No, champagne didn't flow - since boozing isn't part of our lifestyle! But joy ran high, and the severely tested faith in Canada's justice system has, at least for now, been partially restored at Zundel Headquarters.
Judge Campbell's sweeping ruling for our side has thrown the whole obscene Human Rights Tribunal actions and behavior open to public and judicial scrutiny!
To recap very briefly:
For two-and-a-half years, Ernst Zundel asked for judicial reviews to have a real court, staffed by real judges, look at the one-sided and legally questionable rulings handed down by the Human Rights Tribunal in the, by now, three-year-old struggle around the Zundelsite.
The idea was to get a court of higher jurisdiction to look at what was being done by agenda-driven, ideologically motivated quasi-courts called "Human Rights Commissions" and/or "Tribunals" in Canada.
Ernst and his legal team have fought virtually alone, without support from the armchair free-speechers, without much media support, with practically superhuman strength - against all the money and clout of Canada's Holocaust Lobby who feared these judicial reviews, as I have said again and again, like the proverbial devil fears the crucifix.
At the cost of hundreds of thousands of (largely) taxpayers' dollars to underwrite the prosecution of Ernst Zundel, every conceivable obstacle, every deliberate delay and unheard-of rulings by political appointees were thrown into his path - in the hope that his resolve would weaken, his strength would give out, and his financial and legal resources be depleted completely.
At the end of last year and the beginning of this year, the atmosphere in the Tribunal hearings was so brazenly high-handed, arrogant, brutal and poisonous that more than one observer described the situation as "satanic." By hook or by crook, these hearings were to be the instrument to do him in - Ernst Zundel was going to be finished!
At the end of January 1999, Ernst finally succeeded in having Judge Reed declare that he was ***entitled*** to have these five judicial reviews to be heard - against the strenuous objections of the Canadian Jewish Congress and B'nai Brith on January 15, 1999. Imagine! Having to struggle for the very right to fight back - a right that is constitutionally protected to begin with!
That was a partial but important victory - announced right on the Zundelsite.
As fate would have it, Madame Justice Reed herself heard the first Judicial Review on March 9, 1999 - and within weeks ruled against Ernst on a technicality.
To say that we were surprised by that ruling is putting it politely. (Today, April 14, 1999, Ernst already filed an appeal against that decision!)
The second judicial review - and the most important one, since it dealt with questions of jurisdiction and territoriality - was heard by Judge Evans.
Ernst said that Doug Christie argued brilliantly and that every single argument that could be made was made. That ruling is still pending - and may well remain "pending" for god-knows-how-long!
(One wonders if yesterday's ruling will affect the outcome! Inquiring minds want to know.)
The remaining three judicial reviews were heard together by Judge Campbell, starting two days ago (April 12, 1999) and were slated to last three to five days. I was talking to a friend during the wait, and his comment was a very quiet and wistful one: "All Ernst needs is one honest, gutsy judge. Just one honest, gutsy judge!"
The issues before Judge Campbell were these:
First, was one of the Tribunal members, Reva Esther Devins, biased against Ernst due to a previously issued, vicious Ontario Human Rights Commission press release after his 1988 conviction?
Second, should Dr. Alexander Jacob, the defence's expert witness on anti-Semitism - who was to offset Dr. Frederick Schweitzer, the government's pro-Jewish, anti-Christian expert - have been disqualified because he happened to be politically incorrect? and
Third - and most importantly and most ironically ! - ***Should Truth be allowed as a defense in a case involving truth in history***?
On Monday morning, the judge came in and made short shrift. It was clear that he had studied all the Zundel documents and arguments, as well as huge volumes supplied by the Jewish side, which included all of Schweitzer's testimony, among many other documents.
It was very clear that this judge was informed and saw the picture clearly. He let it be known that he had neither time nor patience with twiddle-twaddle.
He said that it appeared to him that Ernst had every right to feel apprehension that Reva Esther Devins could hold a bias against him. If there was evidence to be submitted by the prosecution to show this was not true, then he would like to see it. Now!
It turned out there was none.
This scene has been described to me as dramatic. There stood the opposition's "Bambi", a demure lady lawyer for the Simon Wiesenthal Center who was chosen to take all the flak but didn't look "Chosen" at all - with all the boastful Jewish lawyers sitting there, as quiet as mice, and letting her take all the heat. Gone was the previous arrogance!
The judge said sharply that what he had before him were Ernst Zündel's sworn affidavits - uncontradicted by any other evidence. He told her that he had to rule on the facts and nothing but the facts - not on innuendo, verbally supplied today. He actually wagged his finger at the Simon Wiesenthal Centre representative, cautioning her on how far she could go with her allusions.
In the end, Judge Campbell's ruling was that Devins had no business being a Tribunal member - that there was an apprehension of bias, as Ernst had said all along.
Judge Campbell further ruled that since Devins had been a party to the rulings disqualifying Dr. Jacob as an expert witness, as well as the notorious ". . . truth is no defense" ruling, that in and of itself ***invalidated those rulings as well***.
********** It bears repeating: Ernst Zundel was right all along! He won all three judicial reviews in record speed, which completely stunned the opposition - and in the process got some extremely interesting and important statements about the totally unprofessional behavior and practices of the Ontario Human Rights Commission (of which Ms. Devins was for years a Commissioner herself) into the transcript as a bonus!
********** Judge Campbell's ruling means that every single previous Tribunal ruling can - and will, for all those who know Ernst Zundel! - be challenged in subsequent judicial reviews if needed! The "Human Rights" Quagmire has only just begun! I guarantee that it will stink to high heaven!
********** It means that bushels full of documents culled and compiled in months of research will be submitted in subsequent Human Rights Tribunal hearings and regular courts PROVING the Holocaust as a criminal scheme and blackmail racket! Important facts about the Holocaust Enforcer tactics will get into the Canadian court transcripts - which has been Ernst's aim all along.
********** It also means that Mr. Pensa, the Lone but Well-Connected Liberal, friend of premiers and prime ministers, will have to bear the full burden of responsibility of any decisions yet to be made. This will not be a pleasant role for one man to be in! Mr. Pensa is a well-known and prominent lawyer. But the law, as Judge Campbell once more proved, applies to all in the end.
********** In summary, it means the door is now cast wide open to un-dreamed-of possibilities! For there are remedies in place in Civil Law in Canada that can be invoked against judicial officers, if they knowingly and willingly abuse their powers!
Below please find the document that lays down the ground rules for this round:
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Douglas Christie Barrister, Solicitor and Notary Public
810 Courtney St., Victoria, B.C., Canada VOW 1C4 Tel: (250) 3851022 Fax (250) 4793294
April 13, 1999
Canadian Human Rights Commission,
344 Slater St., 8th Floor.
Ottawa, Ontario
K1A lE1
Fax: 6139933089
Attention: Mr. René Duval, Senior Counsel
Re: Citron et al. v. Zündel
Dear Mr. Duval,
As a result of Mr. Justice Campbell's disposition of judicial reviews T141198, T115498 and T115598, member Reva Esther Devins is now disqualified and prohibited from sitting in the matter, the ruling on the admissibility and relevance of truth is quashed, and the ruling on the qualification of Dr. Alexander Jacob as an expert witness is quashed. In view of the foregoing, we consider that an adjournment sine die is the only option for the Tribunal.
We intend to appeal Mr. Justice Campbell's ruling as to remedy. In our view the only practical remedy is to quash the proceedings. The situation is such, as the Supreme Court of Canada held in Université du Quebec a TroisRivieres v. Larocque, [1993] 1 S.C.R. 471, that it is impractical to have the same adjudicative officer rehear the same issues he has already ruled upon. He cannot sit on appeal from his own rulings. The Court held:
"The appellant contended that the Superior Court had erred in ordering that the new arbitration be held before another arbitrator, since there was no real, objective reason for doubting the impartiality of the mis en cause arbitrator.
On this point, in my opinion, the appellant did not succeed in establishing that the Superior Court had erred in the exercise of its discretion so as to justify intervention by this Court. Though he did not actually say so, Lebrun J. was probably of the view that there could quite reasonably be doubt as to the ability of a grievance arbitrator to objectively hear evidence which he already thought was so lacking in significance as to declare it irrelevant."
This applies more so when the decisions Mr. Pensa made previously are tainted with reasonable apprehension of bias in his association with member Devins. In our view the law from Newfoundland Telephone Co. Ltd. v. Board of Commissioners of Public Utilities (1992), 89 D.L.R. (4th) 289 (S.C.C.) and Larocque, supra, is in favor of a disqualification of the entire panel.
In the circumstances now prevailing, we suggest that the Commission ask member Claude Pensa to resign as was done in the Mills case or withdraw the complaints. In our view, this would eliminate the necessity for appeals of Madame Justice Reed's decision and that of Mr. Justice Campbell's.
We consider that an immediate adjournment of the proceedings sine die is necessary at the present time for the following reasons:
1. If you intend to appeal the decisions of Mr. Justice Campbell, the Tribunal must be adjourned because member Reva E. Devins cannot sit and if you hear evidence in her absence an appeal would be moot. Her departure could not be remedied and the evidence heard in her absence would result in a mistrial.
2. If you refuse to agree to an adjournment, we intend to challenge Mr. Pensa by asking him to disqualify himself. For the reasons in Newfoundland Telephone and Larocque supra, we believe he should have to disqualify himself for a reasonable apprehension of bias and because he cannot rehear the same matters upon which he has given a decision.
3. We will seek the suspension of the 10 day rule due to the legal consequences of the Campbell judgments which were only available today.
4. We give notice that we will be seeking a redetermination on all rulings in which member Reva E. Devins participated. These are now open to judicial review, given the results in Tl 15498 and T115598. Mr. Justice Campbell's reasoning makes clear that any decision in which Reva E. Devins participated ( ie. T19099 regarding bias and T99298) is subject to a successful judicial review. We submit that these should be allowed by consent with costs or we will claim costs in this and each and every other judicial review of decisions in which she participated.
We need your views on adjournment by Wednesday by 3:00 PM because we have to arrange Mr. Mark Weber's travel from California. In the event you refuse to consent to an adjournment, and if for any reason the proceedings do not continue with Mr. Weber's evidence, we will seek the costs of his attendance fees, travel and accommodation - against you.
The ruling limiting Mark Weber's qualifications and evidence must now be reopened since truth is now available to us as a defense. The rulings on the qualifications of Dr. Robert Countess, Dr. Alexander Jacob, Mark Weber, and Dr. Robert Faurisson are now in essence quashed, and are open to being judicially reviewed because Ms. Devins participated in all of these. The results of such judicial reviews are obvious. Either you agree to reopen these rulings or we will seek judicial review with costs of each.
Given the ruling on truth, we will be moving that Dr. Schweitzer be recalled for further crossexamination on the truth of matters in the Zundelsite materials.
Our view is that these proceedings are so tainted by reasonable apprehension of bias that they cannot be saved. We will not accept any rulings in which member Reva Esther Devins participated. Those rulings are nullities. Nor will we accept that Mr. Claude Pensa, sitting alone, is a tribunal not tainted by bias. it is our position that the proceedings are irretrievably tainted by reasonable apprehension of bias.
We wish to hear from you, as stated, by 3 PM on Wednesday to avoid the costs of calling unnecessary witnesses.
Yours truly,
Douglas H. Christie
Thought for the Day:
"Zundel Wins...Appropriately, on 'Holocaust Remembrance Day'"!"
(Letter to the Zundelsite)