The Zundelsite - COURT OF APPEAL FOR ONTARIO

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APPELLANT'S FACTUM
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PART 1 - STATEMENT OF THE CASE

1. Mr. Zundel is an unpopular 64 year old permanent resident of Canada with
no history of violence, no criminal record and no outstanding criminal
charges against him in Canada. A certificate has been issued by the
Minister of Citizenship and Immigration and the Solicitor General of Canada
certifying Mr. Zundel to be a danger to the security of Canada. As a
result, there are ongoing proceedings before Mr. Justice Blais of the
Federal Court of Canada (Trial Division) to determine whether the
certificate is reasonable. If it is found to be reasonable, Mr. Zundel
will be deported to Germany and likely jailed for denying the Holocaust.
While the proceedings before Mr. Justice Blais have dragged on for many
months, Mr. Zundel has been jailed in solitary confinement at the Toronto
West Detention Centre. The appropriateness of his detention had not even
been determined. Mr. Zundel challenged, by way of application for a writ
of habeas corpus ad subjiciendum and for a writ of certiorari in aid
thereof, the constitutionality of sections of the Immigration and Refugee
Protection Act (the "Act"), S.C. 2001, C. 27 (as amended), under which (a)
the certificate was issued (b) he was arrested and (c) the proceedings
before Mr. Justice Blais are occurring. His application was heard by Madam
Justice Benotto of the Superior Court of Ontario, who ruled that (a) the
application should be stayed pursuant to s. 106 of the Courts of Justice
Act and (b) in any event, section 7 of the Charter was not even engaged by
the process against Mr. Zundel. Mr. Zundel appeals that decision to this
Honourable Court.

1. This case is about much more than the notorious Mr. Zundel. The very
serious and important question to be answered in this case is as follows:
In these times of prevalent concerns about security and terrorism, to what
degree will we undermine our most cherished principles of fairness and
justice in our free and democratic society in order to allegedly protect
society from perceived threats? Will we ensure that such principles are
undermined as little as reasonably possible?

United States v. Robel (1967), 389 U.S. 258 at page 8 (U.S.S.C.)

PART 2 - THE FACTS

1. Mr. Zundel is a 64 year old permanent resident of Canada who started
living in Canada in 1958. Mr. Zundel has never been involved in any
violence. Mr. Zundel has no criminal record in Canada and faces no
outstanding criminal charges in Canada. Mr. Zundel has faced repeated
unsuccessful prosecutions for expressing his unpopular views about the
Holocaust. He has received death threats. There have been documented
attempts to kill him, including an incident in which his house was largely
destroyed by arson and an incident in which a pipe bomb was sent to him by
mail.

Zundel Affidavit, paras. 2, 4-49, Appeal Book and Compendium ("ABC"),
tabs 35, 36, pages 247-259
Exhibits 23, 24, 31 to Zundel Affidavit, ABC, tabs 24-26, pages 114-117

1. In 2000, Mr. Zundel moved to the United States. Mr. Zundel 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. In fact, 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 Mr. Zundel was arrested. There was no allegation that Mr. Zundel had
been involved in any illegal or terrorist activities in the United States
or elsewhere.

Zundel Affidavit, paragraphs 49- 50, ABC, tab 37, page 262
Transcript dated July 28, 2003, pages 438-9, 451, 478, ABC, tab 9, pages
58-61

1. The Minister of Citizenship and Immigration (the "Minister") detained
Mr. Zundel in custody from February 19, 2003 until May 1, 2003, when the
Solicitor General of Canada (the "Solicitor General") and the Minister
signed a certificate (the "Certificate") declaring Mr. Zundel, a permanent
resident of Canada, as inadmissible to Canada on grounds of security for
reasons described in paragraphs 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 Mr.
Zundel, a permanent resident, named in the Certificate.

Certificate and Warrant dated May 1, 2003, ABC, tabs 32, 33, pages 232-3

6. In May, 2003, the Honourable Mr. Justice Pierre Blais, P.C. of the
Federal Court of Canada (Trial Division) thereafter began proceedings
reviewing the reasonableness of the Certificate pursuant to sections 77(1),
78 and 80 of the Act. The proceedings before Mr. Justice Blais have taken
place on a number of dates.

7. The review of Mr. Zundel's detention pursuant to section 83 of the Act
has been considered by Mr. Justice Blais, and has stretched on for more
than six months without any determination about his detention (or possible
release on bail) being made. (It is interesting to note that from about
1985 to 1992, Mr. Zundel was on various bail orders for his "false news"
case and followed all of those orders.) The evidence was concluded on the
detention issue as of November 7, 2003. The defence made its submissions
on that date, immediately after the conclusion of the evidence. The matter
was then adjourned for over one month to December 10, 2003, for the Crown
to make its submissions on the continuing detention of Mr. Zundel. By that
date, Mr. Zundel had been in custody for almost ten months without charge.

Zundel Affidavit, paragraph 23 and 25, ABC, tab 36, pages 252-3
Exhibit 16, Zundel Affidavit, ABC, tab 23, pages 103-113

8. Mr. Zundel has remained and still remains in custody for many months in
solitary confinement at the Toronto West Detention Centre as the
proceedings before Mr. Justice Blais continue. Mr. Justice Blais expressed
the view that the Act requires that he must resolve the detention issue
within six months, but his Lordship did not do so.

Transcript dated November 7, 2003, pages 1506-1507, ABC, tab 21, pages
99-100

9. The "evidence" presented by the Minister and the Solicitor General at
the proceedings before Mr. Justice Blais 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. Interestingly, the Minister and
Solicitor General successfully objected when Mr. Zundel called an actual
witness who referred to hearsay.

Transcript of Proceedings on July 28, 2003, page 451, ABC, tab 10, page 63

10. 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.

Transcript dated September 23, 2003, pages 1149-1151, ABC, tab 18, pages
89-91

11. The quality of the evidence in the documents sometimes goes like this:

Mr. Zundel allegedly had "sporadic contacts" with a now-dead U.S. based
white supremacist named William Pierce (date, time, place and nature of
contacts unspecified). Pierce wrote a book called "The Turner Diaries" (no
suggestion that Mr. Zundel had anything to do with writing the book).
Timothy McVeigh loved "The Turner Diaries", which it supposedly describes a
bombing similar to the Oklahoma city bombing in 1995, for which McVeigh was
convicted (no evidence that Mr. Zundel ever had contact of any kind with
Mr. McVeigh). This supposedly links Mr. Zundel to violence or terrorism.

Exhibit 4, Lee affidavit, ABC, tab 29, pages 226-227
Transcript dated July 28, 2003, pages 511-517, ABC, tab 11, pages 65-71

12. The majority of the proceedings before Mr. Justice Blais has consisted
of a lengthy cross-examination of Mr. Zundel, which could be described as
"wide-ranging". That cross-examination took up part or all of six days.
Among the many different topics discussed were far-ranging things such as
Mr. Zundel's view of Adolf Hitler's view of interracial couples, which Mr.
Justice Blais indicated was an important question.

Transcript dated July 29, 2003, pages 765-766, ABC, tab 13, pages 76-77

13. No vive voce or affidavit evidence has been presented by the Minister
or the Solicitor General in the public part of the proceedings before Mr.
Justice Blais.

14. Information and/or evidence has been secretly presented to Mr. Justice
Blais in the absence of Mr. Zundel and his counsel, which information
and/or evidence may be used according to the Act to determine both whether
Mr. Zundel should continue to be detained and whether the issuing of the
Certificate was reasonable. Where secret information and/or evidence has
been presented to Mr. Justice Blais, sometimes a summary has been given to
Mr. Zundel and his counsel and sometimes no summary of the information
and/or evidence has been made available to Mr. Zundel and his counsel, even
though the information and/or evidence may be used according to the Act
both to determine whether Mr. Zundel should continue to be detained and
whether the issue of the certificate is reasonable.

Section 78(e) and (h) of the Act
Exhibits 5, 6, Lee Affidavit, ABC, tabs 30, 31, pages 228-231
Transcript dated July 30, 2003, pages 887-888, ABC, tab 14, pages 79-80
Transcript dated September 23, 2003, page 1007, ABC, tab 16, page 84
Transcript dated September 23, 2003, pages 1058-1059, ABC, tab 17, pages
86-87

15. If the Certificate is held to be reasonable, Mr. Zundel will be
deported to Germany and would be subject to being prosecuted and jailed for
questioning the Holocaust, despite already being unsuccessfully prosecuted
many times in Canada for similar activities, such as the time when the
Supreme Court of Canada struck down the "false news" law under which he was
being prosecuted as violating his right to freedom of expression in R. v.
Zundel (1992), 75 C.C.C. (3d) 449 (S.C.C.).

16. If Mr. Zundel is deported to Germany, he will likely be prosecuted and
will likely go to jail each time he questions the Holocaust in the above
manner. In fact, there is already an outstanding warrant in Germany for
past such alleged behaviour and the German Federal Criminal Police Office
has already specifically offered to pick Mr. Zundel up in Canada on "very
short notice" of his deportation and take him back to Germany at Germany's
expense. The German warrant, in justifying why a warrant was issued, says
that Mr. Zundel "must expect imposition of a considerable prison sentence."

Zundel Affidavit, para 51, ABC, tab 36, page 259
Exhibit 34 to Zundel Affidavit, ABC, tab 27, pages 118-122
Exhibit P-12, November 7, 2003, ABC, tab 34, pages 234-246

17. Madam Justice Benotto ruled that (a) the application should be stayed
pursuant to section 106 of the Courts of Justice Act and (b) in any event,
section 7 of the Charter was not even engaged by the process against Mr.
Zundel. Mr. Zundel appeals that decision to this Honourable Court.

Reasons for Judgment, ABC, tab 3, page 14

PART 3 - ISSUES AND THE LAW

18. There are a number of issues in this appeal, including the following:

A. What is the relationship between the Constitutional issues pertaining
to the detention review, certificate review and the Respondent's section
106 motion?

B. Which Court has jurisdiction over the constitutional issues in this case?

C. Should the Superior Court have assumed jurisdiction over a case such as
this case?

D. What is the statutory scheme under the Act and how does it work?

E. What problems of unfairness and injustice are created by the Act?

F. What Charter protection applies to proceedings under the Act?

G. What Charter violations have occurred in this case?

H. Can any Charter violations be justified under section 1 of the Charter?

I. What remedies does habeas corpus provide?

A. Relationship of Constitutional Issues Pertaining to Detention Review,
Certificate Review and the Respondent's section 106 Motion

19. The constitutional issues pertaining to the process for determination
of the reasonableness of the Certificate and the process for review of Mr.
Zundel's detention overlap substantially, because both processes are
governed by the same procedural and evidentiary provisions contained in
section 78 of the Act.

20. The issues pertaining to the Respondent's motion to stay this
application pursuant to section 106 of the Courts of Justice Act also were
interwoven with the constitutional issues about the Certificate review and
detention review, given that, as will be shown later in this factum (see
paragraphs 23, 25-27 below), the motion for a stay turned on whether it
could be shown that the review and appeal processes under the Act (and
other Federal Court remedies) were less advantageous to Mr. Zundel than the
habeas corpus jurisdiction of this Honourable Court.

B. Which Court has Jurisdiction Over the Constitutional Issues In This Case?

21. It was common ground at the Superior Court of Ontario that Mr. Justice
Blais, being the designated judge in the proceedings under the Act, simply
does not have the authority to decide constitutional issues. The
designated judge's sole function is to decide whether the Certificate is
reasonable. Mr. Zundel was thus seeking to have the Superior Court rule on
constitutional issues over which Mr. Justice Blais simply did not have
jurisdiction.

Canada (Immigration) v. Mahjoub (2001),199 F.T.R. 190 at page 2 (T.D.)

22. It was also common ground at the Superior Court that habeas corpus
relief is not available to Mr. Zundel in the Federal Court in this case,
nor was an application possible to challenge the constitutionality of
sections of the Act.

Section 18(2) of the Federal Court Act
Rules 61 and 300 of the Federal Court Rules, 1998
Poirier c. Centre federal de Formation (1988), 26 F.T.R. 215 (T.D.)

23. The Respondent has suggested that Mr. Zundel has a remedy in the
Federal Court - to bring an action in that Court. One of the problems with
that suggestion is that it would likely take years to bring such an action
to trial. For example, based on the current trial listings in the Federal
Court of Canada, the average length of time which it takes for an action to
get to trial is 5.7 years from when the action is commenced. Since Mr.
Zundel is in custody, such delay made the habeas corpus application, which
was heard on November 18-19, 2003, a much more advantageous route. The
calculation of the delay associated with bringing a Federal Court action to
trial comes from averaging the age of all the matters listed for trial in
the Federal Court of Canada sittings in 2003-2004.

Zundel Affidavit, para. 52, ABC, tab 39, pages 264-265
Exhibit 35, Zundel Affidavit, ABC, tab 28, page 123

24. The Respondent acknowledged in its factum at the Superior Court that
there is concurrent jurisdiction between the Federal Court and the Superior
Court where, as here, the Applicant is seeking to challenge the
constitutionality of legislation or where the Applicant seeks a Charter
remedy.

C. Should the Superior Court Have Assumed Jurisdiction Over a Case Such as
This Case?

25. A long line of cases from this Honourable Court and the Supreme Court
of Canada has held that "unless it could be shown that the review and
appeal process [ in the Federal Court] was less advantageous than the
habeas corpus jurisdiction, the Court should decline to exercise its
discretion to grant relief".

Re Peiroo and Canada (Immigration) [1989] O.J. No. 805 at page 8 (C.A)
Shepherd v. Canada (Immigration) (1989), 70 O.R. (2d) 765 at pages 12, 13
(C.A.), application for leave to appeal to S.C.C dismissed December 4, 1989
Reza v. Canada [1994] 2 S.C.R. 394 at pages 5, 8

26. The issue of timing in the Federal Court versus the Superior Court was
specifically considered to be a factor affecting the relative effectiveness
of the two courts by the Court of Appeal for Ontario in another case.

Baroud v. Canada [1995] O.J. No. 43 at page 5 (C.A.), application for leave
to appeal to S.C.C. dismissed June 15, 1995.

27. It is thus submitted that, if it can be shown that the review and
appeal process under the Act is less advantageous than the habeas corpus
jurisdiction, the Superior Court should exercise its discretion to grant
relief on a habeas corpus application. That review and appeal process, with
respect to constitutional issues, is to bring an action in Federal Court,
which will take years. The timing of the remedy was specifically
considered by the Court of Appeal for Ontario in Baroud in relation to the
"less advantageous" test, and, based on the evidence of Federal Court delay
in bringing actions, strongly militated in favour of granting habeas corpus
relief in the Superior Court in this case.

28. It is respectfully submitted that the Superior Court judge erred in law
in declining to exercise that Court's jurisdiction over the within
application for a writ of habeas corpus ad subjiciendum and for a writ of
certiorari in aid thereof, and erred in law in staying the application
pursuant to section 106 of the Courts of Justice Act, R.S.O. 1990, Ch. C.
43, as amended.

29. It is respectfully submitted that the Superior Court judge erred in law
in failing to follow binding decisions by this Court in Re Peiroo, supra,
and Baroud, supra, which cases both held that the Superior Court should
exercise its habeas corpus jurisdiction where it is shown that the
available alternative review process in the Federal Court is less
advantageous than the Superior Court's habeas corpus jurisdiction.

30. It is respectfully submitted that the Superior Court judge erred in law
in failing to find, in the face of uncontradicted evidence that the
alternative Federal Court review process would take more than five years
longer than the habeas corpus application, that the Federal Court review
process was less advantageous than the habeas corpus jurisdiction of the
Superior Court, particularly when Mr. Zundel is in custody and is in
solitary confinement. It is respectfully submitted that the Superior Court
judge erred in law in finding that "the applicant has not met the test to
have this court assume jurisdiction".

(i) Why One Must Also Consider the Statutory Scheme Under the Act

31. The Respondent suggests that the comprehensive statutory scheme
provided by Parliament contemplates that these matters will be dealt with
by the Federal Court of Canada. That suggestion, coupled with the fact
that, on the issue of jurisdiction and the Respondent's section 106 motion,
the Court must consider how habeas corpus compares to the review and appeal
process under the Act, necessitates a detailed constitutional examination
of the statutory scheme under the Act.

32. It is also respectfully submitted that, should this Honourable Court
rule that Justice Benotto erred in staying proceedings, this Honourable
Court should examine the statutory scheme under the Act and rule on the
constitutional issue, as it is empowered to do by section 134(1) of the
Courts of Justice Act.

s. 134, Courts of Justice Act, R.S.O. 1990, Ch. C. 43, as amended

D. The Statutory Scheme Under the Act and How It Works

33. The Act, S.C. 2001, C.27, which primarily came into face on June 28,
2002, represents the first complete revision of immigration legislation in
Canada since 1978. It replaces the Immigration Act, R.S.C. 1985, C. I-2,
as amended. Section 3(3)(d) of the Act provides that the Act must be
construed to ensure that decisions under the Act are consistent with the
Charter.

Lorne Waldman, 2004 Canadian Immigration & Refugee Law Practice, pages
13, 291

34. Section 77 of the Act, who 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 Federal Court
for determination of whether it is reasonable. Section 78 of the Act sets
out the following provisions which "govern" the judge's determination.

35. 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).

36. 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 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).

(i) Relevant Provisions of the Act - Fairness and Natural Justice

37. Section 78(c) of the Act purports to inject "fairness" and "natural
justice" into the Certificate review and detention review proceedings. It
provides that "the judge shall deal with all matters as informally and
expeditiously as the circumstances and considerations of fairness and
natural justice permit".

(ii) Secret Proceedings Allowed by the Act

38. The principles of fairness and natural justice include the principle
that one party should not be allowed to give evidence to the decision maker
in the absence of the other party. The Supreme Court of Canada strongly so
held in the pre-Charter Kane v. University of British Columbia. It is worth
noting that the interests at stake for Kane (a 3 month suspension from his
job) are clearly less than those at stake for Mr. Zundel - deportation and
a real chance of going to jail.

Kane v. University of British Columbia [1980] 1 S.C.R. 1105 at pages 6-8

39. The principles of "fundamental justice" contained in section 7 of the
Charter clearly include principles of natural justice plus more, as found
by the Supreme Court of Canada.

Reference re Section 94(2) of the Motor Vehicle Act [1985] 2 S.C.R. 486
at pages 10-12.

40. Section 78(b) of the Act, which allows the judge 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.
It is respectfully submitted that Section 78(b) thereby denies the person
named in a certificate even the most basic entitlement to fairness,
natural justice and thus, based on the Reference re Section 94(2) of the
Motor Vehicle Act case, "fundamental justice".

41. Section 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". It is respectfully submitted that this provision
exacerbates the denial of fairness, natural justice and thus fundamental
justice. Such repeated secret proceedings have taken place in this case
(see paragraph 14 above).

42. Section 78(b) of the Act further allows the repeated secret proceedings
to occur "at any time during the proceedings", thereby, it is submitted,
further exacerbating the denial of fairness, natural justice and
fundamental justice. It is a fundamental principle of our adversarial
judicial system that one party presents its case fully and then the other
party responds, knowing the case it has to meet. What has happened in this
case is that after the Minister and Solicitor General presented their case
and while Mr. Zundel was in the middle of presenting his response, the
Minister and Solicitor General have secretly presented more of a case
against Mr. Zundel (see paragraph 14 above). The additional case being
presented is not limited to reply evidence. It is not limited at all. The
case can secretly change in any way while being responded to. Mr. Zundel
and his counsel do not know if it has changed in this case. Neither does
this Honourable Court. It is not an overstatement to say that this is
completely contrary to the fundamental principles of our judicial system.

43. To the extent that summaries of secret proceedings may be provided to
the person named in the certificate and his or her counsel, it is
respectfully submitted that the chance to have a mere summary after the
fact does not undo the unfairness and denial of natural justice and
fundamental justice caused by proceeding in the absence of the person and
his or her counsel in the first place.

44. In a non-constitutional case, the Federal Court has criticized the
secret proceedings, but said they were permitted by the Act:

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.

Jaballah, Re [2003] F.C.J. No. 822 at page 23 (T.D.)

45. Section 78(i) of the Act provides that "the judge shall provide the
permanent resident or the foreign national with an opportunity to be heard
regarding their inadmissibility". It is respectfully submitted that the
right to be heard in section 78(i) is an illusory right, taken in the
context of a process which allows for information and/or evidence to be
used which is introduced in the absence of the person named in a
certificate and of his or her counsel throughout the proceedings.

46. There is another different way to look at the significance of the
repeated secret proceedings permitted by the Act. In particular, the Act
raises the issue of whether the inequality between the parties created by
the secret proceedings destroys the appearance of independence and
impartiality of the designated judge. It is submitted that it is
inconsistent with the appearance of independence and impartiality of a
judge for that judge to have ex parte communication with one party and to
make decisions on materials which are not disclosed to the other party,
while appearing at the same time maintaining the appearance of independence
and impartiality and of doing justice between the parties.

47. The effect of ex parte relations between one party and the bench has
already been explored in Canada and such relations have been treated
seriously. For example, in Canada v. Tobiass, two judges of the Federal
Court had had ex parte communication with a representative of the Attorney
General of Canada in a hearing about revocating Tobiass' Canadian
citizenship. The communication was about the slow pace of the proceedings.
The Supreme Court of Canada held that the contact caused damage to the
appearance of judicial independence and directed that the two judges have
nothing more to do with the case. By contrast, the Act allows the
designated judge to have ex parte communication with the representatives of
the Minister and Solicitor General about not the pace of proceedings, but
rather about the far more important fact of introducing secret evidence.
The designated judge then determines the reasonableness of the certificate
based in part on the secret evidence. It is respectfully submitted that the
Act flies in the face of the principles enunciated in Canada v. Tobiass.

Tobiass v. Canada [1997] 3 S.C.R. 391

(iii) "Anything" Can Be Evidence

48. Section 78(j) of the Act allows the judge to "receive into evidence
anything that, in the opinion of the judge, is appropriate, even if it is
inadmissible in a court of law, and may base the decision on that evidence".

49. Section 78(j) of the Act apparently allows anything to be used -
articles, hearsay, double hearsay, triple hearsay. The evidence does not
have to given under oath or solemn affirmation. It does not have to be
subject to cross-examination in order to test it. It is respectfully
submitted that there are no meaningful limits.

50. As a result, in the proceedings before Mr. Justice Blais, it is
respectfully submitted that Mr. Zundel faces mountains of hearsay
"evidence" which is not sworn and not subject to challenge through
cross-examination, thereby denying him any basic entitlement to principles
of fairness and fundamental justice.

(iv) Low and Uncertain Standards of Proof

51. Section 80 of the Act does not require the judge to determine whether
the person is actually a danger to national security, 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 national security
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,
which is not subject to appeal.

52. It is respectfully submitted that section 80 of the Act does not even
specify the standard of proof with respect to whether the certificate is
reasonable, that is, whether proof is on the balance of probabilities, or,
perhaps more appropriately, given the severe consequences if the
Certificate is found to be reasonable, beyond a reasonable doubt. Section
80 also does not clearly state who has the onus of proof.

53. 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. It is respectfully submitted that 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".

[Note that Mr. Zundel is not saying that "being a danger to the security
of Canada" is unconstitutionally vague - The Supreme Court of Canada held
that it was not in relation to the former Immigration Act in Suresh v.
Canada [2002] S.C.J. No. 3 at page 29]

54. 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". It is respectfully submitted that
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.

(v) No Reasonable Bail

55. Section 82(1) of the Act provides that the Minister and the Solicitor
General of Canada may issue a warrant for the arrest and detention of a
permanent resident who is named in a certificate if they have reasonable
grounds to believe that the permanent resident is a danger to national
security or to the safety of any person or is unlikely to appear at a
proceeding or for removal. Section 83(1) of the Act provides that not later
than 48 hours after the beginning of detention of a permanent resident
under section 82, a judge shall commence a review of the reasons for the
continued detention. Section 78 of the Act applies with respect to the
review, with any modifications that the circumstances require. Section
83(2) of the Act provides that the permanent resident must, until a
determination is made under subsection 80(1), be brought back before a
judge at least once in the six-month period following each preceding review
and at any other times that the judge may authorize.

56. It is respectfully submitted that the scheme of the Act contemplates
that the initial decision about detention will be made expeditiously and in
far less than six months. At the very least, section 83(2) of the Act
means that there must be a complete review within six months and every six
months thereafter. This has simply not happened in Mr. Zundel's case. It
is respectfully submitted that it is not good enough (and not in compliance
with the Act) for Mr. Justice Blais to wonder aloud in court about whether
the detention review ought to have been done within six months.
Respectfully, His Lordship simply did not follow the law and Mr. Zundel's
detention at this point is unlawful for that reason, standing alone.

57. It is also respectfully submitted, on the jurisdictional issue and
section 106 motion, that the review process under the Act with respect to
detention is far less advantageous than a habeas corpus application. A
habeas corpus application is much quicker, as witnessed by the fact that it
was scheduled in October, 2003 and was only adjourned because of a change
in counsel. By contrast, the detention review under the Act goes on and
on. Moreover, the detention review has the same weaknesses as the
Certificate review (secret proceedings, "anything" in the way of "evidence"
and the like), none of which is the case with a habeas corpus application.

(vi) No Appeal or Judicial Review

58. Section 80 of the Act provides that "the determination of the judge [as
to the Reasonableness of the Certificate] is final and may not be appealed
or judicially reviewed". Section 81 of the Act provides that a
determination that the Certificate is reasonable is conclusive proof that
the person named is inadmissible and is a removal order not subject to
appeal. As well, the person may not apply for protection, such as the
protection offered to a convention refugee (see section 96 of the Act). So
the person may be deported to a place where the person has a "well-founded
fear of persecution for reasons of race, religion, nationality, membership
in a particular social group or political opinion".

59. It is thus respectfully submitted that, if a certificate is found to be
reasonable after the fundamentally flawed and unfair process which includes
secret proceedings and "anything" in the way of "evidence", then the
applicant is completely denied the most basic right of appeal to a higher
court (or even judicial review).

60. It is respectfully submitted that the basic right of appeal to a higher
court (or judicial review) is part of the principles of fundamental justice
as guaranteed by the Charter. Judges of the Supreme Court of Canada have
recently expressed concern about the combination of secret proceedings and
the lack of appeal rights.

"Supreme Court judges voice concern about lack of realistic appeal
process", The Globe and Mail, December 12, 2003

61. The lack of a right of appeal or judicial review heightens the
appropriate concern about the other previously-described failings in the
Act (secret proceedings, "anything" as "evidence" etc). The Supreme Court
of Canada has held that greater procedural protections will be required
where, as here, no appeal procedure is provided within the Statute, or when
the decision is determinative of the issue and further requests cannot be
submitted.
Suresh v. Canada [2002] S.C.J. No. 3 at page 34

62. 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 can (and has in the past) issued a new certificate and started
the entire unfair process again. For example, Mahmoud Jaballah came to
Canada from Egypt. A certificate was issued in 1999 and was found to be
unreasonable: see Jaballah v. Canada [1999] F.C.J. No. 1681 (T.D.). A
second certificate was issued in 2001, based on additional evidence, some
of which supposedly contradicted evidence given in the hearing with respect
to the first certificate: see Jaballah, Re [2003] F.C.J. No. 822 (T.D.)
The second certificate was held to be reasonable. 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.

F. Applicability of Charter Protection to Proceedings Under the Act

63. There is a threshold question as to whether and to what extent section
7 (and other sections of the Charter) apply to proceedings under the Act.
It is respectfully submitted that the current solitary confinement of Mr.
Zundel in the Toronto West Detention Centre pursuant to the Act clearly
engages his "liberty" interest as protected by section 7. It is also
respectfully submitted that the potential removal of Mr. Zundel, a
permanent resident, from Canada against his will clearly engages his
"liberty" and "security of the person" interests as protected by section 7.

Waldman, Immigration Law and Practice, Vol. 1, pages 2.14 - 2.16
Grewal v. Canada (Immigration) (1991), 85 D.L.R. (4th) 166 at page 5 (C.A)
Romans. v. Canada (Immigration) [2001] F.C.J. No 740 (T.D), affd without
deciding this point [2001] F.C.J. No. 146 (F.C.A.)
Al Yamani v. Canada (Immigration) [2000] 3 F.C. 433 (T.D)
Blencoe v. B.C. Human Rights Commission [2000] 2 S.C.R. 307 at page 20
Section 27(1) of the Act

64. The engagement of section 7 is also affected by the impact of
deportation on the particular individual. Therefore, the fact that there
is an outstanding warrant for Mr. Zundel in Germany and that, he is likely
to be jailed in Germany for acts of denying the Holocaust, which acts have
not been successfully prosecuted in Canada because of Mr. Zundel's right to
freedom of expression, militates in favour of engaging section 7 in this
case.

Waldman, Immigration and Refugee Protection Act and Commentary 2003, page 14

65. For the above reasons, it is respectfully submitted that the ongoing
process against Mr. Zundel under the Act engages his rights under section 7
(and other sections) of the Charter, and must therefore comply with the
principles of fundamental justice.

66. It is respectfully submitted that the Superior Court judge erred in law
in finding that section 7 of the Charter was not even engaged by a process
which clearly affects Mr. Zundel's "life, liberty and security of the
person" by resulting in him being detained in solitary confinement at the
Toronto West Detention Centre for almost ten months without being charged
with anything in Canada and without having any criminal record in Canada.

67. It is respectfully submitted that the Superior Court judge erred in law
in not following or even referring to a long list of authorities cited by
Mr. Zundel (see paragraph 63 above), which have held that the section 7
Charter rights of permanent residents like Mr. Zundel (who has lived in
Canada since 1958 except for a brief time in the United States) are engaged
by a deportation process, such as the one currently underway against Mr.
Zundel.

G. Constitutional Violations In This Case

68. It is respectfully submitted that the entire above described process,
with its provisions for secret evidence, "anything" being used as evidence,
low and uncertain standards of proof, no reasonable bail and no appeal or
judicial review violates the principles of section 7 of the Charter, which
guarantees everyone the "right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with the
principles of fundamental justice". As discussed above, the proceedings
under the Act are completely contrary to the principles of natural justice,
which is part of fundamental justice.

69. The legal rights contained in section 8-14 of the Charter are examples
of the principles of fundamental justice referred to in section 7. Thus,
in considering section 7 in this case, it is respectfully submitted that
the Court may consider the principle in section 11(e) of the Charter that a
person is "not to be denied reasonable bail without just cause",
notwithstanding that section 11 itself does not directly apply to Mr.
Zundel because he is not "charged with an offence". It is respectfully
submitted that (a) the above - described problems with the detention review
process and (b) the fact that it has taken more than six months to complete
a detention review both violate the right not to be denied reasonable bail
without just cause. It is respectfully submitted that the above described
process also violates the protection in section 9 of the Charter against
"arbitrary detention", for the reasons already discussed. Mr. Zundel also
relies on his right under section 10(c) of the Charter which provides that
"everyone has the right on arrest or detention...to have the validity of
the detention determined by way of habeas corpus and to be released if the
detention is not lawful". It is respectfully submitted that Mr. Zundel's
detention is unlawful both under the Charter as discussed and also under
the Act because of the lengthy delay of over six months in completing an
initial detention review.

Reference re: Section 94(2) of the Motion Vehicle Act (1985), 23 C.C.C.
(3d) 289 at page 10 (S.C.C.)

70. It is respectfully submitted that the Superior Court judge erred in law
in failing to find that the process set out by the Immigration And Refugee
Protection Act for determining whether the allegation that Mr. Zundel is
inadmissible to Canada on grounds of security is reasonable violates Mr.
Zundel's rights under sections 7, 9, and 10(c) of the Charter, even though
the process allows (a) for the Crown to repeatedly introduce secret
evidence against Mr. Zundel at any time in the absence of Mr. Zundel and
his lawyers, (b) for "anything" (literally "anything" under the Act) to be
used as evidence against Mr. Zundel - sworn or not, hearsay, double
hearsay, triple hearsay - "anything" without limits, (c) for low and
uncertain standards of proof, (d) for no reasonable bail and (e) for no
appeal or review of the court's decision.
71. The Federal Court has dealt with a constitutional challenge to the
provisions in section 40.1 of the former Immigration Act, which are
somewhat similar to the provisions in section 77 and following. The case
is Ahani v. Canada [1995] F.C.J. No. 1190 (T.D.), affd [1996] F.C.J. No.
937 (C.A.), application for leave to appeal to S.C.C. dismissed. The
former Immigration Act's provisions were upheld. It is respectfully
submitted that, for the reasons which follow, the decision in Ahani is a)
distinguishable; b) wrong; and c) not binding on this Court.

72. The decision in Ahani is distinguishable from the Zundel case for a
number of reasons, including the following:

a. Mr. Ahani was not a permanent resident like Mr. Zundel (let alone a
resident for over 40 years). Mr. Ahani was a refugee. This distinction is
critical because of the constitutional rights given to permanent residents
facing deportation (see paragraph 63 hereof). It was also critical in the
mind of the trial judge in Ahani, as referred in paragraph 16 of the
judgment in Ahani.

b. The judge in Ahani was dealing with a statute where permanent residents
had a greater entitlement to disclosure than foreign nationals. That is no
longer the case. Section 77 and 78 do not distinguish between permanent
residents and foreign nationals on the issue of disclosure of evidence,
which means that the procedural rights of permanent residents have now been
decreased.

c. The judge in Ahani found that Ahani, unlike Zundel, was deliberately
not pursuing a hearing on the reasonableness of the certificate because he
did not want to be deported. Ahani's complaints about detention and delay
were seen in that context. (see paragraph 20 of the judgment)

d. The Court in Ahani dealt with an expectation that the detention of the
person will not be lengthy. It was not the case. Ahani was detained for
over two years. Mr. Zundel had been detained for over nine months at the
time of the habeas corpus application.

e. There were additional steps after the certificate against Mr. Ahani was
found to be reasonable before he could be deported. There were also a
number of appeal rights. By contrast, in the case of Mr. Zundel, pursuant
to section 81(b) of the Act, a finding that the Certificate is reasonable
becomes a removal order. Without a right of appeal, the extra step
required and appeal rights given to Ahani are important because the Supreme
Court of Canada has said that the finality of the decision and lack of
rights of appeal or judicial review in a matter increases the procedural
protections which are required (see paragraph 61 of this factum).
f. Evidence was called on behalf of the government in Ahani which was
relied on in considering the Charter issue (see paragraph 11). There was
no such evidence in this case.

g. There was no issue raised in Ahani about the right not to be denied
reasonable bail without just cause under section 11(e) of the Charter.
That section is in issue in the case of Mr. Zundel.

73. It is respectfully submitted that the decision in Ahani is wrong for a
number of reasons, including the following:

a) The Court in Ahani held that relaxed evidentiary standards benefitted
the parties (paragraph 21). In our adversarial system, the litigants should
have some input into the decision of what benefits them. It is
respectfully submitted that Mr. Zundel is not benefitted by the
unacceptably loose standards of evidence being applied in his case.

b) The Court in Ahani mistakenly concluded that the parties had the right
to make submissions as to what should be disclosed (paragraph 20).

c) The Court in Ahani effectively presumed that the Ministers are right
and says bail is never appropriate (paragraph 23). Even the Act now
provides for bail, at least for permanent residents.

74. It is also respectfully submitted that the principle of stare decisis
dictates that neither the Superior Court of Ontario nor this Honourable
Court is bound by a decision of the Federal Court of Appeal such as Ahani.
The Supreme Court of Canada refused to grant leave to appeal in Ahani. The
Supreme Court has made it clear that a refusal to grant leave in any case
is not an endorsement of the lower court's decision in that case.

Bedard v. Issac [1972] 2 O.R. 391 at p. 4 (H.C.J.)
R. v. Cote [1978] S.C.R. 8 at page 7

75. There are four other decisions which are relied on by Justice Benotto
and so are of some relevance: Suresh, Chiarelli, Ruby and Ahani (a
different decision than the Ahani referred to in paragraphs 71-74 above).

76. In Suresh v. Canada [2002] S.C.R. No.3, the issue was the
constitutionality of the process by which a Minister issued an opinion
under section 53(1)(b) of the former Immigration Act that Suresh was a
danger to the security of Canada. Section 53(1)(b) of the Act was upheld.
However, it was found that Suresh was, in the circumstances of his case,
entitled to a new deportation hearing. There are a number of important
points about Suresh, including the following:

- Prior to the ministerial decision, Suresh had already had 50 days of
hearings on the reasonableness of a certificate under section 40.1 of the
former Immigration Act (paragraph 13). That was followed by a second
deportation hearing, which led to the conclusion that Suresh would be
deported on grounds of membership in a terrorist organization. (paragraph
14). The ministerial decision in issue then followed.

- The section 53(1)(b) opinion could be appealed to the Federal Court,
Trial Division with leave (paragraph 31). Mr. Zundel has no such appeal
rights.

- For section 7 purposes, a deprivation of liberty which is foreseeable and
can only occur after deportation occurs engages section 7 Charter rights
(paragraph 54). This is relevant to the German arrest warrant for Mr. Zundel.

- The greater the effect in the life of an individual by the decision, the
greater the need for procedural protections to meet the common law duty of
fairness and the requirements of fundamental justice under section 7 of the
Charter (paragraph 118). Deportation from Canada engages serious personal,
financial and emotional consequences. It follows that this fact militates
in favour of heightened procedures under section 53(1)(b). This is helpful
to Mr. Zundel.

- The Court held that "fundamental justice requires that an opportunity be
provided to respond to the case presented by the Minister" (paragraphs
121-122). This is very helpful to Mr. Zundel, since it directly references
what has been denied him.

It is thus respectfully submitted that the Suresh case is readily
distinguishable from the case at bar and Justice Benotto erred in relying
on it.

77. Another case which has been referred to in the Zundel proceedings is
Canada v. Chiarelli [1992] S.C.J. No. 27. In that case, the Supreme Court
of Canada upheld the constitutionality of the statutory scheme providing
for the deportation of a permanent resident on conviction of a serious
criminal offence. A number of points should be made about Chiarelli:
- It dealt with a fundamentally different issue - the deportation of a
permanent resident convicted of a criminal offence for which a term of
imprisonment of five years or more may be imposed. Mr. Chiarelli had been
convicted of uttering threats to cause injury and possession of a narcotic
for the purpose of trafficking. There was also evidence that he "was a
member of a criminal organization which engaged in extortion and drug
related activities, and further that the respondent personally took part in
the extortion and drug related activities of the organization."

- There was also a question about whether a hearing before the then Review
Committee, which was partly ex parte, was in accordance with the principles
of fundamental justice. Chiarelli received summaries of all ex parte
evidence and an opportunity to cross-examine in camera witnesses. Mr.
Zundel has received neither.

It is thus respectfully submitted that the Chiarelli case is also readily
distinguishable from the case at bar and Justice Benotto erred in relying
on it.

78. In Ruby v. Canada [2002] S.C.R. No. 73, the issue was secrecy in the
context of proceedings about disclosure of files maintained about Ruby by
CSIS and the RCMP, among others. It is respectfully submitted that that is
nothing like the deportation of a long term permanent resident under the
Act and that the Superior Court judge erred in relying on Ruby. In Ahani v.
Canada (2002) 208 D.L.R. (4th) 57 (S.C.C.), a non-permanent-resident was
challenging different provisions in the repealed Immigration Act. This
decision was thus readily distinguishable and the Superior Court judge
erred in relying on it. Neither of these cases speak to the applicability
of s. 7 to a long term permanent resident (as do the cases at paragraph
above) but that is what the Superior Court judge purported to say they said.

H. Can Any Charter Violations be Justified Under Section 1 of the Charter?

79. If Charter violations exist with respect to the statutory framework
complained of, then the Respondent must meet the onus of justifying the
violations under section 1 of the Charter. The section 1 test is set out
as follows in the leading case of R. v. Oakes.

R v. Oakes (1986) 24 C.C.C. (3d) 321 at pages 24-25 (S.C.C.)
R.J.R. MacDonald Inc. v. Canada [1995] S.C.J. No. 68 at page 84

80. It is conceded that the objective of the impugned provisions of the Act
is of sufficient importance to meet the first point of the Oakes test.
However in so conceding, it is respectfully submitted that the courts must
be careful to ensure that the second part of the Oakes test is met,
especially the requirement that the means chosen to protect "national
security" should impair "as little as reasonably possible" the rights or
freedoms in question. Put bluntly, the court must not get carried away, in
difficult times, with the buzzword "national security" and thereby
countenance broad and overreaching infringements of rights.

81. The Canadian courts have a tradition of being vigilant to protect
individual rights even in the context of real security threats. An example
is the reaction of the Supreme Court of Canada to certain laws enacted
during the Cold War to protect against the legitimate threat of communism.
It is respectfully submitted that the courageous Supreme Court of Canada
decisions in Smith & Rhuland and Switzman, while they may now seem quaint,
must be viewed in the context of the real fear of communism which existed
in the 1950s. There is a real fear of terrorism in the world in 2003.
However, it is respectfully submitted that this Honourable Court, in
looking at how far the law may go to protect against terrorism, must
jealously guard constitutional rights to ensure that they are infringed "as
little as reasonably possible". To do otherwise is to ironically undermine
our most cherished values, as was so eloquently observed by Chief Justice
Warren in United States v. Robel (see paragraph 3 above).

Smith & Rhuland Ltd. v. Nova Scotia [1953] 2 S.C.R. 95 at pages 3-4
Switzman v. Elbling [1957] S.C.R. 285 at page 16

82. It is respectfully submitted that the provisions in the Act do not
impair the rights in question "as little as reasonably possible". Examples
of smaller infringements which would be very possible include the following:

1) Eliminate secret proceedings.
2) If there are to be secret proceedings, they could be limited to one
occasion. Presumably the evidence exists at the start of the proceedings,
when the certificate is issued. Any secret proceedings could be required to
take place at that time, rather than allowing repeatedly secret proceedings.
3) In the further alternative, the secret proceedings could all take place
before the person named in the certificate is required to start responding
to the evidence against him.
4) In the further alternative, any secret proceedings after the person
named in the certificate starts to respond could be limited to proper reply
evidence, rather than being completely open-ended.
5) Summaries could be provided to the object of the certificate and his or
her counsel. It is interesting to note that section 39(6) of the
Immigration Act, which governed permanent residents named in security
certificates until 2002, did require that a summary be made available to
the person and his/her counsel.
6) Alternatively, withholding of summaries should only be permitted if
"its disclosure would be injurious to national security" and not also "to
the safety of any person". Witnesses testify every day in open court before
accused persons in criminal cases where safety could be an issue. What
about witnesses in an infamous case such as the murder trial of Hell
Angels' leader "Mom" Boucher? Such witnesses must testify in court before
the accused.
7) Have a system where some lawyers have full access to the CSIS files and
can present a case against the secret evidence. This was advocated by
Justice James K. Hugessen of the Federal Court of Canada in a speech, where
His Lordship said the following about 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" at pages 384-385

8) Evidence must be given under oath or solemn affirmation.
9) Evidence must come from live witnesses who can be cross-examined.
10) Evidence must at least be admissible in court.
11) Evidence must not be hearsay.
12) Evidence must be, at least, be "credible and trustworthy". (a term
used in some statutes such as section 515 of the Criminal Code with respect
to bail hearings).
13) The Designated Judge must determine that the person is actually a
danger to national security.
14) Facts must be proven on the balance of probabilities, rather than the
lower standard of reasonable ground for belief in the facts.
15) Alternatively, with respect at least to facts which "may occur", such
facts must be proven on the balance of probabilities rather than just on
reasonable grounds of belief.
16) A right of appeal could be allowed.
17) Alternatively, at least a right of judicial review could be allowed.

83. It is respectfully submitted that the Respondent cannot justify the
Charter violations under section 1 of the Charter, especially since they do
not impair rights as little as reasonably possible. The relevant provisions
of the Act are thus of no force and effect pursuant to section 52 of the
Constitution Act. It is respectfully submitted that the entire legislative
scheme in Sections 77, 78, 80, 81, 82 and 83 of the Act is thus of no force
and effect. It is respectfully submitted that the detention of Mr. Zundel
pursuant to that legislative scheme is therefore unlawful and
unconstitutional, and he ought to be ordered released forthwith. It is
respectfully submitted that the Superior Court judge erred in law in
failing to so find.

84. It is respectfully submitted that the Superior Court judge erred in law
by failing to properly consider or even deal with many of the arguments
made by Mr. Zundel in a serious constitutional challenge to the Immigration
and Refugee Protection Act and by purporting to analyze the entire
challenge by way of two sentences of obiter dicta, after first staying the
habeas corpus application under section 106 of the Courts of Justice.

I. What Remedies Does Habeas Corpus Provide?

85. The remedy of habeas corpus is particularly applicable in a case like
this one, since that remedy is admirably suited to the protection of the
person's right not be deprived of liberty except in accordance with the
principles of fundamental justice, as stated by the Supreme Court of Canada.

R.v. Gamble [1988] S.C.J. No. 87 at page 30

86. The detention of like Mr. Zundel for more than six months without
completing a detention review is contrary to the Act and can also be
remedied by habeas corpus.

Gover, The Criminal Lawyers' Guide to Extraordinary Remedies, page 91-92.

PART 4 - ORDER REQUESTED

87. The appellant asks that the appeal be allowed, that the "stay" order be
set aside and that judgment be granted as follows:

a) declaring that the entire legislative scheme in sections 77, 78, 80,
81, 82 and 83 of the Immigration and Refugee Protection Act, S.C. 2001,
c.27, as amended, under which Mr. Zundel is currently imprisoned without
charge based on the allegation by the Minister of Citizenship and
Immigration and the Solicitor General of Canada that he is inadmissible to
Canada on grounds of security, violates sections 7, 9 and 10(c) of the
Charter of Rights and Freedoms, is not saved by section 1 of the Charter
and is thus of no force or effect pursuant to section 52 of the
Constitution Act, 1982;

Page 30 of 30

b) declaring that the detention of Mr. Ernst Zundel (which has continued
for almost ten months) in solitary confinement at the Toronto West
Detention Centre, while the reasonableness of the allegation that he is
inadmissible to Canada on grounds of security is being considered in the
Federal Court of Canada (which allegation would, if found to be reasonable,
result in his deportation from Canada), is unlawful and unconstitutional;

c) an order releasing Mr. Zundel, a 64-year-old long-time permanent
resident of Canada who has no criminal record in Canada and who faces no
criminal charges in Canada, from custody forthwith; and

d) such further and other order as this Honourable Court deems just.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

DATED at Toronto, this 21st. day of January, 2004.

_________________________ _________________________
Peter Lindsay Chi-Kun Shi

Counsel for the Appellant