Court File No: A-253-99 BETWEEN: Appelants ERNST ZUNDEL and CANADIAN ASSOCIATION FOR FREE EXPRESSION INC. Respondents MOTION RECORD of the Respondent the Canadian Association for Free Expression Inc. Paul Fromm, Director Canadian Association for Free Expression Inc. Box 332, Rexdale, Ontario, M9W 5L3 PH: 905-897-7221 FAX 905-277-3914 WRITTEN REPRESENTATIONS OF THE RESPONDENT, THE CANADIAN ASSOCIATION FOR FREE EXPRESSION INC. 1. The appellant, the Simon Wiesenthal Centre, has brought a motion for: (a) an order expediting the hearing of this appeal; (b) directions with respect to the conduct of the appeal; (c) an order that this appeal and appeals A-258-99 and A-269-99 be consolidated; heard together or heard one immediately after the other (d) costs of the motion. 2. The respondent adopts the submission of the respondent Ernst Zundel that the appeals should either be consolidated or heard one immediately after the other. 3. The respondent strongly opposes any order expediting the appeals. The respondent must reply to three appeals in A-253-99, A-258-99, and A-269-99, and one cross-appeal from the Canadian Human Rights Commission (in A-253-99). 4. The Canadian Association for Free Expression adopts the submissions of the respondent Ernst Zundel that the appellant has failed to meet the test required for expediting an appeal. In Apotex Inc v. Wellcome Foundation Ltd. [1998], F.C.J. No. 859 (Fed. CA.) in which Robinson J. held that the test for granting expedited appeals is that set out in RJR MacDonald Inc v. Canada (1994), 54 C.P.R. (3d) 114 (SCC); that is, that the appellants must show: (a) a serious issue to be tried; (b) irreparable harm and (c) a balance of convenience. 5. The Canadian Association for Free Expression adopts the submission of the respondent Ernst Zundel that there is no serious issue to be tried since it is clear the proper legal test was applied by Campbell, J. and he took a correct view of the facts. 6. It is submitted that the appellants have failed to prove irreparable harm or balance of convenience in favour of an expedited appeal. 7. The sole evidence of irreparable harm is an affidavit of Bernie Farber of the Canadian Jewish Congress quoting from four Z-Grams. 8. Mr. Farber offers no evidence of expertise in textual analysis to support his conclusion (Tab 2, paragraph 37): "I believe that the effect of Justice Campbell [sic] decisions and the subsequent adjournment of the Tribunal hearing has been to provide something akin to a license [sic], if not justification, for the hateful sentiments expressed on the Zundelsite." 9. Mr. Farber assumes part of what is at issue before the Tribunal: that is, that statements on the Zundelsite constitute "hate". Certainly, in terms of Section 319 of the Criminal Code, that is blatantly false. The respondent has never been charged with or convicted of "wilfuly promoting hatred" against an identifiable group. 10. In fact, Mr. Farber himself seems to acknowledge that recent statements on the Zundelsite fall far short of "hate" At Tab, paragraph 38, he complains of "inflammatory threats and invective directed against Jewish people." 11. Mr. Farber offers no evidence of "threats" made against Jewish people. It is respectfully submitted that no group in society has a right to be free of invective or spirited comment or commentary in the course of debate. Several cases of perceived "invective" scarcely meet the test of "irreparable" harm that would be needed to merit an expedited hearing. 12. The comments in the first three Z-grams cited are not directed against Jews in general, but at a subset, an ideological group, identified as "Canada's Holocaust Lobby" (i and iii) and those practising "Holocaust Enforcer tactics" (ii). 13. Mr. Farber, at Tab 2 (1) identifies himself: "I am the Executive Director of the Ontario Region of the Canadian Jewish Congress ('Congress') and formerly the National Director, Community Relations of Congress." He is, thus, a longtime employee of the appellant the Canadian Jewish Congress. He is a frequently quoted media spokesman for the Congress and as longtime antagonist of Ernst Zundel. His affidavit seems more in the nature of an attempt to silence an ideological opponent than the presentation of any real harm suffered by Jewish people or any others because of the ongoing operations of the Zundelsite. 14. Mr. Farber shows no examples of serious harm -- violence, vandalism, traceable to the respondent Ernst Zundel -- that might qualify as "irreparable harm". 15. In Tab 2 (paragraph 38, iii),Mr. Farber misses the metaphorical use of language in the creation of powerful polemical word pictures and satire. The full quotation of the description of the lawyers opposing Ernst Zundel is: "Ernst and I had a good laugh on the phone yesterday when he recounted how the attorneys for the Holocaust Lobby hurried out of the courtroom and straight into another Hebrew huddle 'flapping their black lawyers' gowns in the breeze and looking just like Draculas ...' out into the halls of the courtroom, where they convened '... and nattering like geese, if I may mix two metaphors...' after Judge Campbell ruled briskly and decisively in Mr. Zundel's favour. " (Tab 2, EE, p.273-274) 16. The language here is highly picturesque. The suggestion that clad in their formal black gowns lawyers resemble Dracula is an only slightly more creative flight of fancy than the more common comparsion to penguins. The continuation of this passage, not cited by Mr. Farber, which has the lawyers "nattering like geese" suggests a group of people all of one mind. That, indeed, for legal purposes is the stance of the complainant and the appellants' lawyers. They are on one "side", so to speak, and of one mind in this case; hence, flocking together like geese. 17. While this is a highly picturesque and polemical description that takes some poetic liberties -- there was, for instance, likely no breeze inside the court building for these lawyers' robes to flap in -- this passage does not contain "inflammatory threats and invective against Jewish people." It does not assert that the lawyers in question were Jewish. The cause they serve -- the "Holocaust Lobby," according to the passage -- is an ideological one. It is not implied that the reader should dislike or even oppose all Jews . 18. Mr. Farber does not establish that the respondent had anything to do with the Z-grams in question. 19. He assigns responsibility for the Z-grams in question to the respondent -- a matter that is very much in dispute before the Tribunal. It has been established before the Tribunal that the Zundelsite is located in the United States and is owned and operated by Dr. Ingrid Rimland, an American citizen. At Tab EE (page 264) the Z-gram of April 14, 1999 downloaded from the Internet clearly states "Copyright (c) 1998 -- Ingrid A. Rimland." 20. At Tab 2 (paragraph 36), Mr. Farber states: "The appellants, and particularly the complainants, have participated fully in the hearing and would be severely prejudiced if the hearing did not resume in a timely fashion." The complainant Sabina Citron and the Canadian Holocaust Remembrance Association have been involved in a campaign of almost 20 years of duration against the respondent Ernst Zundel. This campaign has involved: a) a complaint that he had knowngly published "false news" that led to two trials and an eventual quashing of his conviction and the law by the Supreme Court of Canada after nine years before the courts; 21. The complainant Sabina Citron's ideological warfare against the respondent Ernst Zundel has taken on the appearances of a vendetta. The complainant and the appellants who have aligned themselves with her campaign, in this matter, suffer no "irreparable" harm. They suffer only the chagrin and inconvenience of having failed to silence an antagonist whom they have long tried to silence, jail or have deported. 22. It is our respectful submission that the desire to swiftly silence views the appellants may dislike scarcely meets the test of "irreparable harm" should those views or the views promulgated on the Zundelsite continue to be available to the public until the resolution of these appeals in the normal fullness of time. 23. The respondent, the Canadian Association for Free Expression, asks that in any directions issued by the Court, that the respondent be granted 45 days from the filing of the last applicants Memorandum to file their own Memorandum of Fact and Law under Rule 346(3). 24. The respondent the Canadian Association for Free Expression requests that the Court withhold judgement until after cross-examination of Bernie Farber on his affidavit as we wish to rely on the transcript of this cross-examination in our Memorandum of Fact and Law. Dated this 24th day of May, 1999. Paul Fromm PH: 905-897-7221 FAX: 905-277-3914
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