It seems that I am falling more and more behind in doing my
daily Zgrams. I will not even apologize any more except to say that I am
doing the work of four full-time people of the former Toronto Zundel-Haus,
in addition to Ernst's and my own. There is only so much I can manage - and
let me say here that I don't appreciate the "friendly fire"
sniping from the sidelines. Can't our fence sitters and Monday morning
quarterbackers find nothing more useful to do?
When I talked to Ernst last night, he said: "The pipe
bomb issue is now squarely on the table, and they [the opposition] will have
to deal with it." Amazing to observe that, even out of prison, Ernst
has succeeded in another jiu jitsu (sp?) and has turned the tables deftly on
the Canadian Jews.
Ernst said that, yesterday, there were 10 (!) lawyers in the
courtroom! Who was that that claimed not all that long ago that Mr. Zundel
was so "insignificant" he couldn't fill a phone booth with
supporters?
I am sending you the latest, and then I will work backwards
and fill you in on previous materials I culled as worthy of Zgrams. Paul
Fromm of the Canadian Association of Free Expression, our unofficial court
reporter par excellence, below:
Quash That Subpoena
TORONTO. Tuesday, May 4, 2004. In my last CAFEGRAM
entitled "Watch for Fireworks in the Zundel Case", I promised
you excitement at the Zundel hearings before Mr. Justice Pierre Blais in
Toronto. We had plenty of excitement and tension. Indeed, as I approached
the courtroom, I learned that the drama and skullduggery had already
begun.
Judge Lauren Marshall, who had confirmed orally her
willingness to testify for Ernst Zundel, was backing out. Her testimony,
as Mr. Zundel's lawyer in the mid-1980s, is crucial. She can explain the
incredible haste with which the usually snail-like immigration department
moved to commence deportation proceedings against Mr. Zundel after his
"false news" conviction. It was clear then, and it should be
clear now, that Mr. Zundel is the victim of political persecution. He's a
political problem for Canada's minority-run Liberal regime, not a threat
to national security.
In a written statement, Mr. Zundel's lead defence
attorney, Peter Lindsay, said: "My Lord, there was been a significant
change in circumstances in this matter. I had indicated to Your Lordship
on Thursday (April 29) that Regional Senior Justice Marhall would testify
this morning. I based that on two direct personal discussions between
myself and Justice Marshall in which her Honour had specifically and
unequivocally agreed to testify in this matter and we had fully discussed
the subjects to be covered in her testimony. I had also served a subpoena
on Her Honour, but that subpoena was only served after Her Honour had
already told me personally that she was willing to testify and would
testify in this matter. Yesterday morning I spoke to Her Honour by
telephone and confirmed arrangements to meet her this morning at this
courthouse prior to her testimony. At about 4:00 p.m. yesterday, I
received a telephone call from her new lawyer, Mr. Stern, who was suddenly
acting on behalf of Her Honour. Now, through Mr. Stern, Her Honour has,
despite her earlier agreement to testify, brought a motion before Your
Lordship, in relation to testifying in this matter, and Her Honour is not
present in Court this morning."
Why had Judge Marshall suddenly developed a case of cold
feet and was seeking to quash the subpoena? The idealists suggest that the
lady had simply changed her mind. The cynics counter that "the big
boys" got to her. In her earlier days, as Mr. Zundel's lawyer, she'd
received terrifying phone calls threatening the lives of her children if
she continued to act for Canada's most famous dissident.
Judge Marshall was not the only person who'd developed a
case of shyness. Just before court opened, Mr. Lindsay informed me of the
weird antics of John Farrell, the former thief whom CSIS had employed in
the mid-1990s to surreptitiously open the mail of dissidents, including
Ernst Zundel. It was Farrell's information that largely formed the basis
of Andrew Mitrovica's book about CSIS -- Covert Entry: Spies, Lies and
Crimes Inside Canada's Secret Service.
Farrell, the former thief and mail snoop, is now a teacher
of religion at a West Toronto Catholic High School. [Yes, I know, not
since Mary Magdalen ...] Peter Lindsay and his law clerk went to his
school to serve the elusive Mr. Farrell with a subpoena. They talked to
his principal. The principal advised them that Mr. Farrell was away that
day. Out in the parking lot, they encountered a teacher and told them
their business. "Oh," he said, "I just saw Mr. Farrell in
the library." Using this helpful information, they re-entered the
school and, indeed, found Farrell in deep discussion with the
less-than-truthful principal of the Catholic High School. The principal
charged at Mr. Lindsay and assaulted him, permitting Mr. Farrell to flee
the premises. Mr. Lindsay called the police. The principal stoutly denied
ever assaulting Mr. Lindsay.
As a former teacher who was twice served with legal papers
at school, I find this incident extraordinary. Most school administrators
have a very acute sense of deference to authority and the law and would
usually be only too happy to accommodate a process server.
Today, Judge Blais seemed to accept defeat on what
appeared to be the plan to rush the case through by tomorrow. Last week,
with hearings lasting until after 8:00 p.m., every effort had been made to
rush Mr. Zundel to judgement and, likely, deportation. Mr. Blais is now
talking of arranging more court dates as far ahead as possibly December of
this year. He is also talking of Mr. Zundel's next mandatory detention
review in late July.
Court proceedings were dominated by submissions from a
growing list of people who don't want to testify. The Crown side of the
court is becoming over-crowded. It looked like the old days of the Zundel
Internet case before the Canadian Human Rights Tribunal, with guest
appearances by lawyers Marvin Kurz and Judy Chan, acting for Frank Dimant
of the League for Human Rights of B'nai Brith and Keith Landy of the
Canadian Jewish Congress, respectively. Their normally publicity seeking
clients had developed a sudden case of shyness when subpoenaed to testify
in the Zundel case. They were also joined by Paul Stern, representing
Madam Justice Marshall and, late for the second day in a row, a Mr.
Rogers, acting on behalf of author Andrew Mitrovica who also wanted no
part of testifying.
Crown Attorney Donald MacIntosh led off arguing that the
subpoenas against Dimant, Landy and Mitrovica should be quashed. "Mr.
Lindsay advanced the proposition that the security certificate was signed
by the Minister of Citizenship and Immigration and the Solicitor-General
because of pressure by the Canadian Jewish Congress, B'nai Brith and
others. There isn't a scintilla of evidence. This is a fishing expedition.
Evidence of intent or knowledge of the minister is not relevant. It's not
what Mr. Dimant said to a minister as to whether the certificate is
reasonable."
Last week, Mr. Justice Blais was so brutal to lead defence
counsel Peter Lindsay that he, at one point, apologized. Today, his mood
had changed and he repeatedly challenged the Crown lawyers and the lawyers
seeking to quash the subpoenas.
"Why can you not go to the question of the
information that is provided to the ministers by various sources?" he
asked Mr. MacIntosh. "Can we not question the evidence provided to
the decision makers?"
MacIntosh continued: "My friend supposes because
various esteemed members of the Jewish community made
representations."
"And met with the ministers. I think there were
meetings,": Mr. Justice Blais interrupted him. The Act is clear.
Section 78.j says: 'The judge may receive into evidence anything he thinks
may be relevant, even if it is not admissible in a court of law.' The
ministers were provided with hearsay evidence. We don't know whether
witnesses provided evidence to the ministers."
On another occasion, Judge Blais interrupted Mr. MacIntosh
who was mocking Mr. Lindsay's concern about actions of ministers of
immigration in the 1980s. "People in glass houses," Mr. Justice
Blais remarked, reminding him that the Crown and CSIS had brought in
newspaper clippings that were 23 years old as part of their case against
the German publisher.
Mr. MacIntosh, becoming increasingly testy and strident,
doggedly pushed the notion that B'nai Brith and the Canadian Jewish
Congress merely exercised their free speech rights to make representations
to cabinet ministers, just as anybody else might do. Readers who wait six
months to get even an acknowledgement of a letter to a cabinet minister
might differ with Mr. MacIntosh. "B'nai Brith has no more special
access to the minister than any other organization making urgent
representations." He, then, went on to advance the amazing view that
having to testify about their lobbying might intimidate groups like the
CJC and B'nai Brith. "If individuals who made representations to
ministers are subpoenaed, it will inhibit the expression of their
views."
In July, Mr. Justice Blais had dismissed Covert Entry as a
"novel." He now seemed to be taking it and the allegations that
CSIS knew the May, 1995 pipe bomb was coming to Mr. Zundel very seriously.
"We have some pieces that are missing. There is still opportunity for
both sides to provide information on these matters, especially the strong
allegation that CSIS knew of the pipe bomb sent to Mr. Zundel"
In the afternoon, both Judy Chan and Marvin Kurz argued
that their clients shouldn't be subpoenaed. While the CJC posts pictures
of prominent CJC officers grinning in meeting with cabinet ministers, Miss
Chan invited the court to conclude that these meetings were nothing
special. "His meeting with the minister doesn't prove Mr. Landy has
any relevant evidence to give. This is a fishing expedition. It is an
inappropriate use of a subpoena and it could be used to embarrass or
harass my clients."
The ever voluble Mr. Kurz took the better part of an hour
to urge Judge Blais to quash the subpoena as Mr. Dimant's testifying would
only aid Mr. Zundel is establishing that there is "an international
Jewish conspiracy" against him:
"Frank Dimant has no evidence to offer which is
relevant in this case, particularly as to whether Mr. Zundel is a security
risk." Kurz set up the straw man of an international Jewish
conspiracy, which Mr. Lindsay had never mentioned, and then proceeded to
flail away at it. "The argument of an international Jewish conspiracy
is an abuse of process," he said.
"The defence's theory is that the government and
Jewish groups worked together to get rid of Mr. Zundel. I didn't hear the
word 'international'," Judge Blais interjected. "Whether Jewish
groups intervened in the process could be relevant," he added.
"There's a great deal of evidence that Mr. Dimant and
B'nai Brith and the Canadian Jewish Congress and Mr. [Bernie] Farber are
very opposed to Mr. Zundel and his views. There's nothing secret
there," Mr. Kurz persisted. "Both organizations have intervened
in Mr. Zundel's court cases. Mr. Zundel would have you believe there's
something improper about that. Mr. Lindsay would have you believe that
Jews exercizing their Charter rights are doing something wrong."
If the arguments of MacIntosh, Chan and Kurz limped, the
submissions of Mr. Rogers, representing Andrew Mitrovica, were positively
lame.
"Mr. Mitrovica has been subpoenaed simply because
he's the author of a book in pursuit of his craft as an investigative
journalist. He's not an expert. He does not want to appear in any sense to
be supporting Mr. Zundel. He has no material evidence. The book speaks for
itself."
An incredulous Judge Blais interrupted: "Even though
he made strong allegations in the book? He made all those allegations
about CSIS without material evidence? He made strong allegations that CSIS
was involved in sending a pipe bomb to Mr. Zundel."
Mr. Rogers answered: "He is merely a conduit."
He pronounced it "con-doo-it." "He is merely reporting what
others told him."
Again Judge Blais interrupted: "The kind of
allegations he made, how substantiated were they?"
Rogers responded: "He wrote a book for the world to
see. He had no involvement in the pipe bomb. He does not have any direct
evidence."
"So who does know?" Mr. Justice Blais demanded.
"Mr. Mitrovica knows if information is corroborated. ... We're
talking of allegations of a serious crime -- the issue of someone letting
a pipe bomb go to Mr. Zundel and did nothing. In the book, Mr. Mitrovica
concludes: 'CSIS is riddled by waste, incompetence, nepotism and law
breaking.' Mr. Mitrovica seems to be quoting CSIS employees in violation
of Sec. 18 of the CSIS Act. Making public that kind of information is
against the law. He cares more about selling books."
"The book speaks for itself," M. Rogers
repeated. "Mr. Mitrovica's evidence is not relevant."
"We don't know that. We haven't heard from Mr.
Mitrovica," Judge Blais retorted.
The hearing continues tomorrow. -- Paul Fromm
