Institute for Historical Review

The 'False News' Trial of Ernst Zündel -- 1988

Kuang Fann

[Dr. Kuang Fann was the fourth witness called by the defence. He testified on Wednesday, March 9, 1988.]

Dr. Kuang Fann, a professor from York University, was tendered as an expert in linguistics and the philosophy of language to testify whether the "essence" of the booklet was fact or opinion and to analyse the writings of Zündel in the foreword and afterword. (21-5242, 5243)

Fann obtained his doctorate in the subject of linguistics and the philosophy of language from the University of Hawaii in 1966 and currently held the position of Professor of Philosophy at York University. (21-5255, 5256)

Fann testified that the whole pamphlet, Did Six Million Really Die?, should be classified as a political opinion. The parts written by Zündel were purely political opinion. The part written by Richard Harwood presented a historical thesis. It included factual claims which the author believed to be true but in its purpose and implication it was also a political opinion. (21-5260)

Fann testified that for something to be considered a factual claim, there should be some way of verifying it to be true or false. Whether it was actually true or false was another issue to be decided by other methods. (21-5260)

In evaluating a writing, Fann indicated that he looked at the context in which a writing was published, i.e., where and how it was published. Secondly, he looked at the style of writing. Did Six Million Really Die? was a mimeographed pamphlet published, as far as he knew, by a politically right wing organization. It was not published in a scholarly journal or by a reputable academic publishing house. It was thus identified with a political movement and from that criteria constituted a political opinion. (21-5262) The style of writing was also typical of a political opinion, with the use of certain buzz words such as "I believe" the following argument to be correct or the following statements to be true. Typical also was that the claim being made was the "Truth" with a capital "T." (21-5261, 5262)

Harwood's portion of Did Six Million Really Die? was a political opinion based on a historical thesis. The historical thesis was based on an extended argument in which many factual claims were made and was typical of a political tract. (21-5263)

Fann referred to the first paragraph of the pamphlet and Harwood's subsequent statement:

A great deal of careful research into this question, however, has now convinced me beyond any doubt that the allegation is not merely an exaggeration but an invention of post-war propaganda...

This was a clear expression of a political opinion, said Fann. It was not a factual claim that could be verified to be true or false. (21-5264)

Fann noted that, typical of any political writing, the author of Did Six Million Really Die? had gathered the kind of evidence that he considered to be evidence for his conclusion. (21-5265) Fann defined an "argument" to be an opinion of writing which may include facts. (21-5279)

Fann agreed on cross-examination that the words "Historical Fact No. 1" were the first words written across the front page of the pamphlet. He testified that there was "no question" that the author believed what he included in the pamphlet to be the facts. Asked how he knew that the author believed that, Fann testified that to determine what an author believed, he looked at the context and the internal structure of the pamphlet. Given the language and the political belief behind the pamphlet, the normal thing to assume was that the writer believed what he said to be true, unless there were logical ways to prove that the author was lying. For example, if the best friends of the author of the pamphlet testified that, in private, the author said otherwise then Fann would be convinced that the author was lying. But otherwise, Fann went by context and the words in the pamphlet. (21-5266)

Fann found the writings of Zündel to be purely political opinion. Zündel claimed only that he believed in the truth of the factual claims being made and left it to his readers to agree or disagree with its contents. Zündel did not make any obvious factual claims which could be construed as either true or false. (21-5262, 5263)

Fann agreed that it was not part of linguistics to determine the truth or falsity of a writing. He took for granted that people believed what they wrote, unless it could be proven otherwise. "There are always exceptions, but they have to be exceptions," he said. He agreed that one of the things one could look at to determine whether the person "really means what they say" was the motivation that led them to write the publication. But Fann reiterated that from the context of the pamphlet, he assumed Harwood to have believed what he wrote. (21-5267, 5268)

In a discussion of logical fallacies during his cross-examination, Fann made the following points about Did Six Million Really Die?:

The description of Richard Harwood as a "writer and specialist in political and diplomatic aspects of the Second World War" and being "with the University of London" were statements of fact. The appealing to or enlisting of authority to lend weight to an author's argument was known as a "fallacy." Fann noted that almost any political opinion would use this technique. (21-5270)

The attempt of the pamphlet to convince the reader that it was an objective appraisal and that the author came to his task with no preconceptions was also a fallacy because it was irrelevant. How an author came to an argument or conclusion was irrelevant to whether or not the conclusion was correct. (21-5271, 5272)

The suggestions by the author to the reader that he believed for a long time what he now was exposing to be untrue; that he had had a revelation; that he was at personal risk for expressing his views; that he was redressing a wrong that had been done; that he was shedding light on something that had been secret; that he was looking at both sides of the question when he had only looked at one: these were all fallacies since they were irrelevant to the correctness of the conclusion. (21-5272, 5273, 5274)

Most political writings and even some academic writings were full of this kind of fallacy, said Fann. (21-5273) These techniques were not unique to Did Six Million Really Die? and were very widespread. (21-5279)

Most enlightened people could tell very easily what were the factual claims made in Did Six Million Really Die? and what were the fallacies, as people came across these techniques all the time in newspapers and in politicians' speeches. Fann thought and hoped that the eleven jurors were as good as he was in determining what was fact and what was opinion. (21-5275) Fann made clear, however, that he disagreed with the opinion expressed in the pamphlet and found it totally repugnant. (21 5281)

Fann agreed with Crown counsel that even the most sophisticated people could be misled by communications. (21-5276)

During re-examination the following exchange took place between Thomas, Christie and Fann:

THE COURT: ...What about a political opinion that would be based on assertions of fact?...And if the assertions of fact are proved to be false, what do you say about that?

FANN: Um, there are a lot of established facts or so-called established facts that's accepted by the majority of the population that is not necessarily accepted by the minority.

THE COURT: That's right.

FANN: And it is to the benefit of society that we allow questioning...

THE COURT: You're talking about freedom of opinion.

FANN: That's right.

THE COURT: Right. And presuming that freedom of opinion isn't an issue here, but a criminal charge of expressing false statements, and if the pamphlet is alleged to contain false statements...

FANN: A lot of pamphlets contain false statements.

THE COURT: We're dealing with one pamphlet. Now, have you gone through this -- how many assertions of fact did you find?

FANN: I did not count them.

THE COURT: Why not?

FANN: I was asked to read the whole pamphlet and give my opinion as to whether the whole pamphlet is a statement of fact or an expression of political opinion.

THE COURT: All right. So, you decide that it's an expression of political opinion.

FANN: That's right.

THE COURT: But in coming to that conclusion, you do not attempt to verify the accuracies of the assertions of fact. Is that right?

FANN: That's correct, because it's totally irrelevant.

THE COURT: What merit is your opinion?

MR. CHRISTIE: Well, I hope, Your Honour, that's for the jury to decide and me to argue and I object to the process of Your Honour asking that question when I'm obviously precluded from exploring the area. I don't think that's fair.

THE COURT: Thank you. What worth is your opinion if you don't verify the facts?

FANN: As far as I am concerned, I'm not saying that I have verified it. As far as I am concerned all the factual facts claimed here can be false. Still, the whole pamphlet is a political opinion that ought to be allowed to be expressed and I am here for a principle of freedom of opinion.

THE COURT: The reason why you've come here -- we might as well come to the bottom of this -- you think people should be able to say anything they want.

FANN: Not anything but this particular one I feel it's a domain of opinion.

THE COURT: You have an opinion that this is an expression of opinion.

FANN: That's right.

THE COURT: And this charge is silencing that.

FANN: That's right.

THE COURT: That's why you are here. You can't tell me how many assertions of fact are in the document because you never counted them up.

FANN: That's right.

THE COURT: That's all, thanks. You may step down.

This ended Fann's testimony.1

1 Thomas' treatment of Fann became the subject of an unsuccessful application for a mistrial by Christie on the grounds of judicial bias. Thomas's behaviour during the trial was also an unsuccessful ground of appeal to the Ontario Court of Appeal. The Court of Appeal termed Christie's allegation of bias against Thomas "irresponsible and reprehensible". A complaint was subsequently laid against Christie with the Law Society of Upper Canada based on the comments made by the Ontario Court of Appeal. Fann himself was shocked by the treatment he received. In a letter to the Law Society of Upper Canada in defence of Christie, Fann stated:

"... The court did not allow Mr. Christie to ask about my motive for testifying, but questioned my motive himself later and ridiculed it. He also repeatedly ridiculed me for not having verified the truth or falsity of the factual claims contained in the pamphlet with rhetorical questions such as: 'What merit is your opinion?' 'What worth is your opinion if you don't verify the facts?' As I explained to the court repeatedly, whether the factual claims are true or false is entirely irrelevant to the question whether the pamphlet as a whole is essentially a political opinion or a statement of fact. And it was for the answer to the latter question I was asked to testify. The fact that the court dismissed my whole testimony clearly showed his bias in this case. I am enclosing the relevant portion of my testimony so that you may judge for yourself whether the court was biased in his treatment of my testimony."