Ontario appeal court approves Zündel hearing

By KIRK MAKIN, JUSTICE REPORTER From Friday's Globe and Mail March 12/04

The Ontario Court of Appeal has scheduled a rush hearing of a constitutional challenge by Ernst Zündel to ensure the case is heard before the internationally known Holocaust-denier can be deported to Germany.

Over objections from the Crown yesterday, Mr. Justice Marc Rosenberg said a three-judge panel will hear the case in mid-May.

Mr. Zündel aims to strike down a controversial anti-terrorism measure known as a security certificate that is used to deport non-citizens who may pose a security risk. A security certificate is signed by two federal cabinet ministers who, based on secret intelligence, decide that an immigrant should be deported as a danger to Canadians.

Even alleged spies and terrorists normally targeted this way are not permitted access to the precise allegations against them.

Judge Rosenberg made his ruling yesterday after hearing defence lawyers Peter Lindsay and Chi-Kun Shi argue that their client has been in solitary confinement for a year and faces deportation as soon as a Federal Court of Canada judge completes a review of his case.

They also cited a dramatic speech made by Federal Court of Canada judge to a security conference in 2002. It went unreported at the time, but Mr. Justice James Hugesson roundly condemned the security certificate procedure.

The veteran judge said there was widespread discomfort on the Federal Court bench about the way fundamental legal rights are denied under the process. "I can tell you because we talked about it; we hate it," he said. "We hate hearing only one party. We hate having to decide what, if any, sensitive material can or should be conveyed to the other party."

The judge said he felt like "a bit of a fig leaf" used to cover a dubious procedure.

"This is not a happy posture for a judge, and you are in fact looking at an unhappy camper when I tell you about this function," Judge Hugesson said. "With these national security affidavits, if they are successful in persuading the judge, they will never see the light of day. The fact that something improper has been said to the court may never be revealed."

While Justice Department lawyers strive to be fair at security certificate hearings, he said there is no substitute for having two opposing parties reveal the shortcomings of the each other's arguments.

"It does not matter how good and how honest the lawyer is," he said. "If you have a case that is only being presented on one side, you are not going to get a good case."

Mr. Zundel retired to the United States three years ago. Last year, he was arrested and returned to Canada after failing to make a routine appointment with U.S. Immigration Services. The federal government commenced deportation proceedings.

Mr. Justice Pierre Blais of the Federal Court of Canada has been conducting a review of the certificate for several months, and is scheduled to hear final arguments in early May. Since there is no appeal of a certificate review, an adverse decision would mean Mr. Zundel's immediate deportation.

"If this proceeding is not expedited, it will likely be moot," Mr. Lindsay told Judge Rosenberg yesterday. "The German government has already offered to pick Mr. Zundel up on two existing warrants for denying the Holocaust. Mr. Zundel could be on a plane to Germany and a jail cell before his constitutional rights are determined."

Mr. Zundel lived in Canada for 42 years with a clean criminal record.

However, Crown counsel Donald MacIntosh argued that the courts have already effectively decided against the constitutional issues Mr. Zundel intends to raise. He said that in any case, an Ontario Court of Appeal ruling would not be binding on Federal Court judges.

The only unclassified portion of the security certificate against Mr. Zundel accuses him of being a dangerous preacher of anti-Semitic, white-supremacist hatred. Even if he doesn't advocate violence, it reads, he is dangerous because he's seen as a guru by those who do.

Of the 27 security certificates issued since 1991 — only five since the 9/11 attack — virtually all have involved suspected terrorists from such countries as Iran and Algeria.

Dear Free Speech Supporter:

Somewhat as rare as a ripe strawberry in an Arctic March, there's been a major Zundel victory in a Canadian court!

On Thursday, March 11, Mr. Zundel's lawyers Peter Lindsay and his wife and law partner Chi-Kun Shi appeared in the Ontario Court of Appeals seeking an expedited hearing for Mr. Zundel's appeal against the decision of Madam Justice Benotto turning down Mr. Zundel's habeas corpus motion. The appeal had been set for June 9, 2004. However, the CSIS Certificate Review before federal judge Mr. Pierre Blais, the former solicitor-general and boss of CSIS, could well be over by then. A negative decision by Mr. Justice Blais, finding the decision of the two ministers to sign the decision "reasonable", would automatically convert the certificate into a deportation order that could not be appealed.

Thus, it's vital to the cause of justice for Mr. Zundel that his appeals in provincial and federal court be heard soon. [The Federal Court of Appeal has still not ruled on a motion staying the certificate hearings pending an appeal of certain of Mr. Justice Blais's decisions.]

Peter Lindsay reports:

"We won the motion to expedite the appeal to the Court of Appeal of Ontario. The appeal has, thus, been moved up from June 9, 2004 to May 10, 2004. This will allow us to have the appeal heard before the end of the certificate review."

Ruling for Mr. Zundel, Mr. Justice Marc Rosenberg, a former criminal defence lawyer, held:

"In my view, this appeal should be expedited. I am not required to deal with the merits of the proposed appeal. My concern with the June date is that the appeal may be moot and that the moving party [Mr. Zundel] remains in custody at this time. Traditionally, habeas corpus matters are expedited. The appeal is set for May 10, 2004."

Consulting with Mr. Lindsay, Wednesday, I learned that Donald MacIntosh, the Crown Attorney, as one might expect in this bitter struggle, had strongly opposed an expedited hearing in his written submissions. Mr. Lindsay concluded: "The Crown seems to want to make certain that the constitutional issues in the Zundel case will not be heard."

Speaking of the recently publicized e-mails between CSIS and federal immigration authorities and their contacts with U.S. immigration authorities after 2001, Mr. Lindsay said: "It's clear from the correspondence between CSIS lawyer Murray Rodych and officials at Immigration that they were out to screw Ernst Zundel. It had nothing to do with 'national security'! They've been trying to deport him since 1985." Mr. Lindsay referred to the absolutely uncharacteristic speed with which the Department of Immigration moved to initiate deportation proceedings (later overturned) against Mr. Zundel immediately after his 1985 conviction (subsequently overturned by the Supreme Court of Canada in 1992) for publishing "false news" in challenging the Hollywood version of World War II.

Paul Fromm
Director
CANADIAN ASSOCIATION FOR FREE EXPRESSION

The Zundel Defence Fund Needs Your Help Today
January and February have been very expensive months for the Zundel case. We have spent just over $70,000. Yes, part of this was to bring the Lindsays up to speed in the case. We had six court dates -- four in federal court and two in Superior Court in Ontario for a habeas corpus motion in November and December and eight more in January and February. Canada's vindictive systgem madet Ernst Zundelspend Christmas in prison. April promises to be an expensive month, with four days planned in Federal Court -- April 13, 14, 29 and 30.

The Defence Fund is very seriously depleted and we face major outlays in the New Year. I again ask for your commitment and urgent help. Please mail us your contribution today or e-mail us your VISA number and expiry date. We have a number of delicate colour-pencil sketches by Ernst Zundel done in prison. Each is dated and signed. Each is a nature study. Mr. Zundel has long been a paint and sketch artist. He had returned to his love of art before the U.S. I.N.S picked him up and deported him. All donors of $100 or more will receive one of these sketches. Mail your donation today to CAFE, Box 332, Rexdale, ON., M9W 5L3, Canada or e-mail us your VISA number and expiry date. On your cheque or an accompanying piece of paper, note: "For Zundel Defence Fund."

----- Original Message -----

From: C-FAR

To: cafe@canadafirst.net

Sent: Friday, March 12, 2004 7:51 PM

Subject: ZUNDEL PERSECUTION IS PART OF LIBERAL SCANDAL IN OTTAWA

Dear Free Speech Supporter:

I visited Ernst Zundel in the Metro West Detention Centre on Wednesday, March 10. He's been contemplating the unravelling of the sick and corrupt Liberal Party establishment in Ottawa. This is the grafting, arrogant lot who use the Canadian Security and Intelligence (CSIS) as their political police.


Mr. Zundel sees himself as a particular victim of the Liberal Party, having crossed them over 35 years ago, when, as a young, anti-communist upstart German, he put himself forth in the 1968 Liberal leadership race, the one that eventually elected socialist Pierre Elliott Trudeau, a Mao and Castro admirer. "I am their victim," Mr. Zundel told me. "I'm collateral damage to the Liberal Party elite in Ottawa, who wear Gucci loafers and carry briefcases instead of Uzis!"

An angry Gerard Pelletier, one of the "three wise men" recruited with Trudeau, snapped at Mr. Zundel during that convention: "Germans should be seen and not heard."

"Back in the late 1960s, I distributed tens of thousands of Ron Gostick's Canadian Intelligence Service leaflet warning about CAPRI -- the Canadian Peace Research Institute -- which made the connection between pro-communist leftists like Rev. Endicott and an up-and-coming politician named Pierre Trudeau," Mr. Zundel recalls. "Many in the Liberal Party were furious at me for blowing the whistle on leftists like Trudeau, Andre Ouellett, and Gerard Pelletier -- who were the Trotskyist neo-Cons of their day."

Not long after the 1968 Liberal Party Convention, Mr. Zundel's Canadian citizenship application was turned down. In 1981, Mr. Zundel's postal privileges were revoked after agitation by Jewish groups. In 1982, they were re-instated, but Mr. Zundel had to learn of the reasons from Jewish publications. He was repeatedly denied a written copy of the judgement. He wrote to then-Minister Trudeau requesting a copy of his own judgement. "The former Prime Minister let his secretary write a letter stating that I would not be given the reasons 'while I'm Prime Minister,'" Mr. Zundel recalls.

"I severely antagonized elements in the Liberal Party. That's why I have twice been denied citizenship. As the late Lady Jane Birdwood wrote, this is "the longest hatred!" he says. "I'm being treated like the classic whistleblower. I'm the victim of a confluence of Liberal Party and Jewish lobby influence going back to Dean Maxwell Cohen," who wrote the infamous Cohen Report on Hate Propaganda, which paved the way for the passage of the "hate law", Canada's gag law, now Sections 318-319 of the Criminal Code.

"The denial of my citizenship application was entirely arbitrary," Mr. Zundel explains. When defence team lawyer Barbara Kulazska applied under the Access to Information Act some years ago, "she found nothing in the files."

Former key advisor to Jean Chretien, "Jean Carle, Denis Coderre and Martin Cauchon have made my life miserable," said Mr. Zundel, referring to key Ottawa Liberals, the latter two who were, until very recently, Minister of Immigration and Minister of Justice, respectively.

Mr. Zundel keeps reasonably well informed on the news from the daily papers sent to him. He commented on the surge of Third World crime in Toronto -- the Vietnamese marijuana grow-ops, the endless Black, mostly Jamaican, gang shootings. He observed: "Boy, are Canadians ever paying a steep price in lives and taxpayers' money for being too stupid, lazy and politically naive to stop the immigration insanity in the late 1960s and early 1970s, when there was still time to do it. I can't help but feel a certain amount of glee, when I read all these self-inflicted inconveniences. Actions have consequences!"

Paul Fromm
Director
CANADIAN ASSOCIATION FOR FREE EXPRESSION