matter of a hearing was Adolf Hitler's Naziism ‑‑ not Adolf Hitler's Naziism, but contemporary Naziism in North America. The question of who is an expert in order to understand the meaning of that, I think, has to be resolved in terms of who has been recognized, who has credentials, to speak about it as an intellectual movement, as a sociological phenomenon, as a political phenomenon. It is not who is a member of the American Nazi Party to give expert evidence about what its meaning and significance is.

Mr. Weber can, at most, be an expert at what it is like to be the editor of a journal that holds the views of the IHR and what it is like to be a participant in a polemical debate that gets carried on on the Montel Williams show and in parking lots through the distribution of pamphlets.

MEMBER DEVINS: Elevating it a little beyond that, isn't it the issue of context? That is what I understood the argument to be, that it is the issue of context in which the material has been presented that he seeks to give evidence on. In that context ‑‑ and I am not talking about the content; I am only talking about the form.

MR. FREIMAN: Let's look at the various areas. That is not really how he was presented. I was going to go through each of the possible areas, but let's just anticipate it.

On the question of what is the context in which this debate is carried on, the only thing this witness can tell you is what it looks like to him as a polemicist. He is not a historian and he is not a trained historian in the intellectual history of Holocaust historiography. He is not a sociological expert who has any training, any credentials, any publication, any expertise in the sociology of this movement and what its effects are, which is really what he is being asked to give testimony about. That was one of my objections about having expertise that is relevant to something that you have to decide. Perhaps I will come to that best when I get to that part of the argument.

To answer your question, his expertise is no more than a memoir of his experiences as a soldier in the vanguard. He has nothing to distinguish him as being helpful to you except as a memoirist or a diarist. It is his personal history that he can give you. It is his observations. It is his conclusions based on his personal experience, but it has no objective, independent validity that can help you to fit this into anything other than his own subjective view of his own subjective experience.

That, in my submission, has no relationship to expertise. That really is my fundamental thesis about what is happening here.

A man is being put forward as a historian, and my first thesis about that is that he is not a historian. Then piggy-backing on these assumed qualifications, he is put forward to give expert evidence on areas in which he has no qualification. Even if he had qualifications as a historian, he has no qualifications about the social context of historical revisionism as it defines itself. Then that is being stretched even farther because the ultimate issue that he wants to give evidence on and that Mr. Christie would like to question him on is the effect of all this. What does this do?

First of all, Professor Schweitzer did not give an opinion as to the effect of all of this. He gave an opinion as to its place in the history of antisemitism and as to what happened in previous instances as a result of antisemitism. He was not called, because it would not be proper, to have him give evidence as to what this all will do; he is not a sociologist either.

THE CHAIRPERSON: That is our responsibility to decide that issue.

MR. FREIMAN: Absolutely.

THE CHAIRPERSON: We can call an expert to say what conclusions we should come to.

MR. FREIMAN: That is what he is being called as. I took some notes as to what it is that he is going to say.

He is going to say that the effect of revisionism is to bring a humanizing dimension that offsets the dogmatic accounts of the Holocaust that dominate the field. What area of expertise does that fall in and where does Mr. Weber have that expertise except as any human being might have an opinion as to whether a certain view is a good thing or a bad thing. He has no training, no expertise, except as a foot soldier in the revolution or in the vanguard, to give these sorts of opinions.

THE CHAIRPERSON: Let's assume for the moment that not Mr. Weber but a qualified expert in the area of historical revisionism ‑‑ can he give evidence which would support an argument that moderates the effect of the Zundel documents by saying that it is part of a discourse or a debate?

MR. FREIMAN: Two things. First of all, the reader on the Zundelsite does not have an expert sitting beside him to talk about the context of the debate and the history of the participants, so as to educate the reader or the viewer in the context of what he or she is seeing. It is artificial, if one is asking what is the effect of the Zundelsite, to go to any third party and say, "Let's look at this in a larger historical debate. Wouldn't it have such and such an effect?"

You are not being asked that question. You are being asked whether this is likely to expose to hatred and contempt. As I say, the person on whom the material is presumed likely to have that effect does not have the benefit of Mr. Weber whispering in his ear or even a real expert whispering in his ear about the context.

Take it one step backward. If it were in some sense a defence or if it were a mitigating factor to point to the overall context of debate and the effect that that overall context might have, that is the role of a sociologist, the role of an expert in the history of ideas or the effect of ideas, or perhaps the role of a communications expert. It is not the role of a polemicist who comes before you and frankly says, "My work has the important effect of humanizing the debate and, in the long run, will have a beneficial effect on social acceptability of Jews, and Mr. Zundel is exactly like me, only a little more amateurish than I am."

There is no expertise there. All he is saying is: I write this stuff because I think it is going to be good for whatever reasons, and I read the same thing in Mr. Zundel and I think he is going to be good for the same reasons. It is not an area of expertise. If it were an area of expertise, it is not an area of expertise that this witness has any qualifications for.

THE CHAIRPERSON: Mr. Freiman, the Tribunal is going to rise at 4:30 today, so I think we will break for lunch now.

MR. FREIMAN: I will try not to be very long when we return. I have covered most of my essential points.

THE CHAIRPERSON: Depending on how things break this afternoon, it may be that we will take the argument on the motion at the conclusion of argument if, in fact, we do conclude it in good time.

‑‑- Luncheon Recess at 12:30 p.m.

‑‑- Upon resuming at 2:05 p.m.

MR. FREIMAN: Let me pick up with the question you addressed me, Mr. Chairman.

You asked me: What about Sigmund Freud and what about Alexander Graham Bell and all the others, and would they be disqualified?

Alexander Graham Bell probably would not be disqualified because he is exactly what Mr. Christie's case stands for. He would have technical expertise.

Sigmund Freud might be controversial, but then so would the proponents of recovered memory syndrome. Had the Mohan test been rigorously applied and the proponents of recovered memory syndrome, properly in my submission, been excluded from the various cases in which they were allowed to appear and give expert evidence, a number of people would not have faced jail sentences for nothing.

It is exactly that that the Mohan decision addresses itself to when it identifies new, novel, unorthodox areas as areas that require special scrutiny. If you don't have the benefit of validation from external sources, then you run the risk of being misled ‑‑ and that is the word used in Mohan, misled ‑‑ by the evidence.

MEMBER DEVINS: Mr. Freiman, does it make any difference if you are talking about an expert being tendered to give expert evidence with respect to the content of their specialty or area of expertise as opposed to the context in which it operates?

MR. FREIMAN: I had already submitted that it is rather awkward here. If there is any justification for hearing Mr. Weber, it is on the content. He knows that; he has done it. You don't need an expert, though, for that.

MEMBER DEVINS: On the content?

MR. FREIMAN: On the content, not the context. He is not an expert on the context. He knows what he sees; he knows what he feels, but he has no expertise whatsoever on the context, any more than a member of the Ku Klux Klan has expertise on the American social context in which that baleful movement finds itself. If you want to find out about the context of the Ku Klux Klan, you call a sociologist or an accredited historian.

If you want to know about the context of Holocaust denial or, as it is now being dressed up, Holocaust revisionism, you call a sociologist or an accredited historian or an expert like Deborah Lipstadt who has done a study of it. You don't call a practitioner and say, "What is the context?"

THE CHAIRPERSON: His shortcomings on the context have to do with his shortcomings as a historian.

MR. FREIMAN: As a historian and as not having any credentials beyond that of a historian, such as they are.

In terms of context, he could testify if he were a sociologist and had done a study or if he were an expert in some other field that bears on context, but he is not. I say he is not an expert at all but, whatever he is, he is certainly not an expert on those things.

Really, the issue with expert evidence is: Either you need it or you don't. If you need it, you need it because it is dealing with subject matter that is beyond the competence and beyond the experience of the Tribunal. That is the threshold. If you don't need it, if it is something that is in everyone's everyday experience, then you don't call an expert in any event.

If it is something that you don't know about, then you look for somebody who has better expertise than you do and check their credentials. Then you ask yourself, "Can I rely on this person?" By definition, you don't know about the area in which this person is about to testify and you have to have sufficient trust in the expertise and the dispassionate nature of the expert's expertise to listen to it.

An expert is not partisan; he is not an advocate. An expert is a friend of the court, who may be paid by one of the sides and one has to recognize that as the reality, but his ultimate function is to assist the court as its friend or the Tribunal as its friend by helping it to draw inferences from facts that, unaided, the Tribunal could not do on its own.

There is nothing in the expertise that Mr. Weber aspires to or is presented as possessing that can help you in any of those areas. I do intend to go through, not in any detail but just briefly, the reasons for that.

I have already dealt to some extent with the main areas. He is said to be an expert ‑‑ and these are Mr. Christie's terms ‑‑ in Holocaust history. We have seen what his standing as an expert in Holocaust history is. His peers say that it is abhorrent on both moral and scholarly grounds. He has been condemned as a historian.

THE CHAIRPERSON: His organization has been condemned.

MR. FREIMAN: If there is anyone who can stand for the organization, it is surely a Director of the organization and the editor of its mouthpiece.

The second area is Holocaust revisionism. Again, he is a practitioner. He is a pamphleteer, but his experience and his credentials there are as a self-publicist. The Journal of Historical Review is, in essence, self-publication. He is the editor; he publishes what he wants; and he doesn't have peer review. The status is no greater than any pamphleteer who decides that he or she has something to say.

He has no academic expertise and no recognized expertise in the context in which historical revisionism functions or, as it is probably more properly labelled, Holocaust denial. He is not a sociologist. He is not recognized as a historian of that movement; he is a practitioner.

Finally, on the relationship between Germans and Jews in modern times, we didn't hear one word about any qualifications. If we had, I would comment on them, but we haven't, so I am not going to.

Then we go on and ask: What are the other areas that he is supposed to testify on? The subject matter of his testimony as opposed to the subject matter of his expertise is said to be the effect of revisionism as a humanizing force, as offsetting dogmatic accounts, as being productive of greater understanding and compassion toward Jews in the long run.

In essence, what is being said is that Mr. Weber will give testimony that debate on the Holocaust is a good thing. If that is the extent of his testimony, you don't need it. If he purports to be an expert, however, and to say that it is a good thing for some sociological reason or for some historical reason, he had better bring us some credentials to base that opinion on.

Why does he say it is a good thing? He says it is a good thing because he is one of the debaters. That is of no assistance to you, and that is no basis for founding any expertise or accepting him as an expert in this area. What does he know about the humanizing effect? What does he know about compassion and about promoting understanding? What does he know about any of these topics? The answer is: Nothing.

Mr. Christie put forward some very eloquent arguments about the importance of hearing both sides. I do not deny that those arguments are proper and appropriate for final argument. He may well wish to defend his client and his client's point of view on the basis of the importance of holding these views. A philosophic position about free speech liberalis is fine. It is not the subject matter of expert evidence. If it were the subject matter of expert evidence, it is not the subject matter for this expert to give evidence on because he doesn't know anything about the topic. He has not studied it; he has no credentials in it. He has no expertise other than as a polemicist and one of the parties to the debate.

It is said that Mr. Weber will be commenting on the correctness of Professor Schweitzer's opinions. I take it that it is not the correctness of his opinions on the history of antisemitism, because Mr. Weber has no credentials that we have heard of to talk about the history of antisemitism. I took it from Mr. Christie's remarks that what that means is that Mr. Weber will be called on to agree or disagree ‑‑ and probably disagree ‑‑ with the proposition that Mr. Christie says Professor Schweitzer expressed, that this is a bad thing, that Holocaust denial is a bad thing.

First of all, Professor Schweitzer gave no such evidence. Second, it is not the subject matter of expert evidence in any event. Third, if it were the subject matter of expert evidence, Mr. Weber has no expertise in it.

The importance of differences of opinion is not the issue. He is not an expert about an opinion by virtue of holding it. He does not become an expert in the importance or the effect or anything at all about historical revisionism as he calls it, or Holocaust denial as I call it, simply because he holds those views.

Then we come to the next issue: Shouldn't he be admitted as an expert because he has already been admitted as an expert? In 1988 he was accepted as an expert by the District Court of Ontario to testify on certain matters pertaining to the Holocaust.

First of all, the topic upon which Mr. Weber was asked to give expert evidence in 1988 was the truth or falsity of the received doctrine as he called it ‑‑ and I have forgotten the exact words. The matter in issue ultimately before His Honour Judge Thomas was whether the pamphlet, "Did Six Million Really Die?", amounted to false news.

His Honour allowed Mr. Weber in that context to give evidence on the question of the Holocaust and the alleged extermination policy of the German government. Those were, arguably, issues. The question was: Is the pamphlet false news and, therefore, the truth or falsehood of observations within that pamphlet and, therefore, the truth or falseness of the opposite view or the accepted historical view? That was a matter in issue. In those circumstances, at least the subject matter was relevant.

In our case that subject matter, assuming Mr. Weber had any expertise on it, is not relevant. The truth or lack of truth to the pamphlet, "Did Six Million Really Die?", is not before you; it is not an issue. Therefore, whatever he might know about, as Judge Thomas calls it, the alleged extermination policy of the German government is just not relevant.

I go beyond that. In 1988 the court did not have the benefit of a number of matters before it that you have before you in terms of deciding whether, even if these issues were relevant, Mr. Weber possessed relevant expertise.

First of all, the prosecution, for reasons that I am sure were well thought out at the time, decided not to lead evidence as to the articles that Mr. Weber had earlier published. I suspect ‑‑ I can't be sure, but I suspect ‑‑ that the reason for that was the second thing which was not before the court, which was Mohan.

If one looks at the law as it was in 1988, the issue of bias and the issue of prejudgment would not have been as important in weighing the qualifications of an expert as it would have been in weighing the weight to which his expertise is entitled. After Mohan it becomes clear that reliability is a key issue. Reliability was not a key issue because the Supreme Court of Canada had not as yet said that the issue of necessity, rather than simply helpfulness, was the test and the Supreme Court of Canada had not elaborated its various tests on the standards for admission of expert evidence, standards which make it clear that reliability is right at the centre.

Finally, the District Court did not have the benefit of the American Historical Association's statement nor did it have the benefit of the Organization of American Historians' statement to help it to identify and to bring into focus exactly what the repute of this man is and of the theories that he espouses in the community of American historians.

On all of those grounds, the matter was entirely different there.

The issue before you is: Are the articles on the Zundelsite likely to expose an identifiable group to hatred and contempt on prohibited grounds? Truth is not an issue. Truth is not a matter that you have to determine before you come to an assessment of whether this is likely to expose to hatred or contempt.

I say that the decision of the Court in the second Zundel trial to accept this man's evidence under the rubric of an expert is really not to the point.

I had almost forgotten to address the last issue in which Mr. Christie says Mr. Weber's evidence will be of great assistance to you. That is: How would a reasonable person view the Zundelsite and these articles?

How can Mr. Weber help you? First of all, we have the reasonable person test. When does Mr. Weber become an expert on the reasonable person and what the reasonable person will see or do?

I have already submitted to you that the viewer of Zundelsite documents on the Internet, sitting at his computer, does not have the benefit of an expert to sit beside him and give him lessons on the context in which he is seeing these documents. He sees the documents in the context that they are presented before this Tribunal, and that is as documents submitted for your approval, as Rod Serling used to say on "The Twilight Zone," not submitted in the context of a historical debate or a learned disposition on the pros and cons of the view and the historical rights and wrongs that this tries to address.

THE CHAIRPERSON: How would a reasonable person view the Zundelsite documents? Is that not close to an expression of what we must conclude?

MR. FREIMAN: It is exactly what you must conclude. While there is no absolute ban on expert evidence on the final matter in issue, where it is so quintessentially within your own province and where it is a "reasonable person" test which in tort law requires the court to place itself in the shoes of an ordinary person, expert evidence has never been allowed. Expert evidence is allowed on matters like the standard of care in a negligence case because they may involve something beyond the ken of the Tribunal.

You don't need Mr. Weber to tell you what a reasonable man would conclude. He is not even trying to tell you what a reasonable man would conclude. What he wants to tell you is what a person should conclude based on the fact of a context about which he purports to be an expert. He is not an expert on the context. Even if he were, it has nothing to do with what you have to decide, which is how would a reasonable person read this.

It doesn't even have to be a reasonable person. In my submission, the task before you is to decide what the likely effect of this is going to be on a reader.

THE CHAIRPERSON: What do we mean when we talk about context? What precisely do we mean?

MR. FREIMAN: It depends on what context you are asking.

THE CHAIRPERSON: We keep speaking about the context, but I am not sure ‑‑

MR. FREIMAN: In my submission, the relevant context for you to judge the communications on the Zundelsite are the words on the page or on the screen as they would be understood by someone in Canada, flicking on his or her computer in 1996 at the date of the complaint. The context is the everyday context of Canadian society, of which this Tribunal is entirely as capable of drawing a conclusion as any so-called expert.

It might be that someone might try to impress upon you and convince you that a historian or, better still, a sociologist familiar with Canada and Canadians and familiar with users of computers would be able to fill in for you what the knowledge of those people is, what their background is, and what likely effects are. But that is not what the section asks you to do in any event.

The section asks you to come to a conclusion based on your common sense. The context that you need to know is the context of Canadian society in 1996 ‑‑ no more, no less.

Again, let me go one step farther. You will recall that ultimately the question is not simply whether it is a properly qualified expert, whether it is an area of expertise that is an area to which expert evidence is appropriate, or that the testimony that is about to be given is relevant to that person's expertise; there is also the issue of reliability.

Reliability should not be underestimated. Certainly Mr. Justice Sopinka did not underestimate it in Mohan when he came back to it again and again. Reliability means the trust that this Tribunal can put in the dispassionate expertise of a person before it. I don't say that an expert has to be totally neutral and have no opinions. An expert is often hired by one side or the other, and one can draw conclusions about that fact. An expert comes, like any other human being, equipped with certain life history, with certain assumptions, with certain biases. One of the tasks of cross-examination is to reveal those biases in order to allow the Tribunal to weigh how important they might be.

It is not that the person has to come as a blank slate or as an intellectual eunuch with no ideas, but the person has to have sufficient independence and sufficient objectivity to be of real assistance to the Tribunal. The Tribunal must be able to place some trust in that expert because, as I said about five minutes ago, ultimately, if the subject matter before the Tribunal is worthy of expert evidence, by definition, the Tribunal cannot have its own independent knowledge on those matters. It has to be able to trust the expert to some extent.

It is not enough to say that the expert can be cross-examined. There are few counsel who can go toe-to-toe with a person having or purporting expertise in terms of actually dealing with the subject matter. We can deal with bias; we can deal with assumptions, but ultimately you have to have some trust in the objectivity of the expert.

My submission is that Mr. Rosen's cross-examination demonstrates beyond all doubt that you can have not one shred of trust in what this man will tell you.

You will recall, when Mr. Rosen was putting questions to the witness about Mr. O'Keefe's article about the liberation of the camps and the remarkable passage in that piece of work that talks about how at Auschwitz and at the other camps it was necessary to get formal approval from Berlin and for a doctor to be present in order to guarantee the health and well-being of a prisoner before and after corporal punishment was administered. Mr. Weber said, "Yes, that's correct," and he was shown the passage to which the footnote relates and he said, "Yes, I know it is true that this wasn't always followed. In fact, one could probably say that the camp commandants paid attention to the letter of the policy but violated its spirit."

In my respectful submission, Mr. Weber was describing his own historical method. Time and again what we saw in the course of Mr. Rosen's cross-examination was a passage of text that gives an impression that the historical source is in agreement with the passage and, when you look at the source in the footnote, some of the words are there, but the context is diametrically opposed to the sense of the passage that it is supposed to be supporting.

How can one have any confidence in a witness who uses that sort of methodology and then brazenly says, "All historians do it." I guess this is a historical term, not a legal term. "This is an admission against interest, so I am entitled to take it, just take what I like and leave the rest."

It is exactly the same as the reviews you sometimes read in the newspaper that say that a certain film is a remarkable achievement. You then go and look at the actual review, and the reviewer says, "It was a remarkable achievement that this film-maker could have fooled a major production company into financing this turkey." The words are there, and you can cite the person and say, "There it is," but the context is entirely different and says exactly the opposite.

In support of propositions about the unreliability of stories about gas chambers, Mr. Weber cites passages from someone who claims to have been there and says that everyone knew, in support of the proposition that nobody knew, in support of the proposition that prisoners were well treated. That was the only possible implication one could take from that "Liberation of the Camps" article. We see cited a passage, and Mr. Weber approves of this, that demonstrates that they were execrably treated and that these so-called humanitarian precautions were in fact a method of inflicting double punishment and increasing the misery of the people who benefited from this humane policy.

It goes on and it goes on and it goes on. How can this Tribunal have any confidence in anything that the witness says? How do you know that he is not using his sources in exactly the same inventive and creative way as he uses his footnotes? How do you know, when he cites what a famous historian says or what the famous this or that person says, that it is not like his claim that Arno Mayer has tremendous respect for revisionism, so he puts the revisionists in his bibliography, in exactly the same way that he has tremendous respect for Adolf Hitler whom he puts in his bibliography as well?

You cannot have any trust in a man who does not honour the first principle of historical studies, which is that footnotes have to stand for the propositions for which they are cited and not be misleading. It does not help in the least for Mr. Weber to say, "Oh, well, this isn't a historical text. This is just a pamphlet."

Even worse, this is a recruiting technique or a propaganda technique masquerading a history, dressed up with the accoutrements of scholarship to persuade the naive that there is actually a factual basis for the extraordinary statements that are being made. You cannot trust this sort of intellectual chicanery.

Mr. Weber says, "Well, I put these footnotes into my text because I trust the reader." He may trust the reader, but the reader can't trust the author, and that is the point.

In those circumstances, it is my submission that you have a man with no recognized academic credentials, with the disrepute in his profession that is evidenced by two major historical associations condemning the institution and the outlook for which he stands; a man who is trying to give evidence in areas in which he has no training or to give expert evidence in areas for which no expertise is available; and you have a man who has no intellectual credibility and has a track record of intellectual dishonesty.

In my respectful submission, no matter how you stretch the boundaries of who should be accepted as an expert witness, this man is not an expert. He is a polemicist. He is a party to a debate that in his own mind is of some importance. But he cannot assist this Tribunal.

THE CHAIRPERSON: Mr. Rosen, please.

ARGUMENT ON BEHALF OF SIMON WIESENTHAL CENTER

MR. ROSEN: For the sake of brevity, I adopt Mr. Freiman's position. He speaks for the Commission, and at this point in time I speak for one of the Intervenants, although I carried the ball with respect to cross-examination of the witness.

To supplement what he says, I would like to take the Tribunal back somewhat to first principles.

We are here to determine whether or not Mr. Zundel has engaged in a discriminatory practice by communicating telephonically or otherwise within the meaning of section 13 "any matter that is likely to expose a person or groups of persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination."

This is not a case of proving or disproving that something that was said or published was false. This is not an issue of free speech. This is not a public forum for the debate of historical facts, or otherwise. This is a quasi-judicial hearing into whether or not a citizen of Canada has violated one of the provisions of an Act of Parliament.

In that context I wish to take the Tribunal through some of the things that were published on the Zundelsite under the guise of engaging in a debate over the fact of the Holocaust and its details.

At HR-2, tab 5, as an example, the Mission Statement of the Zundelsite, at about two-thirds of the way down has this claim:

"To claim that World War II was fought by the Germans, as the Holocaust Lobby incessantly claims, to kill off the Jews as a group, is a deliberately planned, systematic deception amounting to financial, political, emotional and spiritual extortion. The 'Holocaust,' first sold as a tragedy, has over time deteriorated into a racket cloaked in the tenets of a new State religion. It is high time to subject the 'Holocaust' to public scrutiny - like any other historical issue."

At tab 6 that theme of an illegal racket or extortion or deliberately planned, systematic deception amounting to financial extortion is carried on in Mr. Zundel's "Urgent Appeal For Your Cooperation". At the bottom of the page he says:

"I am particularly looking for material where the 'Holocaust' was used or invoked or implied, or where 'survivors' were implicated in crimes, rackets, shady deals, extortion or war crimes against Germans or, later, British Palestine Police, the Palestinians in Gaza, the West Bank...where Jews used the 'Holocaust' as an excuse for their crimes."

On the next page, about 10 lines down:

"The material can go back to 1939 and even before, with rackets and crimes committed in Europe by gangsters against the Germans and their Allies, always with the justifications that these crimes ought to be condoned on the basis of '...getting back at anti-Semites,' 'Nazis,' 'collaborators' etc."

At tab 7 Mr. Zundel publishes on December 9, 1996 "An Open Letter from the 'Zundelsite' to all principled Freedom-of-Speech activists globally:". He says on the second page, after the bold part which is "The Zundelsite challenges three specific, commonly accepted, monstrous lies ‑‑" et cetera:

"To claim that World War II was fought by the Germans, as the Holocaust Promotion Lobby incessantly claims, just to kill off the Jews as a group, is a deliberately planned, systematic deception amounting to financial, political, emotional and spiritual extortion. The 'Holocaust' first propagandized as a tragedy, has over time deteriorated into a racket cloaked in the tenets of a new temporal religion -"

Et cetera, et cetera.

THE CHAIRPERSON: Mr. Rosen, I am not sure where you are going with this. This sounds like final argument.

MR. ROSEN: I understand that, but I am trying to focus on what we are here about and what this witness is going to testify to, because you want to understand the context in which he is going to testify. I want to take you to a couple more, if I may.

One of them is at tab 10, "The Big Lie" which he publishes. At the bottom, after quoting from "Mein Kampf", he says:

"The creation of such a multi-faceted 'tower of lies' is promoted by the ingenious talent of the Jew for such endeavours and, in this particular case, the added hardships of a rampant war and its associated propaganda ploys, intertwined with misinformation incessantly produced by the enemy nations of Germany."

At tab 12, about the fourth page in under "The Althans Case!", in talking about this so-called debate, he says:

"The problem is, very simply, that the German oligarchy and the Jewish/Zionist/Marxist racketeers who have conned the Germans, the Americans and, for that matter, the whole world with their Holocaust extortion scheme, are both dependent for their own survival on the non-exposure of this fraudulent, parasitic enterprise."

The last one I want to take you to is at tab 18 part of a Power Letter, "Zundel Countersues Sabina Citron ‑‑" et cetera. If you go in to the fifth page, in the context of illegality of the Federal Court in Ottawa, he says:

"Now we will get our proof.

Remember Jewish Professor W.D. Rubenstein of Australia who wrote in Sept. 1979, 'If the Holocaust can be shown to be a 'Zionist myth', the strongest of all weapons in Israel's propaganda armory collapses.' Knock that shield away, and they will have no choice but to defend themselves on their own merits. Without the self-bestowed 'victim' status and without their copyright on pain and suffering, they will be revealed to be a rather paranoid, shrill, whining group of shysters, common racketeers, distorters of history, falsifiers of documents who created a gangster enclave in the Middle East called Israel to which thieves, crooks, swindlers, real estate and stock market frauds and Mafia king pins like Meyer Lansky, Flatto Sharon and thousands of others can retire to a safe haven."

Et cetera. He goes on, and it is just one after the other about this extortion racket, that they are a bunch of gangsters, that they are parasites, and so on and so forth. You have heard it all before.

You said in this matter, in your interim decision rendered on May 25, 1998, in the context of cross-examination of Professor Schweitzer, that Mr. Christie, acting on behalf of the Respondent, could not question Professor Schweitzer on the truth of the statements found on the Zundelsite which were said by the witness to be antisemitic. You gave some lengthy reasons about that, but at the time you said that you were guided by the following principles.

In interpreting the Act, of course, you gave it a purposive approach.

"The general aim of anti-discrimination legislation is to ensure that individuals are free from discriminatory conduct and is not primarily directed to punishing the respondent. The ultimate goal is to eliminate as much as possible the discriminatory acts and make the victim whole for any loss sustained as a result.

What you went on to say was:

"It is the effect of an alleged action which forms the basis of our inquiry. As a corollary to this and as was conceded by counsel for the Respondent, the intent of the Respondent is immaterial."

What this witness is being tendered to do is to present to you evidence that he has discovered through a process of self-research ‑‑ not formal academic research, but self-research ‑‑ that certain historical facts did not occur and that lead him to the opinion that the Holocaust, as some people come to describe it, did not occur as a historical event. That is the Holocaust revisionist or Holocaust denier's thesis.

You heard a lot about his early education, his travelling through the world, the development of his blatantly White supremist and racist, bigoted attitude. Would that I could merely say to you, "Slough him off as nothing but a mean-spirited little bigot." Unfortunately, that would not be the right test. It may very well be that, as he got older, Mr. Weber realized what a waste and marginalized existence he has led on the far right.

Having said that, you heard about his education and how he, at the very best, achieved a Master's Degree, not by writing and defending a thesis, Mr. Chair, but by his own admission and on the evidence by taking certain course work and passing that course work.

Subsequently, in his self-study of these historical events, he has published a series of articles which he has listed in his CV and which he says gives him some credibility as an expert. What is noted in his curriculum vitae, particularly his publications, in a document that he prepared knowing that he was coming here to impress you with his credentials, is not merely the fact that his articles are all self-published by an organization that he heads and that he edits.

It is not only the fact that none of them has been submitted to peer review so that others with knowledge and expertise that I certainly lack would check out the references and the historical accuracies and inaccuracies, the context in which things were said, to test the validity of their assertions and to see whether or not the reader was being purposely misled, as I submit the evidence clearly demonstrates with the articles that I brought him to, on my little bit of research.

This so-called scholar has in his entire 20-year career produced by way of a book 20 pages for the Institute of Historical Review in something entitled "The Zionist Terror Network." We heard nothing whatsoever about the scope and extent of his research, other than and beyond the minutiae of detail reported from a variety of sources on what happened during a particular period of time, not what has happened since.

I concur with Mr. Freiman that this man is merely a participant in a debate, perhaps a one-sided debate that he has created in his own mind but, to give him the benefit of the doubt, a debate out on the street. He has not placed that context under a microscope, if you will, as a qualified expert in human endeavours, situations, circumstances might, to determine what its impact is as a societal matter.

For example, there is something called The Flat Earth Society. It has been scientifically demonstrated that the earth is round, and this Flat Earth Society has its skeptics, some of whom may say that the earth is flat. I would defend with all my vigour their right to stand in the public forum and at the top of their voice scream, "The earth is flat." It may very well turn out that all our laws of physics are wrong and they are right; who knows.

In terms of coming within these confines and dealing with a matter of evidence ‑‑ and that is potentially what an opinion held by a person will become, only if they pass through the screen of expertise ‑‑ they must first be able to pass through that screen by demonstrating a particular expertise in a particular subject.

At the trial in 1988 His Honour Judge Thomas, given the state of the law at the time, decided that Mr. Weber, as a result of his self-study, had sufficient intimate knowledge of the details of certain historic events that he could speak to the truth or falsity of the factual assertions made in the pamphlet, "Did Six Million Really Die?" That was the limit of his expertise at that time ‑‑ nothing more and nothing less.

What Mr. Christie, on behalf of the Respondent wants to do through the mouth of this witness is take the concept another step. He wants to take the thesis that this witness in his cross-examination adopts, that is parallel to or almost identical to the sentiments of Richard Verral, using a pen name Richard Harwood, when he published in 1975 the pamphlet, "Did Six Million Really Die: Truth at Last - Exposed:" In the Introduction Mr. Verral puts forward the thesis:

"The ensuing pages will reveal this claim ‑‑"

That is, the claim of the existence of the Holocaust or the purposeful attempt to exterminate Jews that resulted in the murder of six million people.

"The ensuing pages will reveal this claim to be the most colossal piece of fiction and the most successful of deceptions; but here an attempt may be made to answer an important question: What has rendered the atrocity stories of the Second World War so uniquely different from those of the First? Why were the latter retracted while the former are reiterated louder than ever? Is it possible that the story of the Six Million Jews is serving a political purpose, even that it is a form of political blackmail?

So far as the Jewish people themselves are concerned, the deception has been an incalculable benefit."

Then he goes on to discuss what that benefit is and concludes:

"In terms of political blackmail, however, the allegation that Six Million Jews died during the Second World War has much more far-reaching implications for the people of Britain and Europe than simply the advantages it has gained for the Jewish nation. And here one comes to the crux of the question: Why the Big Lie? What is the purpose? In the first place, it has been used quite unscrupulously to discourage any form of nationalism."

I.e., White racism.

"Should the people of Britain or any other European country attempt to assert their patriotism and preserve their national integrity in an age when the very existence of nation-states is threatened, they are immediately branded as 'neo-Nazis'."

That echoes the White racist sentiments of the witness.

"Because, of course, Nazism was nationalism, and we all know what happened then ‑‑ Six Million Jews were exterminated! So long as the myth is perpetuated, peoples everywhere will remain in bondage to it; the need for international tolerance and understanding will be hammered home by the United Nations until nationhood itself, the very guarantee of freedom, is abolished."

And so forth.

Of course, I won't take you to it, but you have his quote at the previous trial which I put to him in his pamphlet from "Spotlight."

When Mr. Christie says on behalf of the Respondent, "I want to call this witness to testify about the social context of the Holocaust revisionist debate," what he is really saying is that he wants to call evidence that this story is not only just a story, but that it is a hoax, it is a planned scheme that is designed to basically defraud the world; that it is put forward by the Holocaust Lobby, a group of shysters, gangsters and racketeers, i.e. the Jews. That is what he wants to say.

He can fancy it up. He can put it in rational terms. He can pretty it up through the witness as much as possible, but what he wants to do is use this Tribunal as a platform to advance a theory as to why this Holocaust story is being told. That is the social context.

From there he wants to then say: What is the social relationship between Jews and non-Jews as a result of this? He wants to say that, therefore, the world's reaction to violently oppose it, to be against this sort of thing and come to hate the Jews, that in fact the perpetuation of the Holocaust myth merely in and of itself creates hatred and that all Mr. Zundel was doing was exposing the great lie so that people's eyes would be opened and that what he says is not hateful, that it was intended to expose an evil scheme by evil people who belong to an evil culture, religion or group.

It is echoed in SW-8 which Mr. Kurz will address. As the Chair pointed out, just on the face of it, at least six of the articles in this particular issue deal with the Holocaust. Every single article in one way or another deals with, either directly by naming them or indirectly by the use of the usual subterfuge, Jews and the political influence of Jews in the United States, in Russia, and so forth.

MEMBER DEVINS: Isn't there also a narrower sense in which Mr. Christie is asserting that this information is relevant to us and that it goes to context, and that it is simply the circumstances ‑‑ let's get away from context for a minute ‑‑ in which those who write, read and believe in Holocaust revisionism are currently operating? That, as I understand the argument, is information that is asserted needs to be before the Tribunal to look at the evidence in its totality with respect to this material.

Getting back to your Flat Earth Society as an example, I think the comparable argument would be that somebody who is a leader of the Flat Earth Society and has written in the area for many, many years may not be an expert in whether the earth is flat or not, but may be qualified as an expert to give evidence of the circumstances in which those who write and believe in that thesis currently operate.

MR. ROSEN: Let's just extrapolate on that thought for a moment.

If that is so, then what it really is is evidence of motive or evidence of intention. Why did Mr. Zundel write what he wrote in the context in which he wrote it? Why did he use these particular words

to ‑‑

MEMBER DEVINS: Isn't it more than the motive of that particular writer? Isn' it, rather, the circumstances in which the material is being written and read, and that is information that ought to be taken account of in the same way as, presumably, other contextual information?

MR. ROSEN: My answer to that is: If you go back to your ruling in May of 1998, as to why the truth of the material being asserted is not relevant and the obvious concession that Mr. Christie made that intention is also not relevant, it doesn't matter why you are writing it. It doesn't matter to whom you are even directing it in terms of when you send the message out.

The fact is that the Tribunal looks at the impact of the words. I said to Mr. Weber, and even he agreed, that in all this communication going on ‑‑ writing and dissemination of information ‑‑ no one has the right to do it in a way that subjects a particular group to hatred and so forth.

If you are saying to me, "Okay, but aren't we dealing with whether or not the words themselves are merely extreme rhetoric as opposed to hate messages or would have that impact? Just because of all that is going on, this is why I am saying it." Then it comes down to: What is the focus of the Tribunal?

MEMBER DEVINS: Let me make it even more clear. Isn't the issue, in part, whether Mr. Christie is entitled to put that evidence before us so that he at least an evidentiary foundation to make those arguments ultimately? Whether they be accepted or not obviously will remain to be seen, and there will be full argument on it, if those arguments are presented.

What we are now talking about is the admission of evidence to ultimately allow you to make certain arguments or not.

MR. ROSEN: And on that admission of evidence, the first issue is: Is the evidence relevant to an issue that you are going to have to decide? In other words, if that evidence is called, will you at the end of the day be able to use it, assuming that you accept it, in order to come to a correct decision?

My submission to you is that it is not relevant at all, given the nature of the legislation and the extent of the inquiry, even on the most narrow basis.

The second point, and the more important in my respectful submission, is that this person is not an expert in that area.

MEMBER DEVINS: In the circumstances in which that community, of which he is an alleged leader and writer, operates?

MR. ROSEN: Yes. That is the same as saying that a person who is Jewish and who has been subjected to the vilest of antisemitism has become an expert on the issue of antisemitism in the community.

MEMBER DEVINS: Only if they have been a leader of the community and written about it for many years.

MR. ROSEN: Even if they have been a leader of the community, they can speak to it as a factual matter, which is not an expert's opinion, but they cannot speak to it as a phenomenon that can only be understood in a sociological context and historical context, unless they are themselves a sociologist or a historian.

MEMBER DEVINS: Just to follow this through, I take it that it would then be your submission that this witness would be entitled to give that evidence as a fact witness, not as an expert witness, with respect to the circumstances in which that community operates.

MR. ROSEN: No, because ‑‑ I shouldn't say "no" absolutely, because there are no absolutes.

My first submission is that it is totally irrelevant, but you understand that. What this witness is going to say as a fact witness is that he is going to speak about things that he has read about and heard about from others. In my respectful submission, that means that he cannot speak to it as a fact witness.

MEMBER DEVINS: So he can be neither. The evidence can't be led, then.

MR. ROSEN: It could be led maybe through the mouth of another witness, but not through this witness.

Mr. Zundel, for example, may wish to defend himself and say, "I have read and heard and participated as a fact in this debate and, as a result, I have been the target of these sorts of attacks on me personally. It is in the context in which those events have happened that I came to create the Zundelsite and to disseminate the information on it that I did, and this is why I did it" ‑‑ not so much for intention but to explain the context of his conduct.

What Mr. Christie wishes to do is call an expert to create the context in which Mr. Zundel operates. He doesn't wish to call Mr. Zundel, or he may later on.

Dr. Schweitzer came and gave evidence as an expert. Not only did his qualifications exceed to a considerable extent this witness' in terms of formal education, years of study, peer review, authorship of works that are recognized in the community, so that his methodology as a historian is demonstrable, but then he was able to take his general expertise as a historian and show that by further research and study in the same demonstrable manner he has become an expert in the area of antisemitism through the ages. He spoke to you through his evidence of not only the history and development of antisemitism ‑‑ I want to refer you back to your ruling.

He not only testified about the classical antisemitic motifs in the material found; he testified about the history of violence against Jews and the relationship of the violent episodes to specific periods of historical antisemitism, including the context in which this material was written.

That is an objective, proven expert standing back and viewing the whole forest, not just the little trees, and being able to assist you in that overview. That this witness cannot do, in my respectful submission, because of his lack of qualifications and study.

THE CHAIRPERSON: We will break for 10 minutes.

‑‑- Short Recess at 3:22 p.m.

‑‑- Upon resuming at 3:38 p.m.

MR. ROSEN: The second part of my objection to this witness echoes what Mr. Freiman just said, but I take it also in a different way. That has to do with his reliability. Forget credibility. We deal with the issue of credibility of witnesses and so forth, but on this voir dire his credibility as a witness is suspect, but what has come out in the cross-examination shows that his reliability as an expert is not only suspect, but it doesn't exist.

You will recall the Respondent's proposed witness, Dr. Alexander Jacob. As the Panel noted at that time, Dr. Jacob did possess some scholarly qualifications, not directed significantly in your view to the area of expertise in which Dr. Schweitzer's evidence fell as a historian. His evidence concerning his own writings on antisemitism is somewhat vague, but seemed to be limited to his personal interest in the subject, and so forth.

You went on to say that Dr. Jacob's expressed view on "Jewry" and his assertion of their undue influence on the western world was an integral part of his thought, and that he did not bear any of the essential indicia of an expert, that he was not formally recognized by his peers as such, that he was not a historian and, more important, that he was not reliable as a witness because he was tainted by his own personal prejudices.

The witness Countess who was proffered as a witness was equally not reliable. He also had difficulty with his own personal biases and so forth. You dealt with one of the points that were made by Mr. Armstrong in your own decision. You say:

"There is no question that Dr. Countess is an enthusiastic revisionist."

As is Mr. Weber.

"He is an advocate of Holocaust denial. He made statements that are surely provocative, that the Holocaust is a racket, that gas chambers were not turned on ‑‑"

And so on. That gave you some problem.

What really gave you problem with Mr. Countess was that his credentials were proved to be suspect at best, false at worst.

What do you do with a so-called expert who demonstrably misquotes sources of information in articles that he has written and footnoted, who is, in my respectful submission, by definition a sophist, who has in the limited narrow scope of these proceedings been demonstrated to practise sophistry in his articles?

Is he, therefore, a reliable witness as an expert that brings to the Tribunal the objectivity and necessary skill of an independent researcher who is going to help you understand an area that you don't have the knowledge for, when his methodology is false, proven false? In my respectful submission, that goes to the heart of this man. The rest of it clearly colours it ‑‑ his own personal prejudices and biases and so on.

This is no scholar. This is, in my respectful submission, merely an advocate for a position who attempts to hide beneath the cloak of scholarship in order to give himself substance.

Those are my submissions.

THE CHAIRPERSON: Thank you. Mr. Kurz, please.

ARGUMENT ON BEHALF OF B'NAI BRITH

MR. KURZ: There are two areas I wish to cover.

One deals with Dr. Countess. I would just like to follow along what Mr. Rosen ‑‑

THE CHAIRPERSON: Let me say this in terms of scheduling. We are most anxious to complete the argument today because we want the matter to proceed one way or another on Tuesday morning on schedule. I suspect that my colleague and I will reserve, and we will let you know, if possible, on Monday what our decision is, not later than Monday. I would like to finish by 4:30 today.

MR. KURZ: I will try not to take too much of your time, Mr. Chair.

With regard to Dr. Countess, I just want to very briefly point out to you that ultimately Dr. Countess was disqualified after consideration of the matters that Mr. Rosen raised, but ultimately you came to the following conclusion:

"The applicant has not shown that Dr. Countess, through his formal education or through his experience, possesses sufficient expertise which can be of assistance to us in any area that we must decide. Even if one accepts that he has read widely, it is not sufficient to qualify him in our view in any specific areas of relevance to these proceedings. We do not see anything in his qualifications that lifts him to the level of expertise in that regard. It has not been demonstrated that the witness possesses sufficient background in areas of relevance so as to be able to assist us appreciably."

I am submitting to you, Mr. Chair and Ms Devins, that there is nothing that Mr. Weber has that Dr. Countess did not have, other than the Ph.D. They are both itinerant readers. Neither of them has the kinds of recognized credentials in history. Both were to speak on almost identical subjects. In fact, you found that Dr. Countess could not assist the Tribunal.

Finally, I want to very briefly make reference to document SW-8. This document was introduced by Mr. Fromm. Mr. Weber said, in effect, "The whole thing is not about Holocaust revisionism; it is about a whole range of revisionistic issues."

I would like to submit to you that virtually every entry deals with either Holocaust revisionism directly or indirectly or some aspect of antisemitism. I would like to take a moment or two to lead you through some of the highlights in that regard.

The first page is an ad for a book written by David Irving, a noted Holocaust revisionist, if I can use that term. The last few words of the first paragraph describe Dresden as the single greatest Holocaust by war. If that is the single greatest Holocaust, then what happened in the various concentration camps is not; that diminishes it.

The first article is "President Clinton's Distortion of History." That is an article about President Clinton's second inauguration speech where he commends the United States for fighting for freedom. The thrust of this article is that maybe America was not necessarily on the right side of various wars, including World War II. He says at page 3, under the term "Lessons":

"But most Americans ‑‑ whether they call themselves conservative or liberal ‑‑ like to regard World War II as 'the good war,' a morally unambiguous conflict between Good and Evil. So successfully have politicians and intellectual leaders, together with the mass media, promoted this childish, self-righteous view of history, that President Clinton could be confident that it would be accepted without objection."

Earlier in the article he says that, if America had not been on the Allied side, then maybe communism would have been defeated by the Germans.

THE CHAIRPERSON: Who is the author of that article?

MR. KURZ: Mr. Weber.

The next article, also by Mr. Weber, is "Was Hiroshima Necessary?" Obviously, this is not directly about the Holocaust or the Jews or Holocaust revisionism, but the context is a context in which all of so-called Holocaust revisionism operates, which is not only to simply say every time, "The Holocaust is a lie," but to diminish the Holocaust and to claim that other crimes are greater, and that is the context of articles about Hiroshima as being a real holocaust, literally a holocaust.

There is an equivalency, then, between the Allies as war criminals and the Germans. The top of page 9 is an example:

"After the July 1943 firestorm destruction of Hamburg, the mid-February 1945 holocaust of Dresden, and the fire-bombings of Tokyo ‑‑"

Et cetera.

At page 10 ‑‑ and I know I am going very quickly, but I want to be able to go quickly and I will ask you to just trust that I am reading accurately. At page 10, in the right-hand corner, at atomic bomb scientist named Leo Szilard says:

"If the Germans had dropped atomic bombs on cities instead of us, we would have defined the dropping of atomic bombs on cities as a war crime, and we would have sentenced the Germans who were guilty of this crime to death at Nuremberg and hanged them."

It diminishes Nuremberg because it didn't deal with American war criminals, and it is implying that the American war criminals are as bad or worse than German war criminals. Therefore, again, the Holocaust wasn't so bad.

At page 12: "American Leaders Planned Poison Gas Attack Against Japan," an article by Mr. Weber. "Five Million Deaths Foreseen" ‑‑ again, a very clear sub-context.

In the right-hand column, at the bottom of the first full paragraph:

"Given this the step to killing by lethal gas was not a lengthy one."

Two paragraphs down, halfway through:

"The June 1945 report, ‑‑"

An allegedly secret report uncovered by Mr. Weber.

"‑‑they wrote, 'raised the killing of enemy civilians to a level far beyond anything seen in World War II.'"

Again, I don't have to make a comment about that.

At the bottom:

"Similarly, if German military leaders had approved a plan to gas London comparable to the 1945 American one to drench Tokyo in phosgene, doubtless it would have been cited endlessly as a striking example of Nazi evil, and those responsible for drafting it would have been vilified."

Again, the whole idea of Nuremberg as being victors' justice and of German war crimes being diminished.

Next is an ad for the Journal of Historical Review: "As seen on '60 Minutes'!" There is something that David Irving says, and then the next paragraph is:

"Defying powerful, bigoted special interest groups ‑‑"

Who are those bigoted special interest groups? We know very well who those are.

There is a picture of the cover of the Journal of Historical Review with an article by Ernst Zundel, "My Impressions of the New Russia." I will talk about that very briefly.

Then a Journal writer writes:

"He is tired of socially destructive lies and bigotry. He wants a sane and healthy future for himself, his family and his country, indeed for all humanity ‑‑"

Again, he is tired of the kinds of Holocaust lies.

The next one is "The Ethics of War: Hiroshima and Nagasaki After 50 Years". I have talked about the sub-text of all of that. This is probably the least overt in that regard, although it makes reference to the decision to drop the atomic bomb and it says at the bottom of page 15:

"Indeed, by this logic, the United States should have dropped nuclear weapons in the heart of Christendom to bring Germany to her knees as quickly as possible, a prospect that any civilized person must contemplate with horror."

That is a terrible thing.

"Yet, this was how many of the scientists working on the bomb, including Albert Einstein ‑‑"

Albert Einstein, we know, was not exactly one of the directors of the Manhattan Project.

"‑‑ hoped the American government would use it."

So Albert Einstein, who is a Jew, was willing to contemplate the war crime.

Moving on, at page 19 we have the three new members of the Editorial Board. I will note that none of them are historians. The first guy, Zaverdinos, is somebody who has effectively presented revisionist arguments on the Holocaust issue in South Africa. Platonov is simply an economist. There is no mention of the Holocaust with regard to him. Graf is, again, a Swiss educator who is the author of several books dealing with the Holocaust issue.

Next is "Capitalism in the New Russia." You wonder how Holocaust revisionism could deal with anything here, but at page 23 we see that mention is made and there is a whole section about the Zionist kingmaker Berezovsky:

"Personifying Russia's new ruling class is Boris Abramovich Berezovsky, a Jewish business magnate ‑‑"

At the next page:

"Contributing to his image as the stereotypical international capitalist ‑‑"

This is about how he drives around in a fancy car.

"Berezovsky has publicly boasted that he and six other top businessmen ‑‑ some of them Jewish ‑‑ control 50 percent of the Russian economy."

On the next page there is a number of comments about him being Jewish and a capitalist.

At page 25 in the upper left-hand column:

"With good reason, the well-informed Jewish weekly Forward ‑‑"

Any time they can, they refer to anybody who is Jewish, as a Jew.

"‑‑ has expressed concern that Berezovsky's illicit business activities and his arrogant public statements, as well as President Yeltsin's indulgence of him, may aggravate anti-Jewish sentiment and thereby jeopardize the future of all of Russia's Jews."

Here we are seeing that maybe a Jew is responsible for antisemitism.

On the right-hand side, "Crucial Jewish Role" talks about the Jewish role in communism.

"Defense Department Booklet Targets Holocaust Revisionism". That is obvious. There is a lot I could point out, but one of the things is that they make reference to the author of the book, Rabbi Huerta. Rabbi Huerta, who is referred to as that ‑‑ the word "rabbi" does not deserve a capital letter, That does not signify an area of such respect as to deserve the capital.

At page 30, in the upper left-hand corner, under the words "Earlier Warnings":

"This Defense Department booklet is not rabbi Huerta's first ‑‑"

It is mentioned there, but I can tell you that it was not a typo because "Rabbi Huerta" is not capitalized a number of other times in the article.

Again, it criticizes him and makes references to the Jewish academic, Deborah Lipstadt.

The next article is about Thies Christophersen, at page 32. He is a Holocaust denier. He was a German soldier who was in Auschwitz and said that nobody was gassed there, and this is a eulogy to him. I won't waste your time with that; it is self-evident.

At page 33, "Italian Scholars Defend Free Speech of 'Holocaust Deniers'.

At page 34, "Critical Study of Holocaust Story Published in Japan."

At the top of page 36 ‑‑ this is about Rabbi Cooper of the American Simon Wiesenthal Center going to Japan to make a speech about Holocaust denial:

"One editor asked Rabbi Cooper what Jews have done to incur the wrath of so many nations over the centuries, saying that such intense hostility did not arise from nothing. Other participants questioned arrogant Jewish claims of 'chosen people' status, or pointedly asked about Israel's repression of Palestinians."

"An Italian Voice for Freedom" is next. That is about an issue of an Italian magazine that had to do with Holocaust denial.

"Why the Holocaust Must Remain a Dogma" is self-evident.

At page 37, "German Television Report Features IHR Interview" ‑‑ again self-evident, although the last sentence of that article at the bottom of page 37 states:

"This in spite of these organizations' ‑‑"

Simon Wiesenthal and ADL.

"‑‑ well-documented record of distorting historical truth to further their ultra Zionist objectives."

The top right-hand corner is about the IHR Internet site. At the bottom, "'Hateful' Term Needed?" is about Abe Foxman, Director of the American Anti-Defamation League, looking for a new term to describe the hate of Holocaust deniers.

Then we have "letters." Every letter is about Holocaust denial or antisemitism, or both, including, interestingly enough, in the second column: "Sincere Collaboration: A Russian Response to Zundel" ‑‑ that is, Mr. Zundel's article about Russia.

I can tell you, and you can look through it if you like, that every letter to the editor deals with that subject.

My point is that this goes certainly to the credibility of this witness who claims that the Journal is not only an intellectual journal but that it is not about Holocaust denial, it is not about antisemitism. Even the five or ten-minute review of this document that I have offered to you shows that it is anything but what Mr. Weber represents it to be.

Thank you.

THE CHAIRPERSON: Mr. Christie, please.

REPLY ON BEHALF OF THE RESPONDENT

MR. CHRISTIE: In reply, first of all, to Mr. Freiman, it was stated that the entire body of historical opinion condemns or denounces the Institute for Historical Review and, I guess, by implication Mr. Weber.

Just as an aside, of course the entire Catholic Church denounced Galileo at one time. It took them quite a while to get over that.

Putting that aside, it is, in my submission, important to ask: Did the American Historical Society or the Organization of American Historians conduct some sort of trial in which they accused the IHR of specifically doing one thing or another and allow submissions from one side or the other, in which maybe both sides could be heard? Was there an open and free discussion or was there an examination in some objective sense of what they were accusing them of, to which they could make a defence? Not a word was suggested of that. It is my submission that nothing like that ever happened.

In this world it is quite legitimate for groups of people to cast aspersions on each other, and usually one way of recourse would be through the courts. In those circumstances, the accusations have to be proven and an opportunity for both sides to be heard.

If there was a verdict of some sort of objective trial, I would say that in those circumstances you could derive the conclusion that some condemnation of great weight had occurred.

In American society particularly, throwing labels on people and groups is not unusual. They do allow free speech. In my submission, the IHR is an organization that would have generally been viewed as a public figure or with public circumstances attached to them. It is quite obvious that many times remarks are made which do not necessarily constitute an objective assessment.

I am not certain exactly what the assessment of those bodies constitutes, but it does not determine the issue here. It is not certain whether their judgment was upon a specific position taken by the IHR or necessarily upon the factual situation that the IHR had taken at any time.

In all of the submissions, I think there was a common thread, that you have to have credentials and that you cannot give opinions in unorthodox areas that have not been dealt with as historically established areas of expertise.

What about the other expert that the Commission called, Mr. Angus? I don't even recall him having a degree in electronics or engineering ‑‑ electrical, mechanical or otherwise. He had no degree in telecommunications, if there is one. He said that it was based on experience, but what was his experience?

Has anyone ever testified in this world so far about the nature of the Internet being a telephone? If they have, I haven't heard of it, and no authority has ever been produced that says that somebody in a court somewhere has made those utterances.

That is thoroughly unorthodox opinion, unorthodox because there is no orthodoxy. There hasn't been a judgment. There will be, I take it. But how can you say that he had spoken in an orthodox area about a subject that was recognized as a field of expertise? He had no particular expertise. He was doing what a lot of us have to do when we cope with new ideas and new circumstances ‑‑ attempt to apply what we know from our own field of expertise. No one objected that he would have to use some of his expertise in the field of communications, which he had by experience, to decide if, in his considered opinion, it is proper to say that it is operating telephonically.

One point I want to make is that Mr. Rosen in his remarks said "communicating telephonically or by any other means." Just to be careful, that is not what the Act says, and I am not the first person to notice that.

Essentially, because we have to come to grips with a new phenomenon like we are dealing with in this case, it is not unusual that people come before tribunals such as this and have to venture into areas of expertise that have not been touched before. That does not make it possible. In fact, it makes it probably necessary because, for one thing, we are all probably grappling with things that have not been dealt with legally before. It is inevitably necessary that some existing areas of expertise will have to be expanded somewhat to cover what is an unknown territory.

We are, after all discussing not unknown but unresolved issues, issues that have not been considered. Naturally, people with opinions that are based on experience, not necessarily training, in which they have no particular credentials, will have to give some assistance or else all we are going to have to ask is, "What do you think about it? Should it be" without help from anybody? "I don't know anything about the Internet; I don't know anything telephones, but it seems like a telephone to me," or "I don't know anything about the controversy between revisionists and advocates of the traditional and orthodox view, but it seems wrong to me."

That would seem to put you in a position of needing some assistance on the facts and some assistance on the events that no one particularly has much experience in.

It seems, with respect to all the submissions, that they only want the sort of expert who would agree with them, and anyone who doesn't agree with them is not an expert. By definition, therefore, they must be right.

Extended logically, they will be right. But if we recognize that there are experts who disagree with the emphatically-held views of my learned friends, then we must recognize that there is in fact room for experts whom they might not approve of.

I think the remark was made, and I thought it quite amazing that Member Devins ‑‑ assuming we seize on the concept of the Flat Earth Society ‑‑ and I don't accept the proposition that that is an apt description, but everyone seems to choose it because it fits their beliefs. Let me accept it for the moment for the sake of argument.

If there was an issue involving what was the activities or effect of the Flat Earth Society, a member of the Flat Earth Society would probably be the best expert in what the Flat Earth Society was ‑‑ not whether it was true or false, but what it was, and what effects it had on society, not from a sociologist's point of view but from the point of view of the person who had most familiarity with that particular subject. That would not make them the only possible expert; it might make them the best expert.

My friends' view is that only objective experts who are outside of any group can talk about what it really is. That means that only enemies of a group, in effect, or an unpopular group could only have witnesses about it who were adversaries. In my submission, that is not appropriate.

It is not to say that you would agree or disagree or accept in any way the evidence of a purported expert. It may be absolutely at the end of the day contrary to everything you find to be the fact. It is for you to find whether it is or isn't.

I am not asking you to accept his expertise in the sense of his opinions. I am only asking the right to put before you opinions that I might be able to argue have some value in your determination.

I might say at the very outset that what I tried to do when I brought before you the curriculum vitae attached to what I thought was a will-say of anticipated evidence, which was immediately ripped off ‑‑ it had to go. Well, it's gone, and now I hear all my friends saying what Mr. Weber is going to say. If you had looked at the will-say, it had nothing to do with what my friends say Mr. Weber is going to say. They had it and they know what he was going to say, and it wasn't what they said he was going to say.

I am not here to tell you what he was going to say, but let's say for the sake of argument that he could say that there is such thing as the Holocaust Lobby, that there are not only revisionists but perhaps Jewish authors who say that the claims of the Holocaust are becoming damaging to Jews, and that he could put before you a body of opinion that says that there is a controversy even among Jewish scholars and Jewish writers and Jewish commentators in our modern society that says that the Holocaust has become damaging to the interests of Jews. Is that not relevant to the social context of what is exposing Jews to hatred or contempt?

It should be, I think, considered that, if that is so, maybe this writing in context is not seen as exposing Jews to hatred and contempt, but is part of an ongoing debate that may ultimately benefit Jews.

I make this point, too. My learned friend Mr. Freiman also said that the reader has no knowledge of this context. My learned friend treats the reader as an idiot, basically, who cannot conceive of anything else outside the computer screen they might be looking at, that they have absolutely not savvy in this world, that they cannot look at something called the Zundelsite with any vestige of knowledge of surrounding circumstances. Even if that were so, that the readers would be so completely infantile ‑‑ and because we protect infants, we must protect everyone else as well ‑‑ what one would have to say about the fact that the Zundelsite itself refers them to non-idiotic, non-Flat Earth Society references?

They can click to the Simon Wiesenthal Center, the source of sweetness and light, the source of truth. Nizkor is connected. Even in that context, the reader is not treated like an idiot and given no options. There is actually in the material in HR-2 reference to the fact that there is immediate access. As quick as they can click on the Zundelsite, they can click on a source of information which counters it and refutes it and rebuts ‑‑ immediately, if they wish to. They need not be idiots much longer.

My friend says that they have no access to context. They certainly do. They have access to the contrary point of view.

It would be, therefore, essential to know how the debate is conducted. We know nothing of Nizkor. Mr. Weber does know something of Nizkor and he knows of the existence of the controversy. He can put it in that context and say that, actually, there is a respectful, no doubt vociferous, debate between them.

There is no doubt that Mr. Angus had no credentials in what is the Internet and whether it is a telephonic instrument or not. He had no Ph.D; he had no degree in a related subject, but he is an expert. I don't deny that he has opinions, and he was allowed to give them.

I should be careful not to repeat myself. As I made note of my learned friends' remarks, I find that they were somewhat repetitious, and my answers have been made to them more than once.

There is no clear answer to your question, which I thought was important: What is context? I don't have an answer either. If it is an unanswered question, it would seem inappropriate to circumscribe it before even hearing the evidence, in such a way as to preclude the possibility that context could be affected by the nature of an ongoing debate.

I have argued before and I submit again that we don't know precisely what Mr. Weber is going to say, but he does seem clear in this much, that an ongoing debate exists. My friends say that it is only with Flat Earth Society people in their own minds, but my friends are not entitled to give evidence. Their only evidence to refute the suggestion that a debate exists is an unsubstantiated opinion of a body they have not chosen to call anyone from, and we don't know by precisely what method they came to it. I guess they did indicate that a majority of one is not an overwhelming majority.

To the extent that that debate occurred, it doesn't appear that they chose to call someone to say just what it was.

In reference to the reliability argument, my learned friends said that Mr. Weber had argued that, for instance, there were requirements for the approval of corporal punishment from Berlin and that he failed to mention that the commandants frequently imposed corporal punishment without first seeking approval, and that they sought approval and repeated the punishment, and that it was actually just double punishment.

Mr. Weber said ‑‑ and it wasn't challenged and not denied ‑‑ that camp commandants were executed for breaches of rules such as those. In that context, it doesn't appear that those rules were inconsequential, if what he says is true. They might have been breached, but they might have been breached at somebody's peril. In those days, they didn't seem to take breaches that lightly, if it is true.

What I suggest my friends have done in arguing that Mr. Weber has taken things out of context is what we all do in every argument that we are ever in. We take what we call our opponents declarations against interest or statements that indicate something contrary to what thesis they are promoting and say, "See, he said this himself." I notice that Mr. Freiman did very effectively exactly that. He took something of what Mr. Weber said, and I would suggest that he might have twisted it a little to prove his point in the process of saying that Mr. Weber takes words out of context.

MR. KURZ: That was very Talmudic of Mr. Freiman.

MR. CHRISTIE: I wouldn't say that. It was a very effective argument. It is natural. People do that in the course of advocating a position, and that is why it is necessary to have both sides, because replies sometimes put the matter in a different light.

I heard Mr. Rosen say at the outset that it is not an issue of free speech. It just reminded me of an echo that I have heard every time Mr. Zundel has ever been on trial. It was said over and over again to the jury, of course, in the first Zundel trial and in the second Zundel trial and in the Court of Appeal, and finally in the Supreme Court of Canada it was decided that it was an issue of free speech all along.

It just makes me somewhat annoyed when I hear that. Every time we are limiting speech in terms of what a person can say and then exclude witnesses who might agree with them to some extent, we are making these trials even less fair than they have been ‑‑ which really weren't always that fair anyway.

By the criterion of my learned friends, nobody but a sociologist would be an expert in Marxism, for instance. Karl Marx wouldn't be, and Adolf Hitler wouldn't be an expert in Naziism. But they would like to suggest that you could quote from Mein Kampf, as many historians have done, to prove points. That is an example of a one-sided view of debating techniques.

Experts are frequently those who advocate a position. If it was not possible to be an expert and advocate a position, probably there would be no experts.

Incidentally, my learned friend Mr. Rosen said that Mr. Weber was qualified to testify about what was or was not the truth of "Did Six Million Really Die?" I am sure he inadvertently made that mistake, but the precise words were that he was qualified to give opinion evidence on the question of the Holocaust and the alleged extermination policy of the German government which, in fact, is much broader than what was or was not in "Did Six Million Really Die?"

MR. ROSEN: Mr. Christie, why don't you tell the Panel that that was in the context of the judge who ruled that he took judicial notice of the Holocaust and that it wasn't an issue for the jury to decide?

MR. CHRISTIE: I will tell the Panel what I think is important to tell them, and I don't deny what you say.

MR. ROSEN: Be honest.

MR. CHRISTIE: I certainly try to be.

What my learned friend has said is true. If that was the end of the question, which it wasn't, then he would never have allowed the testimony of someone to contradict what he had taken notice of. He allowed it because it was possible to show that a reasonable person might have a contrary opinion. That is really why he did allow it.

If he had taken judicial notice of the question and closed it, then he can't allow a witness to contradict the notice of the Court. He did allow Mr. Weber to testify and give opinion evidence on the question of the Holocaust and the alleged extermination policy of the German government. Those are exactly the words that were spoken by His Honour Judge Thomas.

In my submission, the social context of the Holocaust revisionist debate and its social effects could be testified to by someone who passionately believes it and could also be testified to by someone who objectively detests it or by someone who is objectively neutral, if such a person could be found. But it is not necessary that any of those three categories necessarily be excluded. Their value in the end goes to the weight that you choose to give the evidence.

Mr. Rosen also said that Mr. Zundel could speak as not an expert, but merely explaining how he came to have these views. It would be pointless to do that, of course, but it would be, in my submission, wrong to assume that Mr. Zundel speaks alone. There is a revisionist community ‑‑ not to say that the revisionist community is right or wrong, but it exists as a group of people with a body of opinion, ridiculed no doubt by my learned friends, but nevertheless it may very well be not only that they are sincere but they may have a salutary social effect.

If they are not allowed to testify about their methodology, their experiences and even their opinions respecting the process in which they are involved ‑‑ that is, this ongoing debate ‑‑ we will never be able to assess whether or not the revisionist community has anything of value and whether or not revisionist opinion is productive of a good or bad effect.

My learned friend in his 10-minute dissertation on this one publication gave a classic demonstration of religious zeal. There is absolutely no issue that he does not say is related to the Holocaust. In fact, in my submission, none of what he attributed to the authors in most of his dissertation was demonstrably justifiable. It was his opinion, and he is entitled to it, but not everything is related to the Holocaust.

Killing of enemy civilians in Japan could be seen in the context of, say, Dresden and Hamburg for that matter. Enemy civilians were not Jews; Jews were not enemy civilians. No one ever claims they were. Jews were many times citizens of Germany or they were citizens of occupied territories. They were not enemy civilians.

I think the very reason why crimes against humanity as opposed to war crimes are alleged against those who persecuted Jews is because they were not then enemy civilians.

When the comment was made that the killing of enemy civilians was never greater in World War II than the bombing of Hiroshima and Nagasaki, that could be very well true without saying that there is no Holocaust. But my friend chose to say that it must mean that they are denying the Holocaust. Everything, it seems, to Mr. Kurz is denying the Holocaust. The dropping of the atomic bomb, by virtue of mentioning Albert Einstein, is a reference to Jews.

Any time there is a reference to Jews that is not complimentary, then Mr. Kurz takes it as a personal affront. Yet, realistically, is it beneficial to Jews to never have any reference to Jews in a critical light? It is a difficult thing for anyone to accept criticism, but surely a reasonable attitude toward history is that Jews are capable of both good and evil, like many people in society.

The world recognizes the existence of Jews as a group, by either religion or ethnic origin, and discussions about them in the context of the Holocaust are not unusual. In fact, it is pretty hard to talk about the Holocaust without mentioning Jews.

If we recognize in a free society that the Second World War was important and that the Holocaust is a very important part of the Second World War, then it is impossible to talk about it without mentioning Jews and, in some cases, not necessarily complimentarily.

If there is a reference to the role of Jews in communism, what is wrong with that? Does that mean that you are a Holocaust denier by virtue of that?

The use of this term "Holocaust denier" is like it is a religious term. Do we hear the term "Christ denier?" So what if we did? It wouldn't mean anything. It wouldn't carry opprobrium. Why is it necessary for my friends to refer to Holocaust denial as a sign that you should be excommunicated.

I didn't know the significance of "rabbi" without a capital "R." I still don't. I don't know that it is necessarily antisemitic, but Mr. Kurz tell us that it is. He gave a lot of evidence in 10 minutes. All I can say is that, if that is the way Mr. Kurz views history, sensitivities such as that will never be satisfied until all controversy ceases. That, I hope, will never happen.

Thank you very much.