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----- Original Message -----From: C-FARSent: Monday, January 19, 2004 4:18 PMSubject: JEWISH JUDGE DENIES ZÜNDEL EXTENSION
Dear Free Speech Supporter:
It's no secret that there's considerable tension between some elements -- the ultra Zionists -- in the Jewish community and Ernst Zundel. A Jewish judge ruling on an aspect of the Zundel case must be able to set aside personal feelings and bias. If he can't or, if it appears there may be a conflict, he must recuse himself.
I'll leave the reader to decide how well the cause of impartial justice was served this past Thursday (January 15) in the Ontario Court of Appeals in Toronto.
Chi-Kun Shi is partner and wife of Mr. Zundel's chief defence lawyer Peter Lindsay. Mr. Lindsay has filed an appeal against the decision in Ontario Superior Court denying Mr. Zundel's motion of habeas corpus. Mr. Lindsay is in the process of completing his factum -- a legal document outlining the plaintiff's arguments. Under the arcane rules of the Ontario Court of Appeals a factum cannot exceed 30 pages.
"This is not a normal appeal. This is a complex case with Charter and constitutional arguments," Mr. Lindsay told me. "We were applying for an extension of a few more pages."
On Thursday, Chi-Kun Shi appeared before Mr. Justice Michael Moldaver who is Jewish. It was immediately obvious that Ernst Zundel was, as we've been told so often by legal authorities, "a special case." And that's not meant to be a compliment. The judge called the docket: "Regina versus Smith." Speaking to the defence lawyer, he'd query: "Are you here representing Mr. Smith?"
And so it went through sevral cases. Moldaver was taking care of small procedural and housekeeping matters.
The defence lawyer in the case before Ernst Zundel's sought a relaxing of the page limit for the factum. His case involved the right to an interpreter -- surely, a simpler and less serious matter than Ernst Zundel's involved Charter challenge to the Immigration and Refugee Protection Act -- secret hearings and no right of appeal. This lawyer was granted a seven page extension.
An observer noted a change in the judge's behaviour when he called the Zundel case. He never mentioned Ernst Zundel's name: "Crown versus the applicant," he called.
Chi-Kun Shi refused to be intimidated. "I'm here for Mr. Zundel," she announcd, insisting that Zundel's name be acknowledged as the parties in the other cases had.
Crown lawyer Donald MacIntosh opposed any extension of the limit.
Mr. Justice Moldaver agreed. No extra pages for Ernst Zundel.
You be the judge!
In another matter, the Lindsays' law practice is undergoing a tax audit now. Coincidence?
I was tslking to Ernst Zundel by phone on Friday. We were settling some logistical matters. He anticipates legal expenses of $30,000 in January and February. We really need your help.
Many people have come through. I just finished dropping off a cheque to the lawyers of $2,300 from CAFE. Ron Gostick of the Canadian League of Rights reports that he's raised $4,379 to date to help the Zundel Defence Fund.
Mr. Zundel has been working on some wonderful new designs for his thank-you drawings. These include very colourful oak leaves and a moving drawing of Stonehenge.
Please send your donation today and get one of these collector works of art.
Paul Fromm
Director
CANADIAN ASSOCIATION FOR FREE EXPRESSION INC.
___________________
The Zundel Defence Fund Needs Your Help Today
November and December have been very expensive months for the Zundel case. We have spent just over $50,000. 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. At this point, Ernst Zundel may well spend Christmas in prison. January promises to be an expensive month, with four days planned in Federal Court -- January 22, 23, 26, and 37.
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-FARSent: Monday, January 19, 2004 4:17 PMSubject: BLAIS DISMISSES MOTION FOR NAMES OF CSIS AGENTS IN ZÜNDEL CASE
Dear Free Speech Supporter:
Another setback in the Zundel case. On January 6, Mr. Justice Pierre Blais dismissed a motion by Mr. Zundel for the names of Canadian Security and Intelligence Service (CSIS) officers or RCMP officers whO interviewed him or others in preparing the case against him. The reason for this is simple: Mr. Zundel's lawyer Peter Lindsay wants to subpoena some or all of these people and probe and explore their biases and methodology. After all, they've concluded that this pacifist publisher, who's been under serious police surveillance in Canada for 40 years and who has never been charged with, much less convicted of an act of violence, is, in fact, a terrorist!
"No specific question has been asked, and divulging the information requested would, in my view, be injurious to national safety without necessarily providing relevant evidence to the respondent," Mr. Justice Blais responds. Peter Lindsay, who now heads Mr. Zundel's defence team, indicates that Blais ignored previous national security cases where the defendant was permitted to know the identity of CSIS personnel and to cross-examine them.
Being denied this information makes it very difficult for Mr. Zundel to challenge or probe the evidence against him. As a seemingly loyal ex-boss of CSIS and pal of Canada;s out-of-control political police, Blais says Mr. Zundel can't have this information. Mum's thw word. "National security," you know.
On Mr. Zundel's instructions, Mr. Lindsay has filed an appeal against this ruling.
Paul Fromm
Director
CANADIAN ASSOCIATION FOR FREE EXPRESSION
_______________
January 6, 2004
The Honourable Mr. Justice Blais
IN THE MATTER OF a certificate signed pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 201, c. 27 (the "Act");
AND IN THE MATTER OF THE Referral of that certificate of the Federal Court of Canada pursuant to subsection 77(1), sections 78 and 80 of he Act;
AND IN THE MATTER OF ERNST ZUNDEL
REASONS FOR ORDER AND ORDER
1. In the context of a hearing on whether the certificate issued by the Solicitor General of Canada and the Minister of citizenship and Immigration [the "Ministers"] pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [The "Act] stating that Ernst Zundel [the "respondent"] is inadmissible to Canada under paragraphs 34 (1) (c), (d), (e) and (f) of the Act, is reasonable, the respondent has presented a motion to this Court for disclosure of evidence.
2. The motion follows on an exchange of letters between the Crown and respondent's counsel in which counsel had requested disclosure of the evidence to be adduced for the certificate hearing (letter September 21, 2003). Mr. MacIntosh answered on September 22, 2003 that the Crown did not intend to provide the evidence.
"...as Justice Blais has ruled that there is no requirement to disclosure witnesses whom you intend to call, it is our position that the same ruling applies to the Ministers, [...] Justice Blais indicated that when the Crown is surprised as to witnesses that were called by Mr. Zundel, he would entertain an adjournment request. The Ministers believe that the same ruling applies to Mr. Zundel."
3. The request was repeated in December: the Crown answered that the Summary of Information provided to the respondent pursuant to the Order of this Court dated May 5, 2003 was sufficient.
4. Two principles are at stake here: On the one hand, a party to a proceeding is entitled to the disclosure of the other party's evidence in advance. This is a fundamental tenet of natural justice, and part of the rules of procedure of any court, including the Federal Court. On the other hand, the detention and certificate hearings are held under section 78 of the Act, which provides somewhat different rules of disclosure, given that part of the evidence is confidential information which the judge, pursuant to ss. 78 (b) and (h) , may choose to keep confidential for reasons of national security or to protect the safety of any person.
5. It would seem to be in the interest of fairness and justice to allow Mr. Zundel to have access to the public evidence which will be adduced in court. Although this is neither a criminal nor a civil matter, since this is a matter of detention and deciding on inadmissibility, Mr. Zundel is entitled to as complete a disclosure as possible. Obviously, the rules of section 78 still apply, and some information may be kept confidential, pursuant to ss. (b) and (h).
LEGISLATION
Immigration and Refugee Protection Act
76. (...)
"Information" means security or criminal intelligence information and information that is obtained in confidence from a source in Canada, from the government of a foreign state, from an international organization of states or from an institution of either of them. (...)
78. (...)
(b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or the safety of any person; (...)
(h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed: (...)
INFORMATION REQUESTED
1) Name or names of CSIS officers knowledgeable about the statements summarizing the information and evidence which were provided to Mr. Zundel by CSIS:
2) List of all CSIS and RCMP officer, as well as any other public servant of Canada, who have interviewed Mr. Zundel or others about him, including date of interview and whether any record of interview is available;
3) Summary of the evidence to be adduced for the Certificate Review on December 11, 2003;
4) Copies of all materials Crown intends to present to the Court at said Review;
5) Copies of all materials which Crown does not intend to present to the Court but which may be relevant to the Review;
6) List of all witnesses Crown intends to call at the hearing;
7) List of all witnesses Crown does not intend to call but who may be in possession of information that is relevant, as well as summary of said information.
RESPONDENT'S ARGUMENTS
6. In the Summary of Information which has been provided to the respondent pursuant to the May 5, 2003 Order of this Court, the essential argument of CSIS seems to be that as a leader of the White Supremacist Movement, the respondent represents a danger for Canadian society. Right-wing extremism is characterized by the use of violence and the respondent, through his writings, publications and various communications, encourages and fosters this use of violence.
7. The respondent counters that no direct evidence has been presented of his advocating the use of violence. On the contrary, the respondent has always argued, to friends and foes alike, that the full discussion of ideas is what is paramount and that violence is counter-productive and wrong. The Ministers' argument seems to be that since his followers engage in violence, his influence must be such as to encourage violence. The respondent contends the opposite: right-wing extremists act violently despite his advice, not because of it.
8. Because of what the respondent argues is the "mindset" of CSIS, placing him in the fold of violent extremists, and because of all of the evidence of he Ministers has been documentary, allowing no cross-examination, the respondent argues that he should be allowed to examine at least a few witnesses from CSIS. The issue surrounding the determination appears to be one of credibility, yet the respondent is not allowed to cross-examine on the manner in which the evidence has been established against him.
9. CSIS, in the Summary of Information, recognizes that there is little evidence of direct involvement to the respondent with violent acts. However, his association with violent groups or individuals is, according to CSIS, causally linked to the violence of these groups:
As a leadership figure within the [White Supremacist] Movement, Zundel has virtually no history of direct personal engagement in acts of serious violence. However, his status within the milieu is such that adherents are inspired to actuate his ideology. By his compartment as a leader and ideologue, the Service believes Zundel intends serious violence to be a consequence of his influence. To this extent, the Service furthermore believes and asserts that Zundel is engaged in the propagation of serious political violence to a degree commensurate with those who actually execute the acts. [Para, 74, Statement summarizing the and evidence pursuant to section 78(h) of the IRPA].
10. It is this thesis that the respondent wishes to test by examining someone who has knowledge of the evidence held by CSIS on the respondent.
MINISTER'S ARGUMENTS
11. The Ministers accept Mr. Zundel's statement of facts, but submit the motion for further disclosure of information must be denied.
12. The Ministers argue that the motion amounts to an attempt to go behind the information already provided by the Security Intelligence Reports. The request, according to the Ministers, is "premised on the ill-founded and misguided belief that the Crown intends to adduce further evidence in the stand proceedings".
13. The Ministers argue, on the basis of Ikhlef (Re). [2002] F.C.J. No. 352 (T.D.), Ahani v. Canada, [1996] F.C.J. No. 937 (F.C.A.) and Aharkat (Re), [2003] F.C.J. No. 400, that criminal law principles have no application in a case such as the one at bar. Any obligation to disclose is founded, submit the Ministers, on principles of fairness and natural justice as enunciated in administrative law. It is particularly important to balance the competing interests of state security and individual rights.
14. The Minister's submissions seem to indicate that there will be no new public evidence. They argue that the scheme of the Act already provides that the reviewing judge will provide as much information as possible while taking into account considerations of national security.
ANALYSIS
15. As far as public evidence is concerned, it is the hope of this Court that the parties will deem fit to disclose all evidence to be adduced well in advance, so as to make the process as smooth as possible. Having both sides inform each other and the Court in advance of witnesses and evidence represents the normal way of proceeding in a court hearing. Counsel for both sides seemed willing to cooperate in this regard and I hope that disclosure of public evidence can be done ahead of time, as it should.
16. It was clarified during oral submissions that counsel for the respondent sought to be fully apprised of any evidence, not information as defined by the Act, but evidence which could have been relevant but was not included in the public evidence by the Ministers. If the Ministers hold any such information, I believe it should be communicated to the respondent.
17. As to the information received in camera, the issue is the extent to which this information should be kept secret while allowing the respondent sufficient evidence to dispute the certificate.
18. The starting point for the information to be provided by order of the judge is subsection 78 (h) which states that the judge will provide a summary of the information or evidence "that enables them [foreign national or permanent resident who is the subject of the certificate] to be reasonably informed of the circumstances giving rise to the certificate". The question is thus whether, with the summary provided, the respondent has been "reasonably informed".
19. In Yao v. Canada (MCI), [2003] F.C.J.. No. 948 (F.C.T.D.), to determine the rule to be applied in such cases, Madam Justice Dawson adopted the test propounded by Mr. Justice Addy in Henrie v. Canada (Security Intelligence Review Committee) (1988), 53 D.L.R. (4th) 568: affirmed 88 D.L.R. (4th) 575. At [pages 758 and 579 Justice Addie writes as follows:
[...] in security matters, the is a requirement to not only protect the identity of human sources of information but to recognize that the following types of information might require to be protected with due regard of course to the administration of justice and more particularly to the openness of its proceedings: information pertaining to the identity of targets of the surveillance whether they be individuals or groups, the technical means and sources of surveillance, the telecommunications and cypher systems and, at times, the very fact that a surveillance is being or is not being carried out. This means for instance that evidence which of itself might not be of any particular use in actually identifying the threat, might nevertheless require to be protected if the mere divulging of the fact that CSIS is in possession of it would alert the targeted organization to the fact that it is in fact subject to electronic surveillance or to a wiretap or to a leak from some human source within the organization.
It is of some importance to realize than [sic] an "informed reader", that is a person who is both knowledgeable regarding security matters and is a member of or associated with a group which constitutes a threat or a potential threat to the security of Canada, will be quite familiar with the minute details of its organization and of the ramifications of its operations regarding which our security service might well be relatively uninformed. As a result, such an informed reader may at times, by fitting a piece of apparently innocuous information into the general picture which he has before him, be in a position to arrive at some damaging deductions regarding the investigation of a particular threat or of many other threats to national security. He might, f or instance, be in a position to determine one or more of the following: (1) the duration, scope intensity and degree of success or of lack of success of an investigation; (2) the investigative techniques of the Service; (3) the typographic and teleprinter systems employed by CSIS; (4) internal security procedures, (5) the nature and content of other classified documents;(6) the identifies of service personnel or of other personnel involved in an investigation.
20. Various decisions of our Court shed further light on the matter; it must be remembered that circumstances will vary in every case, and that of course, will have an impact on the decision.
21. Re, Charkaoui, 2003 C.F. 1418 was a motion for full disclosure. Justice Noel dismissed the motion on the grounds that "information" (as defined by the Act) can validly be withheld from the person against which a certificate has issued, for reasons of national security and that Mr. Charkaoui had a sufficient summary of the information or evidence to enable him to be reasonably informed of the circumstances giving rise to the certificate.
22. In Re Jaballah [2001] F.C.J. No. 1784, although the subpoena of the Ministers was quashed, Justice MacKay directed counsel for the Ministers to provide counsel for the respondent:
1) a name or names of one or more CSIS officers who are knowledgeable about the summary public statements provided to Mr. Jaballah in this case and in Jaballah No. 1:
ii) a list of all officers of CSIS, of the RCMP and any other public servants of the Government of Canada who have interviewed Mr. Jaballah, or others about him, unless revealing the names of those others would reasonably be seen to place them in jeopardy. That list should indicate the dates of any interview and whether tapes, notes or written reports of the interveiw are available. [para. 47]
23. In reviewing a securiyt certificate concerning Mohamed Harkat, Justice Dawson twice had to render a decision o a motion for disclosure: Re Harkat [2003] F.C.J. No. 400 [hereinafter Harkat (1)] and Re Harkat [2003] F.C.J. No. 1184 [hereinafter Harkat (2l)].
24. Harkat (1) was a request for additional information (including names of CSIS officers responsible for the investigation into his case); Justice Dawson dismissed the motion, because allowing it could be injurious to national safety. However, in Harkat (2), the application was allowed in part. Justice Dawson ruled that Mr. Harkat could not cross-examine the CSIS officer responsible for writing the summary of information, because authorship was uncertain and credibility was not the issue. However, Mr. Harkat would be allowed to sumbit more specific questions on the summary of information that had been provided to him.
25. In the circumstances of the present case, after hearing both parties' submissions and reviewing te information and evidence before me, I am satisfied that the interests of justice would not be served by disclosing the name of CSIS or RCMP officers involved in the summary or otherwise. No specific question has been asked, and divulging the information requested would, in my view, be injurious to national safety without necessarily providing relevant evidence to the respondent. I will continue reviewing any information disclosed in confidence to me by the Ministers, as before, in order to determine to what extent this information can be communicated to the respondent and his counsel. I am every mindful of the balance to be struck between the right of the respondent to be apprised of the case against him and the dictates of national security.
ORDER
THIS COURT ORDERS that: This motion for disclosure be dismissed.
"Pierre Blais"
© -free 2004 Adelaide Institute
