MR. FREIMAN: I would like to begin by focusing our attention on what we are in fact talking about. Hearing Mr. Fromm in his spirited defence of the expertise of the proposed witness, one would have thought that he had been tendered as someone who is going to perform an examination of the documents on the Zundelsite. As we heard over and over again, that is not the intention for Mr. Faurisson.

He is being called as an expert in text and document analysis with a background in Holocaust study who is going to analyze not the Zundelsite but Professor Prideaux' analysis of the Zundelsite. Along the way, as we understand, he is going to offer opinions as to whether the Zundelsite documents are likely to expose someone to hatred and contempt, apparently not on the basis of an analysis but, rather, on a basis of the witness' understanding of the context of Holocaust revisions, as he calls it.

He is not going to analyze the Zundelsite documents with the Ajax approach but, rather, is going to examine the Prideaux analysis with the Ajax approach.

I start by turning my mind to using the Ajax approach and wondering what the reluctance is to apply the Ajax approach to the Zundelsite documents. When we get to them, we may find out why.

Let's remind ourselves as to what the issues are in order to determine whether this witness should be allowed to testify and give opinions as to the Prideaux analysis and as to whether the Zundelsite documents are likely to expose someone to hatred and contempt, based on his purported expertise in document analysis and his background in Holocaust study.

You will recall from numerous excursions we have taken down this road that there are a number of principles that have been enunciated, especially in Mohan, as to what we need to look at. The test is whether the evidence is relevant, whether it is not inadmissible on policy grounds, whether it is necessary to assist the court, not rendered inadmissible by another exclusionary rule, and delivered by a properly qualified expert. At the threshold there is the issue of whether it is reliable.

For purposes of this morning I intend to concentrate on only a number of those tests: relevance; necessity; properly qualified expert; and reliability, although not necessarily in that order.

I will get back to this later, but I just want to note -- and this is from the text that Mr. Christie gave you last time when he was discussing Mr. Weber, "The Expert, A Practitioner's Guide."

At page 1-3 -- and it is not really necessary to turn it up because it is just one line -- the authors remind us -- and this is in the context of evidence which may be excluded on policy grounds:

"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...is out of proportion to its reliability."

THE CHAIRPERSON: That is at page what?

MR. FREIMAN: Page 1-3, paragraph 2.3.

We will talk about reliability in some detail, but I also just note the middle criterion, "if it involves an inordinate amount of time which is not commensurate with its value." If we cast our mind back to the length of time that it took to get any sensible answers from this witness, we may draw some conclusions right there.

Let's look at the issues one by one. I would like to start with the qualifications of the expert.

If we look at the CV, it may well be that at one point this man had some qualifications as a literary critic. We saw a number of publications -- in fact, the only refereed publications that this witness has ever participated in are the publications on the subject of French literature, particularly early 20th century French poetry.

On page 3 of his CV we see a number of those articles about Apollinaire, about Claudel, about Rimbaud, Gide, Nerval, Baudelaire, Ronsard, Lautréamont, La Fontaine -- not so new -- and then Les Faux-monnayeurs, and that's about it. After that we leave the area of refereed publications and we go into a new area.

It is interesting that in 1985 that is exactly what Judge Locke, as he then was, noted about the expert's qualification. This is the document filed with you by Mr. Christie on the subject of qualification in 1985.

At page 2467 Judge Locke, as he then was, starts out by saying:

"In 1972, Dr. Faurisson appears to have been certified with a doctorate in literature and life sciences by the University of Paris, Sorbonne. He swore that he --"

And then we have something cut off, but it continues:

"literature and French."

I imagine that he swore that he had a background or was competent in literature and French.

"He then progressed to study French literature as a whole. He abandoned that field of endeavour in 1973 to commence the study of a subject that he called 'Text and Document Criticism'."

So even back in 1985 it was clear that there is a break in the academic or intellectual career, if we can call it that, of the witness. He starts out doing analysis of French poets, literary criticism, develops a method of approaching that, and in 1973 he abandons that in favour of something that he calls "text and document criticism."

THE CHAIRPERSON: What comfort can the Respondent take from Judge Locke's finding in qualifying the witness?

MR. FREIMAN: The witness was qualified in those proceedings as follows.

Judge Locke noted at 2466:

"Counsel for the accused wishes to lead from this witness evidence essentially bearing on what I have been informed by defence counsel as being the heart of the defence, namely, whether or not gas chambers were employed during the Second World War, and even before, to exterminate Jews."

That was the subject matter that is, broadly speaking, the province of a historian.

What Judge Locke found at 2474 was:

"Although not a historian, he has gathered a certain field of expertise on a certain subject. He has studied documents, judgments and the ideas of authors from the subject of whether the Nazi German government in 1933 to 1945 deliberately embarked on a scheme to annihilate Jews in Europe. That is a subject that is contained within the confines of Exhibit #1, 'Did Six Million Really Die?' The use or the non-use of gas chambers, as well as other methods of killing human beings, as is alleged, is contained in that exhibit."

He goes on to note that Dr. Hilberg had testified on that. Then Judge Locke says:

"Dr. Faurisson is, by background and education, in my view, a person who should be permitted to testify as an expert witness and to give his opinion on the same subject, --"

That is, the subject of whether the Nazi German government in 1933 to 1945 deliberately embarked on a scheme to annihilate Jews in Europe and the use or non-use of gas chambers.

He was qualified as an amateur historian in the context of a proceeding in which the truth or lack of truth of allegations with regard to methods of extermination was a central matter in issue.

The Respondent can take no comfort from that qualification in order to bootstrap his expert into qualification as an analyst of the critique or of the expert report of Dr. Prideaux.

THE CHAIRPERSON: He wasn't advanced for that purpose, and Judge Locke did not qualify him for that purpose.

MR. FREIMAN: No. So there is nothing in Judge Locke's ruling that supports the contention that he is an expert in that area or that he would have been qualified in that area.

I just pause to note -- and this is a matter which is either in general knowledge or not. At least, I submit that in general the idea of document analysis raises in our minds the concept of a scientific analysis of a document in terms of handwriting samples, chemical analysis of paper, an analysis of the temporal aspect of the text, whether the words used are of an appropriate vintage for the alleged authorship. Generally, document analysis, in my submission, raises an idea of authenticity of a document or lack of authenticity of a document, the closest to which this witness has ever come was his so-called analysis of the Anne Frank diary.

If that is what is document analysis is, it has nothing to do with what he wants to do for us today.

I also note that there are no qualifications for document analysis in that sense that have been proffered in favour of this witness. Technically, he is not a document analyst in the sense of someone who can give a scientific opinion as to the authenticity of a document, although I doubt that that is what he is being proffered for.

What can he do and what is he going to try to do? We are told that he is going to apply this Ajax method to Dr. Prideaux' work. Let me just run down some of the stumbling blocks that make that a totally improper exercise for him.

The first and most obvious, and one which the Panel has already identified, is the fact that he purports to study an English language text even though he has no proficiency whatsoever in the study of the English language. I want to be clear. This isn't a case, as Mr. Fromm and Mr. Christie apparently thought, of demonstrating that the man can understand English sufficient to communicate.

The witness was good enough to award me a four out of twenty and comment on my lack of expertise in French. I note, in terms of his expertise, that he can communicate in English, but even his performance in the box indicates that he has a certain amount of difficulty with the English language and with understanding the English language when certain words are used, but it goes far beyond that.

When one studies an English text, which by the way he has never done; he has never taught in English texts; he has never published anything on an English text; he never displayed any interest whatsoever in the analysis of English documents. When one studies that, one has to know more than simply what the dictionary definition of a word is. One has to understand nuance; one has to understand connotation as well as denotation -- words which were singularly absent from the testimony of this witness about his expertise, not surprisingly since he appears never to have read the work of Ferdinand Saussure who is the father of linguistic analysis and a Frenchman and who points to the ideas of denotation and connotation as at the centre.

What we would expect would be someone who is able to explain not only the dictionary definition of a word but what it evokes, what associations it raises -- and there is no evidence whatsoever that this man is capable of conducting such an analysis. It is a very important point. He has given us no credential whatsoever; yet, what he purports to do is to tell the Panel, who are native English speakers, what the real meaning of a document is.

The second stumbling block is actually maybe the first. It is the text that he intends to apply himself to. Whatever expertise this man may have is surely expertise in the analysis of literary texts, primarily poetic literary texts. If you look at what he has published even on the subject in which he may claim some qualification, it is work on Apollinaire, a French poet; Claudel; Rimbaud, a French poet; Gide who is both a poet and a writer of prose; Apollinaire, a poet; Nerval, a poet; Beaudelaire, a poet; Ronsard, a poet; Lautréamont, a poet.

The work that he has done has been on poetry primarily with some work on French prose.

What he now proposes to do is to apply this method, which I will discuss in a moment, to the study of a theoretical text based on linguistic analysis and rooted in linguistic analysis. Making a virtue of necessity, he says that he will not look at the theory; he will not look at the underlying ideas; he will simply analyze the text.

It is rather startling to imagine that someone would be able to analyze the validity or not of a theoretical exposition of the communications principles that underlie a text without himself knowing the first thing about those principles and not even being interested in them. He has admitted that he has no training whatsoever in linguistic analysis which, the Panel will know even if counsel for the Respondent appears not to, is quite different from the field of linguistics in and of itself.

As was absolutely clearly explained by Professor Prideaux, linguistic analysis is that branch of linguistics which seeks to analyze the means by which a text communicates the rhetorical strategies, as it were, that underlie the text. Mr. Fromm, quite properly, identified that as an issue when he asked the witness whether in the course of his classical studies he had studied rhetoric. It would not have been a great qualification, but it would have been some qualification. The witness said quite candidly: "Rhetoric, no. I studied grammar, but not rhetoric."

Even in terms of classical studies, he only has grammar; he doesn't have rhetoric.

Without any training in linguistic analysis, having admitted that he had not read a single one of the theorists whose work underlies Professor Prideaux' analysis, he purports to tell us what is right and what is wrong in that analysis. He goes even further -- I guess he insulates himself from the danger of contamination with ideas -- by saying that he intentionally not only didn't look at the list in the bibliography; he didn't read the methodological chapter or the methodological summary at the beginning of the report. So he has no idea of what the methodology is and no interest in that methodology.

In my submission, what that amounts to is a statement that his approach to Dr. Prideaux would have exactly the same value as his approach to criticizing Ian Angus' report, which he would do on the same basis -- that is, look at the words and see what they really mean, or purport to look at the words and tell an English-speaking Panel what the words really mean.

It is of absolutely no value in terms of an analysis of the idea or the validity of what underlies Professor Prideaux' report. That is number two, no familiarity whatsoever with the subject matter and the theoretical basis.

That being the case, there is no qualification for him to do the first part of his analysis, which is to analyze Professor Prideaux' work and to provide the Panel an opinion that the Panel will be assisted by on that topic. If he does not have the qualifications for that, he has even fewer qualifications to analyze the Zundelsite as productive of hatred.

He has no theoretical basis for any conclusions that he might draw. He admitted that he has no knowledge whatsoever of reception theory --

THE CHAIRPERSON: Of which?

MR. FREIMAN: Reception theory. He has not studied at all that branch of linguistics and communication theory that deals with how readers react to texts or viewers react to texts -- that is, the effect on an audience.

He has admitted that he has no knowledge of sociology. He has admitted that he has no knowledge of the Canadian context. He has no appreciation, apparently, that meaning is a meaning for a reader and that, therefore, one needs to understand how people read and how people derive meaning, which is precisely Dr. Prideaux' area of expertise.

He says that he doesn't care how the common reader understands thing. The essence of his approach is that there is one true and correct meaning. Even if that were true, it would be of no use to this Panel in terms of determining whether the text is productive of hatred and contempt.

Beyond that, we have an impartial and reliable evaluation of his skill in analyzing that very question, because that is precisely the issue that he addressed in his own trials. On at least 15 occasions he came before a court, as he said, to argue, whether as the centrepiece of his argument or as an adjunct to his argument, that views about the existence or non-existence of gas chambers, of the Holocaust, of the use of the Holocaust for ulterior purposes, Holocaust revisionism, as he calls it, was not productive of hatred and contempt or was not productive of antisemitism.

On every occasion the court found the other way, as far as we can tell, except for the one occasion that he told us about where he denied authorship of the work and, therefore, was not found guilty. Other than that, at least 15 times a French court has found that there is no merit in his defence, the same as was found by the Committee on Human Rights under the Optional Protocol of the International Covenant of Civil and Political Rights, and the same as apparently, although we don't have the details because Dr. Faurisson doesn't have the details, was found by a Dutch court recently.

Paper credentials, there don't seem to be many. Is he, in any event, for some other reason worthy of being listened to? Is there something about what he does that turns him into the remarkable personality that Mr. Fromm was talking about?

Here, I guess, I am going away from credentials, although we are not totally out of the area, and into necessity.

Can he be helpful to this Panel? You will recall that in Mohan the Court said that helpful really isn't enough, that it has to be necessary to the Panel. It becomes a very important question because, when asked about his method, he turned to you and said, "You can do it as well as I." So, at least prima facie, we have a statement that anyone can do this.

THE CHAIRPERSON: Common sense.

MR. FREIMAN: Common sense. I asked him, "It's a common sense approach, so what we have to do is to judge your common sense." First of all, anyone's common sense is common sense. In my respectful submission, that is the proper approach to take in deciding meaning in the first place, in any event.

Dr. Prideaux' work is helpful because it provides a theoretical underpinning to demonstrate how the text works its rhetoric, what strategies the text adopts. But even without that the Tribunal could very well read the text and, using its own common sense, come to the meaning that an average person is likely to take from it.

My submission about necessity is that it cannot be necessary on his own evidence because you can do it as well as he can. In my respectful submission, what we find is, in fact, that you can do it better than he can.

In that regard I want to look at the witness' alleged excellent skills as a reader or uniquely reliable common sense; in other words, the proof of the pudding is in the eating. Let's look at the steaming pudding that he has brought to us.

I have already noted that his reading has been rejected by the court on numerous occasions. His own efforts in testimony -- I won't spend a lot of time on it, but I found remarkable his attitude to the texts that I gave him in order to allow him to illustrate what his Ajax approach was all about. The only text that he was willing to comment on was the "Ceci n'est pas un pipe" which the Panel, I suspect, would have been able to identify since it is a famous work by René Magritte. It was hardly unfair to give the witness a work by a Frenchman who flourished, as the French say, at exactly the same time as the poets that we are talking about.

He looked at it, admitted that he didn't recognize it, and after a few moments gave us what in my submission is one of the most amazingly wooden and obtuse readings of a famous work that one could ever expect. He looks at it and he says, "Ceci n'est pas un pipe", This isn't a pipe. It looks like a pipe; maybe it is not a pipe. I'll turn it upside down, and maybe there is some reason why it is not a pipe and, by the way, maybe it's a dirty joke because "pipe" has two meanings."

One would have thought that, even applying his famous Ajax approach which is, as I understand it, to free your mind of preconceptions, address the words or the images on the page and interrogate those words and images as to what they mean. He might have done something as simple as this. He might have looked at the text, which is what I say the Tribunal undoubtedly would have done, and said, "Ceci n'est pas un pipe. This is not a pipe. Why is this not a pipe? Ceci, what is this? When you look at the picture, you say, 'It is a picture of a pipe.' This picture of a pipe is not a pipe. Why is this picture of a pipe not a pipe?"

At the very least, one would have been led to the obvious question: Is there a difference between the representation of an object and an object? One might have discussed that or at least known that that is the issue raised by this text, not deeply and underground, but right on the surface.

I confess that I thought I was putting it to him simply to illustrate the issue of ambiguity and the fact that words have numerous meanings. I found that I couldn't even get that far because he was looking for whether, if he turned it upside down, it wouldn't look like a pipe any more. There is his excellent analysis of a simple text.

I cheated. I gave him a poetic text of some difficulty by Wallace Stevens. I thought we might discuss the difficulty of some English words. It didn't work out.

Then I gave him a text which had no difficult words whatsoever, and he refused even to think about it, refused to talk about it, refused to think about looking at it over the break. It would have been interesting to discuss it with him. I had given it to him in order to provoke a discussion of the importance of context and when context comes into it. The Tribunal may wish to look at that document at some point. It is a very short one, and the issue would have been that that document, which purports to be a description of something and then a number of questions.

It is:

"Eyes: ... Medium

Hair: ... Medium

Weight: ... Medium

Height: ... Medium

Distinguishing Features: ... None

Number of fingers: ... Ten

Number of toes: ... Ten

Intelligence: ... Medium

What did you expect?

Talons?

Oversize incisors?

Green saliva?

Madness?"

If the witness had been willing, I was going to ask him whether it was possible to get a meaning out of that without knowing the title, without knowing the context, without knowing the author. I would have asked him whether that text had any different meaning once one knows that the name of the collection from which it is taken is "Flowers for Hitler." Then I would have asked him whether that text gained any additional meaning once one knew that the name of the poem was "All there is to know about Adolf Eichmann". Then I would have asked him whether the text gained any additional meaning if one knew that the author was a Canadian. Then I would have asked him whether the text gained any additional meaning if one knew that the name of the author was Leonard Cohen.

I didn't get a chance to ask any of those questions, but I draw attention to the fact that the witness was not even willing to look at the text. He tossed it aside and, therefore, was unwilling to even engage in the most elementary discussion of his so-called Ajax approach.

We were honoured with a number of interpretations. Despite unwillingness to look at literary text, he was more than willing to look at a number of legal texts. He was willing to discuss with us the meaning of the Court of Appeal's judgment and the meaning of the Human Rights Committee's judgment.

You will recall that his conclusion about the Court of Appeal's judgment was that the court had certified him as a serious historian with a scientific method. If that is an appropriate interpretation of the words on the page, I leave it to the Tribunal to decide. If it is, then perhaps he has illustrated his acumen as an analyst and his common sense.

Similarly, if his analysis of paragraph 6 of the Human Rights Committee's concurring judgment is correct, if you understand that his so-called refutation of the proposition that in the conditions of present-day France Holocaust denial may constitute a form of incitement to antisemitism, if you believe that his discussion of that had any pertinence to that concept and, in fact, addressed those issues, then perhaps he has illustrated his acumen as a commentator and as a critic.

In my respectful submission, he betrays an inability even to do what he says he does, which is to focus on the text. That is not surprising because, when you look at his other work, the only other work that we have seen, the analysis of Anne Frank, whatever the merits in substance, it is clear that it has nothing to do with his so-called Ajax approach of wiping one's mind clean of the context, pretending one doesn't know who the author is, pretending one doesn't know what the surroundings are. If you look at that text, you see from page 1 that he immerses himself in what he assumes to be the context, and his entire analysis comes down to nothing more than that he knows what the text should be saying and that, if the text doesn't say what he believes it should be saying, it can't be genuine. An interesting approach --

THE CHAIRPERSON: Based on his investigation. He says he interviews --

MR. FREIMAN: He interviews people, and then he decides that he understands the context so well that he can take that context and interrogate the text on the basis of the context.

Whatever else it is, it is not an example of the same approach that he got the plaudits for from two critics in the 1960s in terms of his approach to Rimbaud, who is, as Mr. Christie now knows, a teenage French poet. It has absolutely nothing to do with that method. All it is is him saying, "You are wrong. You are wrong. This isn't right. This couldn't be right."

There is no document analysis there. He has decided what should have happened, what is logical and what is not logical, whether the noises that are described would have signalled the presence of the Frank family to anyone who was there and, therefore, if the noises are described, that means that they couldn't have occurred because, otherwise, the Franks would have been discovered and, therefore, the text can't be genuine. In a nutshell, that is his analysis.

THE CHAIRPERSON: That piece is not advanced, I assume, as an example of textual analysis. It is just a tract.

MR. FREIMAN: Sadly, I think it is being advanced as an example of textual analysis. Maybe Mr. Christie will clarify. If it is just a tract, then I agree because it leads me to the next point.

There are no credentials; there is no necessity; it is also not reliable. The man is not a critic; he is a polemicist. That, in fact, is the meaning of the judgment of the Court of Appeal.

The Court of Appeal in France, in my submission, correctly and incisively begins and ends with the proposition that it is no part of the function of a court of law to resolve historical controversies or to present its views about historical truth or not, but that those issues are not relevant to a decision as to whether a text incites racial hatred or, in our terms, as to whether a text would be conducive or portend to expose someone to hatred and contempt.

The court goes on to say that, whatever the merits of the presumed scientific or the alleged scientific method -- and, by the way, a good example of the witness' difficulties in English, and this is not a criticism because this is what happens; I did it myself in trying to translate the French to the English -- is the problem of "faux amis", words that appear to be similar in two languages but, in fact, have different meanings. The witness said, "I pretend that such and such happens." He meant: I contend; I allege. In French, prétendre means to allege. "Le génocide prétendu" means the alleged genocide. He did not realize, when he said "I pretend", that it has a totally different meaning.

What is interesting, though, in terms of the validity of the witness' method is that the court says that beyond the issue of the alleged truth or falsity of what Dr. Faurisson is saying is the fact that he has long since overshot the mark and turned himself into a polemicist. He has begun to sloganeer, and he uses the cover of alleged scientific research in order to promulgate statements that are intrinsically hurtful to others.

A later court finds, as the Human Rights Committee discusses, that he uses the occasion to promulgate ideas and words that implicitly accuse Jewish people of lying and of concocting the Holocaust and, thereby, leads to antisemitism.

Those courts, in my submission, are entirely correct about this witness. He is not a scholar; he is a polemicist. The work on the Diary of Anne Frank is not the work of a serious document analyst, a serious scholar or historian; it is the work of a polemicist and it has a polemical object as, in my submission, do all of his works.

You can see it in the witness' demeanour and bearing. He is not interested in appearing before the court as a disinterested expert. He is interested in coming for a debate. Sadly for him, it is a debate that has no relevance to what is before you; it is a debate as to whether he is right or wrong in his allegations about the gas chambers, the numbers of people killed at Auschwitz and all the other matters that have preoccupied his busy imagination for the last 20 years, none of which are subjects before you. The only subject before you is: Do the materials in the Zundelsite tend to expose individuals or groups to hatred and contempt on the basis of a prohibited category? That is not what he wants to talk about.

The issue of truth or untruth is not an issue for the courts to decide and not an issue for a Human Rights Tribunal to decide. The issue is: Are the statements such as to produce hatred and contempt against identifiable individuals?

It is the same principle as Dr. Faurisson acknowledged was raised in the British court on the racial hatred case, the same issue as is raised by the Human Rights Tribunal, the same issue as is raised in John Ross Taylor. We are not here to debate truth or falseness. We are here to debate whether the words used are hateful words, whether they will produce hatred and contempt against an identifiable minority, and that is the only issue before this Tribunal.

He is not reliable in all of those senses, but I am afraid I have to go one step beyond that and say that he is also not reliable because, in my submission, he is dishonest. He is dishonest in his method, as we saw in the North Shore News and dishonest in his explanation of that method. We saw in the North Shore News article exactly what we saw in Mr. Weber's article, namely, an opportunistic quotation out of context of the words of a historian. whom the witness does not hesitate to identify as a Jewish historian, to create the impression that the historian is saying 180 degrees different from what he is actually saying, to create the impression that the historian is skeptical about the existence of gas chambers when the historian says, "Whatever difficulties there are, they should not be mistaken for any question of the existence of the gas chambers."

They create the impression that the historian believes that the majority of deaths at Auschwitz was for reasons beyond the control of the Nazis who raised that camp and who ran that camp, when the historian says in the context of natural and unnatural, one should not make too great a deal about the difference since the natural causes were, in fact, fomented by and fully taken advantage of by those who ran the camp.

He says, "I don't have to say that. I don't have to give that context." Remarkably, he seems to assume that the readers of the North Shore News will go out and read Arno Mayer and compare Arno Mayer's text with what he says and will have some idea of the debate, because he is only alerting them to the debate.

The dishonesty of that approach and of that explanation could not be more clearly illustrated than by the fact that not two hours after making that statement to me he complains to Mr. Christie that, yes, he did say the words that are cited by the Human Rights Committee, that he did say that Jewish historians should be prosecuted, that he did talk about magic gas chambers, that he did talk about the myth of the gas chambers, that he did call them a dirty trick, but he says, "Those words could look offensive if you don't have the context." He complains that the Human Rights Committee took his words out of context -- not two hours after he talked about how it was totally unnecessary to provide the context of Dr. Arno Mayer.

I would submit that, where he is not dishonest, he is simply blind to his own prejudices. He claims he is not an anti-Semite but, when it comes to discussing either his opponents or those he says are his supporters, he believes that it is totally necessary to specify if they are Jewish.

He denies that he is a believer in conspiracy, by which he means Jewish conspiracy, but he affirms that he is a believer in power, by which he means Jewish power. One could go on and on and on.

I just want to finish on this issue of reliability. Before I do that, I want to remind the Tribunal of your own ruling with regard to the witness Jacob, as to some of the criteria that are necessary in a witness. At page 4 of your ruling you cite the Canadian Union of Public Employees (Airline Division) and the Canadian Human Rights Commission where the Tribunal sets out a number of tests from the National Justice Compania Naviers S.A. v. Prudential Assurance Co. Ltd., and the second is that an expert witness should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within his expertise and that an expert witness should never assume the role of an advocate.

If ever there was an advocate, it is Mr. Faurisson. If ever there was someone who had no claim to be an open-minded individual, it is this most dogmatic of all skeptics.

Finally, let us consider what this careful reader of texts told you about his own background in his own CV. This careful reader of texts, who is unwilling to even discuss a text before he has had a chance to read it and re-read it 100 hours, told us that he had read over his CV, checked it carefully, and that it was all correct. He then told us that what was there under "Expert Evidence" was wrong, incorrect.

There are only two possibilities. Either he is not a careful reader of text and his own text he didn't bother to read -- and you may believe that is the case since every time a document was given to him, he looked at it for about a second and tossed it aside, saying, "Yes, I recognize this."

Either he is not a careful reader of his own text or you may decide that, despite his alleged motto of no lie, no deceit, no defamation, given the defamation you heard from his lips, his claim of no lie and no deceit is equally worthy of attention.

Whatever the truth about what he understood with regard to giving expert evidence at the trial of Nick Griffin, I commend to you the decision of the judge in that case to exclude him as an expert witness and to deny him the platform to preach his polemic under the guise of helping with expertise.

MEMBER DEVINS: Mr. Freiman, before you finish, did you want to address Mr. Christie's suggestion that this witness would be of assistance to us with respect to the international context of Holocaust revisionism?

MR. FREIMAN: The international context -- I find it difficult to understand what the relevance of context of Holocaust revisionism is, in any event -- and I made my submission with regard to Mr. Weber, and the Tribunal has made its decision as it did.

Assuming there is some relevance to context, Mr. Weber will provide you with whatever context is necessary. Mr. Weber is a co-author with Mr. Faurisson of a number of articles in the Journal of Historical Review. They appear to revolve in the same circles. They are friends with Mr. Butz. They are friends with Mr. Bradley Smith. They know the same people. They talk to the same people. They publish in the same journals.

Whether Mr. Faurisson has a slightly different experience with his revisionism in France, I don't understand how that can be of any assistance to the Tribunal in coming to conclusions about any matter in issue. Whatever background you need or whatever context you need you are going to get from Mr. Weber.

MEMBER DEVINS: Thank you.

THE CHAIRPERSON: Mr. Kurz, please.

ARGUMENT ON BEHALF OF B'NAI BRITH

MR. KURZ: I adopt the submissions of Mr. Freiman and will try to buttress rather than repeat them. In doing that, I will give my submissions somewhat piecemeal, in that he said many of the things that I would otherwise have said. I apologize if it sounds a bit piecemeal.

With regard to the issue of relevance and what he is going to offer, it seems that there has always been a question in my mind -- and perhaps I haven't been as careful as I should be. I am still not clear on what he is supposed to testify about.

First, he was proffered as an expert in revisionism and document analysis. Then it seemed, especially in light of your decision with regard to Mr. Weber, he has been narrowed to being offered simply as an expert in text and document analysis, but somehow or other revisionism remains in the background.

Throughout his examination and cross-examination, I was trying to listen carefully and it seemed to me that almost everything that he had to say was about revisionism.

The question that I would like to ask and that I am asking the Tribunal to consider is whether the attempt to use Dr. Faurisson will be an attempt to bring Holocaust denial in through the back door -- that is, in the guise of commenting on Dr. Prideaux' evidence and on his presuppositions -- and, again, it is not clear whether he is going to comment Mr. Zundel's text or not. He will be bringing in revisionism, and Mr. Christie --

MEMBER DEVINS: Isn't the proper answer to that objections from counsel rather than rulings by the Tribunal to ensure that, if he is qualified, he is kept on the areas that are admissible?

MR. KURZ: What I am submitting is that this is in fact what he -- and he even said himself -- intend to testify about and what he is going to offer you in the context of text and document analysis. That is, Dr. Prideaux is wrong because he accepts implicitly that the Holocaust occurred. He can't give his evidence with regard to Dr. Prideaux without, in effect, trying to prove that the Holocaust didn't occur.

When you consider the time benefit and the relevance of his evidence, I am suggesting that you have to consider that possibility and whether you are going to hear from him what you said you can't hear from Mr. Weber. That is my response, and I will move on from that point.

In addition to what Mr. Freiman said about expertise and the fact that he is not a linguist, he said that he could not even comment on Dr. Prideaux' qualifications, that he has not read any of the texts that Dr. Prideaux made reference to.

Mr. Freiman made reference to the fact that he has no knowledge of the effect of writing, that this is not part of the Ajax method. In fact, he said that three different times in his testimony in what I saw to be three different contexts: one when presented with "The Emperor of Ice-Cream" poem; then later on when he said he doesn't care how Peter and Paul will react; finally with regard to his letter to the editor he said, "I cannot say what impression will be left by my letter to the editor."

I am saying this to buttress the point made by Mr. Freiman with regard to the fact that he cannot assist you in understanding the effect of the writings of the Zundelsite.

Let me just pause for a moment. It is, again, not clear whether his intention is to comment on the Zundelsite or Dr. Prideaux. Those are two very different things. It appears that he is only here to comment on Dr. Prideaux and, to that extent, he has even less to say.

With regard to language, he talks twice about his qualifications being French, Latin and Greek. He talked about it as being his first qualification, and then later he said that that is his expertise, in those languages. He admitted that he is not as good in English as he should be, and Mr. Christie himself admitted to that fact in defending him on a point of objection.

With regard to the question of the Ajax method and what that can add and the question of what he does that the Tribunal doesn't, he seems to play literary detective. He goes off and visits Otto Frank, but he doesn't offer any of that here. He is not going to go and visit Dr. Prideaux or the University of Alberta. What he says he does is not just read things with common sense; he reads carefully, and he calls that pathology.

What he does is what any literature professor does, what any professor does and certainly what you do, which is to not only bring common sense but to read carefully. He said that over and over again: Be exact. Again, I reiterate that that does not take him beyond the level of what you can do, and that certainly doesn't offer any expertise.

The final point that I want to make is with regard to his advocacy and his bias. I am submitting that he is an advocate both for himself as a victim and for Holocaust denial, to promote Holocaust denial.

This witness is arguably the foremost advocate of Holocaust denial in the world. He has worked nearly only on Holocaust denial, in his evidence, since 1974.

I am suggesting that his CV in itself is a form of his advocacy. He talks about his tenure being revoked without notice or due process. That is advocacy for himself as a victim. He talks about violations of human rights. I have never seen a CV where somebody puts as a separate area of their qualification the violation of their human rights.

There are two violations of human rights. One is the fact that he was convicted a number of times for human rights violations, and he considers that to be a human rights violation. Two, he has been beaten up a number of times by what he says are Jews because of his gas chamber theories. These are supposed to be qualifications offered to you.

His advocacy continued on the stand where not only was he totally unconcerned with the questions but, rather, he was concerned with his answers. He compared himself to Galileo, to Zola. He was at pains to reiterate to the Tribunal how he had been exonerated by various tribunals.

Mr. Freiman made reference to your decision with regard to Mr. Jacob, with regard to the importance of bias. You made a similar finding with regard to Dr. Countess when you said:

"The relevant issue before us is whether the writings on the Zundelsite are likely to expose a person or persons to hatred or contempt by reason of the fact that these persons are identifiable on the basis of a prohibited ground of discrimination."

You found that Dr. Countess was offered to respond to Dr. Schweitzer, and you found no corresponding expertise in Dr. Countess. But, before you got there, you dealt with the issue of bias. You said:

"There is no question that Dr. Countess is an enthusiastic revisionist. He is an advocate of Holocaust denial. He has made statements that are surely provocative --"

And then you list those statements; I don't need to repeat them.

"It is argued further that Dr. Countess is not impartial. Rather, he is an impresario and a roving ambassador of his point of view who delights in the term "impresario." His involvement and espousement on the issue of Holocaust revisionism makes him an advocate of the very writings on the Zundelsite which are the subject of these proceedings."

Then you go on to say:

"It may well be reasonable to conclude, on the abundance of evidence we have heard concerning Dr. Countess' statements and writings, that the line has been crossed so as to disqualify him on the ground of bias. There is an unacademic tone to many of his statements. However, we choose to rest our decision on other grounds."

It appears that it was open to disqualify Dr. Countess on the ground of bias, for the reasons that Mr. Freiman referred to and described in the Jacob case, but you chose not to simply because of his expertise.

His bias as an enthusiastic revisionist -- and certainly Dr. Faurisson, if anything, is much more than Dr. Countess in that regard. This man has a personal bias toward Ernst Zundel, and he made it abundantly clear and he volunteered that Zundel is his dearest friend, that he would do anything for him.

He described Mr. Zundel as a remarkable man, a man who is absolutely not a man of hatred, a man who is fighting for his ideas, an excellent fighter and a man of great intelligence. Of course, Dr. Faurisson doesn't have to be told about the Power Letters because he subscribes to them. You can tell that he subscribes to them not out of some academic curiosity, but because he is a friend and a follower of Mr. Zundel -- again, someone who would do anything for him.

That level of personal bias, plus his advocacy as a revisionist, should in themselves exclude him, should show that he cannot be of any use to the Tribunal, that his word can't be relied on since he would do anything for his friend.

Thank you.

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

REPLY ON BEHALF OF THE RESPONDENT

MR. CHRISTIE: It appears clear that many of the arguments that I made against the qualifications of Mr. Prideaux have been adopted, modified and repeated against the evidence of Dr. Faurisson.

At the outset I suggested that in the field of understanding the meaning of language it is not a matter of expertise, that it is a matter of common sense and it is a matter of not having any special meaning ascribed to the English language, but to look at it from the point of view of the presumed common sense with which any trier of fact is supposedly endowed.

That argument failed primarily because it was suggested that it is a function that only someone with special skill, training or ability could perform.

THE CHAIRPERSON: Isn't it more appropriately that there is a scholarly endeavour which is called linguistics -- and I don't know ultimately what the influence of that will be, if any. It is a recognized scholarly pursuit.

MR. CHRISTIE: That is what you wrote. If it is a recognized scholarly pursuit, has anyone here said that text and documents analysis conducted by this witness is not a recognized scholarly pursuit? There may be more than one scholarly pursuit that seeks to achieve an understanding of the meaning of text.

There is no suggestion that only one in this world is qualified to have a new perspective on the process. I don't think, frankly, that anyone is better qualified than anyone else when it comes to analyzing the effect of language.

THE CHAIRPERSON: You may be right.

MR. CHRISTIE: In the end, if one is qualified because there is a recognized expertise, it seems to me that, unless you are saying there is no qualification or there is no other area of expertise that approaches the same objective, which is meaning, from a different perspective, unless you rule that, then it is impossible to say, first of all, that it isn't relevant because it was determined to be relevant to approach it from one perspective or, secondly, being relevant there is no other expertise capable of achieving that same result.

I don't think anybody, my learned friends with all their wisdom, can tell you that there is no other way but linguistics to find meaning.

MEMBER DEVINS: Mr. Christie, as I understood the argument, I thought it was really relying on Dr. Faurisson's own definition of his area of expertise, as really only involving a careful reading of the text and then applying common sense. I understood it to be in that sense that it was argued that that was not a special area of expertise beyond that of the Tribunal.

MR. CHRISTIE: That is the way I described Dr. Prideaux' process, having seen his opinion.

The truth of the matter is that probably Dr. Faurisson is more honest in the way he describes his process than Dr. Prideaux. It is interesting you mention that because I noted at one point what Mr. Freiman said was the process by which Mr. Prideaux functioned. I took it down as carefully as I could. When the definition of what he did was analyzed using common sense, it was to find meaning. I am looking for that. It was to analyze the means by which a text communicates -- to analyze the means by which a text communicates. Communicates what? Meaning. It amounts to the same thing.

Prideaux was giving evidence to help us understand meaning. He was analyzing the text, analyzing the means by which a text communicates. "Communicates" begs the question of what, and the answer is "meaning."

Really, Dr. Prideaux' evidence was to give us meaning. Dr. Faurisson's approach is to give us meaning, the difference being that we haven't heard how, in a specific way, Dr. Faurisson approaches that subject. The examples which are used by my learned friends to refute his abilities are not the process that he is going to be using on the specific text that he is going to be speaking about.

Then they say, "But that is irrelevant because he is not going to analyze HR-2." The answer to that, in my submission, is that he is going to analyze the part of HR-2 that is supposed to be relevant to determine the prohibited meaning. If anything could be more accurate in analyzing that which is important, I don't know what it would be.

It is my understanding that the essence of Dr. Prideaux' evidence was to make a selection -- and I don't know whether it was supposed to be random at this point or whether it was designed to be some process of selection; I never did get any clear answer that I recall on that. But whatever means he used, he decided to select somehow certain texts. He analyzed them and gave his view that they conveyed hatred. In fact, he went on to say that they were false many times. At that point it hadn't been made a ruling that truth didn't count. You will find that that slipped throughout his reasoning -- this is false and that is false.

He was doing that in two ways. "It is syllogistically false; it doesn't flow." He also in some places made remarks about the falseness of a statement in its substantive sense.

Be that as it may, the process he used was to select a part of HR-2 and analyze it, parse it if you like.

What does Dr. Faurisson propose to do? He proposes to analyze not only the analysis but the text upon which the analysis is based. He is analyzing the commentary which involves both the text and commentary on the text. He is going to be discussing both. He is going to look at the text to see if the analysis based upon it logically flows, using the processes of, I would suggest, special skill. He has spent a great deal of time analyzing text. Whether he has a good opinion, a bad opinion, a strong or weak opinion is not at this moment able to be decided.

I would suggest that it would not be wise to accept the submission that his skill in this area is strictly the same as ours. When we speak of common sense, there is trained common sense, there is experienced common sense, like the common sense of a mechanic. When he operates on a car, he says, "I'll show you how it works. It's common sense. See this, see that? This is how it works. It's all common sense." I have had people do this with me, and five minutes after they left I think, "It was common sense. Why isn't it any more?" because I don't understand it. I don't work with it all the time, and I am not in the process of fixing cars. So I don't remember and I don't understand how each piece works together.

If I was in the experience of analyzing text on a regular basis, whether it was Holocaust revisionist text, French poetry or any text, or if it was in the regular process of fixing cars, it would seem like common sense to me.

When it is explained, it is usually explained with common sense. The greatest experts in the world -- I recall one interview with a great expert. He said, "Unless I can explain what I am doing to the lady who cleans my office, I don't understand it myself."

The capacity to rationally and simply explain complex things is what experts do, and they present the complex in understandable terms. If they didn't do that process, we wouldn't need them. They would talk in the same esoteric gibberish that their expertise might understand and we might not.

The functions of a court-qualified expert is to translate the complex to the comprehensible, to make it understandable. That is what their function is.

I think it is inaccurate to describe Dr. Faurisson's efforts as simply criticizing the text. That might be useful and, in my submission, could be useful to point out what would not immediately be obvious in the logical inconsistencies in the analysis itself. He is also going to relate the analysis to the portions of the text quoted.

He has accepted the selection made by Prideaux because that is the evidence; he is not going beyond that.

If I understand Mohan correctly -- and having tried to do so, I think I have something to say that contradicts my learned friend's submission. Mohan deals with the scope of the area of expertise, not the qualification of a specific expert. In other words, it is the area of expertise that must be necessary, not the specific expert in question in a given case.

It is my submission that the area of expertise was, contrary to my submission, ruled to be relevant, to be of some assistance, to be necessary in that sense. Therefore, my other submission is that, if that is the case, another perspective on that -- after all, you will only hear one point of view on this analysis if you hear Dr. Prideaux alone. You cannot assess the value or lack of it of another point of view until you have heard, but my friends say that you should never hear it. That would seem a little premature if one is to look at it objectively.

At the end of the day I will very clearly argue that Dr. Prideaux' analysis is simply putting, in some cases, a twist, unnecessary spin, interpretation, slant in his commentary, and no doubt my friends have the ability to do the same in reply. The analysis you get from both of those perspectives may in fact give you a deeper understanding of the significance of the text, and it may not. But until you hear both sides, it is hard to determine whether there is any value in a given point of view.

Mohan and other cases similar to it deal with the areas of expertise like polygraphic testimony or testimony in a field that is controversial in itself and is of no probative value or taking, as they say, an inordinate amount of time to achieve nothing. The same was the case with identification evidence; it has been ruled inadmissible for the same reason. It is not necessary because the common sense of the jury is supposed to supply all that is required.

In my submission, it is not a case of deciding on the basis of extrinsic evidence to the text itself. Document analysis is certainly not handwriting analysis. Document analysis can be to look at the internal coherence and consistency -- and I thought I heard that repeatedly. The process of analyzing coherence and consistency is a process of -- I would suggest that we are all endowed with some capacity to do that, but those who spend a great deal of time in the process are better trained and better qualified to do that. All their skill and ability acquired over an extended period of time can be received and provided quickly in an expert witness.

Much was said about the incapacity either to speak the English language or to function in the Canadian milieu. It is my submission that being proficient in a field of study is what is required, and that is what he has demonstrated.

There is no clear definition, and very obviously it is going to be a difficult definition to establish, as to what the social context is of any of these messages communicated in the way that, at the end of the day, you find on the facts that they are communicated. It would be impossible to say that there is some discrete difference between the significance of text in France as opposed to in Canada, except for legal differences. If, after all, you are defining how this law will be applied in unique circumstances, it might be of assistance to find out what the effect of applying laws of this kind has been, or of the converse, not extending them to create prohibition. The social context of this witness' personal experience might be uniquely useful.

In fact, it is my submission that it could be said that the little knowledge of Dr. Faurisson of the social milieu in Canada could be an advantage because he would not be tainted by any of the preconceptions that might colour the opinions of those who are directly involved in either making the laws or applying the laws or extending the laws. There is very little likelihood that Dr. Faurisson's evidence will qualify him to be testifying in a broader scope than perhaps for his friend Mr. Zundel, whom he has spoken for on more than one occasion.

That cannot be said of Dr. Prideaux, who has become an itinerant expert, and not without advantage it might be said. His situation and his interest in the matter demonstrates a more profound bias, in all probability, because of his involvement in the process of these types of litigation.

Mr. Freiman's remarks to the effect that he has no training in linguistic analysis to determine validity is, in my submission, not that which the expert purported to give. Exactitude, if I understand the meaning of the word, is precise meaning. Whether Dr. Prideaux' analysis is consistent with the precise meaning of the words could at the end of the day be a very important question.

Let me put it this way. Nobody knows on what basis you are going to be deciding the case. Is it going to be on the basis of how the words strike you? Is it going to be on the basis of how you perceive these words affecting a reasonable reader?

If we are looking at this in the abstract, if the test for obscenity, which no doubt my friends will argue is comparable, is not what the average Canadian might think fit for them to see, but what the average Canadian would think a reasonable Canadian should be entitled to see, to paraphrase Justice Dickson -- if that is the process, then, of course --

THE CHAIRPERSON: Doesn't the test have something to do with community values?

MR. CHRISTIE: Yes, community standards, and then the definition of how we achieve those is not what I might think should be community standards but what I think other Canadians should be entitled to see. I could quote the case. Butler, I think, is where it comes from.

Let me say that there is another argument which I would like to put at the end of the day, and that is that, if you are going to hold people accountable not for obscenity but for words -- there is a distinction be made and, no doubt, some people think there is not. I would like to think there is and I would like to argue that there is -- a person should only be held accountable for the exact and precise meaning of their words, not what some persons might derive from them.

In terms of effects, if we could take the worst-case scenario, is it possible for someone to derive hatred or contempt from these words, or would we take the strictest and narrowest approach to the meaning of the words -- that is, what do they precisely mean?

I will not be able to offer any indication of what they would precisely mean with any expert evidence unless I could endeavour to show through an expert that I call what is their exact meaning, what is the exactitude of the meaning. That is why, in my submission, Dr. Faurisson's evidence will be extremely valuable.

Mr. Freiman said that Dr. Faurisson didn't want to say anything about the methodological summary of Dr. Prideaux. My recollection is that he wasn't asked. I didn't hear the subject of methodological summary in the cross-examination come up.

The subject in the submissions of Mr. Freiman of the reception theory of linguistics or communication theory -- I don't recall Dr. Prideaux being qualified either as an expert in reception theory or sociology. I did argue at one point that his views were extending beyond the scope of linguistics into the realm of social psychology and anthropology, but that objection did not seem to have any bearing.

At some point Mr. Freiman said that Dr. Faurisson's view was that he didn't care about the effects. He said he didn't care what the effects of truth were -- and that was in the context of his previous speaking and writings in France. This witness' view is that truth is important, that he is prepared to take the consequences of telling what he believes to be the truth, regardless. I don't think that means that he doesn't care or have a capacity to care about the effects of anything, but his view would seem to be that the truth can only have a beneficial effect -- a novel concept, no doubt, that will never again be raised as an argument. But that does not disqualify people from having that view, and it doesn't discredit people who have that view because historically it has been regarded as a noble cause.

Even in the course of Mr. Freiman's submissions he said that, even without Prideaux, the Tribunal could read the text and come to the meaning an average person is likely to take from it. If such is the case, what did we need Dr. Prideaux for?

Much was made of the numerous literary gimmicks that were put to Dr. Faurisson at the beginning of his cross-examination. If an expert will not venture an opinion without careful analysis over a long period of time -- as he said, approximating 100 hours in analyzing the text of Prideaux -- what responsible expert would on the spur of the moment in the witness box be receiving a piece of paper and start to venture an opinion. Is the absence of that foolhardiness to be taken as a sign that this is not a credible expert, or would the absence of such foolhardiness be taken as a sign that this is a credible expert who does not venture hasty or irresponsible opinions?

At the end of the day it struck me that all it demonstrated was that Mr. Freiman's view of intelligence and literary matters was in conflict with that of the witness, and he certainly thought that his were of a higher degree and greater significance. Maybe they are, but that really doesn't either qualify Mr. Freiman or disqualify the witness who, in those circumstances, would be reluctant to get involved in a horseback opinion tossed off at the spur of the moment, which of course my friend would jump all over in any event and make another side issue, another red herring, as to whether Dr. Faurisson's conceptions of a pipe were one or another, or whether he was able to perceive the esoteric meaning behind the text that this refers to a drawing and not an actual object.

My submission is that that demonstrates a polemical process. When it comes to polemic, not only is that not a dishonourable practice, but it is the practice of every expert witness. If one looks at if objectively, they are being polemical; they have a point of view; and they argue for it.

Polemics is not a disgraceful activity. In my submission, polemics, if one looks at it strictly, is a war of words, a war of words in which people argue for a position. Who among the experts of the applicants are not polemicists? Who among those of the Respondent are not polemicists? It may have a pejorative meaning from the mouths of those who dislike their opponents but, if one looks at it objectively, we are all polemicists one way or another -- some better, some worse; some good, some bad; some for right reasons, some for wrong reasons.

It is obvious that in the process of hopefully seeking the truth we do hear usually both sides. It's a fundamental principle of justice, audi alteram partem. Without it we would have no arguments and we would no rational discourse. Eventually, we would have no truth which, maybe not in the objective sense but in the abstract, we are supposed to be struggling for.

What is the true interpretation of the legislation? What is the true interpretation of the text upon which the legislation applies? That surely is not going to be resulting from only one side taking an argument and the other side being totally objective. If such were the case, it was obvious that we would only need perfect judges and the complainant, because it would be unnecessary for the respondent to be represented and no arguments would be needed.

Polemics is the process of advancing one's cause through rational debate. The war, thank god, is rational, hopefully. Therefore, we believe in our process of law that two sides to an argument will reach a point at which a rational determination can be made by either facts or law or both that one side is right and the other side is wrong.

The same is true in every dispute. If you get into an argument, you are a polemicist. If you say nothing controversial and stay an academic because you never get into an argument, then there will be no verbal wars and you will never be a polemicist. But will you be participating in anything significant if all you do is repeat the uncontroversial portions of what somebody else has already said?

That is not what Dr. Faurisson does and, with respect to his evidence here at least, it is not what Dr. Prideaux does. Obviously, Dr. Prideaux will have very few controversies because he is recognized everywhere. He is the ultimate expert in polemics -- I mean, in linguistics; a slip of the tongue but not too far off the mark. His polemicist label will never be applied to him except by those very few individuals who would dare to disagree with him.

In this world all truth is not on the side of scholastic authorities and high-ranking academics. There are different points of view. If it were otherwise, we would never need more than one expert.

In my submission, both Prideaux and Angus were polemicists here. To the degree that they used processes, you could see patently, in some cases transparently, what their biases were, what their predilections were, how they accepted or rejected pieces of evidence that might be important. That is what they did in their evidence; that is what every witness does. It is because of that that you sit in an objective capacity to observe the foibles, the eccentricities and the care with which various witnesses present their opinion.

THE CHAIRPERSON: Precisely. This is where we have to decide whether polemics overrides an independence of mind that can be of help to us. That is the challenge of each of these decisions.

MR. CHRISTIE: I understand that. But because the label of polemicist, as it was in the case of Weber -- he accepted it. You asked a very pointed question: When will we know whether you are being a polemicist or not? I don't know what the answer was to that. Let me tell you what I suggest the answer is. That is a question you have to ask at all times of every witness, and it is not unusual.

To say that someone is a sloganeer is to say that they were in some arguments where they simplified their arguments to the point of slogans. Who doesn't do that in an argument? I will tell you who doesn't: people who never get into arguments. They don't simplify; they don't have to win arguments because they don't get into arguments. People who don't get into arguments are not necessarily experts. They are often just spectators in life.

Everything designed to convince is polemical to those who oppose it.

I am not suggesting that truth is an issue in determining whether the text of the Zundelsite is true or false. That is not my submission. What I am submitting is that in the context of historical debate, if it is perceived and presented that the public comprehends that the process of a historical debate is a pursuit of truth and that not one side will have it all -- let's say there is such a degree of intelligence and comprehension among people generally. It would not be inappropriate to say, "Is this perceived as truth in the revisionist school of which you are a part? -- and in Mr. Kurz' view, the foremost Holocaust denier or revisionist. "Is this perceived as truth in that school? Is there a contrary view? Is there public awareness of this debate?"

If people are accessing a site where reference is made to a contrary opinion, it would seem to imply that the context of these communications to any reasonable person would be the perception of an ongoing debate. In those circumstances --

MEMBER DEVINS: Mr. Christie, how does the evidence of this witness differ from that which might be led from Mr. Weber?

MR. CHRISTIE: Mr. Weber's evidence of knowledge of the ongoing nature of the Holocaust discussion, debate, dispute is limited to the United States context. This is what some have described as the foremost revisionist, and his understanding is a great deal older, longer and more detailed.

MEMBER DEVINS: On the very narrow point that you advance, does the longer involvement in the area provide a better opinion with respect to whether this will perceived as a part of the debate? In the way you framed it, I see it as fairly straightforward analysis that is required.

MR. CHRISTIE: There would be another perspective, a broader perspective, on the debate. If one witness alone is tendered to say that there is such a debate, it will be. quite obviously. easy to suggest that that is the opinion of that individual. If two are tendered, it could very well indicate, if they are in different parts of the world and involved in a different legal context, that this debate is serious.

Let me say why Mr. Weber and Mr. Faurisson are different. Mr. Weber has no need to fear. He could be a dilettante; he has nothing to lose, really nothing to lose. If he was an academic, he probably would, but being a free citizen he is not really subject to a great deal of danger.

The same cannot be said for Dr. Faurisson. In my submission, the seriousness of his commitment to that discussion would be less easy to refute than it would to refute that of Mr. Weber. The context of legal restrictions, the context of prohibitions and the context of revisionism itself, and the ability to show that revisionism does not create or expose Jews to hatred or contempt, is more readily demonstrated in the context of France than it is in the context of the United States. It is very difficult to have analysis, for example, of the effects of revisionism in the United States because, for one thing, it is a much larger discussion and debate. There is no real restriction and there is no public prohibition; whereas, there is in France.

I would like to expand this only step farther, and that is to put this in the context of a historical debate or, shall we say, a historical conflict. If, for instance, we are speaking about the historic defamatory libel of Jews, the blood libel of Jews, and if Jews were in that context wanted to deny the truth of it and were, therefore, accused of promoting hatred against those who promoted the false allegation, and were denied the right to show that the libel was a libel and was false, it would be clearly necessary to show the context of that conflict between truth and falsity just so that people would see it in that context.

Just look at what they would be saying about the people who were denied the opportunity --

THE CHAIRPERSON: Excuse me --

MR. CHRISTIE: There is a submission. What do we have here?

MR. FREIMAN: I hesitate to --

MR. CHRISTIE: If you hesitate, don't interrupt.

MR. FREIMAN: I have to rise. This isn't the first time that Mr. Christie has decided to load all of his arguments at the back end in such a way as to make it --

THE CHAIRPERSON: Mr. Christie, it has been running through my mind --

MR. FREIMAN: This is not reply at all.

THE CHAIRPERSON: -- that we are --

MR. CHRISTIE: It's a funny that it just happened to ring a bell at this moment. Is this a time limit? If it is, I will take --

THE CHAIRPERSON: There is no time limit, but there is a relevancy; there is a compliance with the rules of reply limit.

MR. CHRISTIE: Let me address the specific area of Mr. Freiman's remarks which I am speaking on in reply.

He said that truth has no relevance here. He reiterated time and time again the ruling against the admissibility of truth and that nothing the witness could say about truth or at least a claim for truth would be of any possible assistance because it has all been determined by that one ruling. I was suggesting that that is not correct, it is not precise, it is not accurate to describe in relation to an ongoing historical dispute, and I am trying to put it in context, naturally.

THE CHAIRPERSON: I didn't think it was argued by Mr. Freiman in that context. It was argued in a fairly narrow context in connection with the decisions of the Geneva tribunal and that the function of courts and tribunals is not to resolve historical disputes.

We have had throughout this Hearing arguments about truth, and there is a ruling of this Tribunal, so I am not sure we should be revisiting that issue at this stage.

MR. CHRISTIE: Then there were remarks about the dishonesty of the witness in the North Shore News article.

THE CHAIRPERSON: That is relevant.

MR. CHRISTIE: The North Shore News article was not dishonest. The North Shore News article did something which is an effective, legitimate criticism of a point of view. It is to take a part of what a witness says, because it is a significant declaration against interest.

THE CHAIRPERSON: It was polemical or quasi-polemical, I suppose.

MR. CHRISTIE: As I submit is every attempt to persuade.

THE CHAIRPERSON: I am not saying that to cast a pejorative light on it, necessarily.

MR. CHRISTIE: I agree. I don't dispute that it is polemical in the sense that it is a technique of argument.

THE CHAIRPERSON: I thought it was a little odd that a rather brief letter like that should be relied upon as part of his CV.

MR. CHRISTIE: I suppose one can say that there are differences in the ways people present themselves. I don't think it is either dishonest or indicative of a desire to hide. If the letter was considered to be somehow deceptive, deliberately deceptive -- that is what dishonest means -- then you would think that Dr. Faurisson would not put it in his CV, as anyone has a right not to include some letter to the editor. But he did it, and there is absolutely nothing, in my submission, to show a dishonest intent on the part of the witness in that letter by revealing it or by publishing it or by the contents of it.

For one thing, it is significant and rationally significant to emphasize that one is not quoting a revisionist, but is quoting a Jewish scholar of high repute, to say, "Look at this declaration." It is true that that declaration, standing on its own, is not just unique and different for Dr. Arno Mayer; it is unique and different for all of those who throughout history have emphasized the long-standing accuracy and proliferation of proofs for gas chambers.

This is an argumentative letter in which that is an issue. How many times have courts accepted that a 14-page confession or statement from a witness in which they denied any involvement in a scene, an event or anything involved with the crime, and the line in which they give you the location of the murder weapon becomes the most significant statement out of 14 pages, because they found the murder weapon in the place he said it was. That shows that all the rest of it is so much words.

That is not to say that this is exactly similar, but a declaration against interest or a statement which, standing on its own, contradicts the entire thesis that one is seeking to criticize is surely a legitimate process of argument. To say that a person is dishonest to do it would only be legitimate if that statement, standing on its own, has no meaning, that it is contradictory to something stated elsewhere.

It isn't. He may believe, and anyone may believe, as Arno Mayer says elsewhere he does, but a statement of fact like that, of general implication, is a shocking and remarkable admission to those who seek to advocate that contrary point of view. It is not dishonest.

Whereas, to take the words of Dr. Faurisson -- and taking things out of context can be for dishonest purposes. You look at the context to see whether it is torn out in such a way as to distort or whether it has independent validity and significance on its own. If those words of Dr. Faurisson, as my learned said, two hours later, were taken out of context in such a way as to distort their meaning, I suggest that it would be legitimate to complain.

Let me put it in the context. Specifically, Dr. Faurisson was objecting to the misinterpretation of his words that Jewish scholars should be prosecuted. He didn't mean Jewish scholars should be prosecuted because they are Jewish scholars. He said and made it clear, and I think quite rationally and uncontradicted, that they should be prosecuted because they have revised from the Nuremberg trials.

THE CHAIRPERSON: I think his meaning was quite clear on that.

MR. CHRISTIE: It would be unfair to say, "Oh, he thinks Jewish scholars should be prosecuted, not him."

MEMBER DEVINS: I didn't hear that submission being made, a suggestion that he was saying that they should be prosecuted by virtue of their religious background.

MR. CHRISTIE: It wasn't made by him. What I heard in my learned friend's submission was that Faurisson was a hypocrite to object to taking his words out of context, but he took Arno Mayer's words out of context. I say that, if you take the words of Arno Mayer and put them in context, they still have the same significance if you take them out. If you take the words of Dr. Faurisson out of the context of "If I am going to be prosecuted, why aren't they?" and you just say he says he wants Jews prosecuted and you just take that out, you really have changed the meaning.

I am just saying that there are many cases where you can object to taking out of context and you have to look at the context to see if that process is distorted or not.

To be an expert it is not necessary to understand the process of qualification in the court. It is clear that Dr. Faurisson did not understand the process of qualification and the judgment, for whatever it is -- I don't know. If the Nick Griffin judgment is to be looked upon for some criterion, show it to us, read it to us, give it to us. I frankly have no idea what precisely happened or how, whether it was right or wrong. There is no way of knowing, and I would request that you disregard my friend's invitation to look upon the decision of the judge in Nick Griffin's case to exclude the witness here.

THE CHAIRPERSON: We haven't got anything before us about it.

MR. CHRISTIE: I agree, but you were invited to do that, and I don't understand why or how. I disagree. I submit that you should not.

There were many things said by Mr. Kurz and a few things that I wanted to submit in reply.

Playing a literary detective, which I took from what I said, is not necessarily a bad thing. There are detectives who have experience and training that is sometimes better than persons who are simply responsible to administer the law and look at it objectively.

Literary detective is basically what Dr. Prideaux was. He had a perspective. It really boils down to a semantic difference. When you say "literary detective" in a pejorative sense, you say, in effect, that you don't believe that person or that they should not be believed. That's fine; you can do that. You give no particular reason why their system is any less literary detective than that of Dr. Prideaux.

If exactitude is achieved by someone who is careful and exact, then it can be of assistance. Until you hear that person, it is difficult to say.

The last few remarks of Mr. Kurz were to the effect that this witness acknowledges that he would do anything for his friend, that he has personal regard for Ernst Zundel, and he has high respect for him. Being a personal friend is not a sign of dishonesty and it is not a sign of anything more than an honest bias.

I would suggest that a witness who is honest about his relationship with the party calling him, in the way this witness was, gives you every opportunity to quite candidly view his evidence in whatever way you wish. It would be an ad hominem argument to say, "Therefore, you cannot be telling the truth." It would be an ad hominem argument to say, "You cannot, therefore, be an expert."

It was a very candid and a very honest admission.

In my submission, the entirety of the cross-examination revealed that this witness was careful, studious, acclaimed in his previous activities --

THE CHAIRPERSON: That is something you have presented to us in your argument.

MR. CHRISTIE: Thank you.

Knowledge of Greek, Latin and French does not exclusively determine that a knowledge of English or its comprehended intent is any different.

Reference was made to the Anne Frank diaries.

There was one point that I wanted to reply to. Remarks were made about power being of the Jews. Of course, that was Mr. Freiman's interpretation. Dr. Faurisson said that he believes in no conspiracy of Jews or against the Jews. He said he believed in power, but that doesn't necessarily mean -- it would be contradictory to say that "power" means Jewish power. If that is what my friend wanted to suggest, he should have put it to him, and he didn't.

Power doesn't mean Jewish power; it means power. Many people have power, Jews and non-Jews.

MR. FREIMAN: It wasn't in my cross-examination; it was in re-examination.

MR. CHRISTIE: Fair enough. I suggest that, if my friend wanted to suggest that to him, he could have had that opportunity to suggest that he believes in a Jewish conspiracy. A Jewish conspiracy was not put to him, and it would be wrong to assume that any reference to not believing in a conspiracy but believing in power means that he believes in a Jewish conspiracy.

One of the major criticisms of this witness was that he, in some instances, made mistakes. How many times did he say, "Excuse me, not this, but this." The care which he took to assess each of the statements that were put to him was indicated by his insistence on exactitude. If you are to derive some significance to his cross-examination and the occasional word like "relation" rather than "acquaintance," keep in mind not only that but this. Throughout his cross-examination, when things were put to him, he was careful not to agree where he felt it was appropriate to be accurate. Yet, he was quite prepared to say "yes" and "no" when he was pinned down. He likes to talk, there is no question, but that is not necessarily a sign of either dishonesty or inaccuracy.

Frequently my learned friend Mr. Freiman said that you should assume that he is not qualified because his English is as my friend described it. Let me remind you that many times he pointed out the requirements of precision in English.

Thank you very much.

THE CHAIRPERSON: Do you have anything to add, Mr. Fromm?

MR. FROMM: No.

THE CHAIRPERSON: Thank you. We will take our break now.

--- Short Recess at 11:40 a.m.

--- Upon resuming at 11:57 a.m.

THE CHAIRPERSON: The Tribunal will reserve on the issue of Dr. Faurisson.

Do we have a witness?

MR. CHRISTIE: I propose to call Mrs. Calder. She will testify as to the general reputation of the Respondent in the community.

MR. FREIMAN: I object on two grounds. Basically, I object on the ground of relevance.

This is not a criminal trial. His general reputation in the community is irrelevant. The question is: Do the messages on the Zundelsite for which he is responsible tend to expose identifiable groups to hatred and contempt? His reputation in the community can't have any sort of bearing on that. That is my primary objection.

My secondary objection -- and I would appreciate clarification for all parties on this. This is the first time we have heard of this witness. My understanding was that with expert witnesses you need 10 days notice and a summary of their opinion, but that we were to be given a list of witnesses. We were given a list of witnesses that ran to about 30 names, in which these names were nowhere to be seen. For the first time today we hear these two new names that we have never heard before.

I am disturbed by that second problem, but my objection to the evidence is based on the first. There is no relevance to any matter in issue.

MR. KURZ: Could I just add: Where is Mr. Weber?

THE CHAIRPERSON: We know Mr. Weber is not going to be here this week.

Mr. Christie, there are three points there. The first is whether it is appropriate or relevant to call evidence to good character, this not being a criminal proceeding. What is the relevance of it and why should this Tribunal, as part of its deliberations, consider the character of this witness? Is his character in issue? This is the first I have heard of the notion that his character would be an issue.

MR. CHRISTIE: I didn't say evidence of good character; I didn't say evidence of character. I said evidence of general reputation in the community.

THE CHAIRPERSON: Isn't that an element of it, though?

MR. CHRISTIE: Character could be an element of reputation, but the question generally is: What is the reputation of the accused in the community to show good character? That is not the purpose of the evidence.

THE CHAIRPERSON: What is to show?

MR. CHRISTIE: To show that the general perception in the community is that Ernst Zundel is a crackpot, that he is crazy, that he is totally unreliable and totally without any social influence whatsoever on any reasonable person who knows his general reputation.

THE CHAIRPERSON: We haven't heard any evidence of that.

MR. CHRISTIE: That is why I want to call it. You said: What is the relevance?

THE CHAIRPERSON: No, I am saying that, as part of the Commission's case, we have not heard any evidence that would support that notion.

MR. CHRISTIE: No, we didn't.

MEMBER DEVINS: It would be in support, I take it, of an argument that you would like to advance that, therefore, what he says will not hurt anybody.

MR. CHRISTIE: That's right. No one will take anything he says seriously.

THE CHAIRPERSON: I see; it is for that purpose.

MR. CHRISTIE: That's right.

THE CHAIRPERSON: I didn't understand that you were trying to prove the affirmative.

MR. CHRISTIE: The affirmative being...? The affirmative is the accusation. The accusation is that what he publishes exposes people, by virtue of their race or religion, to hatred or contempt, and that is quite obviously in the social context somewhere. I am going to introduce evidence of the social context in Toronto, that people generally view Ernst Zundel as a crackpot and a crazy man from what they read about him in the media, and that nobody would take anything that he said seriously.

MEMBER DEVINS: Mr. Christie, is this witness a member of the community? Is she somebody who is an expert in --

MR. CHRISTIE: She is a member of the community.

MEMBER DEVINS: So she is just going to give us her perspective with respect to Mr. Zundel's position in the community or what she thinks of Mr. Zundel.

MR. CHRISTIE: Nobody has ever said that evidence of reputation in the community requires an expert.

MEMBER DEVINS: I am just trying to follow your argument, sir, in the sense that I understood you to be wanting to provide this evidence as evidence of how the community will view him, to assist us in determining, therefore, whether he will be viewed credibly and, therefore, whatever he says or is alleged to have said can expose somebody to hatred and contempt. I am just trying to understand the basis on which she is being tendered -- simply as her view and how she views it or whether it is your hope that we will then extrapolate from her view to what the community generally thinks.

MR. CHRISTIE: I recognize that your line of expertise may not include the usual concept of reputation evidence in a criminal context. In a criminal context one of the few exceptions to the hearsay rule, as I am aware of it, is that in terms of reputation evidence any member of the community can give their observations of the general reputation of the accused in the community. It is perceived not as simply their opinion, but their factual observation of the community.

MEMBER DEVINS: Maybe it my lack of expertise in criminal law, but I thought that was simply to show issues of good character.

MR. CHRISTIE: No. It could be --

MEMBER DEVINS: As opposed to what you are trying to demonstrate.

MR. CHRISTIE: Usually, it is to show evidence of good character, but what is relevant here is the social impact and the influence, notwithstanding any intent or anything else, of the words alleged to be attributed to the Respondent. It is relevant to show the social impact of the words, if they are the words of the accused, if they are uttered within the scope of section 13(1), is nil or next to nil because the reputation of this Respondent in the community, derived primarily through the media where most of the reputations of what we call public figures is derived, is so bad as to be lacking any form of credibility.

On the one hand, the media creates these impressions but, on the other hand, it will be my submission --

THE CHAIRPERSON: Just a moment, Mr. Freiman.

I would have to hear from counsel on what precisely the law is within a criminal context from which we can then decide whether there is a parallel or should be a parallel in the context of these proceedings.

It seems to me that, if you push this too far by saying that this witness is going to talk about the social impact, et cetera --

MR. CHRISTIE: No, general reputation in the community. I am not talking about evidence of good character or social effect; reputation in the community, from which I could argue --

THE CHAIRPERSON: I understood you to talk about social effect, which may be pushing it into an area of expertise.

MR. CHRISTIE: No, it's an argument.

MEMBER DEVINS: You want the evidence as a foundation to later make an argument.

MR. CHRISTIE: That's right. It will be my submission that rational human beings can perceive and it will be my endeavour to suggest that you should perceive that anyone whose general reputation in the community is that of a crackpot and someone who has crazy would have little or no social impact.

That is to most people. We don't know who you are going to be concerned about in the end, whether it is one person, 10 people, most people, rational people, the worst-case scenario, the least intelligent among us -- I don't know.

That deals with relevance.

On the issue of names, if I had given my learned friend the name Dorothy Calder, I doubt very much that it would have made the slightest difference. I don't know whether I am required to give him a list of approved questions; I don't think so. I don't think I am required to give him a pre-existing argument about relevance because I am not required to give him a summary of evidence of a non-expert witness. So it wouldn't have made any difference.

There is no prejudice that he didn't know the name Dorothy Calder. He may not know the name of Mr. Sammé and, if he had known it six months earlier, I doubt that it would make very much difference.

As far as Mrs. Calder is concerned, she has from time to time been in court in these proceedings. She didn't know until this morning that I was going to call her, so it wasn't her fault. I didn't know that I was going to call her until I thought about this last night.

That is dealing with the three things that I think I have told you all I can say.

THE CHAIRPERSON: Mr. Freiman, please.

MR. FREIMAN: I would like to defer to Mr. Rosen since he may know more about criminal law than I do. I do want to reserve a couple of comments at the end.

THE CHAIRPERSON: Mr. Rosen, please.

MR. ROSEN: This, of course, is not a criminal proceeding. In criminal proceedings character is not an issue unless the accused puts the character in issue. The reason is based not on the relevancy of the evidence but on a policy ground.

It being not open to the prosecution to call evidence of bad character from which a jury could draw the inference that the accused was more likely to have committed the offence, the accused on the other hand can raise character and say, "I am a person of good character from which you can draw the inference that I am not likely to have committed the offence." Then it could be responded to in terms of bad character once it is raised.

That is the whole purpose of character evidence.

Character evidence is, in fact, general reputation in the community, in my respectful submission.

Second, what Mr. Christie is putting forward on behalf of the Respondent, it seems to me, is really evidence of general reputation that he says does not go to character. The question is: To what does it go? Does it go to the motivation or the intent or to explain the conduct of the Respondent? If it does -- in other words, this so-called crackpot stands up and does these things -- it is completely irrelevant.

MEMBER DEVINS: I think the argument is simply that, in determining whether the statements stand on their own and if there is a general reputation that this is an incredible author, one has to take that into account. I understand that to be the purpose of this evidence.

MR. ROSEN: Right. Then the question becomes -- what I was getting at was this.

You said in your interim decision with respect to Dr. Schweitzer that it is the effect of an alleged action which forms the basis of our inquiry. As a corollary to this and was conceded by counsel for the Respondent, the intent of the Respondent is immaterial. It is the effect or, in the case of section 13(1), the likely effect of the Respondent's conduct which is relevant.

In my respectful submission, the effect or the likely effect comes from the words that are used. At least the position of my client, the Simon Wiesenthal Center, is that all anti-Semites are crackpots, but that doesn't mean that people don't take what they say seriously. Otherwise, why would we be concerned about the dissemination of hate literature?

MEMBER DEVINS: Isn't that simply an argument in response to the argument that Mr. Christie would like to advance on how we ought to use that evidence? We are now at the stage of whether we will hear the evidence or not, but there is an argument there to be made.

MR. ROSEN: In specific answer to what you say, in my respectful submission, general reputation in the community does not provide for the influence of whether others will take this person seriously or not. That is much different from calling someone who intends to say that these writings are well known and, therefore, no one takes them seriously. That is a different thing, and it has nothing to do with the general reputation of the Respondent.

MEMBER DEVINS: Could I just ask, in terms of the criminal law context, whether evidence not of good character but of general reputation is permitted from an individual in a personal capacity as opposed to an expert.

MR. ROSEN: No. The evidence of character is: Not only do I know this individual, but I know the community in which he or she lives, and I am reporting to you -- it is an exception to the hearsay rule -- what all the people in our community say about this accused.

MEMBER DEVINS: So they are not qualified as an expert.

MR. ROSEN: They are not qualified as an expert, but they are reporting information that they get from others, because you can't bring in 100 people.

MEMBER DEVINS: I understand. Thank you.

THE CHAIRPERSON: Mr. Freiman, please.

MR. FREIMAN: In my submission, that really begins to focus in on the difference between what Mr. Christie is trying to do and the limited exception to the hearsay rule. It is an exception to the hearsay rule based on the idea that a person's good character -- not his reputation beyond that, but his good character -- is something that is known within the community and that a member of the community can testify about.

That is not what Mr. Christie wants to do at all. What he wants to do is, in my submission, unprecedented. He wants to use a lay witness to give expert evidence -- not just hearsay evidence, but expert evidence -- as to the credibility of the Respondent in the community in the sense of whether his opinion is likely to be influential.

That is quintessentially a matter of expert evidence. It requires a sociologist at the very least who is able, first of all, to give statistics or to give some basis for the statement about reputation -- and not just reputation. As Mr. Rosen points out, in a criminal matter it is a question of reputation in the community around us, a group of people.

Here we are dealing with messages that have potential to be communicated throughout Canada. In order for this evidence to have any cogency or any relevance, it has to deal with the effects from coast to coast the effects in general everywhere -- that is, how people everywhere in Canada perceive this man.

MEMBER DEVINS: Doesn't that go to the weight of the evidence as opposed to the relevancy?

MR. FREIMAN: No, because there is no relevance to saying, "In my circle of friends and the people whom I know, Ernst Zundel is thought to be a crackpot." There is no relevance whatsoever to whether that is true or false.

MEMBER DEVINS: No relevance or little relevance?

MR. FREIMAN: None. She can come and she can say, "I consider Ernst Zundel to be a crackpot, and I wouldn't be influenced by him." She won't say that, I am confident, but she will say that other people consider Ernst Zundel to be a crackpot.

There are two objections. It is an exception to the hearsay rule that is not accounted for anywhere. There is no statement anywhere that expands this exception to the hearsay rule beyond --

THE CHAIRPERSON: What is the qualitative difference between the criminal model with which we are familiar, in which a witness says, "I know Mark Freiman and I know him well enough, and I am acquainted enough about other people who know him, that he has a reputation for honesty and probity and so on?" That is a model accepted as a matter of law.

Here the model is: "I know Ernst Zundel and I know about his publications, and I know that people in this community don't pay any attention to his writings in the sense of belief because most people say he is a crackpot."

It's an odd thing for someone to advance, but there is not everything regular about this case.

MR. FREIMAN: No. If we had a regular day, that would be an irregular occurrence.

The difference is that, for purposes of establishing good character, it is probative to ask someone who is credible what he or she knows about the accused and what he or she knows about the community in which the accused lives and how they regard him. That community will be a relatively circumscribed community. Those who would be willing to testify about my probity would be extremely circumscribed and, therefore, easy to ascertain.

Here we are not dealing with that at all. First of all, we are not dealing with good character; we are dealing with something quite different. We are dealing with the question: Is he likely to be believed?

This witness can talk about whether she herself would likely believe anything that Ernst Zundel says and she can testify as to the impressions that she has derived by reading newspapers, listening to radio programs or watching television as to what other people might believe or might not believe.

In order to raise that beyond the level of anecdote and personal evidence -- if she wants to come and testify about her own beliefs or her own view of his credibility, whether she believes him or not, she is competent to do that. Whether the Tribunal wishes to waste its time on that is for the Tribunal to answer. But she cannot go beyond that, to give what is in my submission truly an expert opinion as to a general reputation for credibility and the general effect that this man's thoughts or words might have within the community.

THE CHAIRPERSON: It seems to me that the answer to this depends, in part, on an evidentiary rule, some law with relation to evidence --

MR. FREIMAN: My first submission was that there has never been a ruling --

THE CHAIRPERSON: I am talking about the civil rules of evidence as opposed to criminal law.

MR. FREIMAN: There is a specified exception to the rules of evidence that says that evidence as to general reputation within the accused's community can be proffered as evidence of good character. All exceptions to the hearsay rule are, of necessity, circumscribed to the way that they have been defined.

Mr. Christie has to show us that that exception has at some point been expanded for some good reason beyond that.

THE CHAIRPERSON: Is there any parallel between this and in a defamation case where one gives evidence as to the effect of the words complained of?

MR. FREIMAN: You can't give evidence as to the effect of the words complained of for purposes of meaning. You can give evidence as to the impact that it has had on the person himself and of his experience of how people have treated him after the defamation. You can't take advantage of that in order to bootstrap yourself into an interpretation of meaning.

Maybe that is a good parallel. In defamation meaning is the sole province of the trier of fact. You can adduce evidence as to the effect on you of the defamation in terms of how people have treated you, but you cannot use the fact that Mr. Christie came up to me after hearing about a defamation and said, "What a pity that you have been called an untruthful person" as evidence that the meaning of the defamation was that I was an untruthful person.

THE CHAIRPERSON: Mitigate it in some way.

MR. FREIMAN: Perhaps.

THE CHAIRPERSON: It would be mitigated if Mr. Christie said that.

MR. FREIMAN: Then we would have to bring some evidence as to Mr. Christie's general reputation for credibility within the community. You can see where that leads.

It is really very simple. This is an unprecedented extension of the limited exception to the hearsay rule and, second, it goes far beyond even the issue of general good character. It goes to an area that is quintessentially a matter of expert opinion.

THE CHAIRPERSON: Mr. Kurz, please.

How long do you think this evidence would take?

MR. CHRISTIE: I have three witnesses in this category. I would suspect that it would take about an hour.

THE CHAIRPERSON: Each?

MR. CHRISTIE: No, for all.

MR. FREIMAN: We should spend the time listening rather than arguing about it.

I am willing, on behalf of the Commission, to concede that much. It is not worth the argument and it is not worth the waste of time.

THE CHAIRPERSON: I was going to ask for lengthy written argument on this issue.

MR. FREIMAN: I was afraid you were going to do that, and that, in part, motivates me.

May I make it clear, however, that I am conceding the ability of these witnesses to come and testify for what it is worth, without abandoning my argument that it is worthless.

THE CHAIRPERSON: I understand that.

Do you want to call your first witness?

MR. CHRISTIE: I don't know if I understand the last statement. If it is admitted that it is admissible but they say it is of no weight, I don't mind that. If they are saying that they want to argue about admissibility after the fact --

MEMBER DEVINS: I understood it to be weight.

MR. ROSEN: I would just like to make the observation that this witness has been sitting through the proceedings for virtually the entire time, at least the time I have been here.

AFFIRMED: DOROTHY CALDER

30 Norman Court

Hamilton, Ontario

THE CHAIRPERSON: I thought I made it clear last time that this was the last time this was going to happen, that we would have a witness give evidence when it is clear that there is an order excluding witnesses.

I take what you said earlier, that you just decided to do this overnight and this is a new witness and a new idea in your defence. Surely you could have known that the witness was sitting in the court room this morning, if that is the case.

MR. CHRISTIE: Yes, that's the truth. I knew she was sitting in the court room this morning and she remained there. She heard the argument about Dr. Faurisson, and that's a fact.

I really don't think it has anything to do with her evidence regarding this issue, and I leave it to you --

THE CHAIRPERSON: You should not make that judgment before the Tribunal. The rule is clear, and we are the ones who will decide whether a witness will be in the court room or not. I shouldn't have to repeat that.

MR. FREIMAN: Then maybe we will try somebody else.

MR. KURZ: She heard the argument even about her own admissibility.

THE CHAIRPERSON: We will see whether that has any bearing on the weight of this evidence.

MR. CHRISTIE: Normally, that is what I understood was the circumstance.

EXAMINATION-IN-CHIEF