Common knowledge of the Holocaust is still up in the air in a Montreal court room
Defence counsel in the Sohier-Chaput trial recently argued the judge should not take judicial notice of the Holocaust.
It’s been a heavy week for me not only as an articling student (hence the timing of publication this week), but particularly as a Jewish person. I have been watching the rise of Antisemitism locally and globally, including overhearing a conversation blaming Jews for why Jurassic Park has never been achieved in reality (you can’t make this stuff up) and encounters with anti-Israel protestors. This was on top of a powerful workshop with Hen Mazzig and seeing the incredibly impactful film The Fablemans, which I hope to find the opportunity to discuss and cannot recommend enough. Thinking about a topic for this week I was really ready for a break from thinking about Jewish issues and I am cognizant of how much I have focused on them here in recent weeks. So, I was a little dismayed when my friend sent me an article on Monday about the latest developments in Sohier-Chaput trial.
In 2017, Gabriel Sohier-Chaput published an article on the Neo-Nazi website Daily Stormer titled “Canada: Nazis Trigger Jews By Putting Up Posters On Ch[**]k Church” threatening that it would be a “year of action”. By that time, the 36-year-old from Montreal had published between 800 and 1,000 articles on the website. He is currently standing trial for the contents of his 2017 article, on charges of willful promotion of hatred.
In his 2017 article, Sohier-Chaput called for “Non-stop Nazism, everywhere, until the very streets are flooded with the tears of our enemies." The Crown asserted that this statement constitutes the promotion of violence against Canadian Jews because Nazism led to the Holocaust. The Crown further argued that this inference was supported by the images and rhetoric common to the Daily Stormer, which include swastikas and Antisemitic imagery.
In response to these allegations, Sohier-Chaput’s defence counsel, Hélène Poussard, argued that it would be wrong for the judge to take judicial notice of whether it is common knowledge that the Daily Stormer is a Neo-Nazi publication and whether Nazism led to the Holocaust. She went so far on Friday as to argue that the judge should not take judicial notice of the fact that six million Jews were murdered in the Holocaust, and that the Crown should have called an expert witness to prove these facts. I will concede that perhaps the Daily Stormer is not common knowledge, but that should not be sufficient to strike down the Crown's case.
Judicial notice is a process in the law of evidence whereby a judge or jury can “take notice” of certain facts or information without needing to call an expert witness to prove the truth of the fact. Generally, this would be reserved for information that is deemed to be common knowledge - things you wouldn’t need a citation for in a paper. For example, you don’t need an expert witness to testify that British Columbia is on the west coast.
This trial brings up court room arguments that many hoped, and believed, had been settled in David Irving’s defamation trial in the UK and Ernst Zundel here in Canada. Particularly, in the Zundel trial, the Supreme Court dealt with the exact question of whether or not it was correct to take judicial notice of the Holocaust, and chose to uphold the lower court judge’s decision to do so as being correct, going so far as to advise once again taking judicial notice of the facts of the Holocaust when the case was remanded to lower court. From the vantage point of having recently graduated from law school, this looks like it should be settled law, but whether that is actually the case remains to be seen.
With any luck, the judgment in the Sohier-Chaput case, which is set to be released in late January, will reflect the precedent the Supreme Court set in R v Zundel, and hold that the Crown was not required to call an expert witness to prove the facts of the Holocaust or the relationship between the Nazi movement and the murder of six million people solely for their faith.
But, that we are still having this debate about whether the most basic facts of the Holocaust are common knowledge and can be taken for granted in a court of law, should be deeply concerning. It has been 30 years since the Supreme Court decision in R v Zundel, which even then seemed far too long after the Holocaust taking place to be questioning the facts of the most meticulously documented genocide in history. Reading coverage of Poussard arguing with the judge that he lacked judicial knowledge of the Holocaust or that its facts needed to be proved by an expert because they are not common knowledge is disheartening.
If common knowledge of the Holocaust is truly slipping in living memory of the atrocity that occurred, then we have a much bigger problem than whether or not Sohier-Chaput is convicted.