- Amended Notice of Motion calling on Mr. Justice
Pierre Balis to recuse (remove) himself from the Zundel case for a
reasonable apprehension of bias.
Court File No. DES-2-03
FEDERAL COURT
IN THE MATTER OF a certificate signed Pursuant to subsection
77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
"Act")
AND IN THE MATTER OF the referral of that certificate to the
Federal Court of Canada pursuant to subsection 77(1), sections 78 and 80 of
the Act;
AND IN THE MATTER OF the detention of a permanent resident
pursuant to subsection 83(1) of the Act;
AND IN THE MATTER OF Ernst ZUNDEL
AMENDED NOTICE OF MOTION
TAKE NOTICE THAT Ernst Zundel will make a motion to The
Honourable Mr. Justice Blais on Tuesday, September 14, 2004 at 9:30 am
during the hearing herein which is currently ongoing before His Lordship, or
as soon after that time as the motion can be heard at 361 University Avenue,
Toronto, Ontario.
THE MOTION IS FOR:
1. An order that Mr. Justice Blais recuse himself from this
hearing on the grounds of a reasonable apprehension of bias;
2. An order that this recusal motion be heard and decided
before the hearing continues; and
3. Such further and other relief as this Honourable Court
deems just.
THE GROUNDS FOR THE MOTION ARE AS FOLLOWS:
A. Events on July 27, 2004
1. On July 27, 2004, Mr. Justice Blais made very strong
negative comments, during the early examination-in-chief of Mr. Zundel¡¯s
witness Doug Christie, about the alleged lack of value of Mr. Christie¡¯s
evidence and about other matters pertaining to that evidence, which comments
give rise to a reasonable apprehension of bias;
2. In particular, Mr. Justice Blais said, inter alia, the
following during Mr Christie¡¯s evidence:
A. In stark contrast to his earlier comments about Mr.
Zundel¡¯s counsel not subjecting CSIS witness David Stewart to any
condescension, pressure or attitude, His Lordship interrupted the
examination-in-chief of Mr. Christie to sarcastically ask Mr. Christie the
following about the certificate summary, which had already been identified
by Mr. Christie:
¡°Do you know that this is the certificate summary?¡±
Ironically, the only person who had difficulty following
when the certificate summary was earlier placed in front of Mr. Christie and
identified by him, was His Lordship, not Mr. Christie.
B. His Lordship then directly asked Mr. Christie to violate
solicitor-client privilege, by cross-examining Mr. Christie and by asking
Mr. Christie the following about the certificate summary:
THE COURT: And the name of Mr. Tom Metzger is mentioned
therein. You never discussed that with Mr. Zundel, is what you are
saying?...My question is whether ¡°yes¡± or ¡°no¡± you discussed Tom
Metzger¡¯s situation regarding this document?
C. His Lordship then incorrectly stated that Mr. Christie
had testified that ¡°he [Mr. Christie] never discussed Mr. Tom Metzger
with Mr. Zundel.¡± In fact, Mr. Christie had just testified that Mr.
Zundel ¡°told me things about Mr. Metzger that reflected his views.¡±
D. Shortly thereafter, His Lordship then again misstated Mr.
Christie¡¯s evidence, indicating that ¡°I am taking notes. When he says
¡® I didn¡¯t discuss with Mr. Zundel about Mr. Metzger¡¯, that
is...¡±.
E. the following exchange then occurred:
Q. [by Mr. Lindsay to Mr. Christie] In the context of these
discussions, you have said that they were non-solicitor/client discussions
between you and Zundel; that Zundel expressed his opinions about Metzger.
What was he expressing to you? A. Metzger made the news because of a
Judgment in the United States, and Zundel¡¯s attitude was that Metzger was
far too -- THE COURT: Excuse me. THE WITNESS: Yes, My Lord. THE COURT:
Before we enter that territory, if this information is to have any value as
evidence, it is important to know the extent to which those discussions
stood at any time. If the question about all discussions about Mr. Metzger,
in any context, is not going to be addressed, it is of no value whatsoever
to talk about what was discussed years ago. MR. LINDSAY: I could say exactly
the same thing about Mr. Stewart¡¯s evidence, where I wasn¡¯t able to
get the full picture about Mr. Stewart¡¯s evidence -- THE COURT: I am
sorry...? MR. MacINTOSH: I have an objection, Mr. Lord -- MR. LINDSAY: I am
in the middle of my objection -- MR. MacINTOSH: Excuse me-- MR. LINDSAY:
When I finish, perhaps my friend can -- MR. MacINTOSH: We don¡¯t need Mr.
Lindsay¡¯s comments about other witnesses -- THE COURT: Yes. This is --
MR. LINDSAY: This is a submission that is directly relevant to this witness,
My Lord. THE COURT: Mr. Stewart was a member of the Secret Service, whose
testimony was protected by another piece of legislation. We are not in the
same context, at all. So don¡¯t mix apples and potatoes. We are far from
there. MR. LINDSAY: It is a direct analogy, in my submission. But I won¡¯t
-- THE COURT: It is obvious that it is not the same. We are talking about
questions of solicitor-client privilege, and you are talking about a
question of Mr. Stewart -- MR. LINDSAY: You are saying, My Lord, that if you
only get half the story, then it is worthless. I should say, then that the
entire proceeding against Mr. Zundel is worthless, because we only get half
the story. THE COURT: Well, this is -- MR. LINDSAY: I get less than half the
story. THE COURT: Excuse me. You, maybe, want to have only half of the story
because I would be more than happy to know everything that was discussed
between the witness and Mr. Zundel about Mr. Metzger. But that is not what
you want. You just say: No, we should not talk about his discussions in
respect of this document with Mr. Zundel. So, in a sense, who cares about
one part of the story, if I cannot have access to the rest of it. (emphasis
added)
His Lordship thus again interrupted Mr. Christie¡¯s
evidence in chief. His Lordship suggested that the evidence of Mr. Christie
about Mr. Metzger, which had barely began, may have ¡°no value
whatsoever¡±. His Lordship then presumed that the discussions between
Messrs Christie and Zundel about Mr. Metzger all took place ¡°years
ago¡±. His Lordship then presumed that there was some different story told
by Mr. Zundel to Mr. Christie about Mr. Metzger in the context of
solicitor/client discussions during the security certificate review. His
Lordship then presumed that that presumed different story given later was
one that Mr. Zundel¡¯s counsel now may want to suppress, thereby further
denigrating Mr. Zundel¡¯s counsel needlessly, as His Lordship has done
many times in this hearing. His Lordship also suggested that, unless Mr
Zundel waived solicitor/client privilege, ¡°who cares¡± about Mr.
Christie¡¯s evidence. All of these actions by His Lordship give rise to a
reasonable apprehension of bias;
B. General
3. Mr. Justice Blais¡¯ general conduct throughout this
hearing, in the days prior to, including and after July 27, 2004, has also
given rise to a reasonable apprehension of bias;
C. Actions with respect to this Recusal Motion
4. His Lordship¡¯s expressed attitude toward this recusal
motion also gives rise to a reasonable apprehension of bias in favour of the
Crown;
5. Although the motion was brought in compliance with the
Rules, His Lordship was immediately prepared during a conference call on
August 6, 2004 to give the Crown more time to respond to the motion than was
permitted by the Rules;
6. When the Crown indicated that it could properly respond
to the motion by August 9, 2004, His Lordship instead gave the Crown until
August 20, 2004 to respond. His Lordship thus gave the Crown more than three
times the time which the Crown had asked for to respond to the motion. This
is in stark contrast to the repeated hard time which His Lordship has given
to Mr. Zundel¡¯s counsel about the need to proceed expeditiously and about
Mr. Zundel supposedly delaying the matter. For example, when Mr. Christie
indicated a desire on July 27, 2004 to catch a plane and finish at 4 PM, His
Lordship jumped to the erroneous conclusion that Mr. Christie was not even
available for the whole day and, when challenged on the point, said to
counsel for Mr Zundel, ¡°this is nonsense¡±. By contrast, when the Crown
later suggested in a conference call on August 6, 2004 that Mr.
Christie¡¯s evidence be moved up from the previously agreed date of August
30, 2004 to August 9, 2004, the very day on which Mr. Christie¡¯s wife was
having exploratory surgery regarding her ongoing battle with cancer, there
was no meaningful rebuke from the Court. When the suggestion of Mr Christie
testifying on August 9, 2004 didn¡¯t work, the Crown then suggested that
Mr. Christie appear in court on August 10, 2004, the day after his wife¡¯s
surgery. There was again no meaningful rebuke from the Court;
7. Although the Crown suggested on August 6, 2004 that it
could file its materials by August 9, 2004, and August 10, 2004 was
available to argue the recusal motion, the Court, on its own initiative,
then pushed back the recusal motion to September 14, 2004, without anyone
suggesting such a long delay. The Court thereby gave rise to the appearance
that the Court is not dealing either expeditiously or seriously with the
recusal motion;
8. On August 6, 2004, the Court also suggested that the
notice of motion pertaining to recusal did not request that the motion be
determined before the hearing proceeded, when such a practice would be a
normal and entirely appropriate way in which an unbiased Court would deal
with a recusal motion and was in fact the practice suggested by the Crown in
this very case on an earlier recusal motion;
9. On August 6, 2004, the Court also wrongly suggested, on
its own accord and without any request from the Crown or complaint by the
Crown, that the recusal motion could be dismissed merely because of the lack
of an affidavit in support of the motion. This suggestion was first made in
a ruling, without even giving counsel an opportunity to make submissions on
the point. Such gratitutious negative comments toward Mr. Zundel¡¯s
defence only give rise to a further reasonable apprehension of bias;
D. Detention Order
10. Justice Blais indicated in his January 21, 2004 order to
continue the detention of Mr. Zundel that the portion of the Crown's case
which has been disclosed to Mr. Zundel might not be sufficient to find him a
threat to national security. Justice Blais went on to hold that the secret
evidence, on the other hand, had already convinced him that Mr. Zundel is
actually a danger to national security and that Mr. Zundel¡¯s evidence
should be disbelieved. Mr. Justice Blais thus appeared to decide more than
that the certificate is reasonable. He appeared to pronounce that Mr. Zundel
was actually a danger to the security of Canada, part way through Mr.
Zundel¡¯s response. Since Justice Blais' finding, the Crown has not
presented any further public evidence against Mr. Zundel;
E. Scope Allowed to Crown in Presentation of Its Evidence
11. It is respectfully submitted that the disparate
approaches of Justice Blais to Crown evidence and Mr. Zundel¡¯s evidence
throughout this hearing has given rise to a reasonable apprehension of bias;
12. In particular, Justice Blais has given the Crown the
widest possible latitude with respect to the Crown¡¯s evidence and has not
even required, at times, proper proof of Crown evidence;
13. For example, the ¡°evidence¡± presented by the
Minister and the Solicitor General and allowed by Mr. Justice Blais in this
hearing consists of 5 volumes mainly of newspaper articles, other articles,
website printouts, and similar materials written by people not called by the
Minister or the Solicitor General as witnesses. Most of this
¡°evidence¡± is unsworn hearsay which is not subject to
cross-examination. By contrast, the Minister and Solicitor General
successfully objected when Mr. Zundel called an actual witness who referred
to hearsay.;
14. At times, the source of the documents in the 5 volumes
presented by the Minister and the Solicitor General has not even been
explained to the Court. For example, on September 23, 2003, counsel for the
Minister was cross-examining Mr. Zundel about a document. The Court asked
counsel about the source of the document and did not get an answer. Instead,
counsel simply continued questioning Mr. Zundel about other matters, without
any concern whatsoever being expressed by the Court.;
15. Justice Blais used his discretion and allowed the Crown
extremely wide scope in its cross-examination of Mr. Zundel. For example,
the Crown was allowed to adduce evidence as to Mr. Zundel¡¯s view on
Hitler's view on inter-racial marriages (which Justice Blais indicated was
an "important question");
16. Justice Blais further allowed the Crown to adduce into
evidence, based on Mr. Zundel¡¯s unspecified sporadic contact at some
unspecified time with one William Pierce, the fact that Pierce wrote a novel
called the ¡°The Turner Diaries¡±, the fact that Timothy McVeigh¡¯s
has much affection for the ¡°The Turner Diaries¡± and the fact that
Timothy McVeigh caused the Oklahoma bombing. There was no suggestion that
McVeigh ever had any contact directly or indirectly with Mr. Zundel. There
is no evidence that Mr. Zundel is mentioned in "The Turner
Diaries";
F. Restricted Scope Allowed Mr. Zundel in Presentation of
His Evidence
17. On the other hand, Justice Blais has been very
restrictive in his approach with respect to Mr. Zundel¡¯s evidence and has
often appeared to substantially interfere with Mr. Zundel¡¯s presentation
of evidence. Justice Blais¡¯ approach to evidence led on behalf of Mr.
Zundel, taken both on its own and in contrast with His Lordship¡¯s
approach to the Crown¡¯s evidence, has given rise to a reasonable
apprehension of bias;
18. For example, Justice Blais did not allow Mr. Zundel¡¯s
counsel to cross-examine CSIS representative David Stewart on its failure to
advise the Ministers that the Mr. Zundel¡¯s alleged implication in a
German police raid described in CSIS materials in fact ended with his
acquittal by the German court, unless Mr. Zundel¡¯s counsel first
established the basis for the question by producing first hand court
document proving said facts, i.e. court record on Mr. Zundel¡¯s German
charge and acquittal. Mr. Zundel¡¯s previous sworn testimony on the matter
was held to be an insufficient foundation for the cross-examination to take
place.;
19. Justice Blais also prevented Mr. Zundel¡¯s counsel
from questioning whether CSIS has checked the criminal history, if any, of
one of the alleged white supremacists allegedly inspired to violence by Mr.
Zundel into violence. As a result of this ruling, Mr. Zundel¡¯s counsel
was impeded from challenging CSIS' claim of even-handedness in its
preparation of the materials submitted to the Ministers, who were deciding
whether to issue a security certificate against Mr. Zundel;
20. By putting to the CSIS witness the following statement
from a parliamentary report, Mr. Zundel¡¯s counsel tried to discredit CSIS'
fundamental premise that the white supremacist movement perpetrates
terrorism and that Mr. Zundel inspires it:
After five years of investigating the extreme right, CSIS
concluded in the 1990-1 TARC submission, that the ¡®investigations since
1985 have documented the violence and petty criminal activity by skinheads
and others but nothing that could be considered a threat to the security of
Canada.¡¯ CSIS continued to investigate the extent to which the
extreme-right constitutes a threat, by ¡®focusing on the leadership¡¯.
(emphasis added)
This entire line of questioning was destroyed when Justice
Blais repeatedly interjected and interrupted the cross-examination,
insisting erroneously that Mr. Zundel¡¯s counsel did not read out the
entire paragraph to the witness, and insisting that the words "CSIS
concluded" is not related to the lead-in phrase "After five years
of investigating the extreme right" and therefore there was no evidence
as to the basis on which CSIS made that conclusion.;
21. As CSIS essentially claims that the white supremacist
movement is the weapon used by Mr. Zundel to perpetrate terrorism and
thereby threaten national security, Mr. Zundel¡¯s counsel lost an entire
line of cross-examination which could have destroyed CSIS's entire case
against Mr. Zundel, all due to Justice Blais' improper interference recorded
in 25 pages of transcript in which Mr. Zundel¡¯s counsel tried but failed
to conduct the cross-examination amid Justice Blais' interference;
22. Mr. Zundel¡¯s counsel was not allowed, during
examination in chief of Mr. Zundel, to ask questions which Justice Blais
erroneously held to be leading based on his definition of leading question
as being all questions giving rise to a "yes" or "no"
answer. The late Justice Sopinka disagreed with this test and wrote ¡°many
questions can be answered by ¡°yes¡± or ¡°no¡± that are not
leading¡±. Instead, Justice Sopinka defined a leading question as one
which ¡°suggests the answer¡± or "assumes a fact or a state of
facts which is in dispute¡±.
Mr Justice Sopinka et al., The Law of Evidence in Canada, p.
909-910
23. Subsection 78(b) of IRPA stipulates that otherwise
pertinent information should not be disclosed to Mr. Zundel if to do so
"would be" injurious to national security. Justice Blais
repeatedly disallowed questions on the basis that they require disclosure of
information which "could be" injurious to national security. The
erroneous test was applied over Mr. Zundel¡¯s counsel's objection.;
24. Based on ¡°national security¡±, Justice Blais made a
wholesale advance ruling that the Mr. Zundel¡¯s counsel may not ask the
CSIS agent any question ¡°directed at¡± any classified information. This
ruling is inconsistent with CSIS agent's previous conduct during
cross-examination where he volunteered answers directed at classified
materials such as ¡°classified materials will allow a different
response¡±. In one case, he went further and directed his answer to
classified information indicating that CSIS has classified information on
someone allegedly associated with Mr. Zundel. He said that such classified
information shows this person¡¯s involvement in the white supremacist
movement, which he admitted was not supported by the unclassified
information.;
25. Following the above ruling, the Court then disallowed,
on the ground of national security, all questions whether CSIS has any
unclassified evidence that Mr. Zundel was ever involved in any violence or
acts or terrorism anywhere. This shut down the entire inquiry into the heart
of CSIS's public case against Mr. Zundel, namely, that he perpetrates
terrorism not by his personal acts, but by inspiring people in the white
supremacist movement;
26. Justice Blais then further disallowed on the ground of
national security the following question:
Limiting yourself to the unclassified information, are you
able to point to one example of political violence inspired by Zundel?
27. These lines of inquiry are central to challenging the
heart of CSIS' case against Mr. Zundel. The questions asked clearly relate
to the publicly disclosed materials and the answers to them can in no way
jeopardize national security. Yet Justice Blais disallowed them all out of
his, respectfully, misguided and unchecked concept of "national
security". These questions all go to the heart of the Crown¡¯s case
against Mr. Zundel, which is perpetration of terrorism through others. When
they are disallowed, Mr. Zundel¡¯s right to a fair hearing and the entire
fact finding process are both devastated. Such judicial conduct gives rise
to a reasonable apprehension of bias;
28. Justice Blais¡¯s advance ruling came after he
threatened to terminate cross-examination if his previous rulings were not
followed. This sweeping advance ruling, coupled with the threat of
terminating Mr. Zundel¡¯s right to cross-examine the only witness produced
by the Crown (produced only when compelled by Mr. Zundel by way of motion),
crippled Mr. Zundel¡¯s counsel¡¯s ability to probe the Crown¡¯s
evidence and gave rise to a reasonable apprehension of bias;
29. Mr. Zundel¡¯s counsel was thus obliged to stay far
from the perceived limit Justice Blais dictated by including the prohibition
against questions regarding unclassified materials. It is respectfully
submitted that such working conditions are patently unfair to Mr.
Zundel¡¯s counsel, irreparably compromise the fact finding process and
give rise to a reasonable apprehension of bias;
G. Appearance of Different Treatment of the Crown (and its
witnesses) and Mr. Zundel (and his counsel and witnesses)
30. Throughout the hearing, Justice Blais has made
disparaging remarks about Mr. Zundel¡¯s counsel, characterizing his
cross-examination of the CSIS agent as playing games, being tricky, trying
things that were smart but against the law and criticized his
cross-examination as condescending, lecturing the witness, lecturing the
Court, wasting time and his demeanour as nervous, despite Mr. Zundel¡¯s
counsel's objection to the comment. Justice Blais also told Mr. Zundel¡¯s
counsel to be more polite. During one hearing date, Justice Blais so
interfered with Mr. Zundel¡¯s counsel¡¯s submissions that His Lordship
himself felt, after the lunch recess, compelled to apologize for his conduct
towards Mr. Zundel¡¯s counsel. Such conduct is inappropriate as
acknowledged by Justice Blais himself. Its occurrence despite His
Lordship¡¯s own after-the-fact recognition of its impropriety raises very
serious questions of reasonable apprehension of bias, particularly creating
an appearance that His Lordship cannot help himself from favouring the
Crown;
31. As detailed above, Justice Blais appeared to pre-judge
in strong negative terms the evidence of Mr. Zundel¡¯s witness Mr.
Christie early in his examination-in-chief;
32. On the other hand, Justice Blais repeatedly complimented
the CSIS agent during his cross-examination as being "frank" and
"co-operative" and directed Mr. Zundel¡¯s counsel not to
"subject the witness to condescension, any pressure or attitude";
26. In two separate rulings, Justice Blais has erroneously
said that Mr. Zundel¡¯s counsel did not make certain submissions, when
counsel clearly made exactly those submissions;
27. On many matters, there appear to be two standards: one
for the Crown and one for the defence. For example, the Crown has scheduled
dates then cancelled them without receiving any criticism. The Crown witness
was unavailable on potential continuation dates and the Court said nothing
critical. On the other hand, when counsel for 65-year-old Mr. Zundel wanted
to finish early because Mr. Zundel was fatigued, the Court was highly
critical. When Mr. Zundel¡¯s witness Mr. Christie became unavailable due
to his wife¡¯s surgery, the Court was highly critical; and
28. Such further and other grounds and counsel may advise
and this Honourable Court may permit.
THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the
hearing of the motion:
1. Transcripts herein; 2. Pleadings herein; and 3. Such
further and other evidence as counsel may advise and this Honourable Court
may permit.
Date: August 17, 2004
___________________________ PETER LINDSAY Barrister and
Solicitor 233 Sheppard Avenue West Toronto, Ontario M2N 1N2 LSUC Reg. No.
Tel: (416)733-3313 Fax: (416)733-3433
Solicitor for Ernst Zundel
|
