Prominent Jewish group B’nai Brith Canada and a legal expert are questioning a Quebec judge’s claim that it is not a widely accepted fact that Nazi ideology led to the murder of Jews.
The link between Nazism and the Holocaust is so well-known that prosecutors don’t need to establish that fact in a courtroom, they say, in response to an unusual drama that played out in a Montreal courtroom last week.
"Any reasonable person would take as an undisputable fact that Nazi ideology led to the Holocaust," Lisa Dufraimont, a professor at York University's Osgoode Hall Law School, said in an interview Tuesday. "Entertaining arguments to the contrary is a kind of hairsplitting that goes beyond what is reasonable, it seems to me."
Dufraimont's comments were in reaction to the latest developments in a trial involving a Montreal man accused of wilfully promoting hatred against Jews. Gabriel Sohier Chaput, 35, was charged in connection with an article he has admitted to writing that was published in 2017 on the neo-Nazi website Daily Stormer.
The blog post included racist images and comments about Jews throughout, and the website displayed photos of Hitler and other images associated with Nazism. The accused testified during the trial that the Daily Stormer was a "parody site.''
During the prosecution's final arguments on Friday, Quebec court Judge Manlio Del Negro admonished the Crown for not submitting evidence, such as expert testimony, that Nazi ideology led to the Holocaust — the genocide of European Jews during the Second World War.
Prosecutor Patrick Lafrenière said he expected that the link between Nazism and the Holocaust would be accepted by the judge as judicial notice — a rule that evidence presented in court is not in dispute.
That link, however, was indeed disputed by Sohier Chaput's defence lawyer, Hélène Poussard, who told the court that while the Nazis did kill millions of Jews, the Nazis' murderous antisemitism was not ideological.
Dufraimont said it's appropriate for judges to take judicial notice of facts that are generally accepted and not debated by reasonable people, as well as facts that easily verifiable.
While the Nazi ideology includes other elements, such as totalitarian government, Dufraimont said it's widely understood that Nazism is "centrally about racial superiority of Germanic people and racial inferiority of others, especially Jewish people. That's what the ideology is and I don't think any reasonable person could really deny that .… It falls into the category of a notorious or well-known fact … that's not the subject of debate among reasonable persons."
On Monday, B’nai Brith Canada called for the federal government and provincial governments to ensure that judges have training on the Holocaust and antisemitism.
“Every Canadian should be appalled,” Sam Goldstein, B’nai Brith’s director of legal services, said in a news release. “We don’t expect Holocaust denial and distortion from our courts. The prosecutor does not need to establish that the Holocaust happened. No expert witness is needed. The Jewish community is outraged.”
Dufraimont said the issue of judicial notice has come up in other cases involving allegations of hate speech. In 2005, the Supreme Court of Canada ruled that a judge should have taken judicial notice in a case involving four Ontario men and two youths accused of wilful promotion of hatred toward Roma people during a protest.
The defence argued successfully during the trial that the men had promoted hatred toward "Gypsies" but that the Crown didn't prove that the term — which is considered derogatory — refers to Roma people.
The Supreme Court disagreed with the trial judge, ruling that the judge should have known "the fact that the Roma people had been persecuted by the Nazis while a Nazi theme was apparent at the demonstration …. As well, the trial judge should have taken judicial notice of dictionary definitions showing that 'Gypsy' can refer to 'Roma.'"
In 1987, the Ontario Court of Appeal found that a trial court judge properly exercised his "discretion in refusing to take judicial notice of the existence of the Holocaust" during Holocaust denier Ernst Zündel's first trial for spreading false news.
During a second trial in 1988 on the same charge, the judge did take judicial notice of "the mass murder and extermination of Jews in Europe by the Nazi regime during the Second World War" though not of specific details of the Holocaust. The Supreme Court ultimately ruled that the section of the Criminal Code under which Zündel was charged was unconstitutional.
Dufraimont said that one of the reasons that arguments about judicial notice arise in hate speech trials is because the courts want to ensure that everyone accused of a crime has the opportunity to defend themselves, adding that part of that defence, for example, might be questioning the hatefulness of the Nazis.
This report by The Canadian Press was first published July 13, 2022.
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