Dear Free Speech Supporter:

Welcome to the Northern Banana Republic, Absurdistan, where an autocratic regime keeps political dissidents in jail. With Irwin Cotler, a militant Zionist as Justice Minister, and federal politicians massively lobbied by outspoken Zionist groups that are sworn enemies of free speech, Canada is increasingly a place where political dissent can land you in prison.

It's no surprise. Although he had promised his decision a week earlier, on September 22, Mr. Justice Pierre Blais announced that Canada's most famous political prisoner Ernst Zundel must spend another six months in solitary confinement. You see, the lifelong pacifist who has never been charged, much less convicted of a crime of violence in Canada or anywhere else, is accused by Canada's corrupt Canadian Security and Intelligence Service (CSIS) of being a "terrorist" and, therefore, a threat to national security.

Judge Blais has been so hopelessly hostile to Mr. Zundel and his several lawyers that the decision was a foregone conclusion. After all, he had said, during Mr. Zundel's testimony in July 2003, that he didn't believe him. On January 21, he had concluded that "there are reasonable grounds to believe that Mr. Zundel continues to be a danger to national security or to the safety of any person" and, therefore, ordered his continued incarceration. Mr. Zundel has not, of course, been charged with any crime. In his January 21 decision, Mr. Justice Blais had, in fact, ruled on the substance of the case: whether it was "reasonable" for the ministers to sign the CSIS national security certificate last May 1. Well, if there are reasonable grounds to believe Mr. Zundel is a danger to national security, it would seem that the judge has already made up his mind.

None of this is surprising. Pierre Blais was the former boss of CSIS. In 1989, as Solicitor-General in the Mulroney government, he was in charge of CSIS, interestingly, at the very time they were knee deep in dirty tricks spying on the fledgling Reform Party and the Heritage Front. In November. Mr. Zundel's then lead counsel Douglas H,. Christie made a motion calling on Judge Blais to recuse himself. he refused. More. recently, on September 14, Peter Lindsay, Mr. Zundel's current lead counsel, made a similar motion now based on a ponderous record of biased decisions against Mr. Zundel.
 

Judge Blais's decision consigning the 65-year-old German publisher to another six months in jail -- a form of indefinite detention -- is a masterpiece of deception. Judge Blais criticized Mr. Zundel and Mr. Lindsay for not clarifying Mr. Zundel's relationship with a host of people, linked to him by guilt-by-association in the report filed with the certificate. Mr. Zundel, in testimony in July 2003 and this spring did clarify these relationships, such as they were.

Now Judge Blais seems to suggest that Mr. Zundel should be further punished for his criticism of CSIS's hostility toward him: "Mr. Zundel decided not to address these issued and not to clarify his relationship with those individuals and organizations. Mr. Zundel decided to demonstrate that he is more or less a victim of a vendetta by CSIS against him." (12) One wonders whether Judge Blais was sleeping on July 27, August 30 and 31. In dramatic testimony, Douglas Christie, the "Battling Barrister" from Victoria gave his observations of nearly 20 years of representing Ernst Zundel, including an aggregate of 18 months spent over the years living at Zundelhaus in Toronto.

Mr. Christie was emphatic about Mr. Zundel's outspoken contempt for people who resort to violence or talk about violence. He specifically addressed Mr. Zundel's relationship to all the persons mentioned in the report. His conclusion was that Mr. Zundel was admired by many people, but that young people, far from looking to him as a guru, thought he was out of touch and tended to ignore his advice. Mr. Christie characterized Mr. Zundel's supporters as largely German and Anglo, ageing, and extremely law-abiding. Mr. Christie is, of course, a gentleman and an officer of the Court. One might think that his testimony might count for something.

Once again, former CSIS boss Mr. Justice Pierre Blais upholds the preposterous. "I would agree with counsel for the Ministers that, even though counsel for Mr. Zundel has shown dissatisfaction with the disclosure of the evidence, Mr. Zundel has received adequate disclosure in this case. " (27) Despite numerous secret hearings, including one at noon the day Mr. John Farrell, former CSIS operative and mail thief testified, Mr. Justice Blais has not revealed a single extra scrap of information to the defence. The fiction is that secret evidence is given to the judge in camera and he must assess whether divulging this information would be injurious to national security. It beggars belief that not a single piece of information fails to meet this test. However, Judge Blais's understanding of a threat to national security is so broad that he refuses to tell the defence even how many days of secret evidence have been heard. Can't tell us: "National security!"

Paul Fromm

Director

CANADIAN ASSOCIATION FOR FREE EXPRESSION INC.





The Honourable Mr. Justice Blais - Ottawa, Ontario,

September 22, 2004.

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 of the

Federal Court of Canada pursuant to subsection 77(1),

sections 78 and 80 of the Act;

AND IN THE MATTER OF ERNST ZUNDEL

REASONS FOR ORDER AND ORDER

(1) Pursuant to subsections 83(2) and 83(3) of the act, the Court has to review whether Mr. Zundel's detention should be continued.

(2) From May 1, 2003 to January 21, 2004, the Court has heard evidence provided by the Ministers in public and also in camera, and evidence provided in public by Mr. Zundel.

(3) After assessing that evidence on January 21, 2004, the Court has rendered a decision to the effect that Mr. Zundel's detention should be continued.

(4) Pursuant to subsection 83(2) of the Act after 6 months, the Court has the duty to re-examine whether the detention of Mr. Zundel should continue.

(5) Under subsection 83(3), the Court should decide that the detention continues if the Ministers provide evidence that there are reasonable ground to believe that Mr. Zundel continues to be a danger to national security or to the safety of any person, or, that Mr. Zundel is unlikely to appear at proceedings for removal. As Mr. Lindsay, counsel for Mr. Zundel suggested, the real question is "What has changed since then?"

(6) After discussions between the parties, this Spring, it was decided that Mr. David Steward, who is an employee of CSIS, could testify on the material that was filed by the Ministers.

(7) It was understood at the very beginning that Mr. Stewart will testify on unclassified material and that all questions asked to Mr. Stewart by counsel for Mr. Zundel or by counsel for the Ministers would address only the unclassified material.

(8) Referring to the transcript of those 7 days, the Court had to intervene often to make sure that no question would be addressed to the witness that could inadvertently disclose some classified information which would be injurious to national security.

(9) Counsel for Mr. Zundel and his predecessor suggested many times that different witnesses would testify. At the last minute, counsel for Mr. Zundel decided not to bring those witnesses to testify.

(10) The witnesses which counsel for Mr. Zundel wanted to bring forward to testify included a former counsel for Mr. Zundel, who is now a judge of the Ontario Superior Court of Justice, the leader of the Canadian Jewish Congress, a leader of B'Nai Brith Canada, an author and a journalist for the Globe and Mail. All those subpoenas were quashed after a hearing and are the subject of another decision rendered on June 23, 2004.

(11) In my decision of January 21, 2004, I indicated that Mr. Zundel did not provide evidence of his real relationship with the individuals and the organizations that are mentioned in the summary that was provided to Mr. Zundel in May 2003.

(12) Mr. Zundel decided not to address those issues and not to clarify his relationship with those individuals and organizations. Mr. Zundel decided to demonstrate that he is more or less a victim of a vendetta by CSIS against him, and tried by different allegations to demonstrate that CSIS has a strong bias against him and is determined to deport Mr. Zundel at any price.

(13) Counsel for Mr. Zundel raised an issue regarding the disclosure of such information that would be injurious to national security. On two occasions, I said "could be injurious to national security" when I should have said "would be injurious to national security". In fact, the remark by Mr. Lindsay was right. Nevertheless, there was no prejudice because when I made that particular finding, I always had in mind that the classified information and evidence that were provided in camera by the Ministers are confidential and that disclosure of any part of that evidence would be injurious to national security. Obviously, the wording is important; nevertheless, what is imperative is that the designated judge has the duty to make sure that any classified information is not going to be made public if its disclosure would be injurious to national security, referring to section 78 of the Act.

(14) If Mr. Lindsay is right when he says that I have made a mistake once or twice in using the word "could", he is wrong when he says that I applied the wrong test, because in fact, I have applied the right test and I have reviewed periodically the evidence that was received in camera to make sure that if it was possible, I would have disclosed part of it to Mr. Zundel, pursuant to the Act. Nevertheless, my review of the information and evidence provided in camera by the Ministers led me to conclude that this classified material is relevant but that its disclosure would be injurious to national security or to the safety of any person.

(15) Counsel for Mr. Zundel spent a lot of time in his oral representations identifying some technical errors that could have been made during the long process. In my view, the time would have been better spent providing evidence to demonstrate the real relationship between Mr. Zundel and the individuals and organizations that were identified in the summary. Counsel for Mr. Zundel also spent a lot of time trying to demonstrate the interest of the court in hearing about the influence of the Canadian Jewish organizations and the pressures that those organizations put on the Ministers at different moments, pressures which culminate to the issuance of the certificate.

(16) As I stated in a previous decision, it is no secret that the Canadian Jewish organizations placed a lot of pressure on ministers and different levels of government, insisting that different measures should be taken against Mr. Zundel; for example the Canadian Jewish organizations exerted a lot of pressure to ensure that the Canadian government would not allow Mr. Zundel to reenter the country from the United States. In fact, they did not succeed.

(17) The pressures that were placed on the federal government and particularly the Ministers issuing the certificate are well known and were made in public.

(18) In fact, the question that has to be addressed is not whether there was pressure, but rather, whether the certificate issued by the Ministers is reasonable.

(19) We are not there yet. The hearing on the reasonableness of the certificate is still ongoing. Nevertheless, I have a duty to re-examine whether the detention should continue.

(20) Finally, counsel for Mr. Zundel suggests that the evidence that is provided in camera about Mr. Zundel created an unbalanced position and an untenable position to respond.

(21) Mr. Lindsay suggests that he should be allowed to ask questions about the secret evidence which is classified information, and if answers are provided to those questions, it would be easier for him to adequately represent his client.

(22) In fact, Mr. Lindsay suggests that unless he gets some answers to those questions, it will be very difficult, if not impossible for him to make meaningful submissions about the reasonableness of the certificate, and o the "issue of detention". Mr. Lindsay decided to read those questions in making his own representation as and I can assure Mr. Lindsay right now that those questions will be taken into consideration when the Court hears counsel for the Ministers in camera.

(23) The Federal Court of Appeal has explained the burden of proof on the review of detention in M.C.I. V. Thanabalasingham, [2004] F.C.J. No. 15, 2004 FCA 4: The onus is always on the Minister to demonstrate there are reasons which warrant detention or continued detention. However once theMinister has made out a prima facie case for continued detention, theindividual must lead some evidence or risk continued detention.

(24) On behalf of the Ministers, Mr. MacIntosh rightly suggests that the Ministers have met their burden: the Ministers have to demonstrate that there are reasonable grounds as to why Mr. Zundel should continue to remain in detention pursuant to section 83 of the Act.

(25) The role of the designated judge reviewing the reasons for continued detention is described by Justice Noel in Charkaoui, [20004] 1 F.C.R. 528, [2003] F.C.J. No. 1119, 2003 FC 882, paragraph 36 (tab 4, the Ministers Book of Authorities): The designated judge as the stage of reviewing the reasons for the arrest warrant and the continued [page 544] detention, must ask himself whether there is any evidence in support of the Minister's position that the respondent, since the beginning of his detention, remains a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal (see subsection 83(3) of the Act). I note that Parliament has used the word "or", which created an alternative between one of the reasons cited. Moreover, the designated judge, having given the respondent an opportunity to be heard, must ask himself whether the evidence presented by the respondent challenges the evidence in support of continued detention, if any. In doing so, he must consider all evidence of the parties (including that presented in the absence of the respondent). The initial onus is therefore on the Ministers, although it may shift to the respondent if the Ministers' evidence is sufficient. Where applicable, the respondent must in turn satisfy the designated judge that the continued detention is not justified.

(26) Again, it is important to quote former Chief Justice Thurlow in Attorney General of Canada v. Jolly [1975] F.C. 216 (C.A.), who has defined the standard of proof in immigration matters (Charkaoui decision, paragraph 38):...where the fact to be ascertained on the evidence is whether there are reasonable grounds for such a belief, rather than the existence of the fact itself, it seems to me in that to require proof of the fact itself and proceed to determine whether it has been established is to demand the proof of a different fact from that required to be ascertained. It seems to me that the use by the status of the expression, "reasonable grounds for believing" implies that the fact itself need not be established and that evidence which falls short of providing the subversive character of the organization will be sufficient if it is enough to show reasonable grounds for believing that the organization is one that advocates subversion by force, etc. In a close case the failure to observe this distinction and to resolve the precise [page 545] question dictated by the statutory wording can account for a difference in the result of an inquiry or an appeal.

(27) I would agree with counsel for the Ministers that even though counsel for Mr. Zundel has shown dissatisfaction with the disclosure of the evidence, Mr. Zundel has received adequate disclosure in this case. Mr. Zundel has received full disclosure consistent with section 78 of the Act. The disclosure was consistent with principles of natural justice and fairness. In fact, referring to paragraph 20 of my decision of January 21, 2004, I indicated that there was, at the time of that decision, reasonable ground to believe that RM. Zundel was a danger to national security or to the safety of any person. I based my findings, at the time, on the fact that although Mr. Zundel had virtually no history or direct personal engagement in acts of serious violence, his status within the Right Supremacist Movement was such that adherents would be inspired to carry out his acts pursuant to his ideology. The Ministers believed that by his comportment as leader and ideologue, Mr. Zundel intended serious violence to be a consequence of his influence.

(28) In assessing carefully the evidence that was provided since that very decision of January 21, 2004, I have no hesitation to conclude that Mr. Zundel failed to provide evidence that there are no reasonable grounds to believe that he is a danger to nationals security or to the safety of any person.

(29) Being satisfied that Mr. Zundel should remain in detention because the Ministers have provided evidence that there are reasonable grounds to believe that he is a danger to national security or the safety of any person, it will not be necessary to determine whether he is unlikely to appear at a proceeding or for removal. No new evidence was even provided by any party regarding this question.

O R D E R

Therefore, THIS COURT ORDERS that:
Mr. Zundel's detention be continued in accordance with subsection 83(3) of the Act until the designated judge again rules in regard of the continuation of the detention.
"Pierre Blais", Judge