- Ruling by Justice Pierre Blais to continue
detention of Ernst Zundel - September 22, 2004
The Honourable Mr. Justice Blais - Ottawa, Ontario,
September 22, 2004.
- 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 of the
- Federal Court of Canada pursuant to subsection 77(1),
- sections 78 and 80 of the Act;
- AND IN THE MATTER OF ERNST ZUNDEL
- REASONS FOR ORDER AND ORDER
(1) Pursuant to subsections 83(2) and 83(3) of the act, the
Court has to review whether Mr. Zundel's detention should be continued.
(2) From May 1, 2003 to January 21, 2004, the Court has
heard evidence provided by the Ministers in public and also in camera, and
evidence provided in public by Mr. Zundel.
(3) After assessing that evidence on January 21, 2004, the
Court has rendered a decision to the effect that Mr.Zundel's detention
should be continued.
(4) Pursuant to subsection 83(2) of the Act after 6 months,
the Court has the duty to re-examine whether the detention of Mr. Zundel
should continue.
(5) Under subsection 83(3), the Court should decide that the
detention continues if the Ministers provide evidence that there are
reasonable ground to believe that Mr. Zundel continues to be a danger to
national security or to the safety of any person, or, that Mr. Zundel is
unlikely to appear at proceedings for removal. As Mr. Lindsay, counsel for
Mr. Zundel suggested, the real question is "What has changed since
then?"
(6) After discussions between the parties, this Spring, it
was decided that Mr. David Steward, who is an employee of CSIS, could
testify on the material that was filed by the Ministers.
(7) It was understood at the very beginning that Mr. Stewart
will testify on unclassified material and that all questions asked to Mr.
Stewart by counsel for Mr. Zundel or by counsel for the Ministers would
address only the unclassified material.
(8) Referring to the transcript of those 7 days, the Court
had to intervene often to make sure that no question would be addressed to
the witness that could inadvertently disclose some classified information
which would be injurious to national security.
(9) Counsel for Mr. Zundel and his predecessor suggested
many times that different witnesses would testify. At the last minute,
counsel for Mr. Zundel decided not to bring those witnesses to testify.
(10) The witnesses which counsel for Mr. Zundel wanted to
bring forward to testify included a former counsel for Mr. Zundel, who is
now a judge of the Ontario Superior Court of Justice, the leader of the
Canadian Jewish Congress, a leader of B'Nai Brith Canada, an author and a
journalist for the Globe and Mail. All those subpoenas were quashed after a
hearing and are the subject of another decision rendered on June 23, 2004.
(11) In my decision of January 21, 2004, I indicated that
Mr. Zundel did not provide evidence of his real relationship with the
individuals and the organizations that are mentioned in the summary that was
provided to Mr. Zundel in May 2003.
(12) Mr. Zundel decided not to address those issues and not
to clarify his relationship with those individuals and organizations. Mr.
Zundel decided to demonstrate that he is more or less a victim of a vendetta
by CSIS against him, and tried by different allegations to demonstrate that
CSIS has a strong bias against him and is determined to deport Mr. Zundel at
any price.
(13) Counsel for Mr. Zundel raised an issue regarding the
disclosure of such information that would be injurious to national security.
On two occasions, I said "could be injurious to national security"
when I should have said "would be injurious to national security".
In fact, the remark by Mr. Lindsay was right. Nevertheless, there was no
prejudice because when I made that particular finding, I always had in mind
that the classified information and evidence that were provided in camera by
the Ministers are confidential and that disclosure of any part of that
evidence would be injurious to national security.
Obviously, the wording is important; nevertheless, what is
imperative is that the designated judge has the duty to make sure that any
classified information is not going to be made public if its disclosure
would be injurious to national security, referring to section 78 of the Act.
(14) If Mr. Lindsay is right when he says that I have made a
mistake once or twice in using the word "could", he is wrong when
he says that I applied the wrong test, because in fact, I have applied the
right test and I have reviewed periodically the evidence that was received
in camera to make sure that if it was possible, I would have disclosed part
of it to Mr. Zundel, pursuant to the Act. Nevertheless, my review of the
information and evidence provided in camera by the Ministers led me to
conclude that this classified material is relevant but that its disclosure
would be injurious to national security or to the safety of any person.
(15) Counsel for Mr. Zundel spent a lot of time in his oral
representations identifying some technical errors that could have been made
during the long process. In my view, the time would have been better spent
providing evidence to demonstrate the real relationship between Mr. Zundel
and the individuals and organizations that were identified in the summary.
Counsel for Mr. Zundel also spent a lot of time trying to demonstrate the
interest of the court in hearing about the influence of the Canadian Jewish
organizations and the pressures that those organizations put on the
Ministers at different moments, pressures which culminate to the issuance of
the certificate.
(16) As I stated in a previous decision, it is no secret
that the Canadian Jewish organizations placed a lot of pressure on ministers
and different levels of government, insisting that different measures should
be taken against Mr. Zundel; for example the Canadian Jewish organizations
exerted a lot of pressure to ensure that the Canadian government would not
allow Mr. Zundel to reenter the country from the United States. In fact,
they did not succeed.
(17) The pressures that were placed on the federal
government and particularly the Ministers issuing the certificate are well
known and were made in public.
(18) In fact, the question that has to be addressed is not
whether there was pressure, but rather, whether the certificate issued by
the Ministers is reasonable.
(19) We are not there yet. The hearing on the reasonableness
of the certificate is still ongoing. Nevertheless, I have a duty to
re-examine whether the detention should continue.
(20) Finally, counsel for Mr. Zundel suggests that the
evidence that is provided in camera about Mr. Zundel created an unbalanced
position and an untenable position to respond.
(21) Mr. Lindsay suggests that he should be allowed to ask
questions about the secret evidence which is classified information, and if
answers are provided to those questions, it would be easier for him to
adequately represent his client.
(22) In fact, Mr. Lindsay suggests that unless he gets some
answers to those questions, it will be very difficult, if not impossible for
him to make meaningful submissions about the reasonableness of the
certificate, and or the "issue of detention". Mr. Lindsay decided
to read those questions in making his own representation as and I can assure
Mr. Lindsay right now that those questions will be taken into consideration
when the Court hears counsel for the Ministers in camera.
(23) The Federal Court of Appeal has explained the burden of
proof on the review of detention in M.C.I. V. Thanabalasingham, [2004] F.C.J.
No. 15, 2004 FCA 4:
The onus is always on the Minister to demonstrate there
are reasons which warrant detention or continued detention. However once
the Minister has made out a prima facie case for continued detention, the
individual must lead some evidence or risk continued detention.
(24) On behalf of the Ministers, Mr. MacIntosh rightly
suggests that the Ministers have met their burden: the Ministers have to
demonstrate that there are reasonable grounds as to why Mr. Zundel should
continue to remain in detention pursuant to section 83 of the Act.
(25) The role of the designated judge reviewing the reasons
for continued detention is described by Justice Noel in Charkaoui, [20004] 1
F.C.R. 528, [2003] F.C.J. No. 1119, 2003 FC 882, paragraph 36 (tab 4, the
Ministers Book of Authorities):
The designated judge as the stage of reviewing the reasons
for the arrest warrant and the continued [page 544] detention, must ask
himself whether there is any evidence in support of the Minister's
position that the respondent, since the beginning of his detention,
remains a danger to national security or to the safety of any person or is
unlikely to appear at a proceeding or for removal (see subsection 83(3) of
the Act). I note that Parliament has used the word "or", which
created an alternative between one of the reasons cited. Moreover, the
designated judge, having given the respondent an opportunity to be heard,
must ask himself whether the evidence presented by the respondent
challenges the evidence in support of continued detention, if any. In
doing so, he must consider all evidence of the parties (including that
presented in the absence of the respondent). The initial onus is therefore
on the Ministers, although it may shift to the respondent if the
Ministers' evidence is sufficient. Where applicable, the respondent must
in turn satisfy the designated judge that the continued detention is not
justified.
(26) Again, it is important to quote former Chief Justice
Thurlow in Attorney General of Canada v. Jolly [1975] F.C. 216 (C.A.), who
has defined the standard of proof in immigration matters (Charkaoui
decision, paragraph 38):
...where the fact to be ascertained on the evidence is
whether there are reasonable grounds for such a belief, rather than the
existence of the fact itself, it seems to me in that to require proof of
the fact itself and proceed to determine whether it has been established
is to demand the proof of a different fact from that required to be
ascertained. It seems to me that the use by the status of the expression,
"reasonable grounds for believing" implies that the fact itself
need not be established and that evidence which falls short of providing
the subversive character of the organization will be sufficient if it is
enough to show reasonable grounds for believing that the organization is
one that advocates subversion by force, etc. In a close case the failure
to observe this distinction and to resolve the precise [page 545] question
dictated by the statutory wording can account for a difference in the
result of an inquiry or an appeal.
(27) I would agree with counsel for the Ministers that even
though counsel for Mr. Zundel has shown dissatisfaction with the disclosure
of the evidence, Mr. Zundel has received adequate disclosure in this case.
Mr. Zundel has received full disclosure consistent with section 78 of the
Act. The disclosure was consistent with principles of natural justice and
fairness. In fact, referring to paragraph 20 of my decision of January 21,
2004, I indicated that there was, at the time of that decision, reasonable
ground to believe that RM. Zundel was a danger to national security or to
the safety of any person. I based my findings, at the time, on the fact that
although Mr. Zundel had virtually no history or direct personal engagement
in acts of serious violence, his status within the Right Supremacist
Movement was such that adherents would be inspired to carry out his acts
pursuant to his ideology. The Ministers believed that by his comportment as
leader and ideologue, Mr. Zundel intended serious violence to be a
consequence of his influence.
(28) In assessing carefully the evidence that was provided
since that very decision of January 21, 2004, I have no hesitation to
conclude that Mr. Zundel failed to provide evidence that there are no
reasonable grounds to believe that he is a danger to nationals security or
to the safety of any person.
(29) Being satisfied that Mr. Zundel should remain in
detention because the Ministers have provided evidence that there are
reasonable grounds to believe that he is a danger to national security or
the safety of any person, it will not be necessary to determine whether he
is unlikely to appear at a proceeding or for removal. No new evidence was
even provided by any party regarding this question.
O R D E R
Therefore, THIS COURT ORDERS that:
Mr. Zundel's detention be continued in accordance with
subsection 83(3) of the Act until the designated judge again rules in regard
of the continuation of the detention.
"Pierre Blais", Judge
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