- Zundel's Pleadings for Nov. 23 Appeal
Court File No.: A-534-04 (DES-2-03) FEDERAL COURT OF APPEAL
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 ERNST ZUNDEL
B E T W E E N:
ERNST ZUNDEL Appellant - and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE
SOLICITOR GENERAL OF CANADA Respondents APPELLANT'S MEMORANDUM OF FACT AND
LAW PART I ¡V THE FACTS
(A) Overview
1. This is an appeal to the Federal Court of Appeal from the
order of the Honourable Mr. Justice Pierre Blais dated September 24, 2004
(the "Order"¨), which Order dismissed, with costs, the
Appellant's motion for recusal of Justice Blais from this "security
certificate" review on the grounds of a reasonable apprehension of
bias.
(B) Background to the Proceedings Before Mr. Justice Blais
2. The Appellant is a notorious and unpopular 65 year old
permanent resident of Canada. He has been detained in custody in solitary
confinement without charge for over 20 months since February 19, 2003. He
previously lived in Canada from 1958 to 2000. He has no criminal record in
Canada. He faces no criminal charges in Canada. Transcript, January 23,
2004, pp. 2400-1, 2418
3. In 2000, the Appellant moved to the United States after
he married an American author. He was later deported back into Canada by the
United States on February 19, 2003, on the alleged grounds that he had
missed an immigration appointment. The Appellant has led evidence that he
had not missed an appointment and his American lawyer had been trying to
reschedule the appointment due to a scheduling conflict for the lawyer, when
the Appellant was arrested. There was no allegation that the Appellant had
been involved in any illegal or terrorist activities in the United States or
elsewhere. Transcript, July 28/03 pp. 435-492
4. After the Appellant was deported back to Canada, the
Minister of Citizenship and Immigration (the "Minister")
immediately detained him in custody until May 1, 2003, when the Solicitor
General of Canada (the "Solicitor General") and the Minister
signed a security certificate (the "Certificate"¨) declaring the
Appellant, a permanent resident of Canada, to be inadmissible to Canada on
grounds of security for reasons described in sections 33 and 34(1)(c), (d),
(e) and (f) of the Act. On May 1, 2003, the Solicitor General and the
Minister also issued a warrant under section 82(1) of the Act for the arrest
and detention of the Appellant. Order of Justice Blais dated January 21,
2004, para. 1, tab 8, Appeal Book (A)(B¨)(C) The Nature of the Proceedings
Before Mr. Justice Blais
5. There are highly unusual aspects to the proceedings
before Justice Blais. In particular, Justice Blais has the power to receive
and rely on secret evidence and secret submissions from the Crown, which are
presented in the absence of the Appellant and his counsel. The allegation of
a reasonable apprehension of bias being shown by Justice Blais must be
considered in that context of Justice Blais¡¦ extraordinary power to
dispense secret justice under the Act, parts of which are discussed below.
6. Section 77 of the Act, which can lead to the removal of a person from
Canada, is triggered by the Minister and the Solicitor General signing a
certificate stating that someone, who is either a permanent resident or a
foreign national, is inadmissible on grounds of (a) security, (b) violating
human or international rights, (c) serious criminality, or (d) organized
criminality. The certificate is required to be referred to a designated
judge of the Federal Court for determination of whether it is reasonable.
Section 78 of the Act sets out the various provisions which
"govern" the judge's determination.
7. Subsection 78(b) of the Act, which allows the judge
determining the reasonableness of the certificate to "hear all or part
of the information or evidence in the absence of the permanent resident or
the foreign national named in the certificate and their counsel if, in the
opinion of the judge, its disclosure would be injurious to national security
or to the safety of any person" allows for secret proceedings.
8. Subsection 78(b) of the Act further allows the secret
proceedings to happen repeatedly, "on each request of the Minister or
the Solicitor General of Canada"¨.
9. Subsection 78(b) of the Act further allows the repeated
secret proceedings to occur "at any time during the
proceedings"¨.
10. In other cases, judges of the Federal Court have
criticized the secret proceedings: I do acknowledge that under IRPA a person
who is the subject of the Ministers' certificate and his or her counsel may
not see the information relied upon by the Ministers, an invidious position
but one provided by Act of Parliament. Re: Jaballah [2003] F.C.J. No. 822 at
page 26 (T.D.), tab 10, Appellant's Brief of Authorities
("Authorities"¨)
11. Justice James K. Hugessen of the Federal Court of Canada
said the following about the secret proceedings: "Often, when I speak
in public, I make the customary disavowal that I am not speaking for my
colleagues but I am speaking only for myself. I make no such disavowal this
afternoon. I can tell you because we talked about it, we hate it. We do not
like this process of having to sit alone hearing only one party and looking
at the materials produced by only one party and having to try and figure out
for ourselves what is wrong with the case that is being presented before us
and having to try for ourselves to see how the witnesses that appear before
us ought to be cross-examined... We greatly miss, in short, our security
blanket which is the adversary system that we were all brought up with and
that, as I said at the outset, is for most of us, the real warranty that the
outcome of what we do is going to be fair and just." The Honourable
Justice James K. Hugessen, "Watching the Watchers: Democratic
Oversight¡¨, tab 3, Authorities
12. The judge shall, on the basis of the information and
evidence available, determine, inter alia, whether the certificate is
reasonable. The judge shall quash a certificate if the judge is of the
opinion that it is not reasonable (section 80 of the Act).
13. Section 80 of the Act does not require the judge to
determine whether the person is actually a danger to the security of Canada,
but simply whether the certificate is reasonable (a clearly lower standard).
For example, if the judge concludes that the person is not a danger to
security of Canada but that others (such as the Minister and Solicitor
General) could disagree (and have disagreed) with that conclusion, the judge
is required to find the certificate reasonable and the certificate becomes a
removal order.
14. In making a decision under section 80 of the Act, the
judge must (in a security grounds case) consider section 34 of the Act,
which defines the circumstances in which a permanent resident is
inadmissible on security grounds. The criteria in section 34 of the Act are
very broad. For example, a person who has assaulted his wife and child by
slapping them is caught by section 34(e) for "engaging in acts of
violence that would or might endanger the...safety of persons in
Canada"¨.
15. Section 33 of the Act then expands section 34 to provide
that facts underpinning a finding of inadmissibility under section 34 may
"include facts for which there are reasonable grounds to believe that
they have occurred, are occurring or may occur"¨. Section 33 thus
allows for speculation about things that might happen to be a basis for a
finding of reasonableness (not correctness) under section 80, leading to
deportation of a person.
16. The determination of the judge is final and may not be
appealed or judicially reviewed. If a certificate is determined to be
reasonable under section 80(1), it is conclusive proof that the permanent
resident or foreign national named in it is inadmissible and it is a removal
order that may not be appealed against and that is in force without the
necessity of holding or continuing an examination or an admissibility
hearing (see section 81).
17. While the person named in a certificate found to be
reasonable has no appeal or review rights, if a certificate is quashed as
being unreasonable, the Crown may (and has in the past) issued a new
certificate and started the entire process again. (See Jaballah v. Canada
[1999] F.C.J. No. 1681 (T.D.) and Jaballah, Re [2003] F.C.J. No. 822 (T.D.)
tabs 9, 10, Authorities) By contrast, there is no mechanism for the person
named in a certificate to have a second "kick at the can" if that
person later obtains evidence to contradict evidence given in a hearing in
relation to a certificate found to be reasonable.
(D) The Actual Proceedings Before Mr. Justice Blais
18. In May, 2003, the Honourable Mr. Justice Pierre Blais,
P.C. of the Federal Court of Canada (Trial Division), one of the judges
designated by the Chief Justice of the Federal Court to conduct certificate
reviews, began proceedings to review the reasonableness of the Certificate
pursuant to sections 77, 78 and 80 of the Act.
19. These proceedings have taken place on a number of dates
from May 2003 to November 2004, including the following: 2003 - May 9, 16;
July 28-30; September 23-24; November 6-7; December 10-11; 2004 - January
22-23, 26-27; February 9, 12, 18-19; April 13, 14, 29, 30; May 4, 5; June 9;
July 27; August 6, 11; August 30, 31; September 1, 2, 14, 16, 17; October
19, 20; November 1, 2. The decision as to the reasonableness of the
certificate is currently under reserve.
20. In this case, there were was secret proceedings before
the Minister and Solicitor General started to present their public case.
There were more secret proceedings after the detention hearing had
concluded, while Justice Blais had reserved and was considering whether to
grant bail to the Appellant. After the secret sessions, Justice Blais issued
his order denying bail. After the Minister and Solicitor General had
finished presenting their public case and while the Appellant was in the
middle of presenting his response, the Minister and Solicitor General
repeatedly presented more secret evidence against the Appellant. Justice
Blais even had a secret session with the Crown during a lunch break in the
public proceedings. The secret case being presented to Justice Blais while
the Appellant has been presenting his case is not limited to reply evidence.
It is not limited at all. The case can secretly change in any way while
being responded to. The Appellant and his counsel do not know how it has
changed in this case. There will be (or have been) secret final argument by
the Crown after the completion of public final arguments.
Transcripts May 9/03 p. 6; July 30/03 pp. 887-888; Sept
23/03, pp. 1007,1058-1059; Apr 13/04 pp. 3535-7; Apr 29/04 p. 3908
21. Justice Blais has imposed a system where His Lordship
tells counsel (when asked) the fact that there have been secret proceedings.
His Lordship says that he does so as a matter of "courtesy", not
as a right of the Appellant. On one occasion, when asked, His Lordship
forgot whether there had been more secret proceedings since the last public
proceedings.
Transcript Aug 11/04 pp. 5023-5025
(E) The Motion for Recusal Which is the Subject of This
Appeal
22. The motion for recusal which is the subject of this
appeal was brought after the proceedings on July 27, 2004. It has been and
remains the position of the Appellant that the events of July 27, 2004 were
the culmination of a series of events which gave rise to a growing and
eventually overwhelming concern about the existence of a reasonable
apprehension of bias. Put simply, the events of July 27, 2004 were the
proverbial straw that broke the camel's back. The recusal motion was
brought, in accordance with the rules, returnable on the very next sitting
date in this case, on August 9, 2004.
Transcript Sept 14/04 p. 5545
23. His Lordship decided not to entertain the recusal motion
until September 14, 2004. The motion was argued orally on that date. The
Appellant asked that the hearing be stopped until the motion was determined.
His Lordship refused. The evidence in the security certificate review
continued after the motion was argued and then concluded on September 17,
2004. The matter was then adjourned to October 19, 2004 for final
submissions. On September 24, 2004, Mr. Justice Blais released a written
decision finding that there was no reasonable apprehension of bias created
by His Lordship's conduct in this security certificate hearing. The
Appellant filed this appeal. Final arguments were then made on October 19
and 20, 2004 and November 1 and 2, 2004. Justice Blais has reserved decision
and has indicated that no decision will be made prior to the hearing of this
appeal on November 23, 2004.
24. The recusal motion at issue in this appeal is from the
Appellant's third motion for recusal in this case. The issues in this motion
are different from the issues in the first two motions for recusal. The
previous decisions of Justice Blais refusing to recuse himself were not
appealed.
25. The first motion for recusal was made orally on July 30,
2003 based on comments made by Justice Blais during testimony of the
Appellant up to that date, which were said to have suggested that the
Appellant lacked credibility.
Re Zundel [2003] F.C.J. No. 1361 (T.D.), tab 17, Authorities
26. The issues in the second recusal motion was set out as
follows in Justice Blais' decision dated December 17, 2003:
"The respondent Ernst Zundel has filed a motion for an
order of recusal. Mr. Zundel submits 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 on a book
introduced in evidence show my favourable bias to CSIS."
Re Zundel [2003] F.C.J. No. 1879 (T.D.) at page 1, tab 18,
Authorities
27. The recusal motion at issue in this appeal does not
raise or deal with the issues in the first two recusal motions.
28. This is the first motion for recusal brought by the
current counsel for Mr. Zundel in this matter. It is also the first motion
for recusal brought by said counsel in their 13 years of practice as trial
lawyers.
Transcript Sept 14/04 p. 5546
29. The Crown has complained about this being the third
recusal motion. For example, the Crown, in paragraph 10 its written argument
on this motion, wrote as follows:
"Noting the last minute nature of the request, that
this was Zundel's third motion for Justice Blais'¦ recusal on the grounds
of reasonable apprehension of bias and that many of the allegations
pertained to events that coincided with the previous two motions seeking the
same relief, the Ministers asked that the Court not entertain the motion at
all."
Ministers' written submissions, tab 6, AB
30. The second recusal motion was argued orally before
Justice Blais on December 10, 2003, and it was rejected by Justice Blais'
Order dated December 17, 2003. There are 93 pages of transcript under tab B,
at pages 12 to 104 of the Motion Record for the recusal motion which is at
issue in this appeal. Over 80 per cent of the transcript references are
transcripts of proceedings after the argument of the last recusal motion on
December 10, 2003. (Eighteen (18) of those pages pre-date the December 10,
2003 argument of the last motion, being pages 12 through 29 of the Motion
Record. Seventy-five (75) of those pages post-date December 10, 2003, pages
30 to 104).
31. Moreover, the few transcript references which pre-date
December 10, 2003 are not a repetition of previous arguments, such as
arguments about Justice Blais being the former Solicitor General of Canada.
The few earlier transcript references are, for the most part, meant to show
the appearance of a stark contrast between Justice Blais' approach during
the Crown's case and during Mr. Zundel's case. It is the Appellant's
position that there is no way to show such a contrast properly to the Court
without referring to the Court's earlier approach prior to December 10,
2003, during the Crown's case.
(F) The Decision of Justice Blais on the Recusal Motion
32. The factual basis for the recusal motion and Justice
Blais' approach to the facts, those as indicated in His Lordship's decision
are set out in the following paragraphs, in six parts: (i.) Detention Order
dated January 21, 2004 (ii.) Scope allowed to Crown in Presentation of its
Evidence (iii.) Restricted Scope Allowed to the Appellant in Presentation of
His Evidence (iv.) Appearance of Different Treatment of the Crown (and its
witnesses) and The Appellant (and his counsel and witnesses) (v.) Events on
July 27, 2004 with respect to Mr. Christie (vi.) Actions with respect to
this Recusal Motion
(i) Detention Order dated January 21, 2004
33. Justice Blais did not find that His Lordship's comments
in the centre of a detention order against the Appellant gave rise to a
reasonable apprehension of bias. Justice Blais had indicated in his January
21, 2004 order to continue the detention of the Appellant that the portion
of the Crown's case which has been disclosed to the Appellant might not be
sufficient to find him a threat to the security of Canada (para. 21).
Justice Blais went on to hold that the secret evidence, on the other hand,
had already convinced him that the Appellant is actually a danger to the
security of Canada and that the Appellant's evidence should be disbelieved (paras.
13, 23). Mr. Justice Blais thus appeared to decide more than that the
certificate is reasonable. Although Justice Blais stated later in his
reasons that he would consider the reasonableness of the certificate on
another day (at para. 14), the appearance created by the underlined comments
was that His Lordship had already decided more than that the certificate was
reasonable. He appeared to pronounce that the Appellant was actually a
danger to the security of Canada, part way through the Appellant's response,
eight months before the evidence was complete and nine months before final
argument began. Since Justice Blais' finding, the Crown has not presented
any significant new public evidence against Mr. Zundel.
Order and Reasons of Justice Blais dated January 21, 2004,
tab 8, AB
34. Justice Blais did not even specifically address the
paragraphs of the detention order referred in the underlined comments made
by His Lordship himself, as outlined in paragraph 33 above, in his reasons
for refusing to recuse himself.
35. Justice Blais did not even refer to or address this
Honourable Court's decision in Arthur v. Canada (Minister of Employment and
Immigration) [1992] F.C.J. No. 1000 at paragraph 15 (C.A.) (tab 5,
Authorities), which was relied upon by counsel for Mr. Zundel on this point
about the detention decision. Counsel had argued as follows on September 14,
2004 with respect to the Arthur decision:
The test set out by the Federal Court of Appeal is in
paragraph 15 of the judgment, my lord. Paragraph 15 says:
"The most accurate statement of the law would thus
appear to be that the mere fact of a second hearing before the same
adjudicator, without more, does not give rise to reasonable apprehension of
bias, but that the presence of other factors indicating a predisposition by
the adjudicators as to the issue to be decided on the second hearing may do
so. Obviously one consideration of major significance will be the
relationship of the issues on the two hearings, and also the finality of the
second decision. If, for instance, both decisions are of an interlocutory
character, such as two decisions on detention, it may be of little
significance that the matter in issue is the same, but where the second
decision is a final one as to a claimant¡¦s right to remain in the
country, the avoidance of a reasonable apprehension of bias may require
greater distinction in the issues before the tribunal on the two
occasions."
Applying that to this case, my lord, what your lordship
appeared to decide in January was the same issue as will be decided in the
final hearing, i.e., issues of whether Mr. Zundel is a danger to national
security. I refer not to the words in [the Act], but to our lordship¡¦s
finding that Mr. Zundel is a danger to national security, because those are
the words that your lordship used. When you look at the issues, your
lordship appeared to prejudge the ultimate issue.
With respect to the finality of the second decision, the
decision here could not be more final. It is a final decision not subject to
appeal, not subject to judicial review, and it is a final decision as to the
claimant'¦s right to remain in the country.
Based on the factors considered in the Arthur case,
respectfully I say, Mr. Zundel meets the test and there is a reasonable
apprehension of bias by virtue of your lordship's findings and paragraph 15
of the Arthur case."
Transcript, September 14/04 p. 5574-6
36. When counsel was making submissions on September 14,
2004 about prejudgment based on the January 21, 2004 detention decision,
Justice Blais interrupted to express his concerns about the length of
counsel's oral submissions, as follows:
Counsel: "I respectfully submit that you thus appeared
to decide more than the final decision, which only requires that you find
that the certificate is reasonable. In fact, you appeared to pronounce that
Mr. Zundel was actually a danger to the security of Canada partway through
Mr. Zundel's response. Since that finding the Crown has not presented any
further public evidence against Mr. Zundel.
The findings on this are very clear in the January 21
decision. I have quoted them accurately."
The Court: "I should advise you that you are already
running out of time. We had two hours for the motion, and you have spent
more than an hour now. You should be aware of that because you are reading
from your notes. We know the Detention Order. It has been rendered, and it
is there. You don¡¦t have to read your paragraphs. This is not the way we
do it, and you probably know that, given the time we have. It has already
been mentioned at least twice that we had two hours for this."
Mr. Lindsay: "We also said that it would probably take
half a day at one point. My lord, it is somewhat ironic and troubling that,
when I am suggesting to your lordship that you prejudged the entire case,
the response I get is, 'Oh, you are touching on your time limit now.'"
The Court: "I am sorry, I just told you again, you are
spending your time on matters that are not relevant.
Mr. Lindsay: "It is relevant to the appearance of
justice." (Emphasis added)
Transcript, September 14/04 pp. 5570-1
It is the Appellant's respectful position that an allegation
of apparent prejudgment is obviously relevant to a recusal motion based on
an allegation of a reasonable apprehension of bias.
(ii) Scope Allowed to Crown in Presentation of Its Evidence
37. It is the Appellant¡'s position 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
and that Justice Blais erred in failing to so find.
38. In particular, it is the Appellant¡¦s position that
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.
39. For example, the "evidence"¨ presented by the
Minister and the Solicitor General and allowed by Mr. Justice Blais in the
public part of this hearing consists of zero witnesses. The Crown instead
submitted 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" was unsworn hearsay which was 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. His Lordship did not even address the successful objection, and
the apparent inequity it showed, in his reasons for refusing to recuse
himself. Instead, His Lordship simply made general comments about hearsay at
paragraph 24 and 25 of his reasons, without addressing the issue of a lack
of appearance of even-handedness with respect to evidence.
Transcript, July 28/03 p. 451
40. At times, the source of the documents in the 5 volumes
presented by the Minister and the Solicitor General was not even 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. His Lordship did not even
address this complaint in his reasons for refusing to recuse himself.
Transcript, September 23/03, p. 1149-51
41. 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 Adolf
Hitler's view on inter-racial marriages (which Justice Blais indicated was
an "important question") His Lordship did not even address this
complaint in his reasons for refusing to recuse himself.
Transcript, July 29/03, p. 765-8
42. 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 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. His Lordship did not
even address this complaint in his reasons for refusing to recuse himself.
Transcripts, May 9/03 pp. 50, 52, 53, 55; July 28/03 pp.
511-2, 513-5
(iii) Restricted Scope Allowed Mr. Zundel in Presentation of
His Evidence
43. On the other hand, it is the Appellant's position that
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. It is the Appellant's position that
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 and His
Lordship erred in failing to so find.
44. 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.
Transcript, Feb 9/04 pp. 2843-56
45. As another example, 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.
Transcript, Jan 26/04, pp. 2508-15
46. 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) (Apr
14/04 pp. 3813-4)
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. His Lordship addresses
this point by quoting (at paragraph 26 of His Lordship's decision) a small
section of transcript, as if the Crown and His Lordship's misstatement of
the questioning and interference with it had never occurred. (Apr 14/04 pp.
3812-37). It is the Appellant's position that reading the entire section of
transcript shows the extraordinary level of interference with
cross-examination.
47. 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' 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 effectively amid Justice Blais' interference.
48. 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". His Lordship did not even address this complaint
in his reasons for refusing to recuse himself.
Mr Justice Sopinka et al., The Law of Evidence in Canada, p.
909-910, tab 2, Authorities Transcript, November 7, 2003, p. 1616
49. Subsection 78(b) of IRPA stipulates that otherwise
pertinent information should not be disclosed to the Appellant 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, which keeps too much evidence secret from the Appellant and
his counsel, was applied over the Appellant's counsel's objection. His
Lordship did not even address this complaint in his reasons for refusing to
recuse himself. This mistake has happened at least nine times, always to the
detriment of open justice and the Appellant.
Re Zundel [2004] F.C.J. No. 7 at para 24(T.D.), tab 19,
Authorities Transcripts, Jan 22/04, p.2304; Jan 27/04 pp.2689-90, p. 2714;
Feb 12/04, p.2990; Apr 13/04, p. 3539; Apr 14/04, pp. 3719, 3730, 3758 (See
Adjei v. Canada (Minister of Employment and Immigration) [1989] F.C.J. No.
67 (F.C.A.), tab 4, Authorities)
50. Based on "national security", Justice Blais
made a wholesale advance ruling that the Appellant¡¦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 the Appellant. 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. His Lordship did not even address this complaint
in his reasons for refusing to recuse himself.
Transcripts, Feb 12/04 p. 2991; Jan 23/04 p. 2407; Jan 26/04
p. 2603-5
51. Following the above ruling, the Court then disallowed,
on the ground of national security, all questions whether CSIS has any
unclassified evidence that the Appellant 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 the Appellant, namely, that he
perpetrates terrorism not by his personal acts, but by inspiring people in
the white supremacist movement.
Transcript, Apr 14/04 p. 3809-12
52. Justice Blais also 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?"
Transcript, Apr 14/04 p. 3800
53. Counsel made submissions on the refusal to permit this
question to be asked, in arguing the recusal motion, as follows:
"On the one hand, you will allow questions to be asked
about [Zundel¦s] view about Hitler's view about interracial marriage. On
the other hand, I can't ask a question about whether CSIS has unclassified
information on Zundel's involvement in violence or acts of terrorism.
At the next paragraph, I am also not allowed to ask a simple
question of Mr. Stewart:
'Limiting yourself to the unclassified information, are you
able to point to one example of political violence inspired by Zundel?'
This is at the heart of the case. This is not some
tangential issue about interracial marriage. This is central to the case.
Respectfully, I say, the appearance of a double standard
with respect to evidence could not be clearer than when you say, on the one
hand, questioning about Hitler's view of interracial marriage is important,
but we won'¦t let you even ask:
'Limiting yourself to the unclassified information, are you
able to point to one example of political violence inspired by Zundel?
'"¨ (Sept 14/04, p. 5580-1)
His Lordship did not specifically address this complaint in
his reasons for refusing to recuse himself, except to suggest at paragraph
27 of his reasons that the reason for not allowing the question was that the
evidence was already before the court. The Appellant has two responses.
First, national security was also cited. Second, the idea expressed by the
Court that it is not up to the witness to start "delving into" the
evidence before the Court is just plain wrong.
54. These lines of inquiry are central to challenging the
heart of CSIS' case against the Appellant. 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 went to the heart of the Crown's case
against the Appellant, which is perpetration of terrorism through others.
When they were disallowed, the Appellant's right to a fair hearing and the
entire fact finding process were both devastated. It is the Appellant's
position that such judicial conduct gives rise to a reasonable apprehension
of bias and His Lordship erred in failing to so find.
55. Justice Blais' advance ruling , referred to at paragraph
50 above, came after His Lordship 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 CSIS agent (produced only when compelled by Mr. Zundel by way of
contested motion), crippled Mr. Zundel's counsel's ability to probe the
Crown's evidence and gave rise to a reasonable apprehension of bias. It is
Mr. Zundel's position that His Lordship erred in failing to so find. His
Lordship did not even address this complaint in his reasons for refusing to
recuse himself.
Transcript Feb 12/04 pp. 2960, 2964, 2965
56. 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 the Appellant's
position that such working conditions were patently unfair to Mr. Zundel's
counsel, irreparably compromised the fact finding process and gave rise to a
reasonable apprehension of bias. His Lordship failed to so find. His
Lordship did not even address this complaint in his reasons for refusing to
recuse himself.
(iv) Appearance of Different Treatment of the Crown (and its
witnesses) and Mr. Zundel (and his counsel and witnesses)
57. 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. The Appellant's position is that 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. His Lordship did not even address this complaint
in his reasons for refusing to recuse himself.
Transcripts, Sept 24/03 p. 1323; Nov 6/03 p. 1383; Jan 23/04
p. 2388; Jan 26/04 p. 2519-20; Feb 9/04 pp. 2776, 2840, 2856, 2889-90, 2903,
2919-21; Apr 13/04 p. 3653; April 14/04, p.3681; Apr 30/04 p. 4291
58. As will be discussed below, 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.
Transcript, July 27, 2004
59. 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"
during cross-examination.
Transcripts, Jan 23/04 p. 2409; Feb 9/04 p. 2919
60. In two separate written rulings, Justice Blais has
erroneously said that Mr. Zundel's counsel did not make certain submissions
at all, when counsel clearly made exactly those submissions, in great
detail. His Lordship did not even address this complaint in his reasons for
refusing to recuse himself.
Transcripts Dec 11/03 p. 2052-60; Apr 30/04 pp. 4257-60,
4265-72, 4281-84, 4289-96; Order dated Jan 6/04, para. 25, tab 19,
Authorities Order dated June 23/04, paragraph 21, tab 10, AB
61. It is the Appellant's position that, 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 requested accommodation of schedule to enable him to
return home earlier to his wife, Justice Blais complained and said
"this is nonsense". (July 27/04 p.4956)
Transcripts Jan 23/04 pp. 2315-8, 2426; Jan 26/04, pp.
2667-9; Feb 9/04 pp. 2945-7; Feb 12/04 pp. 3175-9; Feb 18/04, pp. 3184-5;
Feb 19/04 pp. 3495-8; July 27/04 p.4956
(v) Events on July 27, 2004
62. Mr. Justice Blais failed to find that His Lordship's
comments on July 27, 2004, 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 are set out below, gave rise to a reasonable apprehension of bias.
63. Mr. Christie is the Appellant's former lawyer. He had
also had personal non-solicitor-client contact with the Appellant for many
years. He was able to testify about the Appellant's degree of interaction
with many people. He said so without talking about solicitor-client matters
between himself and the Appellant, as can be seen from the following
exchange early in the examination in chief of Mr. Christie.
Q. "I think it is fair to indicate this to the witness.
My Lord. There has been some discussion about the issue of solicitor-client
privilege and waiver. His Lordship has heard some submissions on that, and I
think it is fair to say has not made a Ruling at this point but is
considering that issue in an ongoing fashion. For this purposes, Sir, in
Examination-in-Chief, I am not going to ask you to refer to solicitor-client
communications between yourself and Mr. Zundel, and I am not going to ask
you to use that in any way in your answers in the Examination-in-Chief. Is
that fair to say, Sir?"
A." I understand, yes. Thank you."
Q. "And you will follow that Direction, Sir?"
A. "I will."
Transcript July 27, 2004 p. 4874-75
64. In particular, it is the Appellant's position that Mr.
Justice Blais erred in failing to find that the following events during Mr.
Christie's evidence gave rise to a reasonable apprehension of bias:
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 (Jan 23/04 p. 2409; Feb 9/04 p. 2919),
His Lordship interrupted the examination-in-chief of Mr. Christie to
sarcastically ask Mr. Christie the following about the certificate summary,
which document had already been identified by Mr. Christie:
"Do you know that this is the certificate
summary?" (July 27/04 pp. 4949-50)
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. (July 27/04 pp.
4879-80)
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?" (July 27/04 p. 4950)
C. His Lordship then incorrectly stated that Mr. Christie
had testified that "he [Mr. Christie] never discussed Mr. Tom Metzger
with Mr. Zundel.¨ (July 27/04 p. 4950) In fact, Mr. Christie had just
testified that Mr. Zundel "told me things about Mr. Metzger that
reflected his views." (July 27/04 p. 4949) His Lordship does not even
address this complaint in his reasons for refusing to recuse himself.
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..."¨.
(July 27/04 p. 4951) His Lordship does not even address this complaint in
his reasons for refusing to recuse himself.
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: " 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) (July 27/04 pp. 4952-55)
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
different story given later was one that Mr. Zundel's counsel now may want
to suppress, thereby denigrating Mr. Zundel's counsel needlessly. His
Lordship also suggested that, unless Mr Zundel waived solicitor/client
privilege, "who cares"¨ about Mr. Christie¡¦s evidence. In
fact, His Lordship did not even address the specific complaints in this
paragraph in his reasons for refusing to recuse himself.
Transcripts, Jan 23/04 p. 2409; Feb 9/04 p. 2919; July 27/04
pp. 4949-4950
(vi) Actions with respect to this Recusal Motion
65. It is the Appellant's position that His Lordship's
expressed attitude toward the recusal motion related to this appeal also
gave rise to a reasonable apprehension of bias in favour of the Crown.
66. 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.
Transcript Aug 6/04 p. 24
67. When the Crown indicated that it could
"definitely" respond to the motion by August 9, 2004 (Aug 6/04 p.
15), His Lordship instead gave the Crown until August 20, 2004 to respond
(Aug 6/04 p. 25). 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."¨ (July 27/04 p. 4956).
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. In fact, the Court said to Crown counsel: "I appreciate your
suggestion", although the Court did not accede to the suggestion. (Aug
6/04 p. 32-33)
68. 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 (Aug 6/04 p. 25),
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. The Court in its decision on recusal then
complained (at paragraph 36) of the motion "loom[ing] in the background
as a tool of leverage, coercing the judge to rule in your favour."
(emphasis added). It is the Appellant's position that such a comment is (a)
factually wrong, since the motion was brought returnable on August 9, 2004
and only "loomed" because of His Lordship's ruling that it would
be only entertained on September 14, 2004 and (b) demonstrates a concern
that the judge is simply attacking counsel rather than ruling judicially on
a motion. A similar concern is raised by other comments of His Lordship at
paragraphs 35 and 36 of his reasons.
Order and Reasons of Justice Blais dated September 24, 2004
on recusal, tab 2, AB
69. 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 (Aug 6/04 pp. 23-4), 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. (July
30/03 p. 853)
70. 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 (Aug 6/04 pp. 23-4). This
suggestion was first made in a ruling, without even giving counsel an
opportunity to make submissions on the point. Such gratuitous negative
comments toward Mr. Zundel's defence only give rise to a further reasonable
apprehension of bias and the Appellant's position is that His Lordship erred
in failing to so find.
71. It is the Appellant's position that Justice Blais'
comment about the lack of an affidavit is also incorrect. Rule 363 of the
Federal Court Rules provides in part as follows:
Evidence on a Motion: A party to a motion shall set out in
an affidavit any facts to be relied upon by that party in the motion that do
not appear on the Court file.
The court file contains every single transcript of this
particular proceeding, and the facts to be relied upon by the party on the
motion are all in the Court file in the transcript materials. The motion
entirely complied with rule 363 because it was based on the transcripts.
Transcript, September 14, 2004 p. 5567-9
PART II - STATEMENT OF THE POINTS IN ISSUE
72. The points in issue in this appeal are as follows:
- What is the appropriate standard of review with respect to
the lower Court¡¦s decision on the recusal motion?
- Did the Court's ruling on January 21, 2004 create a
reasonable apprehension of bias?
- Did the broad scope allowed by the Court to Crown in
presentation of its evidence create a reasonable apprehension of bias, when
contrasted with the restricted scope allowed by the Court to the Appellant
in presentation of his evidence?
- Did the appearance of different treatment of the Crown
(and its witnesses) and Mr. Zundel (and his counsel and witnesses) create a
reasonable apprehension of bias?
- Did the events on July 27, 2004 with respect to Mr.
Christie's evidence create a reasonable apprehension of bias?
- Did the Court's actions with respect to this recusal
motion create a reasonable apprehension of bias?
PART III - SUBMISSIONS OF LAW (i) Statutory Basis of this
Appeal
73. This is an appeal from a decision of Mr. Justice Blais
of the Federal Court pursuant to subsection 27(1) of the Federal Court Act.
Federal Court Act, R.S.C. 1985, c. F-7, as amended, tab 1,
Authorities
(ii)The Standard of Review at the Appellate Level
74. An appellate court has no authority to interfere with a
discretionary decision such as a decision on a recusal motion, unless it can
be demonstrated that the judge below failed to give sufficient weight to all
relevant considerations. However, the basic interests of justice militate in
favour of a broader scope of review in an appeal related to a bias motion,
given the serious and sensitive issues raised by an allegation of bias. It
has long been determined that the courts should be held to the highest
standards of impartiality.
Reza v. Canada [1994] 2 S.C.R. 394 at para. 20, tab 20,
Authorities R. v. (D.S.) [1997] 3 S.C.R. 484 at paras. 93, 102, tab 16,
Authorities
75. Alternatively, it will be sufficient to demonstrate that
the judge below either erred in principle or based the decision upon an
unreasonable finding. MacKinnon v. MacKinnon [2001] P.E.I.J. No. 101 at para
4 (S.C.A.D.)
76. It is respectfully submitted that there are sufficient
grounds for interfering with Justice Blais' decision. It is respectfully
submitted that Justice Blais failed to give sufficient weight to all
relevant considerations. For example, as set out above, His Lordship failed
to even acknowledge the existence of many of the Appellant's arguments, let
alone given them sufficient weight in his consideration. It is also
respectfully submitted that Justice Blais also made errors in principle,
such as not following or distinguishing or even addressing this court¦s
decision in Arthur. It is also respectfully submitted that Justice Blais
also made unreasonable findings. For example, Justice Blais himself delayed
the recusal motion by over one month and then complained about the motion
looming in the background as a possible tool to coerce the judge. (iii) The
Approach to Allegations of a Reasonable Apprehension of Bias
77. It has long been settled as a principle of law that the
threshold for a determination of judicial bias is high. R. v. R (D.S.)
[1997] 3 S.C.R. 484 at para. 113, tab 16, Authorities
78. While bias is generally said to describe a leaning or
inclination towards one side or a particular result, the test will be an
objective one. The person considering the bias must be reasonable and
informed, and the apprehension of bias must itself be reasonable. Committee
for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R.
369 at para 17, tab 6, Authorities
79. It will not be sufficient to demonstrate a mere
suspicion of bias. Instead, the applicant will be required to show that
there is a real likelihood or probability that such bias exists. R. v. R.
(D.S.), supra. at para 112, tab 16, Authorities (iv.) Application to this
Case
80. It is respectfully submitted that Justice Blais appeared
to pronounce that Mr. Zundel was actually a danger to the security of
Canada, part way through Mr. Zundel's response. It is respectfully submitted
that this order gives rise to a reasonable apprehension of bias, and Justice
Blais both did not give sufficient (or any) weight to this Court's decision
in Arthur and erred in principle in failing to find a reasonable apprehenson
of bias. Arthur v. Canada (Minister of Employment and Immigration) [1992]
F.C.J. No. 1000 at p. 9-10 (F.C.A.), tab 5, Authorities de Freitas v. Canada
(Minister of Employment and Immigration) [1989] F.C.J. No. 52 (F.C.A.), tab
7, Authorities Pacificador v. Canada (Minister of Citizenship and
Immigration) [2001] F.C.J. No. 684 at p. 17 (F.C.), tab 14, Authorities
Mitsui & Co. Ltd. v. Jones Power Co., [2001] N.S.J. No. 271 at paras.
69-70 (N.S.C.A.), tab 13, Authorities
81. It is respectfully submitted that such a reasonable
apprehension of bias in favour of the Crown has been shown by the examples
given earlier of (a) the different scope allowed to the Crown and the
Appellant, respectively, in their presentation of evidence; (b) the
appearance of different treatment of the Crown (and its witnesses) and the
Appellant (and his counsel and witnesses); and (c) His Lordship's actions
with respect to this recusal motion.
82. It is respectfully submitted that the Appellant has not
had the opportunity to be heard in a fair and equitable manner and to
examine witnesses and bring out evidence that he believed to be important
and necessary for his case. That justifies intervention by this Honourable
Court, as does Justice Blais' excessive intervention in the questioning of
witnesses such as the cross-examination of David Stewart of CSIS. These
problems gave rise to a reasonable apprehension of bias and to reviewable
error. His Lordship failed to recognize such problems. Del Castillo v.
Canada (Minister of Employment and Immigration) [1994] F.C.J. No. 538 at p.
4 (F.C.), tab 8, Authorities James v. Canada (Minister of National Revenue)
[2000] F.C.J. No. 2135 at p. 11-12 (F.C.A.), tab 11, Authorities
83. It is respectfully submitted that Mr. Justice Blais'
very strong negative comments on July 27, 2004, during the early
examination-in-chief of the Appellant's witness Doug Christie, about the
alleged lack of value of Mr. Christie's evidence, gave rise to a reasonable
apprehension of bias and that Mr. Justice Blais erred in failing to so find.
R v Hossu [2002] O.J. No. 3087 (C.A.), tab 15, Authorities
84. It is respectfully submitted that a full and fair review
of this hearing leaves a cumulative impression of the existence of a
reasonable apprehension of bias, which is the appropriate test. It is
respectfully submitted that Justice Blais erred in failing to so find.
Setlur v. Canada (Attorney General) [2000] F.C.J. No. 1945 (F.C.A.) at p. 7,
rev¡¦g [1999] F.C.J. No. 228 (F.C.), tab 21, Authorities
PART IV - ORDER SOUGHT
85. The Appellant respectfully submits that this appeal
should be granted and
(1) that the Order be set aside;
(2) that this Honourable Court issue an order recusing Mr.
Justice Blais on grounds of reasonable apprehension of bias; and
(3) that this Honourable Court order such further and other
relief as it deems just.
DATED at Toronto, this 4th. day of November, 2004.
______________________________
______________________________ Peter Lindsay Chi-Kun Shi
Counsel for the Respondent
PART V - LIST OF AUTHORITIES
Tab Description
1. s. 27(1), Federal Court Act, R.S.C. 1985 c. F-7 as
amended
2. John Sopinka, The Law of Evidence in Canada, pages
909-910
3. The Honourable Justice James K. Hugessen, Watching the
Watches: Democratic Oversight
4. Adjei v. Canada (Minister of Employment and Immigration)
[1989] F.C.J. No. 67
5. Arthur v. Canada (Minister of Employment and Immigration)
(C.A.) [1993] F.C. J. 1000
6. Committee for Justice and Liberty v. Canada (National
Energy Board) [1978] 1 S.C.R. 369
7. de Freitas v. Canada (Minister of Employment and
Immigration) (F.C.A.) [1989] F.C.J. No. 52
8. Del Castillo v. Canada (Minister of Employment and
Immigration) [1994] F.C.J. No. 538
9. Jaballah v. Canada [1999] F.C.J. No. 1681 (T.D.)
10. Jaballah, Re [2003] F.C.J. No. 822 (T.D.)
11. James v. Canada (Minister of National Revenue - M.N.R.)
[2000] F.C.J. No. 2135
12. Mackinnon v. MacKinnon [2001] P.E.I.J. No. 101 2001
13. Mitsui & Co. (Point Aconi) Ltd. V. Jones Power Co.
[2001] N.S.J. No. 271
14. Pacificador v. Canada (Minister of Citizenship and
Immigration) [2001] F.C.J. No. 684
15. R. v. Hossu [2002] O.J. No. 3087
16. R. v. R.D.S. [1997] 3 S.C.R. 484
17. Re: Zundel [2003] F.C.J. No. 1361
18. R. v. Zundel, Reasons for Order and Order ofJustice
Blais dated December 17, 2003 re recusal [2003] F.C.J. 1879
19. Re Zundel [2004] F.C.J. No. 7
20. Reza v. Canada [1994] 2 S.C.R. 394
21. Setlur v. Canada (Attorney General) [2000] F.C.J. No.
1945
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