The Zundel detention hearings

March 31 - April 1

Written by Paul Fromm, Director CAFE

Here's my brief report on the two-day detention hearing for Ernst Zundel, held March 31 and April 1. Two lawyers had quit on Ernst Zundel. I was asked by supporters, consistent with our mandate to fight for free speech, to act as Mr. Zundel's legal representative at these hearings.

   

Ernst Zundel during hearing in Niagara Falls

Just to recap. Ernst Zundel, a German-born revisionist publisher, had left Canada in 2000 and taken up residence in Sevierville, Tennessee with his American wife Ingrid Rimland. On February 5, INS agents arrested him for alleged violations, including failure to attend a hearing. This situation is very complex. It appears that his then lawyer may have made errors or let him down. Mr. Zundel is scrupulous about obligations and legal matters and always sought to fulfill every requirement.

With unseemly haste, he was ordered deported and banned from the U.S. for 20 years. He was returned to Canada.

Our Minister of Immigration Denis Coderre who has seldom met a "refugee" claimant he didn't like snorted and roared. "Just watch me," he threatened, emulating Pierre Trudeau vow to get the FLQ. The absurd Coderre, already prejudging the Zundel case, said no one would make a mockery of our refugee system. Well, that's already been done by him and his department.

Mr. Zundel, since 1958, had been a landed immigrant. New changes in the law decreed that if one was absent from Canada for three years in five, one lost "landed immigrant status." At his first hearing, Mr. Zundel was informed that he was no longer considered a "landed immigrant." This decision is under appeal.

His only remaining recourse was to claim "refugee" status based on a well-founded fear of persecution should he be returned to Germany. The Germans have issued a request for his extradition to face "hate" charges under a system where truth is no defence and where a fierce and punitive fine and up to five years in prison await him.

On Monday, March 31, I arrived at the Niagara Falls, Ontario Immigration Offices where the hearing would be held. Nearly 20 supporters from around Southern Ontario and from as far away as Alabama gathered to support the prisoner of conscience.

After numerous inquiries, I was told that "the prisoner" had arrived. I was ushered into a small holding cell. There was Ernst Zundel, unshaven, wearing a humiliating pumpkin orange prison jumpsuit. Worst of all, he was in leg irons. A shame-faced guard removed them as we began to discuss the case. I had less than 20 minutes to be briefed as to what he wanted. I did have material prepared in advance by several supporters.

I was accompanied by Wolfgang Mueller my CAFE colleague. He and I had strategized about the case and he would help with translation of some of the German documents pertinent to the file.

As we entered the hearing, a swarm of media surrounded Ernst -- CTV, CBC, radio and numerous print outlets, including the TORONTO STAR, THE HAMILTON SPECTATOR, THE ST. CATHARINES STANDARD, THE NIAGARA FALL REVIEW, and the Canadian Press, oh yes, and THE CANADIAN JEWISH NEWS.

On the other side were no less than three government lawyers. Normally, a slim mild-mannered man named Bill Reid handles these cases. As he explained to me, he's not even a lawyer. So, if you're a Jamaican drug dealer or gunman who's been ordered deported and are caught trying to sneak in, or, if you're a Tibetan asylum shopper coughing up multi-drug resistant TB, you face Bill Reid.

However, if you're a 64 year old pacifist, a Revisionist publisher and publicist for unpopular views, then you face the A Team, the Department of Justice's Dream Team. Heading the taxpayers' anti-free speech hit squad was Donald MacIntosh. The government brought him in specially to face Mr. Zundel. MacIntosh is one of their heavy hitters in war crimes cases. The assignment seemed odd, as Ernst Zundel was all of 6 years old when the war ended in 1945 and even his most fanciful and inventive foes haven't accused him of war crimes.

MacIntosh, thin, inordinately pale, sports long shaggy grey hair and would screw up his face into a grimace when questioning Mr. Zundel.

The Immigration and Refugee Board adjudicator was Robert Murrant. In his opening remarks, he made it clear that he would first like to hear submissions about 58.1.c of the Immigration and Refugee Protection Act. Section 58.1 says that a person in custody under the Act shall be released, unless the adjudicator is satisfied (c) "that the Minister is taking necessary steps to inquire into a reasonable suspicion that they [sic] are inadmissible on grounds of security." He, then, proposed a definition that all but guaranteed the Crown victory. As he saw it, these words meant that 1. he had to be assured that CSIS was undertaking an investigation for the Minister of Immigration and that, 2., the Minister said he had a reasonable suspicion that the detained person was a threat to national security.

We also learned that Murrant had attended an in camera hearing in Ottawa on March 25. This secret briefing by CSIS is part of the Court of the Star Chamber proceedings that have been used against Ernst Zundel. I strongly objected that such secret hearing, where we had no opportunity to confront the witness or even know what was said, violated the basic guarantees of Anglo-Saxon justice and Common Law; that the accused has the right to face his accusers.

MacIntosh retorted that the Supreme Court endorsed such secret testimony in its judgement in the Chiarelli case. Actually, in that judgment the Supreme Court upheld Section 48.2 of the CSIS Act that can exclude the accused from portions of a hearing. However, the Court noted: "The CSIS Act ... recognizes the competing individual and state interests and attempts to find a reasonable balance. ... Although the first day of the hearing was conducted in camera, the respondent was provided with a summary of the evidence presented." It must be noted that the evidence in the Chiarelli case involved drug trafficking and murder.

Ernst Zundel's case involves the promulgation of ideas, not the peddling of drugs or the commission of murder, I argued.

The first and only witness against Ernst Zundel was CSIS agent David Stewart. Stewart indicated that CSIS was preparing a report for Immigration Minister Denis Coderre was to whether Ernst Zundel constitutes a threat to national security.

Stewart was then questioned on a four-page report, which he said he hadn't written, but on which he could comment. This report is more an ideological rant, more in keeping with a press statement from B'nai Brith or an ARA screed than a balanced intelligence report. It is filled with repeated use of smear words -- "neo-Nazi", "White supremacist", "anti-Semite."

For all the alleged investigation that had been done into Ernst Zundel, the report is based on two ancient media reports: a March 25, 1981 TORONTO STAR story about raids on rightist homes in Germany that turned up literature supplied by Ernst Zundel; and a 1993 CBC "Fifth Estate" programme linking Ernst Zundel to various right-wing groups in Germany. He was alleged to have sent them money to distribute literature and organize protests and to have supplied them with literature.

Stewart's appearance at the witness table was heralded by a demand that no photos be taken of him for "security" reasons. Because of his delicate job, MacIntosh alleged, Stewart's "personal safety" might be in danger. I strongly objected that this melodrama was injurious to Ernst Zundel, leaving the impression that somehow he or his supporters might taken vengeance on the CSIS agent. Dark hints that one's very life in jeopardy is a common tactic of anti-racist campaigners. Both Warren Kinsella and Alan Dutton of the Canadian Anti-Racism Education and Research Society have spread it about that their lives are in danger from the far right. The joke of it is that it's people like Ernst Zundel who've been on the receiving end of assaults and firebombings, not state agents like Stewart or grant-catchers like Dutton. Murrant, of course, ordered that the brave CSIS snoop not be photographed.

After brief testimony, Stewart, slim, witrh a typical tightly trimmed cop moustache was mine for cross-examination. I asked him to go over the definition of a threat to national security. The CSIS Act makes it clear that threats to national security include espionage, activities directed by a foreign state, attempts to violently overthrow the government of Canada or "the threat of use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state." I then had him read the special warning Parliament included in the legislation, as it sought to avoid the creation of a political police that would target non-violent opponents of the government of the day or of the powerful groups that back it. He read: A threat to national security "does not include lawful advocacy, protest or dissent."

"Then, what is Ernst Zundel doing in your report?" I demanded. The main allegations were that Zundel "was viewed as the patriarch or leader of the White supremacist movement in Canada; was and still is a leading distributor of revisionist neo-Nazi propaganda world-wide, [and] ... maintained White supremacist contacts internationally and channeled money through these contacts to promote his cause."

Even if all these accusations were true -- and we deny many of them -- how would any of this fit the definition of "national security?" I asked. Immediately MacIntosh was on his feet. Stewart, he argued, was not a legal expert and could not give a legal opinion. Suddenly, it seemed Stewart wasn't much of an expert on anything. He hadn't read the report and couldn't or wouldn't report in any detail on the Zundel file.

Perhaps, he's not a legal expert, but he and CSIS are supposed to operate with the law, I insisted. "Do Zundel's activities even fall within the CSIS mandate? Are they not, if fact, simply non-violent protest and dissent? I was thwarted in my pursuit of this vital information.

I then asked Stewart about some of the inflammatory labels. "Would Ernst Zundel," for instance, "describe himself as a White supremacist?" Stewart didn't know. I then questioned him as to whether he knew the disposition of the charges arising from the raids of 1981 -- the subject of the sensationalist article that formed part of the report. Stewart said he did not. Our CSIS expert cannot have done his homework. In the detention hearing of February 28, Ernst Zundel asked the same question and received the same answer. And, yet, CSIS is supposedly actively inquiring into whether or not Zundel is a threat to national security.

In his testimony, Stewart said that the White supremacist movement had been in decline since 1994. Zundel's return would serve as a lightning rod perhaps to revive the movement. "But wasn't Ernst Zundel in Canada until 2000 and in this six years somehow his presence didn't revive the movement?" I was being stonewalled. "Isn't 1994 significant because that was the year CSIS agent and financial sugar daddy Grant Bristow was exposed as a leading member of the Heritage Front?" Objections from MacIntosh ensured that I never received a complete answer to this question.

While Stewart asserted that he hadn't written the report, he did admit to having edited it. The "Summary Report Concerning Ernst Christof Friedrich Zundel" presented at this hearing was different in some ways from a similar document presented at the February 28 hearing. If anything, if was even more inflammatory and filled with invective. One comical error in the earlier report spoke of "Zundel's battle for the New World Order." The new improved report more accurately describes his "battle against the New World Order." Was the error a momentary lapse on the part of the eagle-eyed and apparently anonymous CSIS writer? Or? We know that Ernst Zundel and a legal representative spoke about this nonsensical statement over the prison phone.

Thus, I asked Stewart as my final question: "Was this change the result of new information or of CSIS listening in on Mr. Zundel's telephone calls?" MacIntosh was on his feet objecting furiously. "I thought you might," I concluded.

Now, it was our turn. I called two witnesses, Karin Kruger and Gerhard Haas. Miss Kruger testified that she was prepared to offer her house as a surety for bail or guarantee for Ernst Zundel. She'd done this in earlier trials he faced. Hr. Haas indicated that he'd provide a lodging for Mr. Zundel when he's released.

We were now at the dramatic moment. Ernst Zundel, dressed in his prison garbs, took the stand. He tore the four page report apart. He went through his 20 year battle with the Canadian legal system. He had always worked within the system. He'd fulfilled all his many bail conditions and faithfully attended at all court appearances where he was required. Ernst explained that he had first come to Canada to avoid military service and explained that he was a pacifist. He had thrown people out of his home for loose talk about violence. He indignantly refuted the allegation of "White Supremacy" pointing out that he'd hired no-White and had sheltered a Jamaican survivor of the Waco massacre for over seven months.

Mr. Zundel explained at length his operations in Germany. Yes, he had funded literature distribution and meetings. However, his emphasis was always on education, not violence. His one-time chief public relations mad in Germany Ewald Altans, who was subsequently revealed to be a homosexual working for the German Constitutional Police, had also always shunned violence.

Zundel's testimony was passionate and electrifying.

I next put to his some pages from Andrew Mitrovica's bombshell book COVERT ENTRY: SPIES, LIES AND CRIMES WITHIN CANADA'S SECRET SERVICE. This book, relying on the revelations of former CSIS paid snoop John Farrell, reveals a sordid campaign of mail opening, lewdly named Operation Vulva, directed against "not only the heads of Neo-Nazi organisations in Canada but all 'racists, fascists and anti-Semites.'" (9\p.127) One of their chief targets was Ernst Zundel. His mail was being seized and opened and examined. Zundel testified that he knew of this spying and said further that some of his mail, including divorce papers, had been stolen.

The explosive revelation from the book, however, was that at a certain point Farrell's CSIS handler, an agent named Don Lunau, told him not to touch any packages for Zundel, especially ones from a Vancouver return address. "Farrell's own nervousness peaked when Lunau ordered him to temporarily stop intercepting parcels destined for Zundel's home. ... Lunau wasn't kidding. Farrell could hear the urgency in his voice. In May, 1995, a parcel arrived at Zundel door apparently from a Vancouver post office box. "(P.138-139) it was a pipebomb. "Police said the bomb was packed with enough explosives to seriously maim or kill anyone within 90 metres of the blast."

Had CSIS ever warned him about the bomb they clearly knew was coming. "No" Mr. Zundel answered.

We tendered into evidence a notarized statement from Jurgen Rieger, Mr. Zundel's German lawyer, outlining how, with one minor exception, Zundel has been cleared of all charges and overturned state actions against him, like the seizure on several occasions of his German postal banking account.

Ernst Zundel also confirmed that an Access to Information Request had revealed that he'd been under police surveillance on and off since 1958, when he attended anti-Communist meetings in Montreal.

As our second and final witness, I called Rev. Dr. Robert Countess of Alabama, who has known Mr. Zundel for over 15 years. Rev. Countess is a scholar of Biblical Greek and was for over 20 years a U.S. Army chaplain. He is also a staunch historical revisionist and has become a sort of spiritual counsellor to M. Zundel since his move to the U.S. about three years ago. "Is Ernst Zundel a White supremacist?" I asked Dr. Countess. Countess was emphatic in his testimony that Zundel was not a racist or White supremacist and recounted how Zundel had hugged the orphaned Haitian adopted son of a close friend whose memorial they had both attended.

The evidence in, it was now time for submissions or argumentation. MacIntosh was insistent. He declared he didn't care how high bail was set, Mr. Zundel would fail to comply with bail conditions. He insisted that the government was continuing its investigation into Mr. Zundel as a threat to national security and, therefore, he must remain in prison.

In my submissions, I invited Adjudicator Murrant to consider "the totality" -- a favourite phrase of Mr. MacIntosh -- of the Immigration and Refugee Protection Act. Section 3.3 requires: "This Act is to be construed and applied in a manner that (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms." I urged his to see that 58.1.c meant that the Minister of Immigration must have a "reasonable suspicion" that Ernst Zundel is a threat to national security.

I emphasized that Zundel had been a subject of police investigation for over four decades. While Stewart wouldn't acknowledge how long they'd been investigating Mr. Zundel, he did allow that "he was known to them." For nearly a decade -- 1983 to 1992 -- Ernst Zundel had been before the courts and had operated in a fishbowl. Furthermore, he was a publicist, perhaps even a dramatic self-promoter. He was never shy, whether through press releases, or speeches, or television programmes or video or audiotapes to express his views. "Ernst Zundel is an open book, a known quantity," I said. yet, despite the relentless attacks of his enemies and extensive surveillance, neither in Canada nor in Germany had he ever been charged with an offence involving violence, not assault, not conspiracy to commit assault, not accessory after the fact. Indeed, Ernst Zundel has no criminal record in Canada at all. His views might be unpopular, but questioning one version of World War II, is "dissent",. not a threat to national security. "There are no reasonable grounds to believe that Zundel is a threat to national security."

I pointed out that many of the people who appear before him are illegals with false ID or no ID. There may, indeed, be grounds to hold them pending a national security investigation. Zundel is a public figure, a well known quantity. What's there to investigate?

I pointed out that continued incarceration violated Mr. Zundel's right under 11.d "not to be denied reasonable bail" except in accord with the law. Zundel, under the arcane rules of the Niagara Detention Centre, cannot have a pen. He must try to scribble his defence notes with a tiny stub of pencil. I held up a sample to show Mr. Murrant. In these conditions, he cannot mount a proper defence to the many cases he has going under the Immigration Act and in the U.S. to regain his U.S. immigration visa, I argued.

Furthermore, Mr. Zundel has a track record. He'd received bail on numerous occasions and, to speed up the process, Mr. MacIntosh had agreed that Zundel had attended all the hearings, as required. The same lady was once again prepared to risk her house as a guarantee. Besides with an expired passport and the prospect of 20 years in prison should he sneak back to the U.S., where precisely was Ernst Zundel to go.

Perhaps indelicately, Ernst Zundel had said during his testimony that human rights commission tribunal members and members of other tribunals were party loyalists appointed by the Liberal or Conservative governments of the day. Sadly, this is usually true. I invited Mr. Murrant to defy the wishes of his political masters,. I reminded him that no one remembers the name of the British judge who signed the death sentence of many of the Irish rebels after the failed Easter Rebellion of q1916, but everyone remembered the name of uprising leader Padraic Pearse.

Perhaps, it went over his head.

In his rebuttal,. MacIntosh broke new legal ground. As he sees it, national security means whatever we want it to mean. "The law is a textured and complex instrument. The CSIS Act is only the starting point to what constitutes a threat to national security," he said.

Murrant kept us in suspense. At 3:30, he told us he'd be back with a decision in 45 minutes or with the announcement of when he'd have the decision. He returned to say he'd need more time. At 5:30, we returned to the hearing to learn Ernst Zundel's fate.

The usual procedure in announcing decisions is to briefly summarize the positions of the two sides and then explain the judgement. The Crown evidence was summarized and then agreed with entirely. Our arguments were not just ignored, they were not even acknowledged. We might just as well have spoken in Tagalog without a translator.

Murrant said: "Mr. Stewart testified that CSIS along with the Citizsnship and Immigration Commission are in the process of compiling a report that will be presented to the Minister. Because of the volume of material involved, it is not yet complete. I am satisfied that the Minister is taking steps to inquire into his reasonable suspicion. Is there a reasonable suspicion that Mr. Zundel is inadmissible because of reasons of security. The test of reasonable suspicion is quite low. It is less than reasonable and probable grounds, less than a balance of probabilities." He indicated that the Minister indicating he had a "concern" would be sufficient to be "reasonable". The test here is: Is the Minister taking reasonable steps to inquire,

I'm ordering the continued detention of Ernst Zundel. I intend to set the next detention review for May 2, 2003.

Several tearful supporters hugged Ernst Zundel. The prison officials seemed ashamed and allowed him a little extra time with his friends and his spiritual counsellor Rev. Dr. Robert Countess.

As he was led away, Ernst Zundel said: "I am the last German soldier of World War II."

Paul Fromm

Contribute to Ernst Zündel's Defence

Table of Contents for additional articles

Revisionism 101: Basic Revisionism

Revisionism 201 for Holocaust Skeptics

"David against Goliath": Ernst Zündel, fighting the New World Order

"Lebensraum!": Ingrid Rimland, pioneering a True World Order