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Dec 22, 2003
ZGram - Where Truth is Destiny
As I stated already, yesterday's and today's Zgrams belong
together. In yesterday's Zgram, written about a week before the last bail
hearings December 10-11, Ernst talked about Judge Blais's
less-than-transparent role as a former boss of CSIS - the very agency whose
accusations, obtained and poured into cement in secret hearings, are keeping
Ernst in solitary confinement.
What Ernst predicted yesterday, has come to pass and is
exposed for all the world to see, to Canada's shame - Judge Blais did NOT
see fit to recuse himself and take himself off the Zundel case as a
less-than-objective participant.
As I also said, which bears repeating, this IS for the
record!
Paul Fromm introduces the rather long, wordy ruling:
[START]
Dear Free Speech Supporter:
On December 17, Mr. Justice Pierre Blais denied Ernst
Zundel's lawyer Douglas H. Christie's motion to recuse himself for
creating a reasonable apprehension of bias. Blais had been
Solicitor-General in 1989. On his watch, Canadian Security and
Intelligence Service (CSIS) agent Grant Bristow was tasked to infiltrate
and mis-direct the just formed White rights group called the Heritage
Front. Also, CSIS -- allegedly contrary to Blais' directive -- used human
sources to target then Reform Party leader Preston Manning.
Blais, thus, had a strong supervisory role over Canada's
dirty trick security service. There is, at the very least, the concern
that he might be easily influenced by the members of the team he used to
command. After all, CSIS's evidence, public and secret, is the very core
of this case. It is their contention that pacifist publisher Ernst Zundel
is, in fact, a terrorist committed to serious acts of violence in Canada
and Germany that is key to declaring him as threat to national security.
What follows are Mr. Justice Blais' reasons.
Several of Blais' comments crave a response. He argues:
"The ministerial Directive of October, 1989 ... was basically a
reminder to CSIS to respect the law and the 'most sensitive institutions
of our society.' The SIRC report on the Heritage Front Affair, as well as
both the majority and minority reports of the Subcommittee of the House
all indicate that CSIS failed to follow the Direction on the handling of
sources given in 1989. I cannot fathom how that fact can be invoked to
support a reasonable apprehension of bias." (32)
On this point, interestingly, CSIS has never been
disciplined for infiltrating Grant Bristow through the Heritage Front so
that he could get close to Preston Manning and politically embarrass him.
What we have is that the Minister (Blais) says all the right things. CSIS
ignores him. No one is disciplined. An observer might wonder whether the
directive was given with a nudge-nudge-wink-wink
I-have-to-say-this,-but-you-don't-have-to-obey understanding. If so, Blais
would be very vulnerable to a CSIS that knows his hands are dirty. This is
speculation; it's not proof, but's it's reasonable. And Mr. Zundel's fate
hangs in the balance.
Mr. Justice Blais adds: "I no longer know what are
the policies operating within CSIS, no more than any other Canadian
citizen. Moreover, this link has been severed for a very long time. "
(36) The former Solicitor-General is being a little disingenuous. It's
said that once in, you never really leave the spy/intelligence game.
Furthermore, as a sworn member of the Privy Council Mr. Justice Blais had
access to deep and secret information. It strains reasonable belief to
accept that he knows no more about CSIS today than the average Pierre
Peasant in Chicoutimi.
Finally, Mr. Justice Blais dons the mantle or the dignity
and incorruptibility of the judiciary: "The judiciary is presumed to
be impartial and this presumption cannot be lightly set aside." (38)
And it's not being lightly set aside. As Solicitor-General, Pierre Blais
was the boss of and had close and intimiate dealings with CSIS, the partly
secret accusers whose allegations are at the core of this case. A
reasonable person might see Mr. Justice Blais either as being prone to
favour his old pals from "the game" or as being susceptible to
pressure, as CSIS knows where the skeletons, maybe even HIS skeletons, are
buried.
Paul Fromm
Director
CANADIAN ASSOCIATION FOR FREE EXPRESSION
JUSTICE BLAIS "...IN THE MATTER OF ERNST ZUNDEL
REASONS FOR ORDER AND ORDER" 12/17/03
1. The respondent Ernst Zundel has filed a motion for an
order of recusal. Mr. Zundel submit that I should recuse myself because as
Solicitor General in 1989, I was the Minister responsible for CSIS before
Parliament. Mr. Zundel also alleges that certain of my comments n a book
introduced in evidence show my favourable bias to CSIS.
2. Mr. Zundel argues that I should have recused myself from
the start because having been responsible for CSIS I would not be able to be
impartial in dealing with a matter where CSIS provides a great deal of
evidence. Moreover, some of the evidence is confidential and neither Mr
Zundel nor his layers have access to it. Therefore, according to Mr. Zundel,
there is reasonable apprehensive of bias, because of both my former
connection to CSIS and the nature of the evidence presented against Mr.
Zundel.
3. The Ministers have responded by arguing on both a
technical and substantive basis. On the technical side, the Ministers submit
that the motion was not properly constituted, having been introduced without
written representation and supported by an affidavit which contains not only
facts but allegations and arguments.
4. As to the substantive issues, the Ministers argue that
the doctrine res judicata applies, since this is the second motion brought
for recusal, and none of the facts on which it is based occurred after the
first motion. Moreover, the Ministers also suggest that there are no serious
grounds for a reasonable apprehension of bias, a very serious allegation
which requires that the person alleging reasonable apprehension of bias meet
a very high threshold. The Solicitor General, although responsible for CSIS
before Parliament, has under the Act very little direct, daily involvement
with CSIS affairs, which come under the Director, it is thus unlikely that
as Solicitor General I would have been directly involved in any activity
concerning Mr. Zundel. The Ministers further argue that the passage of time,
following the Supreme Court decision in Wewaykum Indian Band v. Canada [2003
] S.C.J. No. 50 ["Wewaykum"], certainly applies in this case.
Finally, the Ministers contend that there was no requirement to disclose
since I was not in a relationship with CSIS that would raise a reasonable
apprehension of bias.
5. There are four main groups for dismissing this motion for
recusal: the doctrine of waiver, the irrelevance of the evidence, the
passage of time and the presumption of impartiality.
1) Waiver
6. The fact that I was Solicitor General in 1989 was a
matter of public record from the start. A quick perusal of the Federal Court
website would indicate the inclusion of that fact in my biography. I did not
believe, and I still do not, that having been Solicitor General 13 years
ago, at a time when right-wing extremist groups were not a pressing policy
concern for Canada, would have any bearing on a hearing for which I was
appointed in 2003.
7. If the matter is of concern to Mr. Zundel, then it should
have been raised at the start of these hearing, not now, not after six
months have gone by.
8. In Re Human Rights Tribunal and Atomic Energy of Canada
Ltd., [1986] 1 F.C. 103, leave to appeal dismissed, (1986), 72 N.R. 77,
MacGuigan J.A. stated at pp. 112-113 of that case:
The only reasonable course of conduct for a part reasonably
apprehensive of bias would be to allege a violation of natural justice at
the earliest practicable opportunity. Here, AECL called witnesses,
cross-examined the witnesses called by the Commission, made many submissions
to the Tribunal, and took proceedings before both the Trial Division and
this Court, all without challenge to the independent of the Commission. In
short, it participated fully in the hearing and must therefore be taken
implicidly to have waived its right to object.
9. In Zundel v. Canada (Canadian Human rights Commission)
(re Canadian Jewish Congress ) [2000] F.C.J. No. 1838, the Federal Court of
Appeal presents the doctrine of waiver in a case of reasonable apprehension
of bias as follows, at paragraph 4:
At common law, even an implied waiver of objection to an
adjudicator at the initial stages is sufficient to invalidate a later
objection. Re Thompson and Local 1026 of International Union of Mine, Mill
and Smelter workers et al. (1962), 35 D.L.R. (2d) 333 [Man. C.A.]; Rex v.
Byles and others; Ex parte Hollidge (1912), 108 L.T. 270 (Eng. K.B.D.);
Regina v. Nailsworth Licensing Justices. Ex parte Bird, [1953] 1 W.L.R. 1046
(Eng. Q.B.D.); Bateman v. McKay et al., [1976] 4 W.W.R. 129 (Sask. Q.B.).
The principle is stated as follows in Hasbury's. Laws of England (4th ed.).
volume 1, paragraph 71, page 87:
The right to impugn proceedings tainted by the participation
of an adjudicator disqualified by interest or likelihood of bias may be lost
by express or implied waiver of the right to object. There is no waiver or
acquiescence unless the party entitled to object to an adjudicator's
participation was made fully aware of the nature of the disqualification and
had an adequate opportunity of objecting. Once these conditions are present,
a party will be deemed to have acquiesced in the participation of a
disqualified adjudicator unless he has objected at the earliest practicable
opportunity.
10. In that case, the Federal Court of Appeal ruled that
since the grounds for objection existed form the outset, being a part of the
Act, they should have been raised at the start of the hearings. In the case
at bar, my mandate as Solicitor General in 1989 was a matter of public
record and appeared as public information on the Federal Court website ands
also other public books of reference like Canadian Who's Who, Canadian
Parliamentary Guide, International Year Book and Statesmen's Who's Who. The
fact that the applicant in this motion only recently found out it is of no
concern to this Court. Mr. Zundel has presented evidence, called witnesses
and presented an earlier motion for recusal based on other grounds. It
appears to me that Mr. Zundel waived his right to challenge my designation
on the basis of my former duties as solicitor General.
11. Mr. Zundel contends that I should have made the parties
aware of my term as Solicitor General in 1989. Mr. Zundel seems to imply
that my situation would be one of automatic disqualification, where, because
of a conflict of interest, I should disqualify myself.
12. The most recent authority on this issue sacroiliac the
decision of the House of Lords in R. v. Bow Street Metropolitan Stipendiery
Magistrate, Ex parte Pinochet Ugarte (no. 2), [1999] 2 W.L.R. 272, where the
House of Lords has=d to decide whether one of the Lords sitting on the
Appellate Committee had been automatically disqualified. The Appellate
Committee of the House of Lords had had to rule on whether General Pinochet,
accused in Spain of crimes against humanity, was extraditable from Great
Brittain or whether he was protected by diplomatic immunity. The Committee
ruled in favour of extradition in a split 3-2 decision. One of these who
supported the ruling was Lord Hoffman. The lawyers for General Pinochet
discovered after the ruling that Lord Hoffman was Director and Chairperson
of Amnesty International Charity Limited ["AICL"], a registered
charity incorporated in 1986 to fund the charitable aspects (according to
U.K. law) of the work of Amnesty Internation Limited.
13. In the hearing before the Appellate Committee, Amnesty
International ["AI"] was an intervener. Moreover evidence showed
that AICL had funded research by AI on the situation of human rights abuses
in Chile and non-prosecution of parties thought to be responsible for these
abuses. The House of Lords ruled that Lord Hoffman had to be disqualified.
This was not a matter of bias or apprehension of bias. Rather, because he
waw directly involved in AI's work, lord Hoffman was automatically
disqualified. In the words of Lord Goff of Chieveley, concurring in the
judgment:
51. It is important to observe that this conclusion is, in
my opinion, in no way dependent on Lord Hoffmann personally holding any
view, or having any objective, regarding the question whether Senator
Pinochet should be extradited, nor is it dependent on any bias or apparent
bias on his part. Any suggestion of bias on his part was, of course,
disclaimed by those representing Senator Pinochet. It arises simply from
Lord Hoffman's involvement in AICL; the close relationship between I, AIL
and AICL, which here means that for present purposes they can be regarded as
being, in practical terms one organization: and the participation of AI in
the present proceedings in which as a result it either is or must be treated
as a party.
14. In such a case, it is clear that the involvement was s
close that the principle became one of nomo judex in sup propria causa. In
the case at bar, the situation is completely different. There is no conflict
of interest given the time that has passed and the complete absence of
involvement with CSIS in the last 13 years. A judge would have the duty to
disclose a present conflict of interest but not a reasonable apprehension of
bias based on past connections. The reasonable apprehension of bias
necessarily arises (when it does) in the mind of one of the parties before
the judge. The judge may raise it to avoid the issue being brought up later,
but in the instant case, there was no reason for the judge to bring it up,
for the same reasons as there was no reason for Justice Binnie to do so in
Wewaykum supra, namely, no recollection whatsoever of the matter during his
term.
2) Irrelevance
15. A good part of the CSIS actions in the context of the
white supremacist movement occurred largely outside the time of my mandate
as Solicitor General. In support of his affidavit, Mr. Zundel presents a
number of documents dealing with CSIS activities. These do not concern the
period of time when I was Solicitor General, in his affidavit, Mr. Zundel
takes issue with the fact that as Solicitor General in 1989 I issued a
direction to CSIS regarding the use of human sources. Mr. Zundel then states
that the Security Intelligence Review Committee ["SIRC"] in its
Report on the Heritage Front Affair, presented to the Solicitor General on
December 9, 2994, considered the directions I had issued and regarded them
as "seriously deficient". As a matter of fact, the Report of SIRC
was written in 1994 and states "... current directions from the
Solicitor General and the Director should be expanded and improved...".
This, after a change of government , and three Solicitor General later. I
cannot be held responsible for the directions from the Solicitor General
which were current in 1994.
16. It is probably worthwhile to reproduce the exact passage
from the SIRC Report on the Heritage Front Affair where the words
"seriously deficient" appear. It should be noted that this whole
issue has nothing to do with Mr. Zundel.
13.11 Ministerial Direction - CSIS and Policies Concerning
All human source activities are governed by the limits of
the CSIS Act and direction issued by the Solicitor General under section
6(2) of the CSIS Act. It is also governed by CSIS internal direction in the
CSIS Operational Manual, in their directions to sources, CSIS officers are
bound by the limits of sections 2 and 12 of the CSIS Act.
Under the CSIS Act, the Minister can provide written
direction to the Service. On October 30, 1989, the then Solicitor General
[Pierre Blais] released comprehensive guidelines for the use of Human
Sources. In the direction, the Minister notes that "a special
responsibility rests with the Service to do everything reasonable to ensure
that its confidential sources operate within the law, and do not behave so
as to bring discredited on the Service or the Government".
The Minister further stated that confidential sources shall
be instructed not to engage in illegal activities in carrying out their work
on behalf of the Service and that they should be instructed not to act as
'agents provocateurs' or in any way incite or encourage illegal activity.
However, the level of policy guidance available to CSIS
officer is, we believe deficient.
We believe Direction and Policy in this area should be
re-examined. It should be at a minimum provide full assistance to CSIS staff
by providing thoughtful answers to a number of important questions. Among
them:
* what kind of a proactive role sacroiliac acceptable for a
source in an organization targeted by CSIS?
* is it appropriate to have a source direct or be a leader
within an organization or movement?
* should sources be engaged in counter measures which would
serve to destroy, rather than maintain terrorist groups or movements?
* do the benefits of maintaining a source outweigh the
benefits to be gained by taking measures (i.e. with Police Forces) to
destroy the group?
Our investigation of the Heritage Front Affair made us aware
of the fact that there was insufficient policy direction available. For
example, we observed no clear direction concerning what was taking place in
relation to the harassment campaign, there was no "global picture"
of what was going on.
We consider that the Service should regularly draw up a
"balance sheet" on the benefits of a particular source operation.
In other words, the management and staff associated with a high-level
sources should regularly stand back from day-to-day transactions to assess
the operation in its totality. To a certain extent this takes place during
the application process for the renewal of target authorizations. But in the
current case, a major activity of the source, the "IT" campaign,
was not brought before Senior Management and so was not discussed: we think
that this was an important oversight.
Our conclusion is that current directions from the Solicitor
General and the Director should be expanded and improved to deal with some
of the issues we have described, [emphasis added].
17. Every year, SIRC reports to the Solicitor General on the
activities of CSIS, around the end of September. The SIRC'S mandate is to
review the legality of CSIS' actions and to carry out this mission, it has
access to all of the information available to CSIS.
18. No mention of the white supremacist movement is made in
any of the reports until the 1994-1995 annual report, which follows the
special report on the Heritage Front Affair presented on December 9, 2994.
This latter report makes clear that from its inception, CSIS watched closely
the activities of what it considered potentially dangerous right-wing
extremists. This activity, however, was never mentioned by SIRC, although
other potentially controversial areas are exhaustively explored, such as the
surveillance of the native movement or of the labour unions.
19. Report by SIRC to the Solicitor General on December 9,
1994 on the Heritage Front Affair:
The targeting of the white supremacist movement, since the
establishing of CSIS, has been reviewed continuously since 1985. The
individual targets have changed and the scope of the investigations has
narrowed and then recently expanded again. Over the years, a considerable
number of people in positions of authority, both in government and the
judiciary, have known of and approved the Service's operations in this area.
The list of those who have scrutinized the targeting of
individuals with the white supremacist movement since the creation of CSIS
includes: seven solicitors General; four inspectors General: twelve members
of the Security Intelligence Review Committee; and four Directors of CSIS.
In addition, judges of the Federal Court have granted warrant powers to the
Service to investigate in this area.
20. According to the Report, those who were targeted by CSIS
were those who were suspected of violent activities, such as Wolfang Droege
or Tom Long. Ernst Zundel might have been a target of surveillance by CSIS
As early as 1989, but this information, as far as I can recall, was not
disclosed to the Solicitor General at that time. Other issues were more
pressing in 1989, and this is clear from the SIRC Report for 1988-1989, the
only year I received one as Solicitor General of Canada.
21. In the Heritage Front Affair Report, I find the
following passage on the targeting of the right-wing extremist for
surveillance rather telling:
The Service also sought to develop human sources close to
the extreme-right in order to ascertain the white supremacist strategy. CSIS
sought to differentiate its investigation from criminal investigations.
In March 1991, TARC [Targeting Approval and Review
Committee] added a significant condition:
"The range of investigative techniques to be deployed
under the authorization will be subject to consultation with the
Minister."
>From this point on, the Service was required to send an
aide-memoire to the Solicitor General - prior to implementing the TARC
Certificate. [emphasis added]
22. Most of the CSIS activities concerning the handling of
the Source within the white supremacist movement, reported in the Heritage
Front Affair Report, occurred after I had ceased being Solicitor General.
Moreover, evidence shows that the infiltration of the Reform Party by
Heritage Front was known to CSIS, but not to the Solicitor General of the
day (the Honourable Doug Lewis).
23. The Subcommittee of the House of National Security
produced a report on the Heritage Front Affair, and the Bloc Québécois and
Reform Party members of the Subcommittee produced a joint dissenting report.
In both these reports, the only mention that is made of my actions as
Solicitor General is the issuance of a direction that sought precisely to
ensure the greatest respect for rights and freedoms (it was modified in
August 1993 by the Minister then in office).
24. From the dissenting report at para. 20:
In the view of the opposition members of the Subcommittee,
the leadership of the extreme right and its most prominent emerging
organization, the Heritage Front, were appropriately targeted in the initial
stages of the refocused investigation [targeting Wolfang Droege when he
returned to Canada in 1989].
At para. 27:
However, there came a time, as indicated in the preceding
section of this Report, when it was concluded in a 1990-1991 submission to
TARC that extreme right organizations and their related activities were
petty criminal in nature and did not constitute a threat to the security of
Canada. It is not clear to the opposition members of the Subcommittee why
the Service did not simply refer these matters to law enforcement agencies,
rather than redirecting the investigation and the Source for more than an
initial period to the leadership of the extreme right wing. The key question
sacroiliac what was the justification for the continued targeting ad the
presence of the Source after 1990. [emphasis added]
25. Need I remind Mr. Zundel that I no longer had anything
to do with CSIS by that time. I was Solicitor General from January 30, 1989
to February 22, 1990. The Honourable Pierre Cadieux was appointed on
February 23, 1990. >From 1991 to 1993, the Solicitor General of Canada
was the Honourable Doug Lewis. With the change of government in 1993, a new
Solicitor General was appo9nted, the Honourable Herb Gray. In 1993, I
returned to private practice. In 1998, I was appointed to the Federal Court.
26. In Wewaykum. Supra, the Supreme Court of Canada dealt
with an allegation of reasonable apprehension of bias brought by the
Campbell River Band and the Cape Mudge Band against Justice Binnie, who had
written the unanimous judgment of the Court dismissing the Bands' appeals in
a land claim case where each Band claimed the reserve occupied by the other.
Fifteen years earlier as Associate Deputy Minister of Justice from 1982 to
1986, Mr. Binnie, as he then was, had had occasion to deal with the claims
by giving policy advice on the matter, which came under his jurisdiction.
"As Associate Deputy Minister of Justice, Binnie J. was responsible for
all litigation involving the government of Canada, except cases originating
from the province of Quebec and tax litigation. He also had special
responsibilities for aboriginal matters." ["Wewaykum" para.
5]. The Bands sought an order to have the judgment set aside.
27. The motion was dismissed by the eight sitting judges of
the Court (Justice Binnie having recused himself from the matter). The case
is relevant here for its in-depth discussion of what constitutes a
reasonable apprehension of bias for a former Crown Minister who hears a case
which once came under his ministerial authority.
28. The court restates the well-known test for reasonable
apprehension of bias (at para. 60):
In Canadian law, one standard had now emerged as the
criterion for disqualification. The criterion, as expressed by de Grandpre
J. in Committee for Justice and Liberty v. National Energy Board, supra, at
p. 394, is the reasonable apprehension of bias:
... the apprehension of bias must be a reasonable one, held
by reasonable and right minded persons, applying themselves to the question
and obtaining thereon the required information. In the words of the Court of
Appeal, that test is "what would an informed person, viewing the matter
realistically and practically - and having thought the matter through -
concluded. Would he think that it is more likely than not that the
[decision-maker], whether consciously or unconsciously, would not decide
fairly.
29. The Court notes (at para. 77) that "this is an
inquiry that remains highly fact-specific". There are no hard and fast
rules that apply and the circumstances of the case must be examined
carefully.
30. In the case at bar, we find two factors that were
present in the Wewaykum: the extent of the involvement with the parties in
the proceedings, and the passage of time. In the case of Justice Binnie,
several memoranda were produced to show that he had been made aware of the
situation of the claims. His response was that, frankly, he could not
remember dealing with those issues. His responsibilities covered literally
thousands of files. Once he had left the public service, his mind had turned
to other matters. His consideration of the case before the Supreme Court was
therefore fresh and unbiased.
31. The same holds true in my case. Hundreds of issues, only
a fraction of which are related to CSIS, are brought to the attention of the
Solicitor General on a weekly basis. I cannot remember them all, and I
certainly do not remember Mr. Zundel's case. The SIRC reports show that the
extreme right movement was not a matter of pressing concern at the time I
was solicitor General. Things changed during the early 90s, but I was no
longer at the helm.
32. The most direct link that has been argued in the
Ministerial Direction of October 1989. It was basically a reminder to CSIS
to respect the law and the "most sensitive institutions of our
society". The SIRC report of the Heritage Front Affair as well as both
the majority and minority reports of the Subcommittee of the House of all
indicate that CSIS failed to follow the Direction on the handling of sources
given in 1989. I cannot fathom how that fact can be involved to support a
reasonable apprehension of bias.
33. Mr. Zundel presents the evidence from Paul Kennedy,
Senior Assistant Deputy Solicitor General of Canada for National Security,
who appeared before the Subcommittee on National Security of the Standing
Committee on Justice and Human Rights of the House of Commons, on June 3,
2003, to introduce the ministerial directions from the Solicitor General for
the year. Mr. Kennedy details the involvement of the Solicitor General in
the affairs of CSIS, although he does state that day-to-day activities come
under the Director of CSIS. I do not find this evidence very useful of our
purposes. Obviously, the Solicitor General needs to be kept abreast of what
is happening in his department; that is the meaning of responsible minister.
It does not make it likely that I would remember details of investigations
13 years later, nor does it make bias more probable. And I would add that in
the reports to Parliament by SIRC and the House Subcommittee of the years
1989 to 1995, there are many instances where the deficiencies which are
flagged relate precisely to the lack of information given to the various
Solicitors General of the time.
3. Passage of time.
34. One of the main points which Chief Justice McLachlin
emphasizes in Wewaykum, supra, related to the importance of being
fact-specific, is the passage of time in the case of Justice Binnie (at para.
85):
To us, one significant factor stands out, and must inform
the perspective of the reasonable person assessing the impact of this
involvement on Binnie J.'s impartiality in the appeals. That factors is the
passage of time. Most arguments for disqualification rest on circumstances
that are either contemporaneous to the decision-making, or that occurred
within a short time prior to that decision-making.
35. The Court quotes the English Court of Appeal [Locabail
(U.K.) Ltd. v. Bayfield Properties Ltd., [2000] Q.B. 451 at 480] at para.
86:
... every application must be decided on the facts and
circumstances of the individual case. The greater the passage of time
between the event relied on as showing a danger of bias and the case in
which the objection is raise. The weaker (other things being equal) the
objection will be.
36. I would think the same consideration would apply here. I
have had no contact with CSIS in an official capacity in 13 years. Over the
course of these 13 years, a number of Solicitors General have followed, the
party in power has changed, in short, I no longer know what are the policies
operating within CSIS, no more than any other Canadian citizen. Morever,
this link has been severed for a very long time.
37. Mr. Zundel argues that this argument cannot stand, since
the allegations against him go back in some instances to 1981. In the
Wewaykum case, the history of the claims also went back in time to even
before Justice Binnie was responsible for all federal litigation. That is
not the point. What needs to be applied is the test for reasonable
apprehension of bias - whether a position held 13 years earlier can affect
one's judgment now, given that there is no evidence there was every any
involvement in the Zundel case, and that CSIS acted largely on its own in
those years. (And given that the only evidence presented to link CSIS, the
white supremacist movement and my tenure as Solicitor General is that the
Ministerial Direction was not followed!).
4. Impartiality.
38. Lastly, I believe that it is important to deal with the
presumption of impartiality. As Chief Justice McLachlin states in Wewaykum,
supra, the judiciary is presumed to be impartial, and this presumption
cannot lightly be set aside. There has to be a very good reason to rebut
this presumption.
39. Mr. Zundel state in his. affidavit that he began to
suspect that I had closer links to CSIS than impartiality would require when
I questioned the veracity of a document he had filed to show the truth of
his allegation that CSIS was responsible for, or at least aware of, a bomb
that had been sent to his house through the mail. With respect, and the
transcript would confirm this interpretation, I was trying to determine
whether or not he agreed with the evidence that he himself had file. On the
one hand, the book at issue, Covert Entry by Andrew Mitrovica, spoke of the
bomb; on the other hand, it also stated that a list had been delivered to
Mr. Zundel, which he denied receiving. My comment was no more than
suggesting that if the book was a work of fiction, then the seeming
contradiction could be resolved. The Act allows me to accept a great deal of
evidence that would otherwise be ruled inadmissable. For this reason, I must
exercise extra caution in weighing it. Mr. Zundel expects no less when it
comes to the evidence of the Crown; the same rules apply to all. That being
said, I do not believe that questioning evidence in any way reflects
partiality to one party rather than the other.
40. I was Solicitor General of Canada for a year. I was a
lawyer for many more years, in the same way that a judge may, after some
time, hear cases where his former colleagues are counsel, I do not think
that having been the Minister responsible of CSIS before Parliament
disqualified me forever from hearing a case where CSIS plays a part. If this
were so, very few judges anywhere in Canada would be able to carry out their
duties.
41. I f I ha been personally involved in deciding matters
related to Mr. Zundel, I would have of course recused myself. I have no such
recollection and there is no evidence to that effect. I am not an interested
party in this matter, and I have no reason to favour the Crown over the
respondent, no more here than in any other matter.
42. Another judge of this Court, Justice Dube, faced a
similar issue in Fogal v. Canada [1999] F.C.J. No. 129, where he was asked
to recuse himself since the suite was against the government of Canada and
he had ben a Cabinet Minster and a Member of Parliament of for party still
in power.
43. Justice Dube refused to recuse himself because there was
no basis for the allegation of reasonable apprehension of bias. I think it
worthwhile to reproduce his very eloquent words (at paragraph 10):
Judges do not descend from heaven. They come from various
fields of activities. Some of us are former academics, other were in the
public service other practiced law in small towns or large firms. And some
of us were in politics. The variety of our individual careers is a rich
source of knowledge and experience for the courts. Once we took our oath at
office, we divorced ourselves from our past and dedicated ourselves to our
new vocation. Our duty is to render justice without fear or favours.
44. Thirteen years have passed since I was Solicitor
General. My link today to CSIS is the same as for any other judge of the
Federal Court. The arguments that Mr. Zundel presents in favour of my
recusal are linked to actions by CSIS that occurred after my mandate as
Solicitor General. I never thought of recusing myself because, frankly, I do
not recall being privy to any special information about Mr. Zundel during
the time I was Solicitor General. I have no special loyalty to CSIS. My
first and only loyalty is embodied in the oath of office. I swore upon
becoming judge of the Federal Court.
45. The test of the reasonable apprehension of bias is
whether a well-informed person would consider that there is a possibility of
bias. I do not believe, given the facts and on the strength of the relevant
case law, that a well-informed person would think that I would be biased.
46. It is unfortunate that so much energy had to be expended
on this mater, while Mr. Zundel still awaits a decision on his continued
detention.
THIS COURT ORDERS THAT:
For the reasons given above, the motion is dismissed.
Pierre Blais/JFC
[END]
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Write to Canada's Immigration Minister and complain
over the unfair treatment Ernst Zündel has received.
Immigration Minister Denis Coderre
House of Commons
Parliament Buildings
Ottawa, Ontario
K1A 0A6
Telephone: (613) 995-6108
Fax: (613) 995-9755
Email: Coderre.D@parl.gc.ca |
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