I had already reported on Judge Blais's unprofessional and
biased judgment in refusing Ernst to call the witnesses he needs. Here is
Paul Fromm, Director of the Canadian Association for Free Expression,
commenting on that ruling:
Dear Free Speech Supporter:
On June 23, in a stunning move, Mr. Justice Pierre Blais
quashed all four subpoenas sought by dissident publisher Ernst Zundel's
defence team. The subpoenas were for Keith Landy, President of the
Canadian Jewish Congress; Frank Dimant, President of the League for Human
Rights of B'nai Brith; Ontario Judge Lauren Marshall; and Andrew Mitrovica,
author of COVERT ENTRY: SPIES, LIES AND CRIMES INSIDE CANADA'S SECRET
SERVICE.
Judge Blais's decision is preposterous in its reasoning
and almost laughable in its feigned naivete. "Lobbying ministers is a
legitimate exercise in an open and democratic society such as Canada.
Anyone has the opportunity to lobby any minister at any time and make his
or her views known. In this case, the only evidence that was provided
concerned the public lobbying by both Mr. Landy's organization and Mr.
Dimant's organization. They met with the Ministers, they issued press
releases," [PARA. 15] he writes.
Does "anyone" really have the same opportunity
to lobby powerful ministers as do organizations like the CJC and B'nai
Brith? Most of us have trouble getting our own MP to even acknowledge, let
alone really answer a letter. When was the last time you called, say, the
Minister of Justice for an appointment and got one? When was the first
time?
The judge goes on to argue: "I have not been
convinced that Mr. Landy or Mr. Dimant would be able to shed any new light
on the reasonableness of the Ministers' decision. The intervention of the
CJC and B'nai Brith has been public and consistent. It is clear that
pressure has been exerted by the two organizations, both in public
statements and private meetings. This, to me, has nothing to do with the
reasonableness of the certificate, nor with whether Mr. Zündel presents a
danger to Canadian society." [PARA 20]
On the contrary, it would be very important to know what
the two Jewish lobby groups told the ministers. Were there promises made,
threats, explicit or implied? Was documentation presented about Mr.
Zundel? If so, what was it? As we know that Mr. Zundel's supporters did
not have any access to the ministers, it might well be that having heard
from only one side -- CSIS's allegations and Mr. Zundel's bitter opponents
-- the ministers' decision in signing the certificate was unreasonable.
It's interesting that the usually vocal and voluble Jewish
groups suddenly had an attack of shyness when subpoenaed to testify and to
be closely questioned about their activities.
Mr. Justice Blais also relieves himself of another
extraordinary conclusion:
"The intent or motives of the Ministers is of no
interest to this Court." [PARA. 19]
Surely, if knuckling under to intense pressure from a
powerful financial and ethnic lobby group was the ministers' motive in
signing the certificate to get rid of Mr. Zundel, this motive is relevant
as to whether their action was "reasonable".
It's not surprising that former CSIS boss Judge Blais --
he was Solicitor-General in 1989 and, therefore, in charge of CSIS, when
they began a rampage of spying and infiltration of "right-wing"
groups, including Preston Manning's Reform Party -- would seek to protect
CSIS.
While admitting that Mitrovica's report that CSIS knew the
May, 1995 bomb sent to Mr. Zundel by anarchists was on its way and did
nothing to warn him or others is a serious matter, Judge Blais insists:
"I believe Mr. Mitrovica has little material evidence
to contribute beyond what has already been published. Compelling him to
produce his notes and materials is unduly intrusive, and given the little
probative value that I could attach to such hearsay materials, I see no
need to disturb the journalistic privilege that attaches to Mr.
Mitrovica's evidence. [PARA. 30]
Those following the proceedings would have to laugh at
this. The government's public case has been filled with hearsay and double
hearsay evidence. The Judge under Sec. 78.e of the Immigration and Refugee
Protection Act (IRPA) can accept [and has] "anything" as
evidence, including things not normally accepted in a Canadian court of
law. Now, Mr. Justice Blais suddenly develops an aversion to hearsay.
As Mr. Mitrovica's charges are so serious, it would be
very helpful to Mr. Zundel to be able to establish their credibility. It
the charges are true, they prove a murderous hostility on the part of CSIS
toward the German-born dissident and call into question the
"reasonableness" of the CSIS certificate calling this lifelong
pacifist a "terrorist".
Judge Lauren Marshall had been one of Mr. Zundel's lawyer
in the 1980s. Originally, she had agreed to testify about the
extraordinary swiftness with which the government sought to deport Mr.
Zundel after his 1985 conviction (subsequently overturned) for publishing
"false news." This speed was is contrast to the usuaally
lackadaisical pace -- five years or more -- in the judge's long experience
for the government to seek the deportation of violent criminals. Her
testimony would help establish the long-time bias of the Canadian
government against Mr. Zundel and, therefore, undermine the
"reasonableness" of the CSIS certificate branding him a
"terrorist".
Nevertheless, Judge Blais concludes:
"Mr. Zündel has failed to convince me of the
relevance of the deportation process almost 20 years ago, which was based
on a conviction in a criminal court. The conviction has been voided, the
deportation process halted, and the present certificate is an entirely
different process, based on entirely different evidence." [PARA. 37]
In a final stroke of petty judicial one-upsmanship, Judge
Blais insists he doesn't need to be told by a mere provincial court judge
how to do his job.
"Finally, as to the last purpose for which Justice
Marshall would testify, I will state only this. I apply the legislation, I
did not write it. I have stated many times in the course of these
proceedings how difficult it is to have to deal with secret evidence. I do
not need to be reminded of the perils of ex parte proceedings, nor to be
told how to carry out my judicial duties." [PARA. 41]
Perhaps, the only positive aspect of Judge Blais's latest
attempt to cripple Mr. Zundel's defence is that he declined to award costs
against Mr. Zundel.
Chi-Kun Shi, defence co-counsel, says: "The only hope
left is really our appeal to the Supreme Court of Canada. We're getting
very blunt in our submission about Judge Blais' behaviour, and his
decision about the subpoenas is just the latest example."
Paul Fromm
Director
CANADIAN ASSOCIATION FOR FREE EXPRESSION
