IN THE MATTER OF SECTION 41 OF THE CANADA POST CORPORATION ACT

AND

IN THE MATTER OF AN INTERIM PROHIBITORY ORDER OF THE MINISTER RESPECTING SAMISDAT PUBLISHERS LTD.

REPORT OF THE BOARD OF REVIEW
APPOINTED TO INQUIRE INTO THE FACTS AND
CIRCUMSTANCES SURROUNDING THE INTERIM
PROHIBITORY ORDER

I A Board of Review appointed by the Minister responsible for the Canada Post Corporation pursuant to Section 41(3) of the Canada Post Corporation Act (the "Act") comprising of Donald Burke, Mathew Dale and Robert Chevrier as Chairman, sat on the 22nd, 23rd and 24th days of February, 1982, and again on the 11th and 12th days of March, 1982, to inquire into the facts and circumstances surrounding the Interim Prohibitory Order and to hear evidence and representations.

Mr. Richard King of the Department of Justice, Legal Services, represented Canada Post (or the Minister), Miss Lynn McCaw represented Samisdat Publishers Ltd. the affected party, Mr. Lawrence Greenspon and Mr. Sidney Moscoe (briefly) represented the Canadian Holocaust Remembrance Association. Counsel for this association advised the Board it was appearing in support of the Interim Prohibitory Order. Mr. Ian Scott Q.C. on behalf of the Canadian Civil Liberties Association requested an opportunity to make representing (sic) to the Board and did attend on February 22nd, for this purpose. Both the Canadian Holocaust Remembrance Association and the Canadian Civil Liberties Association appeared at the hearing as parties having an interest in the matter pursuant to Section 41(7) of the Act.

The Board after hearing the evidence during lengthy proceedings and reviewing same along with the many exhibits filed, now submits its report to the Minister.

II

The Interim Prohibitory Order which resulted in this inquiry was made by the Minister responsible for the Canada Post Corporation on the 13th day of November, 1981. A true copy of the order as signed by the Minister was filed with the Board as Exhibit No. 4.

In making the Interim Prohibitory Order the Minister relied upon information and material contained in a memorandum to him dated the 4th day of November, 1981, from the National Director, Security and Investigation Services, Canada Post, which memorandum was entered as Exhibit 5.

The aggrieved party Samisdat Publishers Ltd. was advised that the Interim Prohibitory Order was made pursuant to Section 41(1) of the Canada Post Corporation Act because the Minister believed on reasonable grounds that Samisdat Publishers Ltd. was committing or attempting to commit an offence contrary to the Hate Propaganda Section of the Criminal Code and in particular contrary to Section 281.2(2) which reads as follows:

"(2) Every one who, by communicating statements, other than in private conversation, willfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for two years; or

(b) an offence punishable on summary conviction."

There are two preliminary matters raised in the proceedings on which the Board wishes to comment:

(a) Section 41(7) of the Act provides that any person who has an interest in the matter shall be given a "reasonable opportunity" to appear and to make representations and present evidence to the Board. At this hearing there were 2 such parties who appeared. The Canadian Civil Liberties Association simply requested the opportunity to make representations whereas the Canadian Holocaust Remembrance Association wished to participate more actively and present evidence. There is no particular difficulty in allowing parties to make representations however certain procedural problems do arise where evidence is called and counsel for the various parties all wish to cross-examine witnesses. At the hearing counsel for the Canadian Holocaust Remembrance Association was allowed to cross-examine the opposing witness. In other instances where there could be a multitude of interested parties the procedure to be followed might have to be reconsidered. As long as the Act is complied with and interested parties are given a "reasonable opportunity" to be heard other Boards of Review might wish to limit participation in order to shorten the proceedings.

(b) In his representations to the Board, Counsel for the Canadian Civil Liberties Association argued that Section 41 of the Act was "inoperative" and "ultra vires" because it is contrary to the law of Canada as expressed in the Bill of Rights (and Charter of Rights) which presumes a person innocent until proven guilty. If an argument is to be made on whether or not this section of the Act is "ultra vires" it ought to be made before a court competent to decide this point and not before this Board. It is noted that the Board itself operates pursuant to Section 41. The board should not have to rule on its own jurisdiction.

III

The case against Samisdat Publishers Ltd. consisted mainly in presenting the evidence of Professor Rene Jean Ravault who appeared as a witness and also submitted a lengthy report to the Board entered as Exhibit 25. Professor Ravault a specialist in communications with a doctorate in mass communications was presented as an expert witness qualified to analyse the "offending material." The Professor reviewed the publications entitled "The West, War and Islam" and "Backlash" and concluded that this was a hate campaign directed against the Jews. It is noted that the professor's analysis focused on certain words, phrases or passages in the publications previously referred to.

The Board was invited to rely on this report and to agree with the Professor's conclusion. The Board was not given the benefit of assessing the "offending material" as against material that had previously been determined to be "hate material" probably because there is a lack of precedents in this regard.

The Board notes that Professor Ravault was introduced to this case by the Canadian Holocaust Remembrance Association and consequently he had established some affiliation with an interested party. It would have been helpful to the Board if "independent" witnesses, exposed to Samisdat publications had been called to relate feelings of "hatred." Instead of analyzing passages this would have given a better general reaction to the documentation as a whole.

Professor Ravault was the single most important witness to present evidence in support of maintaining the Order. When subjected to cross-examination by Counsel for Samisdat Publishers Ltd. this witness became inconsistent and evasive in the answers given. The Board is very much in doubt that a court of law would convict the author Ernst Zundel on his analysis and testimony.

There was no dispute concerning the source of the material. Mr. Ernst Zundel the owner of Samisdat Publishers Ltd. readily admitted that he was the author of the material presented in evidence and that this material had been carried through the Canadian mail although the majority of the recipients were residents of other countries. He was himself instrumental in providing additional material to Inspector Holmes when the investigation was being carried out.

For the defence, Ernst Zundel explained that his writings reflected an attempt to fight the stereotyping of the Germans as nasty, cruel and vicious people. He explained his actions by saying that his campaign is one directed at counter-acting this stereotyping. He gave many examples of this by way of comic books, movies, advertisements, writings, etc. showing Germans as the "bad guys." Many examples were left with the Board and are available for review in the Exhibits on hand.

While the Board finds that Mr. Zundel's writings are in bad taste and no doubt offensive to some, the Board is not satisfied that it has been established that this material amounts to the promotion of hatred contrary to Section 281.2(2) of the Criminal Code; consequently the Board need not comment further on the other elements of this offence. The Board is prepared to adopt the argument of the Canadian Civil Liberties Association calling for the person to be prosecuted if it is thought that an offence has been committed.

There was much animosity demonstrated at the hearing between the "prosecution" and the "defence" to the extent that the proceedings were unusually long and arduous and were hindered by numerous interruptions, objections and even lack of courtesy between Counsel. The Board believes that what is before it is a much larger problem or struggle between two peoples i.e. the Germans and the Jews and is reluctant to recommend to the Minister that the interruption of mail service should be continued.

The Board concludes that the Minister was justified in making the Interim Prohibitory Order because there was evidence to support the Interim Order. This is an appropriate first step in ensuring that what can at the outset appear to be offending material can be stopped immediately to ensure that effective action can be taken in order to protect society and the public at large. However, after this initial step is taken the Board feels that only in cases where the evidence is overwhelming should the interim order be made final. In doubtful cases such as this one the affected parties should be given the benefit of he doubt.

In coming to this conclusion, the Board was influenced by the following:

(a) Mr. Zundel or Samisdat has operated openly in Canada for many years. This is not what might be called an underground operation.

(b) The affected parties co-operated with the authorities. In large measure the evidence presented at the Board was material made available on a voluntary basis.

(c) Mr. Zundel's activities have been the subject of monitoring by both the Metropolitan Toronto Police and the Ontario Provincial Police for many years and as reported to the Board no action has been taken to prosecute him.

(d) The material produced by Zundel is not distributed at large. There is a mailing list. Material is available for those who wish to receive it.

(e) There have been very few complaints emanating from the general public.

Dated at Ottawa this 18th day of October 1982.

(Signed) Robert Chevrier
(Signed) Mathew Dale
(Signed) Donald Burke