- Ernst Zundel sues Ottawa over imprisonment
B E T W E E N:
ERNST ZUNDEL
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
STATEMENT OF CLAIM
TO THE DEFENDANT:
A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the
Plaintiff. The claim made against you is set out in the following pages.
IF YOU WISH TO DEFEND THIS PROCEEDING, you or a solicitor
acting for you are required to prepare a statement of defence in Form 171B
prescribed by the Federal Court Rules, 1998, serve it on the plaintiff's
solicitor or, where the plaintiff does not have a solicitor, serve it on the
plaintiff, and file it, with proof of service, at a local office of this
Court, WITHIN 30 DAYS after this statement of claim is served on you, if you
are served within Canada.
If you are served in the United States of America, the
period for serving and filing your statement of defence is forty days. If
you are served outside Canada and the United States of America, the period
for serving and filing your statement of defence is sixty days.
Copies of the Federal Court Rules, 1998, information
concerning the local offices of the Court and other necessary information
may be obtained on request to the Administrator of this Court at Ottawa
(telephone 613-992-4238) or at any local office.
IF YOU FAIL TO DEFEND THIS PROCEEDING, judgment may be given
against you in your absence and without further notice to you.
Date:
Issued by:_________________
Address of local office: 330 University Avenue
7th. Floor
Toronto, Ontario
TO. The Attorney General of Canada
CLAIM
1. The Plaintiff claims for:
a) a declaration 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 (the "Act"), under which the
plaintiff 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
("Charter"), 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;
b) a declaration that the detention of the plaintiff in
solitary confinement at the Toronto West Detention Centre pursuant to s. 82
of the Act, while the reasonableness of the allegation that he is
inadmissible to Canada on grounds of security is being considered in the
Federal Court (which allegation would, if found to be reasonable, result in
his deportation from Canada), is unlawful and unconstitutional;
c) an order that the plaintiff should be released from
custody forthwith pursuant to s. 24(1) of the Charter;
d) costs of this action; and
e) such further and other relief as this Honourable Court
deems just.
(A) Overview
2. The plaintiff is a 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 (the "Minister") and the Solicitor
General of Canada certifying the plaintiff to be a danger to the security of
Canada. As a result, there are ongoing proceedings before Mr. Justice Blais
of the Federal Court to determine whether the certificate is reasonable. If
it is found to be reasonable, the plaintiff 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, the plaintiff has been jailed
in solitary confinement at the Toronto West Detention Centre. The plaintiff
hereby challenges 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.
3. The plaintiff is a 65 year old permanent resident of
Canada who started living in Canada in 1958. He 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.
4. 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. The FBI does not believe that
Mr. Zundel is a terrorist.
5. 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.
6. In May, 2003, the Honourable Mr. Justice Blais of the
Federal Court 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.
It has now been completed and the decision as to the reasonableness of the
certificate is pending.
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 seventeen months without bail. (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.)
8. 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.
9. 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.
10. The quality of the evidence in the documents against Mr.
Zundel 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.
11. 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.
12. 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.
13. 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. Usually 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. THis has
happened repeatedly, at every stage of the proceedings.
14. 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.).
15. 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."
(B) The Statutory Scheme Under the Act and How It Works
16. 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.
17. 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 the
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.
18. 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).
19. 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).
(C) Relevant Provisions of the Act - Fairness and Natural
Justice
20. 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".
(D) Secret Proceedings Allowed by the Act
21. 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)
22. 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.)
23. 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. 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".
24. 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". This provision exacerbates the denial
of fairness, natural justice and thus fundamental justice. Such repeated
secret proceedings have taken place in this case.
25. Section 78(b) of the Act further allows the repeated
secret proceedings to occur "at any time during the proceedings",
thereby 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. 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.
26. To the extent that summaries of secret proceedings may
be provided to the person named in the certificate and his or her counsel,
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. Moreover, such summaries were not provided in relation to most of the
secret proceedings in this case.
27. 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". 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.
28. 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 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.
29. 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. The Act flies in the face of the principles
enunciated in Canada v. Tobiass. (Tobiass v. Canada [1997] 3 S.C.R. 391)
(E) "Anything" Can Be Evidence
30. 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".
31. 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. There are no meaningful
limits.
32. As a result, in the proceedings before Mr. Justice Blais,
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.
(F) Low and Uncertain Standards of Proof
33. 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.
34. 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.
35. 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".
[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]
36. 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.
(G) No Reasonable Bail
37. 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. It does not, however, require that the
first detention review be concluded within the six months time limit. In
this case, the first detention order was issued on January 21, 2004, more
than eight (8) months after the plaintiff's s. 82 detention began.
(H) No Appeal or Judicial Review
38. 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".
39. 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
plaintiff is completely denied the most basic right of appeal to a higher
court (or even judicial review).
40. 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)
41. 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.
(I) Applicability of Charter Protection to Proceedings Under
the Act
42. 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. 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. 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.
43. 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.
44. For the above reasons, 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.
(J) Constitutional Violations In This Case
45. 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". The proceedings under the Act are completely
contrary to the principles of natural justice, which is part of fundamental
justice.
46. 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, 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". The above - described
problems with the detention review process and 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. 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". 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.
47. 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. It allows
(a) the Crown to repeatedly introduce secret evidence against Mr. Zundel at
any time in the absence of Mr. Zundel and his lawyers, (b)
"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) low and uncertain
standards of proof, (d) no reasonable bail and (e) no appeal or review of
the court’s decision.
48. 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
decision in Ahani is a) distinguishable; b) wrong; and c) not binding on
this Court.
49. 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 has been 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.
50. 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. 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.
51. 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:
a) 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.
b) 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.
c) 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.
d) 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.
e) 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.
The Suresh case is thus readily distinguishable from the
case at bar.
52. In Canada v. Chiarelli [1992] S.C.J. No., 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:
a) 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."
b) 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.
Chiarelli case is also readily distinguishable from the case
at bar.
53. 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. That is nothing like the
deportation of a long term permanent resident under the Act. Mr. Ruby was
not facing the prospect of deportation from Canada. 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. Neither of these cases speak to
the applicability of s. 7 to a long term permanent resident.
54. A comparison of the above cases with the one herein is
annexed hereto as Schedule "A".
(K) Can Any Charter Violations be Justified Under Section 1
of the Charter?
55. If Charter violations exist with respect to the
statutory framework complained of, then the defendant 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. The test is set
out in R v. Oakes (1986) 24 C.C.C. (3d) 321 at pages 24-25 (S.C.C.) and
R.J.R. MacDonald Inc. v. Canada [1995] S.C.J. No. 68 at page 84.
56. 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. The second part of the Oakes test, however, is not 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.
57. Examples of smaller infringements which would be very
possible, some of which were adopted in similar anti-terrorism legislation
in the U.K., include the following:
a) Eliminate secret proceedings.
b) 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.
c) 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.
d) 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.
e) 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.
f) 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.
g) 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
h) Evidence must be given under oath or solemn affirmation.
i) Evidence must come from live witnesses who can be
cross-examined.
j) Evidence must at least be admissible in court.
k) Evidence must not be hearsay.
l) 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).
m) The Designated Judge must determine that the person is
actually a danger to national security.
n) Facts must be proven on the balance of probabilities,
rather than the lower standard of reasonable ground for belief in the facts.
o) 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.
p) A right of appeal could be allowed.
q) Alternatively, at least a right of judicial review could
be allowed.
58. The Charter violations cannot be justified 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. The entire
legislative scheme in Sections 77, 78, 80, 81, 82 and 83 of the Act is thus
of no force and effect.
The plaintiff proposes that this action be tried at Toronto.
Date:
_____________________
PETER LINDSAY
Barrister and Solicitor
233 Sheppard Avenue West
Toronto, Ontario
M2N 1N2
Tel: (416)733-3313
Fax: (416)733-3433
Solicitor for the Plaintiff
\\PETER-93Q98S5P9\Sharing\Personal\PL\ZUNDEL,
Ernst\Pleadings\pleadings.fedct\constitutional challenge\stmt.claim.constitutional
challenge.frm
SCHEDULE "A" TO STATEMENT OF CLAIM
Zundel
Ahani1
Chiarelli2
Ruby3
Suresh4
immigrant
refugee claimant
immigrant
citizen
refugee, applied for immigrant status but never granted
42 year resident
2 year refugee
11 year resident
born in Canada
5 year refugee
Immigration and Refugee Protection Act ("IRPA")
s. 77 security certificate
Immigration Act
s. 40.1 security certificate
Immigration Act
s. 27(1)(d) - criminal conviction
s. 83 - security certificate
Privacy Act, CSIS Act re disclosure of CSIS files
Immigration Act s. 40.1 security certificate
no criminal record
no criminal record mentioned
- convicted of trafficking narcotics, max. term life,
received 6 months.
- evidence of membership in extortion and drug organization
n/a
no criminal record mentioned
deportation as potential outcome
deportation
deportation
denied disclosure to CSIS file on Mr. Ruby.
deportation
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