Zgram - Where Truth is Destiny: Now more than ever!
November 18, 2003
Good Morning from the Zundelsite:
All day yesterday I sat on pins and needles, hoping to find out how
the Ontario Superior Court hearings went. As you will remember,
these hearings are to last two days and are meant as the opening
Zundel salvo against his exceedingly nasty, determined detractors.
Ernst called around 7 p.m. and told me that he was dealing with a
sullen guard and was only allowed five minutes on the telephone. He
said the new legal team was superb.
The opposition, he added, was fierce, and MacIntosh, the government
prosecutor, had given the impression that "They take this move of
ours very, very seriously."
Ernst said that it was his impression that it was going to be "an
uphill struggle" because Canada's Supreme Court - and this is my
interpretation - has at least partially surrendered its independence
to the enemy and has already set some pretty ugly CSIS precedents.
Hang in there. NO SURRENDER!
Here is Paul Fromm, reporting from location:
"DETENTION OF ZUNDEL IS UNCONSTITUTIONAL" -- Peter Lindsay
TORONTO. November 18, 2003. German publisher Ernst Zundel's new
defence lawyer Peter Lindsay told an Ontario Superior Court Judge
today: "The detention of Ernst Zundel is unlawful and
unconstitutional." Lindsay asked Madam Justice Mary Lou Benotto for
an order "declaring that the entire legislative scheme in
section 77, 78, 80, 81,82 and 83 of the [Immigration and Refugee
Protection] Act violates sections 7 and 9 and 10(c) of the Charter,
is not saved by section 1 and is thus of no force or effect."
therefore, sought "an order releasing Mr. Zundel from custody
Mr. Lindsay argued, first, that the Ontario Superior Court
has proper jurisdiction in this habeas corpus hearing and that,
secondly, Mr. Zundel's rights have been massively violated by the
long delays of the hearings in Federal Court before Mr. Justice Blais
and by such aspects of the Immigration and Refugee Protection Act as
the secret hearings, the admission of triple hearsay evidence and the
fact that there is no right of appeal against the judge's decision.
In his factum [the full text of which is on the CAFE site --
canadianfreespeech.com], Lindsay explained: "Mr. Zundel is an
unpopular 64 year old permanent resident of Canada with no history of
violence, no criminal record and no outstanding criminal charges
against him in Canada. A certificate has been issued by the Minister
of Citizenship and Immigration and the Solicitor General of Canada
certifying Mr. Zundel to be a danger to the security of Canada. As a
result, there are ongoing proceedings before Mr. Justice Blais of the
Federal Court of Canada (Trial Division) to determine whether the
certificate is reasonable. If it is found to be reasonable, Mr.
Zundel will be deported to Germany and likely jailed for denying the
While the proceedings before Mr. Justice Blais have dragged on for
many months, Mr. Zundel has been jailed in solitary confinement at
the Toronto West Detention Centre. The appropriateness of his
detention has not even been determined. Mr. Zundel herein
challenges, by way of application for a writ of habeas corpus ad
subjiciendum and for a writ of certiorari in aid thereof, the
constitutionality of sections of the Immigration and Refugee
"This case is about much more than the notorious Mr. Zundel.
The very serious and important question to be answered in this case
is as follows: In these times of prevalent concerns about security
and terrorism, to what degree will we undermine our most cherished
principles of fairness and justice in our free and democratic society
in order to allegedly protect society from perceived threats? Will
we ensure that such principles are undermined as little as reasonably
possible?" Mr. Lindsay asked the Court.
Outlining Mr. Zundel's flawless record as a law abiding landed
immigrant in Canada, Mr. Lindsay proceeded: "Since coming to Canada
in 1958, Mr. Zundel has never been involved in any violence. Mr.
Zundel has no criminal record in Canada and faces no outstanding
criminal charges in Canada. Mr. Zundel has faced repeated
unsuccessful prosecutions for expressing his unpopular views about
He has received death threats. There have been
documented attempts to kill him, including an incident in which his
house was largely destroyed by arson and an incident in which a pipe
bomb was sent to him in the mail. In the arson incident, witnesses
saw a man carry a red gas can to the front of Mr. Zundel's home and
set the fire. In the bombing incident, the Toronto Sun reported that
'On May 15, , Zundel received a bomb with a Vancouver return
address. Police exploded the device - which was packed with shrapnel
- at the Leslie Street spit.'
On March 19, 1997, in a 63-page
information to obtain a search warrant, Constable Warren Ryan of the
RCMP in British Columbia swore that he had reasonable grounds to
believe that Darren Thursan and David Barbarash were guilty of trying
to murder Mr. Zundel in May 1995 by mailing an explosive device to
him. Messrs. Thursan and Burbarash were not charged with attempted
murder. Mr. Zundel has also been the victim of other harassment and
mistreatment for many years, based on the unpopularity of his views.
His one time lawyer, now Her Honour Judge Lauren Marshall, received
death threats while representing Mr. Zundel, including a telephone
threat made to her 7-year old child that 'If your mommy goes to
court, she'll be killed.'"
Mr. Lindsay took aim at the secret hearings which have run
parallel with Mr. Zundel's public hearings before the Immigration and
Refugee Board in February, March and April and, more recently, in
Federal Court. "The principles of fairness and natural justice
include the principle that one party should not be allowed to give
evidence to the decision maker in the absence of the other party.
The Supreme Court of Canada strongly so held in the pre-Charter Kane
v. University of British Columbia, as follows: 'It is a cardinal
principle of our law that, unless expressly or by necessary
implication, empowered to act ex parte, an appellante authority must
not hold private interviews with witnesses (de Smith, Judicial Review
of Administrative Action (3rd ed.) 179) or, a fortiori, hear evidence
in the absence of a party whose conduct is impugned and under
Then, referring to the Kane case, Mr. Lindsay observed: "It
is worth noting that the interests at stake for Kane (a 3 month
suspension from his job) are clearly less than those at stake for Mr.
Zundel - deportation and a real chance of going to jail."
Pursuing his denunciation of the secret testimony that has
dogged the Zundel case, Mr. Lindsay argued: "Section 78(b) of the Act
further allows the secret proceedings to happen repeatedly, 'on each
request of the Minister or the Solicitor General of Canada'. It is
respectfully submitted that this provision exacerbates the denial of
fairness, natural justice and thus fundamental justice.
repeated secret proceedings have taken place in this case. Section
78(b) of the Act further allows the repeated secret proceedings to
occur 'at any time during the proceedings', thereby, it is submitted,
further exacerbating the denial of fairness, natural justice and
It is a fundamental principle of our
adversarial judicial system that one party presents its case fully
and then the other party responds, knowing the case it has to meet.
What has happened in this case is that after the Minister and
Solicitor General presented their case and while Mr. Zundel was in
the middle of presenting his response, the Minister and Solicitor
General have secretly presented more of a case against Mr. Zundel
(see paragraph 20 above).
The additional case being presented is not
limited to reply evidence. It is not limited at all. The case
secretly change in any way while being responded to. Mr. Zundel and
his counsel do not know if it has changed in this case. Neither does
this Honourable Court. It is not an overstatement to say that this is
completely contrary to the fundamental principles of our judicial
Me. Lindsay insisted that the secret hearings are a wholesale
violation of Mr. Zundel's Charter rights: "It is respectfully
submitted that the right to be heard in section 78(i) is an illusory
right, taken in the context of a process which allows for information
and/or evidence to be used which is introduced in the absence of the
person named in a certificate and of his or her counsel throughout
the proceedings. ... In particular, the Act raises the issue of
whether the inequality between the parties created by the secret
proceedings destroys the appearance of independence and impartiality
of the designated judge. ... It is inconsistent with the appearance
of independence and impartiality of a judge for that judge to have ex
parte communication with one party and to make decisions on
materials which are not disclosed to the other party, while appearing
at the same time maintaining the appearance of independence and
impartiality and of doing justice between the parties. The problem is
made worse in this case when the designated judge receives ex parte
communication as to matters such as when Mr. Zundel speaks to his
When political prisoner Ernst Zundel entered the Court, his
25 supporters who nearly filled the room, noted with shock an angry
4mm welt on his wrists from the handcuffs that his five burly guards
force him to wear.
One of Mr. Lindsay's first acts was to seek permission for
Mr. Zundel to leave the prisoner's box and join him at the second
counsel table. The authorities' treatment of the German-born
dissident is "disgusting," observed Lady Michele Renouf, a
actress and British civil libertarian in Toronto to observe the
hearing and to speak for the Canadian Association on Thursday.
Lindsay's move was important, said Lady Renouf, "because it
establishes Mr. Zundel as a human being."
Advancing his critique of the unconstitutionality of many
aspects of the Immigration and Refugee Protection Act, Mr. Lindsay
slammed the acceptance of almost anything as evidence. "Section 78(j)
of the Act allows the judge to 'receive into evidence anything that,
in the opinion of the judge, is appropriate, even if it is
inadmissible in a court of law, and may base the decision on that
evidence.' Section 78(j) of the Act apparently allows anything
to be used -- articles, hearsay, double hearsay, triple hearsay. The
evidence does not have to [be] given under oath or solemn
affirmation. It does not have to be subject to cross-examination in
order to test it. ... There are no meaningful limits.
As a result,
in the proceedings before Mr. Justice Blais, ... Mr. Zundel faces
mountains of hearsay 'evidence' which is not sworn and not subject to
challenge through cross-examination, thereby denying him any basic
entitlement to principles of fairness and fundamental justice." The
Crown, Mr. Lindsay noted, has tendered no witnesses, no viva voce
evidence, at least not in the public hearing.
Mr. Zundel's new chief defence lawyer criticized the
Immigration Act's extremely low standard of proof required to deport
a political prisoner like publisher Ernst Zundel.
Mr. Lindsay pointed out the shocking absurdity that "Section
80 of the Act does not require the judge to determine whether the
person is actually a danger to national security, but simply whether
the Certificate is reasonable (a clearly lower standard). For
example, if the judge concludes that the person is not a danger to
national security but that others (such as the Minister and Solicitor
General) could disagree (and have disagreed) with that conclusion,
the judge is required to find the Certificate reasonable and the
Certificate becomes a removal order, which is not subject to appeal.
It is respectfully submitted that section 80 of the Act does not even
specify the standard of proof with respect to whether the certificate
is reasonable, that is, whether proof is on the balance of
probabilities, or, perhaps more appropriately, given the severe
consequences if the Certificate is found to be reasonable, beyond a
reasonable doubt. Section 80 also does not clearly state who has the
onus of proof."
Contending that the Superior Court of Ontario has proper
jurisdiction, a point Crown Attorney Donald MacIntosh vigorously
disputed, Mr. Lindsay explained: "If it can be shown that the review
and appeal process under the Act is less advantageous than the habeas
corpus jurisdiction, the Superior Court should exercise its
discretion to grant relief on a habeas corpus application. That
review and appeal process, with respect to constitutional issues, is
to bring an action in Federal Court, which will take years. The
timing of the remedy was specifically considered by the Court of
Appeal for Ontario in Baroud in relation to the 'less advantageous'
test, and, based on the evidence of Federal Court delay in bringing
actions, strongly militates in favour of granting habeas corpus
Mr. Lindsay pointed out that, while Mr. Zundel might initiate
an action in Federal Court to challenge the constitutionality of
parts of the Immigration Act, the average action takes 5.7 years to
reach its conclusion, during which time he might still be in prison.
In the afternoon, Crown Attorney Donald MacIntosh accused Mr.
Zundel of forum shopping. He, then, told Madam Justice Benotto: "You
are being asked to proceed on an incomplete evidenciary record. In
the in-camera proceedings, the Minister of Justice and the Minister
of Immigration have submitted evidence showing that Mr. Zundel is a
threat to the security of Canada."
The hearings conclude tomorrow. -- Paul Fromm