December 6, 1997

Good Morning from the Zundelsite:

Flanked on both sides by Toronto media madly filming and taking pictures, the Zundel team was walking toward the Courthouse in Toronto this past spring to participate in the preliminary CHRC Tribunal hearings.

As we were going up the escalator, a friend said to me:

"Did you ever think you would be part of a struggle for freedom of speech in Canada?"

No. No, I didn't. Not when I first came to Canada. You would have had to have lived my life under four dictators to appreciate the irony of that Monday morning of May 26, 1997 - and that question!

When I immigrated to Canada in 1960, I had already experienced the regimes of four dictators: Stalin of the Soviet Union, Hitler in Germany, Peron of Argentina, and Stroessner of Paraguay. I thought I had finally made it to "freedom" in "the land of milk and honey"!

Some "freedom" and "milk and honey" we're getting dished up these days!

What we're experiencing in Canada these days, judged from my own experience, ONLY took place in one of the four dictatorial regimes I knew: the brutal, violent regime of Josef Stalin!

No other dictator saw fit to to muzzle people speaking "incorrectly" the way the Canadian government is allowing special interests to muzzle Ernst Zundel today.

Of course that day I had not been invited by the prosecution to be part of the hearings, but there I was, inside the courtroom seated in the audience, as the owner and maintainer of the Zundelsite, the contents of which are deemed "hateful".

I had come of my own free will, having traveled with a frequent flyer mileage ticket. Let that be on the record.

Below I want to cite what was said that day and the following day by Zundel defense attorney, Doug Christie, referring to the matter of Canadian jurisdiction over a website created and maintained by me in Carlsbad, California, USA and stored on a server in Santa Cruz, California. USA.

I give you now the Battling Barrister in five installements in an excerpted and condensed version of two days' worth of transcripts:

"I'd be quite concerned if we confused the substance of the matter, which will come, if at all, at a later stage, with the very important legal question which preceded."

(...)

"I'm endeavoring to show you that this is a serious issue, that there are a number of jurisdictional issues that ought to be dealt with before we get on with the so-called merits of the case."

(...)

"(T)he least that can be said is that this serious issue is a case of first instance. It is not clear that you have the jurisdiction to proceed, it's highly dubious, and to proceed in those circumstances would not be practical or convenient."

(...)

"I would like to raise the issue of whether this Tribunal is being entrusted with a complaint that ought not to be before you. This is essentially the question I am raising.

I'm submitting that this complaint is not properly before you for a variety of reasons, that if I am right in this, the complaint by your own Order should be either dismissed or stayed or, alternatively, if it is a legal question upon which being a matter of first instance, you feel that a Court should consider it, I would ask you for a stay of these proceedings to allow our application to go before the Federal Court on these preliminary questions before the Tribunal deals with the complaint on the merits.

In order to lay the foundation for the submission I'm about to make, I would like to call as a witness the person who is the creator, controller, editor, publisher and author of the complaint material, that is, the material complained of, Ingrid Rimland, who is here from California to answer questions from my learned friend and anyone else, and particularly from me.

I propose to call her today. She's seated right there."

At that, there were a few startled faces. I stood up briefly to identify myself. In front of me sat a reporter from the Toronto Sun who turned around and whipped out her notepad. I shook my head because Doug Christie was still speaking, still asking to let me be a witness before the Tribunal.

It became clear almost immediately that I would not be allowed to speak. The reason given by the lawyers of our opposition was that they had not been given advance notice of my being there and, hence, were not prepared to cross-examine me.

Doug Christie then continued:

"(I)f this Tribunal is going to investigate a complaint of material originating from a site in California, it would be contrary to fundamental justice to refuse to hear the very person who controls that site.

And my submission will be this, that there is no reason in law for inequity, or in the Human Rigths Act, to have Ernst Zundel here for five more minutes if he has no control over that site and is not acting in concert with anyone who does.

And it should not be the Commission's desire to object to this evidence, they should be - if they are concerned with both fundamental justice and the best interests of this Tribunal - they would be encouraging the production of this evidence.

If I bring a person who is responsible for the creation of these messages all the way from San Diego, California, then, in my submission, it would be scandalous for this Tribunal to take the position, either that they need notice of this or that they need to refuse to hear such a person.

My submission is this Tribunal should hear that evidence at the first available opportunity, and this is the first available opportunity that I have had, and it is contrary to any sense of justice that the Commission should even oppose hearing the person who is the author of all this material.

If this lady is the author of all this material, why should Mr. Zundel be here five more minutes, why should I have to face all this?"

And a little later, again addressing the opposition attorney as "my friend" or "my learned friend", according to court protocol:

"It may be that my friend would like to avail himself of the opportunity, because if he does not, I will be asking the Tribunal to find that he had that opportuntiy and the issues of facts stated in the affidavit of Ingrid Rimland must be taken as true, because at no point did he seek to either cross-examine her now or postpone matters until he could do so."

(...)

"I want to have the record clear that I'm offering Ms. Rimland today for cross-examination on the material in her affidavit on page 335, and if my friend can tell you whether he wishes to cross-examine her, I will then proceed."

(...)

"If my friend wishes to take the view that your ruling covers everything that is in that affidavit and that that affidavit cannot be of any consideration here, I am certainly submitting that, to the contrary, not only do you have a right to look at it, you have a duty to look at it.

And if facts derived from it relate to the jurisdictional issue, I don't see how you can ignore them anymore than you could properly ignore the fact that she is here available for cross-examination today on the preliminary matter.

It may be she has something to say respecting the merits, but the issue of the location of the website in the United States of America is a jurisdictional fact.

The fact that she controls, and as she says in the affidavit, is the creator, designer, editor, primary electronic columnist of the Zundelsite, that she picked the name, that she programs the contents, that Mr. Zundel does not have the password, all of those matters go to the ownership of that site and whether or not the proper party to these proceedings is before this Tribunal.

I'm saying to you the proper party is not Ernst Zundel, the proper party - if you have jurisdiction - would be the lady sitting back there that you don't want to hear on the jurisdicitonal issue because she has nothing to say about it."

(...)

"I would point out to you that the material before the Federal Court very clearly establishes - and you should take this as true because it's unchallenged here, with an opportuntiy to be challenged here - that Mr. Zundel is not in any way connected to the messages that are the subject matter of the complaint of the Toronto Mayor's Commission on Race Relations or Sabina Citron, that Ingrid Rimland of Carlsbad, California, is the web master of the internet website, on the worldwide web, known as the 'Zundelsite' site . . . and that she's the only one who has personal knowledge of these matters.

She is the creator, designer, editor and primary electronic columnist of the Zundelsite, that all documents that appear on the Zundelsite are prepared by her in HTML and Adobe Acrobat coding, and that those messages, which are the text before you in a complaint, are created by her and she has the copyright of them.

She has them and owns them at her site in Carlsbad, California."

(...)

"I'm saying you should perhaps be interested to know what the issue is that I would say raises a real concern about the jurisdiction of this Tribunal, and maybe even this country, to presume to control the creation of messages by non-Canadians by seeking to get an Order to prohibit Canadians from somehow doing what Americans are free to do."

(...)

"The only argument that can be raised, and is being raised, I might say, in answer to the position I've articulated, is not to say that Ingrid Rimland does not exist, or not to say that Ingrid Rimland does not own, operate and control the Zundelsite, but that she communicates with Mr. Zundel and that that is sufficient to constitute some aspect of collaboration, and alternatively to say that in order to access the Zundelsite one might use, or one would use, according to the expertise of some people, a telephone in Canada."

Thought for the Day:

"Nobody worries about being called 'anti-Italian', or 'anti-French', or 'anti-Christian'; these aren't words that launch avalanches of vituperation and make people afraid to do business with you.

It's pointless to ask what 'anti-Semitic' means. It means trouble. It's an attack signal."

(Sobran's, September 1995, p. 5)

Comments? E-Mail: irimland@cts.com

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