Dear Free Speech Supporter:

On June 23, in a stunning move, Mr. Justice Pierre Blais quashed all four
subpoenas sought by  dissident publisher Ernst Zundel's defence team. The
subpoenas were for Keith Landy, President of thre Canadian Jewish Congress;
Frank Dimant, President of the League for Human Rights of B'nai Brith;
Ontario Judge Lauren Marshall; and Andrew Mitrovica, author of COVERT
ENTRY: SPIES, LIES AND CRIMES INSIDE CANADA'S SECRET SERVICE.

Judge Blais's decision is preposterous in its reasoning and almost
laughable in its feined naivete. "Lobbying ministers is a legitimate
exercise in an open and  democratic society such as Canada. Anyone has the
opportunity to lobby any  minister at any time and make his or her views
known. In this case, the only  evidence that was provided concerned the
public lobbying by both Mr. Landy's  organization and Mr. Dimant's
organization. They met with the Ministers,  they issued press releases,"
[PARA. 15] he writes. Does "anyone" really have the same opportunity to
lobby powerful ministers as do organizations like the CJC and B'nai Brith?
Most of us have trouble getting our own MP to even acknowledge, let alone
really answer a letter. When was the last time you called, say, the
Minister of Justice for an appointment and got one? When was the first time?

The judge goes on to argue: "I have not been convinced that Mr. Landy  or
Mr. Dimant would be able to shed any new light on the reasonableness of
the Ministers' decision. The intervention of the CJC and B'nai Brith has
been public and consistent. It is clear that pressure has been exerted by
the two organizations, both in public statements and private meetings.
This,  to me, has nothing to do with the reasonableness of the certificate,
nor with whether Mr. Zündel presents a danger to Canadian society." [PARA
20] On the contrary, it would be very important to know what the two Jewish
lobby groups told the ministers. Were there promises made, threats,
explicit or implied? Was documentation presented about Mr. Zundel? If so,
what was it? As we know that Mr. Zundel's supporters did not have any
access to the ministers,  it might well be that having heard from only one
side -- CSIS's allegations and Mr. Zundel's bitter opponents -- the
ministers' decision in signing the certificate was unreasonable.

It's interesting that the usually vocal and voluble Jewish groups suddenly
had an attack of shyness when subpoenaed to testify and to be closely
questioned about their activities.

Mr. Justice Blais also relieves himself of another extraordinary
conclusion: "The intent or
motives of the Ministers is of no interest to this Court." [PARA. 19]
Surely, if knuckling under to intense pressure from a powerful financial
and ethnic lobby group was the ministers' motive in signing the certificate
to get rid of Mr. Zundel, this motive is relevant as to whether their
action was "reasonable".

It's not surprising that former CSIS boss Judge Blais -- he was
Solicitor-General in 1989 and, therefore, in charge of CSIS, when they
began a rampage of spying and infiltration of "right-wing" groups,
including Preston Manning's Reform Party -- would seek to protect CSIS.
While admitting that Mitrovica's report that CSIS knew the May, 1995 bomb
sent to Mr. Zundel by anarchists was on its way and did nothing to warn him
or others is a serious matter, Judge Blais insists: "I believe Mr.
Mitrovica has little material evidence to contribute beyond what has
already  been published. Compelling him to produce his notes and materials
is unduly  intrusive, and given the little probative value that I could
attach to such  hearsay materials, I see no need to disturb the
journalistic privilege that  attaches to Mr. Mitrovica's evidence. [PARA. 30]

Those following the proceedings would have to laugh at this. The
government's public case has been filled with hearsay and double hearsay
evidence. The Judge under Sec. 78.e of the Immigration and Refugee
Protection Act (IRPA) can accept [and has] "anything" as evidence,
including things not normally accepted in a Canadian court of law. Now, Mr.
Justice Blais suddenly develops an aversion to hearsay.

As Mr. Mitrovica's charges are so serious, it would be very helpful to Mr.
Zundel to be able to establish their credibility. It the charges are true,
they prove a murderous hostility on the part of CSIS toward the German-born
dissident and call into question the "reasonableness" of the CSIS
certificate calling this lifelong pacifist a "terrorist".

Judge Lauren Marshall had been one of Mr. Zundel's lawyer in the 1980s.
Originally, she had agreed to testify about the extraordinary swiftness
with which the government sought to deport Mr. Zundel after his 1985
conviction (subsequently overturned) for publishing "false news." This
speed was is contrast to the usuaally lackadaisical pace -- five years or
more -- in the judge's long experience for the government to seek the
deportation of violent criminals. Her testimony would help establish the
long-time bias of the Canadian government against Mr. Zundel and,
therefore, undermine the "reasonableness" of the CSIS certificate branding
him a "terrorist".

Nevertheless, Judge Blais concludes: "Mr. Zündel has failed to convince me
of the relevance of the
deportation process almost 20 years ago, which was based on a conviction in
 a criminal court. The conviction has been voided, the deportation process
halted, and the present certificate is an entirely different process, based
 on entirely different evidence." [PARA. 37]

In a final stroke of petty judicial one-upsmanship, Judge Blais insists he
doesn't need to be told by a mere provincial court judge how to do his job.
 "Finally, as to the last purpose for which Justice Marshall
would testify, I will state only this. I apply the legislation, I did not
write it. I have stated many times in the course of these proceedings how
difficult it is to have to deal with secret evidence. I do not need to be
reminded of the perils of ex parte proceedings, nor to be told how to carry
 out my judicial duties."
 [PARA. 41]

Perhaps, the only positive aspect of Judge Blais's latest attempt to
cripple Mr. Zundel's defence is that he declined to award costs against Mr.
Zundel.

Chi-Kun Shi, defence co-counsel, says: "The only hope left is really our
appeal to the Supreme Court of Canada. We're getting very blunt in our
submission about Judge Blais' behaviour and his decision about the
subpoenas is just the latest example."

Paul Fromm
Director
CANADIAN ASSOCIATION FOR FREE EXPRESSION








Zundel trial won't hear from judge

Subpoenas for journalist, Jewish leaders also quashed at deportation hearing

By KIRK MAKIN
JUSTICE REPORTER
Saturday, June 26, 2004 - Page A15
Globe and Mail

An Ontario judge will not have to testify at a special deportation hearing
where Holocaust denier Ernst Zundel has been branded a risk to national
security, the presiding judge has ruled.

Mr. Justice Pierre Blais of the Federal Court of Canada concluded that in
spite of Ontario Court Judge Lauren Marshall having acted as Mr. Zundel's
lawyer 20 years ago, she can add little to his understanding of deportation
proceedings.

"I do not need to be reminded of the perils of ex parte proceedings, nor to
be told how to carry out my judicial duties," Judge Blais said.

He also quashed defence subpoenas requiring a journalist and two prominent
Jewish community leaders to be questioned at the hearing. Judge Blais said
they would add little of relevance.

Mr. Zundel's deportation was ordered under a rarely used security
certificate, a process by which the Canadian Security Intelligence Service
can provide information in secret sessions.

The Zundel defence team is not privy to the information, yet it must still
convince Judge Blais that it is unreliable. Should Mr. Zundel fail, he will
be deported to Germany to face a five-year prison term for the crime of
denying the Holocaust.

Judge Blais' ruling brought an angry response from Peter Lindsay, Mr.
Zundel's lawyer. "Is it justice to deny someone even a chance to question
the intent or motive of politicians?" he asked in an interview. "Is it
justice to allow secret evidence and deny the person against whom the secret
evidence is being used even an opportunity to challenge it in any real way?"

Mr. Lindsay had been hoping the testimony would paint a picture of an
unprecedented, 20-year campaign waged against his client by politicians,
police and lobby groups.

"It is already difficult enough to represent someone in a trial where the
key evidence is kept secret," he said. "Regrettably, Justice Blais' decision
makes it even more difficult. The court has thus left Mr. Zundel powerless
against the secret evidence and effectively denied him any meaningful
hearing."

According to Mr. Lindsay, Judge Marshall initially agreed to recount the
extraordinary lengths to which authorities went in 1985 to deport her former
client. But on the day she was expected to testify, she sent a lawyer to
quash the subpoena.

Judge Blais noted in his ruling that the onus is on the party who subpoenas
a witness to show that he or she is likely to provide "material evidence."

Mr. Lindsay subpoenaed journalist Andrew Mitrovica in hopes of shaking the
general credibility of CSIS. Mr. Mitrovica would have been questioned about
a 1995 incident described in his book, Covert Entry, in which CSIS allegedly
knew a pipe bomb was being sent to Mr. Zundel through the mail, yet failed
to warn him.

Judge Blais said that to allow the subpoena would be to threaten press
freedom.

"The benefits of having Mr. Mitrovica testify seem rather doubtful, as
against certain harm to the freedom of the press," he said. "Compelling him
to produce his notes and materials is unduly intrusive, and given the
probative value that I could attach to such hearsay materials, I see no need
to disturb the journalistic privilege that attaches to Mr. Mitrovica's
evidence."

In quashing subpoenas against Keith Landy, president of the Canadian Jewish
Congress, and Frank Dimant, executive vice-president of B'nai Brith Canada,
Judge Blais said it is no revelation that their organizations lobbied
federal ministers to deport Mr. Zundel.

"The intent or motives of the ministers is of no interest to this court," he
said. "The certification stands or falls on the strength of the evidence
supporting it."


________________-
REASONS FOR DECISION


[1]                Mr. Zündel presented a motion on Friday, April 30, 2004
in the course of the hearing being held pursuant to section 80 of the Act on
the reasonableness of the security certificate issued by the Ministers
against Mr. Zündel. Mr. Zündel sought a declaration that leave is not
required for issuance of subpoenas in the proceedings. In the alternative,
Mr. Zündel sought an order dispensing with any requirement for leave under
Rule 41(4)c) of the Federal Court Rules, 1998 (Rules) or, in the alternative
again, that subpoenas be issued nunc pro tunc requiring the following people
to attend this Court on the dates indicated on the subpoena: Mr. Keith
Landy, President, Canadian Jewish Congress (CJC); Mr. Frank Dimant,
Executive Vice-President, B'Nai Brith Canada; Mr. John Joseph Farrell; Mr.
Andrew Mitrovica.


[2]                Subpoenas have issued for those four witnesses. One
witness, Mr. Farrell, apparently refused service of the subpoena. The other
three witnesses have moved to quash the subpoenas, first on the basis of
their validity, having not been issued under Rule 41(4)c) of the Rules, then
on the basis that the witnesses did not have material evidence to provide to
the Court.


[3]                An additional witness, the Honourable Regional Senior
Justice Marshall of the Ontario Court of Justice, had initially accepted to
be a witness for Mr. Zündel. She now moves to have the subpoena quashed.


ISSUES


[4]                1.        Should the subpoenas that have issued be
quashed?

2.        Must leave be granted to issue a subpoena in these proceedings?




ANALYSIS

Grounds for quashing a subpoena


[5]                The case law on subpoenas shows that there are two main
considerations which apply to a motion to quash a subpoena: 1) Is there a
privilege or other legal rule which applies such that the witness should not
be compelled to testify?; (e.g. Samson Indian Nation and Band v. Canada
(Minister of Indian Affairs and Northern Development), [2003] F.C.J. No.
1238); 2) Is the evidence from the witnesses subpoenaed relevant and
significant in regard to the issues the Court must decide? (e.g. Jaballah
(Re), [2001] F.C.J. No. 1748; Merck & Co. v. Apotex Inc., [1998] F.C.J. No.
294)


[6]                Privilege will apply for example in the case of
Parliamentary immunity while Parliament is in session (Samson Indian Band,
supra), or in the case of solicitor-client privilege, although an attorney
acting in a managerial capacity may well be called upon to testify (Zarzour
v. Canada, [2001] F.C.J. No. 123).




[7]                As to determining whether the evidence to be presented
will be useful to the trial judge, courts will be reluctant to prevent
parties from calling the evidence the parties feel they need, but courts
generally will not allow fishing expeditions. Thus, if one party moves to
quash the subpoena, it must show the lack of relevance or significance of
the evidence the party that has issued the subpoena intends to produce.
Obviously, the judge who decides whether or not to quash the subpoena is not
deciding on the weight to be given to such evidence, which is to be
determined by the trier of fact (Stevens v. Canada (Attorney General),
[2004] F.C.J. No. 98).


[8]                In R. v. Harris, [1994] O.J. No. 1875 (Ont. C.A.), the
Ontario Court of Appeal ruled that it was not sufficient for the party
calling the witness to simply state that the witness might have material
evidence; rather, the party had to establish that it was likely that the
witness would give material evidence. In that case, the Court weighed the
respective affidavits of the parties: on the one hand, the affidavit was
that of the secretary of the legal firm that was representing the accused
who had subpoenaed Crown counsel, who stated that she had been told that the
evidence would be relevant to the alleged good faith of the police officers;
on the other, the affidavit of the witness subpoenaed was that he had no
material evidence to give. The first affidavit was pure hearsay and highly
speculative, and thus the subpoena was quashed.




[9]                In Nelson v. Canada (Minister of Customs and Revenue
Agency), [2001] F.C.J. No. 1220, Mr. Nelson sought to subpoena a number of
ministers, including the Prime Minister, in his action against the Minister
of the Customs and Revenue Agency. The motion was dismissed because there
was no evidence from the supporting material that any of these persons had
been in any way involved in the events giving rise to the action.


[10]            Thus the criterion is one of relevance and materiality of
the evidence to be provided by the prospective witness.


Subpoenas at issue

Mr. Keith Landy, President, Canadian Jewish Congress

Mr. Frank Dimant, Executive Vice-President, B'Nai Brith Canada


[11]            As the same issues are raised in regards to these two
subpoenas, I will address them jointly.


[12]            Mr. Landy and Mr. Dimant were each served with a subpoena
that they attend court to give evidence and bring with them any and all
documents dated January 1, 2003 and after, in any way related to Mr. Zündel,
CSIS, or any meeting with any agent of the Federal or Ontario governments
related to Ernst Zündel.




[13]            Both have filed a motion to quash the subpoena to testify in
the present proceedings, on the basis that the subpoena does not comply with
the Rules, that the evidence sought is neither relevant nor necessary to
this proceeding, and that the subpoena is overbroad in scope and an abuse of
process.


[14]            The test is whether Mr. Landy or Mr. Dimant is likely to
provide any evidence which would help the Court in its determination of the
reasonableness of the certificate. Much of the evidence which either is
likely to give is already part of the public domain: the CJC and B'nai Brith
have many times called for Mr. Zündel's deportation, and expressed publicly
their dismay at seeing Mr. Zündel come back from the United States and apply
for refugee status.


[15]            Lobbying ministers is a legitimate exercise in an open and
democratic society such as Canada. Anyone has the opportunity to lobby any
minister at any time and make his or her views known. In this case, the only
evidence that was provided concerned the public lobbying by both Mr. Landy's
organization and Mr. Dimant's organization. They met with the Ministers,
they issued press releases.


[16]            The CJC and B'nai Brith have been rather vocal about this
matter, so that there is little to be gained from Mr. Landy's or Mr.
Dimant's testimony in this regard. They would not be able to testify as to
the true influence the CJC or B'nai Brith may have had on the government,
since only the decision-makers (in this case, the Ministers) know how the
decision was made.




[17]            It appears Mr. Zündel is attempting to show that irrelevant
considerations were taken into account in the Ministers' decision to issue
the security certificate, related to the pressures exerted by Mr. Landy, Mr.
Dimant and their respective organizations. We have evidence that the CJC and
B'nai Brith have expressed strong views to the Ministers, but no evidence
that they provided any material or any evidence.


[18]            In Jaballah (Re), [2001] F.C.J. No. 1748, Mr. Jaballah's
counsel sought to have the Ministers testify on the decision-making process
which led to issuing a second security certificate against Mr. Jaballah,
after the first one had been declared unreasonable by Mr. Justice Cullen
(Canada (Minister of Citizenship and Immigration) v. Jaballah, [1999] F.C.J.
No. 1681). Mr. Justice MacKay clearly stated that probing the motives of the
Ministers in the exercise of their ministerial discretion was not proper,
nor relevant, nor useful.

¶ 13       In my opinion, questioning the background knowledge or intent of
the Ministers concerned at the time of their decision to issue the second
certificate would merely be a fishing expedition. I am not persuaded that
the evidence suggested by counsel is relevant to the determination this
Court must make under subparagraph 40.1(4)(d) to determine whether the
certificate filed by the Minister and the Solicitor General is reasonable on
the basis of the evidence and information available to ... the designated
judge. ...


¶ 14       The signature and filing of the certificate by the Ministers was
done in the exercise of ministerial discretion. These were administrative
actions undertaken in the discharge of statutory responsibilities vested by
Parliament, in the interests of security of the state.


[19]            The Ministers made the decision to issue the certificate
based on all the evidence that was before them. That decision has been
referred to this Court to decide on its reasonableness. The intent or
motives of the Ministers is of no interest to this Court. The certificate
stands or falls on the strength of the evidence supporting it.


[20]            Clearly, the subpoena is too onerous in terms of production
of notes and documents. Moreover, I have not been convinced that Mr. Landy
or Mr. Dimant would be able to shed any new light on the reasonableness of
the Ministers' decision. The intervention of the CJC and B'nai Brith has
been public and consistent. It is clear that pressure has been exerted by
the two organizations, both in public statements and private meetings. This,
to me, has nothing to do with the reasonableness of the certificate, nor
with whether Mr. Zündel presents a danger to Canadian society. The CJC and
B'nai Brith have their own opinion on the matter; the least that can be said
is that it is already well-known, as well as the reasons for it.




[21]            Mr. Zündel's counsel was unable to specify what questions he
would ask of these witnesses. All the evidence presented in support of the
subpoenas related to public activities and publicly acknowledged meetings
with the Ministers. For lack of relevance to the present proceedings, and
given that Mr. Zündel's counsel could not specify what material evidence
these witnesses would be able to provide, I do not believe Mr. Landy's or
Mr. Dimant's testimony would help the Court in deciding on the
reasonableness of the certificate. I would therefore allow the motion to
quash the subpoenas.


Mr. Andrew Mitrovica, author and reporter


[22]            Mr. Mitrovica wrote a book that was published in 2002,
entitled Covert Entry. The book is based mainly on the revelations of one
John Joseph Farrell, who purports to have been an agent of CSIS. The book
exposes a number of failings within CSIS, and one passage in particular is
of interest to Mr. Zündel, where Mr. Farrell tells Mr. Mitrovica that CSIS
might have been aware that a bomb was being mailed to Mr. Zündel, and did
nothing to stop it.


[23]            Mr. Zündel wants to have Mr. Mitrovica testify on his
knowledge of the relationship between CSIS and Mr. Zündel. Mr. Mitrovica
counters that any information he would have would be hearsay, and moreover,
that he would not want to betray the confidence of various sources that may
have contributed to his research.


[24]            The subpoena served on Mr. Mitrovica is also quite
extensive; he is to bring with him all materials, documents, statements etc.
in any way related to Ernst Zündel, John Joseph Farrell, CSIS or the book
Covert Entry.


[25]            Mr. Mitrovica argued that the subpoena should be quashed
because it would require him to disclose confidential information and
sources, contrary to rights recognized at common law and protected by
section 2(b) of the Canadian Charter of Rights and Freedoms.


[26]            These rights have recently been affirmed by a decision of
the Superior Court of Justice of Ontario in R. v. National Post, [2004] O.J.
No. 178, where Justice Benotto stated :

...the relationship between the reporter and the source was protected by the
common law of privilege. Society's interest in protecting the
confidentiality of the source outweighed the benefits of disclosing the
document. To undermine the journalist-informant relationship and deprive the
media of an important tool in the gathering of news would affect society as
a whole.




[27]            The test as to whether a journalist should be compelled to
testify was set out in detail in R. v. Hughes, [1998] B.C.J. No. 1694
(B.C.S.C.), where Justice Romilly had to decide whether a journalist called
to testify by a defendant in a sexual assault case could invoke the need to
protect confidential sources. In that case, a publication ban was in place
to protect the identity of the complainants. However, the judge ruled that
the journalist could be called to testify on the content of the interviews
he had held with the complainants, since their communication with him
amounted to consent to have the information disclosed, and the content of
the interview was highly relevant to the defence of the defendant. In that
case, Mr. Justice Romilly set out the factors to be considered by the court
in deciding whether to compel a journalist to testify:

a)          the relevance and materiality of the evidence to the issues at
trial;


b)          the necessity of the evidence to the accused's case and his
ability to make full answer and defence;


c)          the probative value of the evidence;


d)          whether the evidence was available through other means, and if
so, whether reasonable efforts had been made on the part of the accused to
obtain evidence from that other source;


e)         if the media's ability to gather and report the news will be
impaired by being called to give evidence and if so, the degree to which it
is impaired;


f)          whether the necessity of the evidence in the case at hand
outweighs the impairment, if any, of the role of the media; and


g)          whether the impairment of the media's function can be minimized
by confining the evidence adduced to only that which is necessary to the
accused's case and his right to make full answer and defence.


[28]            Mr. Zündel has argued that Mr. Mitrovica's testimony would
be relevant because it relates to CSIS' alleged campaign against Mr. Zündel.
If it can be shown that CSIS deliberately did not try to stop bomb mailings
to Mr. Zündel, all of the evidence which is at the heart of the Ministers'
decision would be cast in doubt.


[29]            Mr. Zündel has not shown how Mr. Mitrovica's testifying
would add anything to what Mr. Mitrovica has already written in his book. As
Mr. Mitrovica states in his motion to quash the subpoena, any evidence he
may provide will be hearsay. Although that in itself is not sufficient
reason to set aside such evidence, given the terms of section 78 of the Act,
it does go to the probative value of the evidence Mr. Mitrovica could
provide, as well as its relevance to these proceedings. Mr. Mitrovica has
already disclosed his main source of information for the book. For other
sources, if any, Mr. Mitrovica could invoke his privilege as a journalist,
and it seems to me he would be entitled to do so. The benefits of having Mr.
Mitrovica testify seem rather doubtful, as against certain harm to the
freedom of the press. Lord Denning, writing in Senior v. Holdsworth, [1975]
2 All ER 1009 (C.A.) stated the case for balancing the need to know with the
need to not hamper the work of journalists (at page 1015):

Next there is the special position of the journalist or reporter who gathers
news of public concern. The courts respect his work and will not hamper it
more than is necessary. They will seek to achieve a balance between these
two matters. On the one hand there is the public interest which demands that
the course of justice should not be impeded by the withholding of evidence.
... On the other hand, there is the public interest in seeing that
confidences are respected and that newsmen are not hampered by fear of being
compelled to disclose all the information which comes their way. ... As we
said in this court as to oral testimony of a newsman:


The judge ... will not direct him to answer unless not only it is relevant
but also it is a proper, and indeed, necessary question in the course of
justice to be put and answered.




[30]            Mr. Zündel's counsel did attempt to subpoena Mr. Farrell,
Mr. Mitrovica's main source, but in vain. This is a separate matter which I
will deal with when and if I have to do so. In the meantime, I believe Mr.
Mitrovica has little material evidence to contribute beyond what has already
been published. Compelling him to produce his notes and materials is unduly
intrusive, and given the little probative value that I could attach to such
hearsay materials, I see no need to disturb the journalistic privilege that
attaches to Mr. Mitrovica's evidence.


[31]            The events surrounding the bomb that was sent to Mr. Zündel,
and the circumstances surrounding the individuals who were at one time
suspects in this affair, are of concern to me, as I have directly stated in
court. I do not think that Mr. Mitrovica is the person to shed light on
these matters, and in the circumstances, I believe compelling Mr. Mitrovica
to testify is unnecessary. Mr. Mitrovica has no direct evidence of CSIS
activities, only what has been reported to him, the main source being
someone who obviously, to put it very mildly and judging from the content of
the book, is at odds with CSIS. For this reason, I do not believe Mr.
Mitrovica can provide the Court with relevant evidence.


[32]            The last point of the test, whether impairment can be
minimized by limiting the scope of the evidence to be provided, was
emphasized in Mr. Mitrovica's motion as an intermediate solution. However,
for reasons already stated, I fail to see what Mr. Mitrovica can contribute
to these proceedings beyond what is already part of the public domain
through his book.




[33]            Mr. Mitrovica's motion is allowed, and the subpoena is
quashed.


The Honourable Regional Senior Justice L. Marshall (Ontario Court of
Justice)


[34]            Almost twenty years ago, Justice Marshall, then an attorney,
acted for Mr. Zündel. Justice Marshall was to testify on the deportation
proceedings which the Canadian government undertook against Mr. Zündel in
1985 immediately after he was convicted of spreading false news, contrary to
section 181 of the Criminal Code. Section 181 was eventually declared
unconstitutional by the Supreme Court of Canada, and Mr. Zündel was
acquitted, thus putting an end to the deportation process.


[35]            Justice Marshall moved to have the subpoena quashed, on the
basis that its issuance was not valid and that she did not have any material
evidence to give in the instant proceeding.




[36]            The test in this case as in the other motions to quash is
the relevance and materiality of the evidence which would be provided by the
witness. I do not believe that the issue of solicitor-client privilege
arises, since it is trite law that this privilege belongs to the client, not
to the solicitor. If Mr. Zündel is willing to have Justice Marshall testify
on certain issues, he thereby waives any privilege attaching to
communications relating to those issues (S. & K. Processors Ltd. v. Campbell
Ave. Herring Producers Ltd., [1983] B.C.J. No. 1499 (B.C.S.C)).


[37]            Justice Marshall's main objection to the subpoena is the
fact that she has no material evidence to provide related to the proceeding
before me. Mr. Zündel has failed to convince me of the relevance of the
deportation process almost 20 years ago, which was based on a conviction in
a criminal court. The conviction has been voided, the deportation process
halted, and the present certificate is an entirely different process, based
on entirely different evidence.




[38]            Mr. Zündel's counsel argued four reasons for having Justice
Marshall testify: her opinion on the speed with which the government acted
to have Mr. Zündel deported once he had been convicted; the fact that she
had been assaulted when entering the court, at the time she was defending
Mr. Zündel, by demonstrators allegedly belonging to a Jewish defence group;
her expertise on how deportation is applied in the cases of convicted
criminals who have appeared before her in court; and finally, most
extraordinarily, Mr. Zündel' counsel would have Justice Marshall help me
deal with my difficult task. The intention was to have her testify on the
fact that hearing evidence in camera is a very dangerous thing, that she
herself, listening only to the examination-in-chief, would sometimes have
been misled had it not been for the helpful cross-examination.


[39]            Unfortunately for Mr. Zündel, all these arguments failed to
convince me. Justice Marshall, as she mentioned in the transcript, had no
particular expertise in immigration at the time of Mr. Zündel's deportation
proceeding; thus, her opinion on how the government was acting at the time
has little relevance. The fact that she was assaulted 19 years ago on
entering the court has no relevance to the proceeding before me.


[40]            As Justice Marshall's counsel rightly pointed out, the
deportation process in the case of criminal convictions has nothing to do
with the certificate proceeding we are dealing with. In addition, if the
evidence is to show that deportation proceedings usually take years, I would
think Mr. Zündel would be a prime example of how long these proceedings can
stretch out. Deportation proceedings against Mr. Zündel began in 1985. The
Supreme Court judgment acquitting Mr. Zündel came out in 1992. Mr. Zündel
was never deported.




[41]            Finally, as to the last purpose for which Justice Marshall
would testify, I will state only this. I apply the legislation, I did not
write it. I have stated many times in the course of these proceedings how
difficult it is to have to deal with secret evidence. I do not need to be
reminded of the perils of ex parte proceedings, nor to be told how to carry
out my judicial duties.


[42]            I conclude that Justice Marshall has no material evidence
that would be useful to this Court, and allow her motion to quash the
subpoena.


Mr. John Joseph Farrell


[43]            In the initial motion made to this Court by Mr. Zündel,
reference is made to the subpoena issued to Mr. John Joseph Farrell. So far,
there is no motion to challenge that subpoena. The motion pursuant to Rule
41(4)c) of the Rules is premature in this case.


[44]            If Mr. Farrell appears before this Court, there will no
doubt be some discussion on his testifying and the scope of the evidence.
That will have to be determined. I would simply point out that in the case
of Mr. Farrell, given what appears in Mr. Mitrovica's book, my first
inclination would be to say that he has relevant evidence to provide to this
Court, and I would be willing to hear him. All this is subject, of course,
to any representations which may be made by the parties.




Need for leave of the Court to issue the subpoenas


[45]            Given my decision on the motions to quash the subpoenas, it
will not be necessary to address the issue of whether leave of the Court
must be sought to issue such subpoenas.


[46]            In the parties' written submissions, only one party has
asked for costs of its motion. I believe that it is not appropriate to allow
costs of any of the motions before the Court.

                                                                     O R D E
R


IT IS ORDERED THAT:

The subpoenas issued to Mr. Landy, to Mr. Dimant, to Mr. Mitrovica and to
the Honourable Justice Marshall are quashed.


There shall be no costs of these motions.





"Pierre Blais"

Judge



                                                             FEDERAL COURT


                            NAMES OF COUNSEL AND SOLICITORS OF RECORD



DOCKET:                                          DES-2-03


STYLE OF CAUSE:                          In the matter of a certificate
signed

pursuant to subsection 77(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the "Act")


And in the matter of the referral of that certificate to

the Federal Court of Canada pursuant to subsection 77(1), sections 78 and 80
of the Act;



And in the matter of Ernst Zündel


PLACE OF HEARING:                    Toronto, Ontario


DATES OF HEARING:                   May 9, 16, 2003

July 28, 29, 30, 2003

September 23, 24, 2003

November 6, 7, 2003

December 10, 11, 2003

January 22, 23, 26, 27, 2004

February 9, 12, 18, 19, 2004

April 13, 14, 29, 30, 2004

May 4, 5, 2004



REASONS FOR ORDER               The Honourable Mr. Justice Blais

AND ORDER:


DATED:                                             June 23, 2004


APPEARANCES:


Donald MacIntosh & Pamela Larmondin                                    FOR
THE MINISTER

Department of Justice

Toronto, Ontario


Murray Rodych & Toby Hoffman         FOR THE

Canadian Security Intelligence Service SOLICITOR GENERAL



Legal Services

Ottawa, Ontario


Peter Lindsay & Chi-Kun Shi                                                 
   FOR RESPONDENT

Barristers and Solicitors

Toronto, Ontario


Marvin Kurz                                                                 
             FOR MR. FRANK DIMANT

Dale Streiman & Kurz

Barristers and Solicitors

Brampton, Ontario


Brian MacLeod Rogers                                                       
FOR MR. ANDREW MITROVICA

Barrister & Solicitor

Toronto, Ontario


Paul D. Stern                                                               
              FOR JUSTICE MARSHALL

Stern & Landesman

Barristers & Solicitors

Toronto, Ontario


Judy L. Chan                                                                
             FOR MR. KEITH LANDY

Blake, Cassels & Graydon LLP

Barristes & Solicitors

Toronto, Ontario