The booklet was examined by the
Supreme Court of Canada in 1985 and 1988 in the prosecution of the publisher Zündel under the Criminal Code, section 181, of spreading false news. The 1985 conviction was overturned on appeal, leading to a second prosecution in 1988 which again resulted in a sentence of 15 months. As part of Zündel's legal defence, Zündel hired
Fred A. Leuchter to visit the
Auschwitz and
Majdanek concentration camps. At the trial, Leuchter was required to defend
his report in his capacity as expert witness; however, he was dismissed because during the proceedings it became apparent that he had neither the qualifications nor experience to act as such. The 1988 trial judge concluded that the booklet "misrepresented the work of historians, misquoted witnesses, fabricated evidence, and cited non-existent authorities." The Supreme Court did find that in the previous lower court trial, the jury were improperly instructed: The jury was instructed that it was entitled to infer from the judge's instruction that because the Holocaust must be regarded as proven, the accused must have known it to be proven and must be taken to have published his pamphlet deliberately for personal motives, knowing the falsity of his assertion to the contrary. ... The verdict flowed inevitably from the indisputable fact of the publication of the pamphlet, its contents' divergence from the accepted history of the Holocaust, and the public interest in maintaining racial and religious tolerance. However, in reviewing the proceedings of the lower court trial, the Supreme Court were convinced that the facts in the pamphlet were indeed false: [During the previous trial] the appellant's allegations of fact in the pamphlet were divided into 85 extracts and rebutted one by one. The trial judge summarized this material at length for the jury but it will suffice here to point only to some of the more egregious examples. The pamphlet alleged that a memorandum from Joseph Goebbels revealed that the Final Solution was never more than a
plan to evacuate Jews to Madagascar. It was shown that there was no such memorandum but that the reference was to
Goebbels' diary entry of March 7, 1942. This diary extract was adduced and shown to state nothing of the kind. The Crown went on to point out that the entry for March 27, 1942 made clear that the Final Solution was, in fact, genocide: "Not much will remain of the Jews. On the whole, it can be said that about 60 per cent of them will have to be liquidated, whereas only about 40 per cent can be used for forced labor ..." The pamphlet alleges that no documentary evidence exists of the Nazi plan to exterminate the Jews. The Crown adduced speeches by
Heinrich Himmler, head of the SS, made on October 4, 1943, to his troops in Posen in which he refers to the program of extermination of the Jews. Himmler stated: "I also want to talk to you, quite frankly, on a very grave matter. Among ourselves it should be mentioned quite frankly, and yet we will never speak of it publicly. ... I mean the clearing out of the Jews, the extermination of the Jewish race ..." The appellant argued that the term "exterminate" used in this passage really meant "deport". It was left to the jury to consider whether they accepted that this was a possible interpretation. The Crown also adduced the December 9, 1942, entry in the diary of
Hans Frank, Governor-General of occupied Poland's '
General Government' territory, describing the annihilation of 3.5 million Jews in the
General Government and numerous documents adduced at the Nuremberg trials, including the daily reports of the Einsatzgruppen (action groups) enumerating the death tolls of Jews in the USSR. In a report to Hitler of December 20, 1942, Himmler indicates that the
Einsatzgruppen had executed 363,211 Jews between August and November, 1942. The pamphlet alleged,
purportedly relying on a Red Cross report, that all concentration camps were really humane work camps. Mr. Biedermann, a delegate of the International Committee of the Red Cross, testified that the Red Cross Report pertained exclusively to prisoner of war camps as the Red Cross personnel had not been inside any camps in which civilians were detained. The Crown adduced evidence from Professor Hilberg that while some camps had labour facilities annexed to them,
Belzec,
Treblinka,
Sobibor and
Chelmno were exclusively "killing factories" and that gas chambers were in operation at
Auschwitz-Birkenau and
Majdanek. The numbers of Jews slaughtered was verifiable from railway records showing the payments per person made for transport to the camps. These numbers were compared with those having left the camps or who were found there after liberation. On and on, the Crown showed that the appellant misrepresented the work of historians, misquoted witnesses, fabricated evidence, and cited non-existent authorities. ==Royalties==