MR. CHRISTIE:

Q. What is the date of your birth, Mr. Schmidt?

THE CHAIRPERSON: Excuse me, Mr. Christie. Mr. Freiman, please.

MR. FREIMAN: May I just register the Commission's objection. Mr. Christie undertook last week to provide a brief summary of the testimony of his fact witnesses. We have seen absolutely nothing. We know nothing at all about this gentleman or any of the other alleged fact witnesses who are to be called or what they are to say. We have no way whatsoever to prepare or even begin to prepare to meet their testimony.

MR. CHRISTIE: As you so often pointed out, this is not a criminal case. I don't know that a defendant in a criminal case has to provide lists of witnesses or a summary of their testimony. I don't recall undertaking to produce anything.

My intention is to call relevant evidence to show things that are necessary for the defence. If I am not required under the civil rules to produce lists of witnesses and summaries of evidence and if I am not required under any criminal rules, I don't know why I should have to do that.

THE CHAIRPERSON: You are not tendering him as an expert?

MR. CHRISTIE: No.

THE CHAIRPERSON: I understood that you were going to accommodate the members of the Commission and other counsel by giving them some indication of what the purpose of the witness' evidence is, simply to allow the Tribunal to proceed in an orderly way. That not being done, however, I am not going to order that the witness not be heard. We will have to see what the evidence is. If other counsel need time to prepare cross-examination, we will confront that at the end of the examination-in-chief.

Please proceed.

MR. KURZ: Mr. Chair, that being the case, I don't want to stop Mr. Schmidt from going. We have to proceed notwithstanding all that has been said.

Perhaps Mr. Christie could tell us who his next batch of witnesses are, and maybe he can provide us with what he didn't provide us with regard to Mr. Schmidt so that we can at least be prepared. Whether that witness will be today, tomorrow or what have you, at least we can have that accommodation and that assistance with regard to any subsequent witnesses.

MR. CHRISTIE: I will take that under advisement. My position is probably going to be the same.

Every time we deal with this in a civil court, the witness comes to the stand, testifies and is cross-examined. It is not normally required that anyone produce a list of witnesses or ‑‑

THE CHAIRPERSON: I think the civil procedure has gone far beyond that with pre-trial disclosure and so on. This, as you have said, Mr. Christie, is not a criminal case and is not even a civil case; it is somewhere in between. We are masters of our own rules here, within reason, so I am simply encouraging you to be co-operative with other counsel in disclosing the purpose of a particular witness' evidence. I don't ask you to do that 10 days ahead of time, but just give them some reasonable warning of what the next witness' evidence is going to be.

In the meantime, we will proceed with this witness.

MR. CHRISTIE:

Q. Where were you born, sir?

A. I was born in Yugoslavia on March 22, 1922.

THE CHAIRPERSON: I am sorry, I didn't get the witness' name.

THE WITNESS: Frank Schmidt, S-c-h-m-i-d-t.

MR. CHRISTIE:

Q. What was your ethnic background?

A. My ethnic background is German.

Q. How did it come to be that a German person was born in 1922 in what is now as Yugoslavia?

A. It was Austria-Hungary before World War I, and it was ceded to the Kingdom of Serbs, Croats and Slovians. According to my birth certificate, that is where I was born. It was named Yugoslavia in 1929. It was taken back by Hungary again during the Second World War, went back again to Yugoslavia, and now since 1990 it is Serbia. It's the same place.

Q. How long did you stay in that part of the world?

A. About 10 years.

Q. Where did you go from there?

A. To Canada. My father emigrated in 1929, and he brought us over, my mother, my brother and myself, in 1933.

Q. Where were you educated?

A. I was educated in St. Patrick's and St. Francis Schools and Central Technical School on Harbord Street.

Q. What did you do during the war?

A. During the war I enlisted as a volunteer on December 2, 1941. I was discharged on June 24, 1946.

Q. To what army did you volunteer?

A. The Canadian Army.

Q. Where did you serve?

A. I served in the Canadian Army, training in Canada. I took a German course at Royal Military College in 1942. I went overseas to England and landed with our unit in Ostend, Belgium, and I stayed with that unit until the war ended. After that I was transferred to the Canadian Occupation Army because of my knowledge of German.

Q. Were you a member of the 4th Canadian Armoured Division?

A. Yes, 23rd Field Regiment, 4th Canadian Army Division.

Q. Subsequent to your discharge, what did you do?

A. In Germany I looked after gathering foreign workers and Allied prisoners of war and sending them back to their countries of origin, in the County of Amberland which is near Oldenburg, and did other sundry services for the British military government.

Q. After you got back from Europe at the end of the war, what did you do?

A. When I came back from Europe, I went back to my job as a mechanic at Beatty Cadillac, which I had for a year before, and worked there as a mechanic until 1954, became Service Manager in a dealership in Scarborough and in Oshawa. From then, from 1962 until 1981, I was a new car salesman.

Q. Were you, after the war, involved in any German ethnic clubs?

A. Yes. I was involved in the re-founding of the German Harmony Club in 1946 or 1947, I am not sure of the exact date. I remained with them. At that time, the Danube Swabians ethnic group, of which I am a member, was also in the Harmony Club, but they separated in 1954 and eventually got their own home on Main Street and right now on Ellesmere Avenue.

Q. Were you a member of the Danube Swabian Association?

A. I was a member and I was also Secretary of this association for five years, and I was President for one year.

Q. Was there an organization of Danube Swabians worldwide?

A. Yes, there was, and I was also a press agent for this organization.

Q. In regard to that, did you communicate with the same members of that ethnic group?

A. Yes, I travelled to Hungary, Austria, Germany, Brazil, Australia and New Zealand, and I made contact with groups living in those countries.

Q. Were you editor of the newspaper for ‑‑

A. Yes, I was editor of a newspaper called "Heimbabote" with a circulation of about 3,000 in Canada and the States from 1989 until 1996.

Q. Have you been involved in any journalistic organizations?

A. Yes, I am a member of the Ethnic Journalists and Writers Club. I received an award from them in 1989 as well as from the Province of Ontario and also from Gerry Weiner who was at that time the Minister of State for Multiculturalism, commenting on my services to the ethnic community and peace in the ethnic community.

Q. Did you say "peace in the ethnic community?"

A. Maybe I shouldn't use that word ‑‑ not exactly peace, but co-operation among the ethnic groups.

Q. Do you consider yourself an ethnic German?

A. Yes.

Q. In regard to that, are you familiar with the contemporary social context of the Holocaust and its effect on ethnic Germans?

A. The Holocaust?

Q. Yes.

A. Can you explain to me what that means

‑‑ the Holocaust? I went through the war and never heard of a Holocaust until 1967.

MR. ROSEN: I have an objection. In my respectful submission, this witness is not competent to testify to the so-called social context. Second, social context is completely irrelevant. He is not being presented as an expert witness, so he can't give you an opinion or report on hearsay matters that lead to an opinion. If he did something factually, if he said something, saw something, heard something, in my respectful submission, that is what he is limited to as a fact witness.

MR. CHRISTIE: In my submission, ethnic Germans are quite competent to comment, from their own personal experience, on the phenomenon of the Holocaust story and its effect on their lives. Someone familiar with the German community and recognized as such is quite suitable and quite competent to testify as to their own experience as to what effect this has had upon them in terms of their experience.

THE CHAIRPERSON: Am I to understand that he doesn't know about the Holocaust?

MR. CHRISTIE: That is the answer that he gave, but I think that was probably subject to some explanation.

THE CHAIRPERSON: You are not qualifying this witness as an expert.

MR. CHRISTIE: That's correct.

THE CHAIRPERSON: He can talk about his own personal experience, I suppose, to the extent that it is relevant, what his own reaction is to certain events or certain series of events. We can deal with each question as it comes.

I took it from the question you put to him, Mr. Christie, that you were eliciting an opinion from him.

MR. CHRISTIE: No, I just asked him if he was familiar with the word "Holocaust" ‑‑ I am not sure exactly what the question was, but that was the purpose of it. The question resulted in an answer that indicated that he didn't know what I was talking about. Perhaps we can get beyond that.

MR. ROSEN: Mr. Christie also in his submissions, Mr. Chairman and Members of the Tribunal, said that this witness was entitled to talk about his view of the Holocaust story. I take it that what we have here is another Holocaust denier and that what Mr. Christie is attempting to do is lead evidence in some way, shape or form that the Holocaust didn't happen, as a basis to demonstrate that much of what Mr. Zundel wrote on the Zundelsite was true.

It circumvents your earlier ruling and it brings into issue a historical fact for which there has been judicial notice in other proceedings. In any event, it distracts the Tribunal from the main issue to be decided. In my respectful submission, if that is the purpose of calling this witness, then the Tribunal ought to prevent it from happening.

Those are my submissions.

THE CHAIRPERSON: You may be making too great a leap there, Mr. Rosen.

MR. CHRISTIE: I meant to refer to his experience of the Holocaust story in terms of his ethnic group, not his opinion of the Holocaust story or his belief or disbelief in its truth, or whether or not he was a Holocaust denier. That wasn't the question, and I don't intend to lead evidence as to those issues. My purpose is to lead evidence as to how this has impacted upon his group and his perception of the effect of the Zundel writing in regard to his group.

MR. ROSEN: It is not a story, and the impact of the Zundel writing on his group is not an issue because the identifiable group that is at issue, in my respectful submission, is a group that are Jewish by religion, culture or whatever.

THE CHAIRPERSON: We are going to have to emerge at some point here to a ruling. Before doing that, I want to ask Mr. Christie what the purpose of this evidence is and how it is relevant.

Let's assume that you say that the evidence that this witness is going to speak about is certain events, including the Holocaust, once he is able to identify what you are talking about. How is that relevant to the ultimate aim of this Tribunal, which is to try to decide whether there is any merit to the complaints against your client?

MR. CHRISTIE: The social context in which the comments are made and their impact upon German ethnic persons in the interests of multiculturalism would probably be relevant to show that it is not productive or promotional of hatred or contempt, but is merely the answer to another point of view. In the social context that I would like to suggest that this witness could demonstrate, the existence of the Holocaust and its impact upon the German community is relevant to show that the other point of view is useful in terms of balance and is not productive of hatred or contempt of Jewish people at all, but merely expresses another point of view, and that that is the way it would be seen at least by those who are the victims of an existing form of discrimination, vis-à-vis against German people.

MEMBER DEVINS: Mr. Christie, isn't it also possible that the expression of another point of view can nonetheless promote hatred or contempt? I am having some difficulty following that line of argument.

MR. CHRISTIE: Another point of view could conceivably promote hatred. Just being another point of view doesn't necessarily mean that it could not promote hatred. But to deny the opportunity to show the context in which these statements are made in contemporary society and to rely upon the opinion of an expert in history from another country is really denying the opportunity to show the current, contemporaneous context of society in which these words are alleged to have some impact. We are, after all, not concerned about their potential impact on American society with which Dr. Schweitzer claimed to be familiar.

In my submission, it would be very appropriate to allow the expression of the context to be communicated from persons who live in Canada and who live here now and who are affected by the words. The effect of those words upon them would seem to me to be relevant to show their social context, their impact and also their likelihood of what are regarded as the severe emotions of hatred or contempt.

MEMBER DEVINS: If I could just follow up on that, how would it assist us? Even if you can demonstrate through this witness that it didn't arouse hatred or contempt in him, how does that help us with the broader issue of whether it arouses hatred and contempt? It may well nonetheless arouse that emotion in others.

I am really wondering about the ultimate relevance.

MR. CHRISTIE: There has been no one so far to say that hatred or contempt was aroused, so you are going to have to be the triers of fact to decide that in the absence of any evidence from the complainants.

What I am endeavouring to do is to show the social context in which it is not actually productive of hatred. It rebuts hatred. It rebuts hatred against German ethnic persons. It is actually productive of an antidote to hatred, not productive of contempt or hatred.

When there is an argument in progress and only one side of the argument is allowed to express itself, then that is productive of hatred and contempt; that would be my argument. When both sides of the argument are entitled to express their views, then it is not productive of hatred or contempt, but of greater understanding.

That is the position I will take if you will allow me to show the context of our society today. I will also suggest that, if you were to deny the opportunity to show social context from those who are what I would call victims of this use of the Holocaust, use as was referred to in the book of Segev, the political use of the Holocaust, if you deny the opportunity to show the balance to that ‑‑ in other words, the effect of that on those who are the victims of that propaganda; if you deny that opportunity, then of course you are seeing a statement in isolation from its social context. That will be to distort its meaning and to distort its effect. The effect of the statement has to be seen in context because, if it is in the course of an argument, it has a different impact than if it is simply stated in isolation.

In order to show the impact on society generally, one has to perceive what way a member of society would see it, as being in the context of an ongoing and controversial debate or in simply a one-sided attack by one person against another ethnic group.

If you prevent this type of evidence, that is the impression that will be left, that it is a one-sided attack by one individual against another ethnic group. If you allow the evidence of those who say that this abuse or use of the Holocaust story is productive of hatred and that this has to be answered by another point of view ‑‑ you have said that it is not relevant whether it is true or not, so we can't demonstrate whether it is or isn't true, to the extent that it is ‑‑ it balances the existing propaganda, to offset it, and thereby produce both in society at large the concept that there is a controversy, that it is not merely a debate, and that the language is therefore not to be seen as the view of one person expressed with animosity to another ethnic group and to be seen by German persons as an antidote to existing hate propaganda against them. Then of course it shows the context to be not productive of hatred or contempt but productive of, in fact, a balance of diverse opinion.

Of course, if you don't want us to be allowed to show that, we cannot then argue it, and that would be an effective way to prevent the argument from even being advanced. If your purpose is to allow the consideration of social context in order to show the possible effect of this writing in that context, then I think you should allow this evidence.

THE CHAIRPERSON: The effect of the writings on a particular person is what you are seeking to do.

MR. CHRISTIE: He is a particular person with a particular background, but he is also a person who has experience in our society. He lives in our society. It is a particular person who is representative ‑‑ and I will be calling others ‑‑ of German people, representative not in the sense that he is authorized to speak on behalf of a particular group. He is representative because he has been a participant in the community. He is a reflection of the community. He would be just as valid a spokesman for that group as if Sabina Citron were to take the stand and tell the effect of these words upon her.

It is simply a representative sample. I intend to call four such witnesses from four backgrounds in the community involved with German groups for the ongoing effect of this debate upon them and the effect upon them and the community at large of writings such as that of Mr. Zundel by virtue of offsetting and answering and qualifying the existing anti-German bias that they find in the society they live in.

That is the reason why he is indeed a particular person. It is impossible to have any representative sample about a particular person. To the extent that they are particular, not general, the criticism can be made that they don't reflect more than themselves. Nonetheless, to prevent a particular person from testifying because they are just a particular person, when they have had experience in the community over many years and when they have demonstrated their active involvement in the community, would be to deny the existence of a possible representative sample. The only other alternative would be public opinion polls. In my submission, they might equally be relevant and probative of the likely effects of a given statement.

A far better method of presenting a representative sample is to give both sides an opportunity to cross-examine the sample to attempt to offset, undermine or derail the significance of the sample and thereby give all parties an equal opportunity to test the validity of the observations of that representative sample.

THE CHAIRPERSON: Mr. Rosen is standing again. I am going to allow him a brief opportunity to respond.

MR. ROSEN: Members of the Tribunal, in my respectful submission, the argument that Mr. Christie has advanced is ‑‑ I think the correct word is ‑‑ syllogistic. It is premised on the view that there is in fact a legitimate debate as to whether or not the Holocaust occurred.

If there are some people who think that it did not occur and that the Holocaust is but a racket by Jews, either collectively or a large segment of them, to somehow extort money from Germany because of something that is alleged to have happened during World War II that didn't happen and that they, therefore, hold a valid point of view, then there is some legitimacy to the so-called debate.

What one has to remember, however, is that what is at issue here is not anything written by anyone else other than Mr. Zundel, and what was written was not directed at anyone else but Jews. In my respectful submission, Mr. Zundel, through his counsel, has set up this fallacious debate in order to legitimize the word when, in fact, there is no debate.

What Mr. Christie is going to do is call this witness to say, "Well, I am a good Swabian German and I take offence to anybody who says that the Holocaust occurred and who has extorted money from Germany on that basis to set up the State of Israel, and so forth, so I am offended" ‑‑ not whether the writings that were presented as part of Mr. Zundel's Zundelsite would cause persons who were Jewish to be subjected to hatred and discrimination.

That is why it is distracting to the issues before the Tribunal. In my respectful submission, it is a complete waste of time. It is totally irrelevant. There is no debate here; there is no other side. The real question is: What do the words mean that are on the Zundelsite and did this Respondent publish them? Those are the issues that you have to decide.

THE CHAIRPERSON: I am not sure that that is what the purpose of the evidence is. The implication of our earlier ruling is that we are not going to hear evidence that the Holocaust did not occur.

MR. CHRISTIE: Could I respond?

THE CHAIRPERSON: Just let me finish what I am saying, and then I will give you an opportunity to respond.

As I understood, Mr. Christie's intent was to call this witness ‑‑ and the evidence would be anecdotal because it would be personal to him ‑‑ to speak about his reaction to the writings which are the subject of this Tribunal. Am I wrong about that?

MR. CHRISTIE: When you say his evidence will be anecdotal, I accept that proposition. I understand what it means but, beyond that, I am a little bit lost.

THE CHAIRPERSON: I don't know if I can make it any clearer. This witness proposes to give evidence from his own personal point of view concerning his reaction to certain writings on the Zundelsite. Is that the purpose of calling him?

MR. CHRISTIE: Not exclusively; partly. His reaction to the ongoing presentations in the media about Germans. That is not to say that the Holocaust didn't happen; it is to say that the ongoing presentation of Germans in the media has created a hatred for Germans. In that social context, the argument will be that society at large ‑‑ not the German community, but society at large ‑‑ sees the Zundel writings in a different light, in a different context. They do not see them in isolation from this presentation which this witness experiences.

It will be his reaction to the Zundel writings and the existence of a phenomenon that he has experienced in anti-German feeling that is, it will be our submission, an increasing phenomenon, not a decreasing one, with the passage of time.

THE CHAIRPERSON: How does it become relevant? Is it because the whole process is hateful to Germans that this inspires certain writings and puts it in a context that it is a reasonable reaction to what is happening to them as Germans? Is that what the focus of his evidence would lead us to?

MR. CHRISTIE: That would be the inference that I would ask you to draw from his evidence, that it casts a different light on the Zundel writings. It casts them in a light of response, not attack.

If there is the phenomenon that I am suggesting, society generally, most intelligent people ‑‑ and, by that, I mean most people generally ‑‑ are aware of the need for both sides, not that either side is true or false but that there must be a balance and that, seen in that light, these writings are not productive of hatred. The reactions might be skeptical; they might be less than emotional. They are seen not in isolation as the opinions of one person without context, but they are seen as the ongoing expression of a conflicting point of view to something that is productive of hatred against Germans.

It is in the light of that that I would suggest that his evidence and the evidence of other representatives of the German community in Canada is relevant.

THE CHAIRPERSON: The last go-around.

MR. ROSEN: I am sorry, Mr. Chairman; I don't want to make it an ongoing debate.

It seems to me, in my respectful submission, that what Mr. Christie is trying to do is elevate the witness with some kind of expertise, because it goes beyond anecdotal. He is giving you an opinion as to how it impacts on the German-Swabian community, or whatever it is going to be. That is the first problem.

The second problem, in my respectful submission, is that, again, this argument is just ‑‑ the only word that really comes to mind is "nonsense." If the issue were child abuse, then there must be another side to it so that abusers can have their say. If this is spousal abuse, then the husbands who are guilty of spousal abuse ought to have their say because the newspapers are vilifying them.

In my respectful submission, what actually is going on is that there is no debate. There was an eventual fact in history, and certain events flowed from it. There is a select group out there who have taken it upon themselves to deny the obvious and say, "We dispute that this is going on. Therefore, we have a countervailing point of view. Therefore, you should hear us in order to understand and justify the hatred that comes off the Zundelsite."

In my respectful submission, it is a false debate that is set up as an excuse, and you ought to put a stop to it. I don't know that I can express myself any better.

What you are going to get into with this witness ‑‑ you have already heard him say, "Holocaust? What Holocaust?" That is just the beginning of a slippery slope down that issue.

MEMBER DEVINS: Mr. Rosen, I understand your argument, but Mr. Christie clearly has a different perspective in terms of whether there is an existence of debate. Without at this point getting to that, does it make a difference to you whether there is, if you could meet Mr. Christie's argument head-on with respect to the relevance of the existence of a debate to the ultimate issue that we have to decide?

MR. ROSEN: That goes back to your question which is: Assuming that there is a debate, assuming that there is some legitimacy to this, which I don't accept, the question is whether by participating in the debate you can still publish or distribute hate messages, and that doesn't excuse your conduct.

The fact that some of your listeners or readers accept your point of view and validate it doesn't make it less hateful, so it is not a defence to the charge. That is the point.

Of course, the witness has been sitting here all this time making notes, so I don't think it much matters what I say.

MR. CHRISTIE: Let me answer these arguments.

MR. ROSEN: Could we have the witness excused?

MR. CHRISTIE: Whatever you like. If you want the witness out, order him out.

THE CHAIRPERSON: Would you step outside, please.

‑‑- Witness Withdraws

MR. CHRISTIE: Mr. Rosen said I was being syllogistic. A syllogism can be logical; there is nothing wrong with a syllogism. Syllogistic logic is probably the original Aristotelian method of deciding what makes sense and what doesn't.

This is not a debate about whether the Holocaust occurred. It is presenting evidence that might suggest that the use to which the Holocaust is put is productive of hatred against Germans.

THE CHAIRPERSON: Can I stop you there?

We are not here to discuss statements or events that tend to cause hatred to Germans.

MR. CHRISTIE: I respectfully disagree.

THE CHAIRPERSON: That is not our mandate.

MR. CHRISTIE: I respectfully disagree.

First of all, to see the social context in which any statement is made, one must see whether it is in answer to the production of hatred against some other group. If you take it in isolation, which is exactly what Mr. Rosen said, you cut it apart from any social context, of a German speaking on behalf of some Germans about the impact of a story, statement or truth upon Germans. You would then deny the opportunity to see the social context in which all citizens would see it. All citizens are not stupid. All citizens don't detach themselves from society where there is this controversy.

If there were, to put it in another context, statements made about Sikhs by a Prime Minister, saying that Sikhs were engaged in violence and if, in the course of doing that, it was necessary to show that there was ongoing controversy in which the basis of that opinion was debated was debated and that society would see it as a response to an existing controversy, not just the attack of one person upon another group, the context is important.

My learned friends seem to imply that the only people whose feelings are relevant are the feelings of Jews. If I understand the law correctly, it is not the feelings of Jews that are the sole consideration or the focus. It is the likely effect on society at large.

If society at large is aware of this phenomenon, where, for instance, Barbara Amiel writes that Germans are a race of bloody murderers and gets away with it, if Edgar Bronfman says that Austrians are a bunch of dirty, antisemitic dogs and gets away with it, and if Elie Wiesel says that every Jew in their heart should keep a zone of hate, healthy virile hate, for Germans, or words to that effect, this is social context. It may or may not be relevant; it is up to the Tribunal to decide whether such a phenomenon exists.

If it does exist and if in answer to that ‑‑ not to deal with truth or falsity, but in answer to that ‑‑ someone says something and you took that answer out of the context of this type of rhetoric, society would only see it one way. But if you put it in the context of that rhetoric, such as one might see it in the context of a debate in which tempers are flaring or feelings are high, society doesn't then acquire those feelings or, at least, the potential for the acquisition of those feelings is far less.

The community at large is the focus. To see the context is necessary to see how society at large would likely react, because the section refers to "likely."

Mr. Schmidt is indeed a German; he speaks as a German. His reaction is only indicative, if it is of any value, of what it feels like, as a German, to have the Holocaust presented in the way that it is. The existence of anti-German feelings, if they exist, could only be testified to by someone in the position of a German who experiences it.

If that is an option that is open, then we can establish something to do with the social context. Otherwise, let me ask you this: If that is not possible and social context is a real consideration ‑‑ have said so ‑‑ what is social context? Is there nobody in this world besides yourselves who can tell us about social context, nobody that is admissible except a Jewish person? Is that the way we are to understand it?

I think social context requires a broad spectrum of analysis. The best would probably be a public opinion poll but, in the absence of that, why can't a German put it in the context in which they experience it? If it has application beyond their own experience, it is arguable. If not, then it is not. But you can't really deny them the opportunity to express it before deciding that question.

Thank you.

THE CHAIRPERSON: Mr. Fromm, please.

MR. FROMM: I simply wish to adopt the submissions of Mr. Christie on this matter.

I think what the Zundelsite may be reflective of is one side or perhaps one aspect of one side of a very long and bitter conflict between ethnic and religious groups. I think Professor Schweitzer established that. These sorts of conflict, unfortunately, will perhaps always be with us ‑‑ the conflicts, for instance, between the Serbs and the Croats, between many of the Sikhs and the present government of India.

The Zundelsite may not speak for Germans. I am not sure any group has one voice, but it certainly reflects an aspect of a debate. To the extent that the witness might be able to set that into some sort of social context, I think his testimony would be valuable.

Again, if I might make a plea for fairness, Mr. Chairman, the witness was referred to by Mr. Rosen as a German-Swabian who is upset at the way the Holocaust is used to extort money from Germans. I am not sure the witness ever had an opportunity to state what his feelings were. I think it is unfair to anticipate what his anticipate might be.

I would also object to the way he has been characterized. He is not a German-Swabian. He is a Danube-Swabian, and there is a difference. It would equally misleading to refer to us Canadian as Yanks.

MR. ROSEN: The whole purpose of human rights legislation is, hopefully, to suppress, if not attempt to eradicate, the so-called hatred that exists among ethnic or religious groups, at least in Canadian society. It seems that both Mr. Christie and Mr. Fromm want to continue to foster that by recognizing its existence and playing on it.

In my respectful submission, again, the question that the Tribunal ought to ask itself is whether or not this evidence is relevant to an issue that has to be decided. When you look at the legislation and you look at the complaint and you look at the context in which the complaint is brought, the question then is: Are the feelings of an individual person who is not Jewish in this particular case of any relevance whatsoever to whether or not the words written by Mr. Zundel on his Zundelsite foster hatred toward an identifiable group?

It is like saying that somebody who is defending the White cause against people of colour in the southern United States by complaining about anything from affirmative action to the lack of segregation doesn't at the same pose a problem for people of colour. In my respectful submission, it is just absurd to justify that kind of writing or publication on the basis that other people take great comfort in the fact that somebody is speaking for them.

That is really what the argument is, and I just object to it.

THE CHAIRPERSON: Mr. Freiman and then Mr. Christie, and that is the end on this issue.

MR. FREIMAN: I only want to make a very brief submission on the merits, and then I have to raise a matter which has just been brought to my attention which causes me some concern.

I agree entirely with what Mr. Rosen has said. Basically, what is proposed to be called is more evidence that everybody does it, so it has to be all right. As far as I know, that is not a defence.

If there is a concern about anti-German feeling and writings or telephonic communication that is likely to expose individuals to hatred and contempt on the basis of German ethnicity, that should be the subject matter of a complaint. At that complaint it would not be a defence that this is just a reaction to something that the German people allegedly did.

You cannot turn a hearing on the question of whether a certain group has been exposed to hatred and contempt into an attempt to vindicate the entire debate. It doesn't matter that there is an individual ‑‑ and it is important that this individual is not representative of anyone, as Mr. Christie has already anticipated and indicated, nor is he an expert nor is he a sociologist. It is absolutely irrelevant what his reaction is to certain events in order for you to be able to decide whether the writings in question are productive of hatred and contempt.

THE CHAIRPERSON: Can you assert it on the basis that he puts it, as I understand it, on the basis of mitigation, that this is the reaction of certain people in the community to these writings, and tend to use it as a platform on which to argue perhaps that it does not promote hatred because this is why the statement was made? Whether that is relevant or not is a question that we have to decide.

MR. FREIMAN: I think it is not mitigation; I think it is an attempt to establish a defence of provocation: I was forced into it in order to defend the honour of my people. That is not a defence.

If you think about it again in terms of analogies, you would quickly come to the conclusion that, if Mr. Christie is right, you could never anti-Serb or anti-Croat material that was productive of hatred and contempt because there is, after all, a history that would have to go into it. No statement about a Pakistani could be the subject matter of hatred and contempt, because you could bring an Indian person to say that this is all part of a reaction.

THE CHAIRPERSON: Or a German.

MR. FREIMAN: Or a German person, exactly.

THE CHAIRPERSON: And the justification there would be: We wrote it because of the Holocaust.

MR. FREIMAN: Yes.

MEMBER DEVINS: Mr. Freiman, isn't the argument that Mr. Christie is advancing not that it is an absolute defence but, rather, that it is part of the background information you need to take into account when we ultimately decide whether these writings expose a group to hatred and contempt?

MR. FREIMAN: It is not possible for what I am calling provocation to justify writings that expose people to hatred and contempt. The exposure to hatred and contempt is independent of these matters. The exposure to hatred and contempt comes from reading the words and seeing what the words tell you about their intended targets. It would be highly unusual and productive of some of the most absurd consequences if it were otherwise.

Let us take, for example ‑‑ and I do not mean to suggest that Mr. Schmidt is in any way comparable. Let us assume that it was a complaint that used the strongest possible language condemning people of Afro-Canadian origin and holding them up to extreme negative feelings based in part on characteristics, in part on history, in part on a proclivity to crime, or whatever. Would it be relevant to this Tribunal to hear evidence from a member of the Ku Klux Klan who would indicate that, as far as he was concerned, there has been altogether too much mollycoddling of persons of colour and that the White race, as far as he was concerned, is being brought into hatred and contempt by the actions of people of colour and, therefore, on the basis of his individual or four members of the Klan or one member of the Klan and one member of the Heritage Front and two pick-ems would come before you and say, "We have felt exposed to hatred and contempt from Black people for a long time. When we read this material and when we download it to our computers, we feel vindicated and we have a feeling that someone at last is standing up for us."

On the basis of that, not from a sociologist, there is supposed to be a conclusion that this social context justifies something. At the very least, there is an attempt to elevate to expert evidence something that is not expert evidence. Certainly what there is is the attempt to use unrepresentative individuals to create the fiction of a balance, the fiction of a debate as Mr. Rosen says, and to prevent the Tribunal from actually looking at what was being said.

THE CHAIRPERSON: Let me ask you a question, Mr. Freiman ‑‑ and I don't want to leap too far ahead.

We have not heard any evidence as part of the Commission's case, expert or otherwise, as to whether these writings promote hatred. Assuming all the technical hurdles are leaped, which would put us on ground to decide that issue, whether they are calculated to promote hatred and contempt to an identifiable group, how do we decide that? From our own intuition? Or do we rely on evidence that is called, professional or otherwise?

MR. FREIMAN: You don't need to rely on evidence, professional or otherwise. This is not a battle of experts. The Tribunal is the finder of fact.

First of all, it is not "intended" or "calculated to;" the word is "likely" to expose. That is a very significant word. That is a question of fact that the Tribunal should address in the context of the words as they appear in the context of the surrounding article or the surrounding excerpt from the Zundelsite. It is not necessary to have expert evidence and it is not necessary to demonstrate that person X felt that he or she was exposed to hatred and contempt.

THE CHAIRPERSON: As my colleague Devins put to you, the relevance may be slight and the weight be slight, but does this evidence fall within a narrow passage to relevance concerning background?

MR. FREIMAN: Given the lack of representivity, given the lack of expert status, it can't be of any assistance to you. All you can conclude is what the reaction of four out of 25 million Canadians is. I don't know how that can help you. It is not a statistically significant number; it is not a representative number. It is a pre-selected minority, and I dare say you could bring four fact witnesses in any case before any tribunal constituted to hear a complaint who would say, "These guys deserve it. Whatever is said, they deserve it because they have been provoking us for centuries.

That is not a defence and it is not helpful, not even helpful in terms of setting up any context.

THE CHAIRPERSON: Final wrap-up, Mr. Christie.

MR. FREIMAN: Before we do that, I just want to raise one issue that I would like the Tribunal to address before the witness is recalled.

The Tribunal will recall that there was an order excluding witnesses. It is my understanding that the present witness has been present during earlier sessions of this Hearing, and it is my understanding ‑‑ and I am not sure which of the gentlemen seated are intended to be called. It is my belief that one or more of the additional witnesses proposed to be called have been sitting in these Hearings and, in fact, are sitting here now.

MR. CHRISTIE: My learned friends all twist what I say, and perhaps they do it inadvertently, but it seems like I don't make my point very well.

This is not an attempt to justify the writing, as has been suggested, but to show the context. The central issue in the case is: What is likely to be exposed about Jewish persons? To what emotion are Jewish persons likely to be exposed because of the writings? That is the central question.

The question of to what emotion are they likely to be exposed is not their own emotions necessarily. If that was the criterion, then whatever would cause hatred or contempt from a Jewish person to the author would be sufficient. I don't think that is the issue in the case. It has never been my impression that the words "any matter that is likely to expose a person to hatred or contempt" means towards them. Towards them by whom? By society at large; by an objective observer.

What is an objective observer going to decide? When they hear any statement, are they going to assess it in relation to the context in which it is spoken or are they going to be emotionally unstable to the point where they take the expression of the speaker, detached altogether from the context, and say, "The speaker expresses this emotion or expresses that value judgment, so I automatically acquire that emotion?" We cannot assume that people do not have objective impartiality in making this test. The likelihood of an idiot receiving an impression because someone says something is not the criterion.

In my respectful submission, it should be, and is: What is the likely effect on an impartial observer, not one of the two groups involved, in this case the Germans or the Jews? What is someone who is standing apart from either group likely to acquire as an emotion?

This is a very complex question. What is the exposure? Is it the expression that is the exposure? Is it the recipient's feelings that are the exposure? Or is it an objective observer's acquisition of a particular kind of emotion?

In my submission, to avoid total subjectivity, one would have to take it out of the two realms of what the speaker is communicating ‑‑ are his feelings hatred or contempt ‑‑ and take it out of the realm of the perception of the alleged target. Both sides may very well have feelings, but is it not the case that the objective test of what is likely to be exposed is what is likely to be exposed in the mind or heart, I suppose, of an impartial observer, at least not one of the participants to the discussion?

If I am correct in understanding that somehow or other, maybe even in a peripheral sense, the impartial third party or someone outside this dispute ‑‑ and there is a dispute. Whether it is a debate or not, there are certainly accusations on one side, and we were going to allege that there are accusations on the other side. Would an impartial observer then see it in that context and say, "These are the heated expressions of two antithetical groups. I am not a party, and I don't feel hard feelings toward either. I think maybe they have feelings on both sides. I am not moved to hatred simply because I hear an argument between two people. I don't necessarily get involved?"

If you hear only one side and you allow only one side's expression and you don't allow the expression of the other side, then you would not know the context. The argument was made and the analogy was made, a very strained analogy, of this supposed Ku Klux Klan argument and arguments about Afro-Canadians. If there was an ongoing debate in which Afro-Canadians had published widely that Whites were dirty animals or that Whites were a race of bloody murderers or that Whites were whatever ‑‑ some heated and derogatory comments about Whites ‑‑ and then there was a response of some kind, surely you must see both the attack and the response in order to assess what is likely to happen in the mind of an objective observer, someone not a party to either group.

MEMBER DEVINS: Mr. Christie, does your argument depend on the test being that we assess this from what emotions would be aroused in an objective observer? I am not sure that that is the case in the case law.

MR. CHRISTIE: No, it is not exclusively necessary that that be the only test. I don't think there has ever been a case that decides that it is the opinion of the person about whom the comment is made, their emotions, that is the issue. I am not sure it has ever been said that it is the emotions of the speaker that are sole criterion. I am not sure it has ever been said, as I put it, that it is the emotions of a third party.

Let's say that in this context at least the majority of people don't fit within either category and in all likelihood don't identify with either category. I don't think it has been decided one way or the other, and there are three possible ways.

Let's put it this way. It is very unlikely that the existence of these controversies, these differences, and the opinion of third parties would be totally irrelevant to the consideration in any event. It would certainly be relevant. I would submit that, if we are going to be objective and avoid these tribunals being simply an expression of "I hate what you say" or "I hate who you are," if we were to avoid that, we should take the view that a party detached from society as a whole ‑‑ what is likely that they will be exposed to.

I think there is a great uncertainty, a logical uncertainty, about what "expose" means. Does it mean that they can perceive that the speaker hates? If I observe that this speaker here is full of hate, does that affect society as a whole? Probably not. I would probably reject it unless I agree with him.

If, on the other hand, I am a victim group and I perceive that someone is saying something about me that I hate, does that mean that an objective person, someone outside that argument, is going to acquire that emotion? Is it my exposure or is it my feeling that determines what "exposure" means?

No one has ever defined this. It's a vague term. "Exposure" could mean the recipient; it could mean the speaker; it could mean the public at large. I think the logical way to take, if we are to make it somehow objective, is that what is likely to be acquired by the public at large so that the victim group is exposed to it ‑‑ not just from the speaker who may be an arch enemy, but from the public at large. What is likely to be engendered? To what is the victim group likely to be exposed from the public, not from some enemy?

Let's say that I am wrong in that. Surely you cannot say I am totally wrong. What logical conclusion could you reach that says, "The victim group feels hate or the speaker expresses hate; therefore, it doesn't matter what society as a whole thinks?" That would be really quite preposterous. All it boils down to is: How do I feel about what you say?

We have not actually had somebody say from the Jewish perspective, "I hate what Zundel says" or "I feel contempt." If it is just the subjective feeling, fine. Say so, and that's the end of the matter. If that is all there is, then objective context is irrelevant. Why would you need any context at all? If it is just the subjective feelings of the victim group, you wouldn't need it.

I think the reason for context, if there is to be objective value to the legislation, is that it must mean what is likely to be engendered from society as a whole to which the victim group is likely to be exposed. Exposure from some arch enemy, some person, could hardly be a criterion for social involvement, unless it affects society as a whole. Unless society as a whole is somehow moved one way or another emotionally to these very strong emotions of hatred or contempt, really why would at that point would society as a whole get involved? Why would the Tribunal get involved?

My submission is that maybe I am wrong in saying that it is exclusively society, but it would be very absurd to think that society or an objective observer has no place. If society and an objective observer have some place, then would it not be relevant for that ‑‑ you are taking the place of objective society. We have heard no objective society evidence, so my friends say, "Use your intuition or whatever you perceive." That's fine. You are finders of fact finders of law; I understand that.

But it could not be said that society as a whole and your position as judges on behalf of society as a whole would be completely indifferent to the social context of the feelings of another ethnic group. Multiculturalism is the objective of this Act, and it even says so if I am not mistaken.

I am submitting that the social context, not to justify the statement ‑‑ justification requires truth, and truth is irrelevant; you have said that ‑‑ but to show the social context that an objective observer in society would say, "Look, these people have a real long-standing feud going. I might be amused; I might be frustrated; I might be annoyed that they make such loud noise in their accusations, but I am not moved to hate. I see that there is this side and that side. They don't like each other." Quite often society as a whole takes that position to all kinds of disputes.

THE CHAIRPERSON: Mr. Christie, that concludes your argument, and we will retire in a moment.

Is it true that this witness has been present in the court room?

MR. CHRISTIE: He may have been. Until your ruling earlier yesterday, I wasn't sure whether we would call him or not. I have decided to call him now, and there are other witnesses in the room right now that I intend to call.

THE CHAIRPERSON: I hardly think that is an excuse. You are master of your case. If you have a reasonable prospect that a witness is going to be called, then of course you are acting in defiance of the rulings of this Tribunal, and we don't appreciate that.

MR. CHRISTIE: I am not acting in defiance. I certainly don't know that they are going to be witnesses. I intended, when I heard about your ruling respecting Dr. Countess, to call them. I had no other witnesses to call at that point. That is when I concluded finally that we would call them.

I don't recall what the ruling was. As my friends say, it was to exclude witnesses. If so, then I apologize. These people have a right to be here, and they were here.

THE CHAIRPERSON: Of course there was such a ruling at the beginning of these proceedings; you must know that. We excluded experts from the ruling.

MR. CHRISTIE: I think experts were exempted.

THE CHAIRPERSON: Yes, that is what I am saying. We exempted experts from the ruling.

Mr. Rosen, I will hear very briefly from you.

MR. ROSEN: I don't want to go on. It is just that we drifted into the issue that you are ultimately going to have to decide.

THE CHAIRPERSON: I don't want to hear final argument today.

MR. ROSEN: Exactly. All I am saying is that Mr. Christie is quite wrong in terms of his interpretation of the Act. The issue is "likely to expose;" that is, more probable than not. You don't need to prove that in fact it did expose, which is what Mr. Christie is suggesting. It is "likely to expose." You already have evidence from the expert, from Mayor Hall and so forth, that you can draw those inferences from.

THE CHAIRPERSON: Remarkably, we are almost at break time, so we will do that now.

‑‑- Luncheon Recess at 11:21 a.m.

‑‑- Upon resuming at 1:52 p.m.

THE CHAIRPERSON: This witness is called by the Respondent to give evidence pertaining to what is described as background and social context.

While we have serious doubts that this line of questioning is relevant, we are going to allow it to proceed with the following reservations and directions.

The witness is not an expert and will not give opinion evidence. The witness will speak to facts within his knowledge that may be relevant to issues in these proceedings.

The Tribunal ruling with respect to the issue of truth of the statements made on the Zundelsite will be observed.

In short, this accords to you, Mr. Christie, an opportunity to demonstrate that this witness' evidence can be justified in some manner as to relevance. In saying this, we are not to be taken as accepting of the various propositions put to us in a rather lengthy series of submissions.

Recall the witness, please.

MR. FREIMAN: Before the witness is recalled, could I ask the Tribunal to request that the earlier ruling as to exclusion of witnesses be observed with regard to any remaining witnesses.

THE CHAIRPERSON: The order of exclusion remains. In the event that other witnesses are qualified to be called, they should be removed from this Hearing Room at this point.

‑‑- Witness returns to the stand

MR. CHRISTIE: Could you tell the witness, sir, what your ruling is so that I won't misstate it and so that he may know where he may not proceed?

THE CHAIRPERSON: I think the ruling is on the record. You have the ruling. I would prefer just to allow the examination to continue, and we will make our rulings as we proceed with respect to individual questions.

MR. CHRISTIE: Thank you.

EXAMINATION-IN-CHIEF, Continued

MR. CHRISTIE: This is quite acceptable to me, if it is to you, and I won't waste any time.

EXAMINATION-IN-CHIEF

MR. CHRISTIE:

Q. First of all, Mr. Klein, you are not an expert, so you are not entitled to express your opinions. You are entitled to discuss your personal experience, and you are not going to discuss the subject of truth or falsity. It will be subject to objections, if there are any, as to what you can say.

What I am going to be asking about is your experience as a German-Canadian. I am going to ask you about your background in Canada and earlier in Germany. We will start with that.

Your name is Christian Eugen Klein; is that right?

A. Yes.

Q. And you were born in Silesia in what was then East Germany in the year 1933?

A. Yes.

Q. Where did you take your schooling?

A. I took most of my schooling in the city of Breslau in Silesia. I took further schooling after the expulsion in the former German Democratic Republic.

Q. What did you take in the way of schooling in East Germany?

A. In East Germany ‑‑ are you saying in Silesia, in Breslau?

Q. No, what I meant was the Democratic Republic of East Germany.

A. I finished my elementary school after having gone without school for two years.

Q. What happened to you and your family in 1946?

Toronto, Ontario

‑‑- Upon resuming on Tuesday, June 9, 1998

at 10:12 a.m.

THE CHAIRPERSON: Good morning, everyone. Welcome back, Mr. Freiman. We thought we had lost you.

MR. FREIMAN: No such luck.

THE CHAIRPERSON: Mr. Christie, your next witness, please.

MR. CHRISTIE: The next witness is Frank Schmidt.

AFFIRMED: FRANK SCHMIDT

Scarborough, Ontario

EXAMINATION-IN-CHIEF

MR. CHRISTIE:

Q. What is the date of your birth, Mr. Schmidt?

THE CHAIRPERSON: Excuse me, Mr. Christie. Mr. Freiman, please.

THE CHAIRPERSON: You are not tendering him as an expert?

MR. CHRISTIE: No.

Please proceed.

MR. KURZ: Mr. Chair, that being the case, I don't want to stop Mr. Schmidt from going. We have to proceed notwithstanding all that has been said.

MR. CHRISTIE: I will take that under advisement. My position is probably going to be the same.

Every time we deal with this in a civil court, the witness comes to the stand, testifies and is cross-examined. It is not normally required that anyone produce a list of witnesses or ‑‑

In the meantime, we will proceed with this witness.

MR. CHRISTIE:

Q. Where were you born, sir?

A. I was born in Yugoslavia on March 22, 1922.

THE CHAIRPERSON: I am sorry, I didn't get the witness' name.

THE WITNESS: Frank Schmidt, S-c-h-m-i-d-t.

MR. CHRISTIE:

Q. What was your ethnic background?

A. My ethnic background is German.

Q. How did it come to be that a German person was born in 1922 in what is now as Yugoslavia?

Q. How long did you stay in that part of the world?

A. About 10 years.

Q. Where did you go from there?

A. To Canada. My father emigrated in 1929, and he brought us over, my mother, my brother and myself, in 1933.

Q. Where were you educated?

A. I was educated in St. Patrick's and St. Francis Schools and Central Technical School on Harbord Street.

Q. What did you do during the war?

A. During the war I enlisted as a volunteer on December 2, 1941. I was discharged on June 24, 1946.

Q. To what army did you volunteer?

A. The Canadian Army.

Q. Where did you serve?

Q. Were you a member of the 4th Canadian Armoured Division?

A. Yes, 23rd Field Regiment, 4th Canadian Army Division.

Q. Subsequent to your discharge, what did you do?

Q. After you got back from Europe at the end of the war, what did you do?

Q. Were you, after the war, involved in any German ethnic clubs?

Q. Were you a member of the Danube Swabian Association?

A. I was a member and I was also Secretary of this association for five years, and I was President for one year.

Q. Was there an organization of Danube Swabians worldwide?

A. Yes, there was, and I was also a press agent for this organization.

Q. In regard to that, did you communicate with the same members of that ethnic group?

A. Yes, I travelled to Hungary, Austria, Germany, Brazil, Australia and New Zealand, and I made contact with groups living in those countries.

Q. Were you editor of the newspaper for ‑‑

A. Yes, I was editor of a newspaper called "Heimbabote" with a circulation of about 3,000 in Canada and the States from 1989 until 1996.

Q. Have you been involved in any journalistic organizations?

Q. Did you say "peace in the ethnic community?"

A. Maybe I shouldn't use that word ‑‑ not exactly peace, but co-operation among the ethnic groups.

Q. Do you consider yourself an ethnic German?

A. Yes.

Q. In regard to that, are you familiar with the contemporary social context of the Holocaust and its effect on ethnic Germans?

A. The Holocaust?

Q. Yes.

A. Can you explain to me what that means

‑‑ the Holocaust? I went through the war and never heard of a Holocaust until 1967.

THE CHAIRPERSON: Am I to understand that he doesn't know about the Holocaust?

MR. CHRISTIE: That is the answer that he gave, but I think that was probably subject to some explanation.

THE CHAIRPERSON: You are not qualifying this witness as an expert.

MR. CHRISTIE: That's correct.

I took it from the question you put to him, Mr. Christie, that you were eliciting an opinion from him.

Those are my submissions.

THE CHAIRPERSON: You may be making too great a leap there, Mr. Rosen.

THE CHAIRPERSON: We are going to have to emerge at some point here to a ruling. Before doing that, I want to ask Mr. Christie what the purpose of this evidence is and how it is relevant.

I am really wondering about the ultimate relevance.

THE CHAIRPERSON: The effect of the writings on a particular person is what you are seeking to do.

THE CHAIRPERSON: Mr. Rosen is standing again. I am going to allow him a brief opportunity to respond.

THE CHAIRPERSON: I am not sure that that is what the purpose of the evidence is. The implication of our earlier ruling is that we are not going to hear evidence that the Holocaust did not occur.

MR. CHRISTIE: Could I respond?

THE CHAIRPERSON: Just let me finish what I am saying, and then I will give you an opportunity to respond.

MR. CHRISTIE: When you say his evidence will be anecdotal, I accept that proposition. I understand what it means but, beyond that, I am a little bit lost.

MR. CHRISTIE: That would be the inference that I would ask you to draw from his evidence, that it casts a different light on the Zundel writings. It casts them in a light of response, not attack.

It is in the light of that that I would suggest that his evidence and the evidence of other representatives of the German community in Canada is relevant.

THE CHAIRPERSON: The last go-around.

MR. ROSEN: I am sorry, Mr. Chairman; I don't want to make it an ongoing debate.

In my respectful submission, it is a false debate that is set up as an excuse, and you ought to put a stop to it. I don't know that I can express myself any better.

What you are going to get into with this witness ‑‑ you have already heard him say, "Holocaust? What Holocaust?" That is just the beginning of a slippery slope down that issue.

The fact that some of your listeners or readers accept your point of view and validate it doesn't make it less hateful, so it is not a defence to the charge. That is the point.

Of course, the witness has been sitting here all this time making notes, so I don't think it much matters what I say.

MR. CHRISTIE: Let me answer these arguments.

MR. ROSEN: Could we have the witness excused?

MR. CHRISTIE: Whatever you like. If you want the witness out, order him out.

THE CHAIRPERSON: Would you step outside, please.

‑‑- Witness Withdraws

This is not a debate about whether the Holocaust occurred. It is presenting evidence that might suggest that the use to which the Holocaust is put is productive of hatred against Germans.

THE CHAIRPERSON: Can I stop you there?

We are not here to discuss statements or events that tend to cause hatred to Germans.

MR. CHRISTIE: I respectfully disagree.

THE CHAIRPERSON: That is not our mandate.

MR. CHRISTIE: I respectfully disagree.

The community at large is the focus. To see the context is necessary to see how society at large would likely react, because the section refers to "likely."

Thank you.

THE CHAIRPERSON: Mr. Fromm, please.

MR. FROMM: I simply wish to adopt the submissions of Mr. Christie on this matter.

I would also object to the way he has been characterized. He is not a German-Swabian. He is a Danube-Swabian, and there is a difference. It would equally misleading to refer to us Canadian as Yanks.

That is really what the argument is, and I just object to it.

THE CHAIRPERSON: Mr. Freiman and then Mr. Christie, and that is the end on this issue.

MR. FREIMAN: I only want to make a very brief submission on the merits, and then I have to raise a matter which has just been brought to my attention which causes me some concern.

I agree entirely with what Mr. Rosen has said. Basically, what is proposed to be called is more evidence that everybody does it, so it has to be all right. As far as I know, that is not a defence.

MR. FREIMAN: I think it is not mitigation; I think it is an attempt to establish a defence of provocation: I was forced into it in order to defend the honour of my people. That is not a defence.

THE CHAIRPERSON: Or a German.

MR. FREIMAN: Or a German person, exactly.

THE CHAIRPERSON: And the justification there would be: We wrote it because of the Holocaust.

MR. FREIMAN: Yes.

THE CHAIRPERSON: Let me ask you a question, Mr. Freiman ‑‑ and I don't want to leap too far ahead.

MR. FREIMAN: You don't need to rely on evidence, professional or otherwise. This is not a battle of experts. The Tribunal is the finder of fact.

THE CHAIRPERSON: As my colleague Devins put to you, the relevance may be slight and the weight be slight, but does this evidence fall within a narrow passage to relevance concerning background?

That is not a defence and it is not helpful, not even helpful in terms of setting up any context.

THE CHAIRPERSON: Final wrap-up, Mr. Christie.

MR. FREIMAN: Before we do that, I just want to raise one issue that I would like the Tribunal to address before the witness is recalled.

MR. CHRISTIE: My learned friends all twist what I say, and perhaps they do it inadvertently, but it seems like I don't make my point very well.

THE CHAIRPERSON: Mr. Christie, that concludes your argument, and we will retire in a moment.

Is it true that this witness has been present in the court room?

I don't recall what the ruling was. As my friends say, it was to exclude witnesses. If so, then I apologize. These people have a right to be here, and they were here.

THE CHAIRPERSON: Of course there was such a ruling at the beginning of these proceedings; you must know that. We excluded experts from the ruling.

MR. CHRISTIE: I think experts were exempted.

THE CHAIRPERSON: Yes, that is what I am saying. We exempted experts from the ruling.

Mr. Rosen, I will hear very briefly from you.

MR. ROSEN: I don't want to go on. It is just that we drifted into the issue that you are ultimately going to have to decide.

THE CHAIRPERSON: I don't want to hear final argument today.

THE CHAIRPERSON: Remarkably, we are almost at break time, so we will do that now.

‑‑- Luncheon Recess at 11:21 a.m.

‑‑- Upon resuming at 1:52 p.m.

THE CHAIRPERSON: This witness is called by the Respondent to give evidence pertaining to what is described as background and social context.

While we have serious doubts that this line of questioning is relevant, we are going to allow it to proceed with the following reservations and directions.

The witness is not an expert and will not give opinion evidence. The witness will speak to facts within his knowledge that may be relevant to issues in these proceedings.

The Tribunal ruling with respect to the issue of truth of the statements made on the Zundelsite will be observed.

Recall the witness, please.

MR. FREIMAN: Before the witness is recalled, could I ask the Tribunal to request that the earlier ruling as to exclusion of witnesses be observed with regard to any remaining witnesses.

THE CHAIRPERSON: The order of exclusion remains. In the event that other witnesses are qualified to be called, they should be removed from this Hearing Room at this point.

‑‑- Witness returns to the stand

MR. CHRISTIE: Could you tell the witness, sir, what your ruling is so that I won't misstate it and so that he may know where he may not proceed?

MR. CHRISTIE: Thank you.

EXAMINATION-IN-CHIEF, Continued

MR. CHRISTIE:

Q. Mr. Schmidt, you indicated that you are a member of the Ethnic Journalists and Writers Club?

A. Yes, that I am.

Q. When did you become involved with that club?

A. Soon after it was formed in the early 1970s.

Q. Did you receive any award or recognition?

A. Yes, I did receive an award from them.

Q. When was that?

A. In 1989.

Q. You mentioned the other award from Mr. Weiner, the Secretary of State; is that right?

A. Yes.

Q. I think the last question I asked you was in regard to the subject of the Holocaust, and you asked me "What Holocaust?" or something to that effect.

A. Correct.

Q. Perhaps you could address that and answer what you meant by that.

A. What I meant is that there were also, if you call them holocausts, a genocide of the Danube-Swabians in Yugoslavia after the war. Practically the whole ethnic group was wiped out in Tito's concentration camps through starvation and murder.

Q. So that is what you meant.

A. There were others besides that, but I won't go into that.

Q. In relation to the commonly understood term "Holocaust", referring to the death of Jews and the amount of six million and gas chambers in Germany and Poland, are you familiar with that concept?

A. Yes, I am.

Q. Can you, from your own experience, describe what effect, if any, this has had upon you over the years?

A. Well, it has an effect, I think, on all people who are not Jewish, including the Germans and East Europeans and all those who suffered under various regimes. Only one genocide seems to ‑‑ the Jews seem to have a monopoly on suffering. Nothing else can ever be put in the paper or written about.

Q. The genocide of the Jews, has it had any impact on you as a German?

A. Yes. You get remarks. You get different ‑‑

Q. What kind of remarks?

A. Snide remarks about the Germans.

Q. What kind of snide remarks?

A. Snide remarks like making soap out of Jewish bodies and all this, and sort of snickering, and that kind of thing.

Q. Where does this happen?

A. In the workplace.

Q. How often has this happened to you?

A. Quite often.

Q. What do they say about making soap out of Jewish bodies?

A. I guess they believe that it happened.

Q. What do they say? Don't guess what they believe. What do they say?

A. They bring up the fact that the Germans murdered the Jews and they made soap out of them.

Q. What effect does this have on you?

A. The effect is that I don't believe that that is true, and that has been proven since.

Q. Never mind what you believe; I don't want to deal with that.

A. Sorry.

Q. I want to ask what effect this has on you as a person living in society in Canada?

A. It has an effect on me, my family, my grandchildren who learn about it in school, and they tend to be ashamed of their German heritage on that account.

Q. How have you personally experienced your grandchildren in school being ashamed of their German heritage because of that?

A. They learn about this, and who wants to be part of a nation that is capable of doing such things?

Q. Has this affected your family?

A. Not in our relations, no.

Q. How have you heard about it?

A. By discussing it with my grandchildren and my two sons when they went to school.

Q. So this is something that they have encountered in school?

A. Yes.

Q. Is this something you encountered after the war?

A. Yes, very much so.

Q. Has it changed any since that time?

A. It is getting worse.

Q. Why is it getting worse?

A. I don't know.

Q. How is it getting worse?

A. Every day you see something in the paper or on TV about this Holocaust.

Q. How does this make you feel?

A. It makes me feel that, even though my ancestors haven't lived in Germany for 250 years, I still have to suffer for things that are alleged to have happened in Germany.

Q. Why do you say "alleged?"

A. I say "alleged," because I don't believe all of it. I feel very badly for what did happen.

Q. Why do you suffer if you were not in Germany at the time and on the right side in the war? What does it have to do with you? How does it affect you?

A. I was on the right side of the war. It affects me that I fought so that people would have the freedom to express their opinions, while some groups in Canada represented here today have denied me the very things that I fought for. I have to fight now for being here and for freedom to express my opinion.

Q. What I mean is: How did this affect you as a German since you were not involved in those events? How does it affect you today?

A. I have a German name. People don't know; they just assume that you come from Germany and were involved in such things.

Q. Have you experienced this in terms of your work with the German community over the years?

A. My work in the German community?

Q. Yes.

A. I don't know how you mean that.

Q. Have you experienced this phenomenon of being ashamed ‑‑

A. Yes ‑‑

Q. Wait until I finish the question. I am trying to be very careful to phrase the questions in such a way that you don't go beyond the scope of what is the legitimate bounds of your answers. If you listen carefully to my question, I am restricting it as best I can. Will you do that for me?

A. I will do my best.

THE CHAIRPERSON: Witness, please don't speak until Mr. Christie has completed his question. It makes it very difficult for the reporter.

MR. CHRISTIE:

Q. In your work with the German community, what has been your personal experience as to the feelings that you experienced from them vis-à-vis their Germanness in Canada?

A. I constantly am reminded, "Oh, they had another film on about the Germans," and things of that nature. People who went through the war didn't experience anything like that, and they think it's a shame that this should constantly be brought up.

Q. Have you experienced their feelings as well as your own? As a group of people, have you experienced their feelings about being German in Canada in light of that?

A. Yes, I would say so.

Q. What is their experience, to your knowledge?

A. I think I have just mentioned part of it. It is constant repetition of something that is alleged to have happened, and I say "alleged" because ‑‑

Q. Don't say why you say "alleged," because they don't want to hear that, so don't talk about that.

A. Sorry. Because a lot of these people went through hell themselves during and after the war.

Q. Have you experienced fear in the German community about the subject of the Holocaust?

A. Fear?

Q. Yes.

A. I wouldn't exactly say fear, but I would say there is always some kind of dread that something could happen.

Q. Some kind of a dread that something could happen?

A. Actually, I have been phoned by what I would think ‑‑ people who threatened me physically for saying certain things. I don't know who they were, but I can guess.

Q. My question is related to the German community of which you have been an active member for many years. The question is: Do you experience any fear in the German community because of the Holocaust?

A. If I experience fear. I don't experience any fear.

Q. I mean fear in the German community.

A. Fear in the German community, definitely.

Q. What kind of fear?

A. They have gone through different things, and they feel that it could well happen again, especially in the Danube-Swabian communities, so they would rather keep quiet.

MR. CHRISTIE: Those are my questions. Thank you very much.

MR. ROSEN: I don't want to waste time, but because I was somewhat caught by surprise as to what the witness might or might not have said, could we have about 10 minutes to decide if we are going to cross-examine and, if so, in what area.

THE CHAIRPERSON: We didn't give Mr. Christie any time to prepare his questions. I just want to ask Mr. Christie: If he is not subject to cross-examination, are there any other questions you want to discuss with this witness before we proceed?

MR. CHRISTIE: No, sir.

THE CHAIRPERSON: We will give you a few minutes.

‑‑- Short Recess at 2:06 p.m.

‑‑- Upon resuming at 2:09 p.m.

MR. ROSEN: On behalf of the Simon Wiesenthal Center, and I think I speak for all the other complainants, intervenants and, I believe, the Commission, we have no questions of the witness.

THE CHAIRPERSON: Mr. Schmidt, you can step down. Thank you.

Next witness.

AFFIRMED: CHRISTIAN KLEIN

Scarborough, Ontario

MR. CHRISTIE: Mr. Klein, I just want to explain to you, if I may, that there are some restrictions on the questions I can ask you. I want you to understand the scope of those questions before I ask them.

THE CHAIRPERSON: If you need time to speak to the witness privately, the Tribunal will allow you whatever time you feel is necessary.

MR. CHRISTIE: This is quite acceptable to me, if it is to you, and I won't waste any time.

EXAMINATION-IN-CHIEF

MR. CHRISTIE:

What I am going to be asking about is your experience as a German-Canadian. I am going to ask you about your background in Canada and earlier in Germany. We will start with that.

Your name is Christian Eugen Klein; is that right?

A. Yes.

Q. And you were born in Silesia in what was then East Germany in the year 1933?

A. Yes.

Q. Where did you take your schooling?

A. I took most of my schooling in the city of Breslau in Silesia. I took further schooling after the expulsion in the former German Democratic Republic.

Q. What did you take in the way of schooling in East Germany?

A. In East Germany ‑‑ are you saying in Silesia, in Breslau?

Q. No, what I meant was the Democratic Republic of East Germany.

A. I finished my elementary school after having gone without school for two years.

Q. What happened to you and your family in 1946?