All they yesterday I sat on pins and needles, hoping to find
out how the Ontario Superior Court hearings went. As you will remember,
these hearings are to last two days and are meant as the opening Zundel
salvo against his exceedingly nasty, determined detractors.
Ernst called around 7 p.m. and told me that he was dealing
with a sullen guard and was only allowed five minutes on the telephone. He
said the new legal team was superb. The opposition, he added, was fierce,
and MacIntosh, the government prosecutor, had given the impression that
"they take this move of ours very, very seriously."
Ernst said that it was his impression that it was going to
be "an uphill struggle" because Canada's Supreme Court - and this
is my interpretation - has at least partially surrendered its independence
to the enemy and has already set some pretty ugly CSIS precedents. We'll
see.
Hang in there. NO SURRENDER!
"DETENTION OF ZUNDEL IS UNCONSTITUTIONAL" --
Peter Lindsay
TORONTO. November 18, 2003. German publisher Ernst
Zundel's new lead defence lawyer Peter Lindsay told an Ontario Superior
Court Judge today: "The detention of Ernst Zundel is unlawful and
unconstitutional." Lindsay asked Madam Justice Mary Lou Benotto for
an order "declaring declaring that the entire legislative scheme in
section 77, 78, 80, 81,82 and 83 of the [Immigration and Refugee
Protection] Act violates sections 7 and 9 and 10(c) of the Charter, is not
saved by section 1 and is thus of no force or effect." He, therefore,
sought "an order releasing Mr. Zundel from custody forthwith."
Mr. Lindsay argued, first, that the Ontario Superior Court
has proper jurisdiction in this habeas corpus hearing and that, secondly,
Mr. Zundel's rights have been massively violated by the long delays of the
hearings in federal Court before Mr. Justive Blais and by such aspects of
the Immigration and Refugee Protection Act as the secret hearings, the
admission of triple hearsay evidence and the fact that there is no right
of appeal against the judge's decision.
In his factum [the full text of which is on the CAFE site
-- canadianfreespeech.com], Lindsay explained: "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 has not even been determined. Mr. Zundel herein challenges,
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."
"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?" Mr. Lindsay asked the Court.
Outlining Mr. Zundel's flawless record as a lawabiding
landed immigrant in Canada, Mr. Lindsay proceeded: "Since coming to
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 in the mail. In the arson
incident, witnesses saw a man carry a red gas can tothe front of Mr.
Zundel's home and set the fire. In the bombing incident, the Toronto Sun
reported that 'On May 15, [1995], Zundel received a bomb with a Vancouver
return address. Police exploded the device - which was packed with
shrapnel - at the Leslie Street spit.' On March 19, 1997, in a 63 page
information to obtain a search warrant, Constable Warren Ryan of the RCMP
in British Columbia swore that he had reasonable grounds to believe that
Darren Thursan and David Barbarash were guilty of trying to murder Mr.
Zundel in May 1995 by mailing an explosive device to him. Messrs. Thursan
and Burbarash were not charged with attempted murder. Mr. Zundel has also
been the victim of other harassment and mistreatment for many years, based
on the unpopularity of his views. His one time lawyer, now Her Honour
Judge Lauren Marshall, received death threats while representing Mr.
Zundel, including a telephone threat made to her 7 year old child that 'If
your mommy goes to court, she'll be killed.'"
Mr. Lindsay took aim at the secret hearings which have run
parallel with Mr. Zundel's public hearings before the Immigration and
Refugee Board in February, March and April and, more recently, in Federal
Court. "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, as follows: 'It is a cardinal principle of our law that, unless
expressly or by necessary implication, empowered to act ex parte, an
appellante authority must not hold private interviews with witnesses (de
Smith, Judicial Review of Administrative Action (3rd ed.) 179) or, a
fortiori, hear evidence in the absence of a party whose conduct is
impugned and under scrutiny."
Then, referring to the Kane case, Mr. Lindsay observed:
"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."
Pursuing his denunciation of the secret testimony that has
dogged the Zundel case, Mr. Lindsay argued: "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. 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 20 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."
Me. Lindsay insisted that the secret hearings are a
wholesale violation of Mr. Zundel's Charter rights: "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. ... 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. The problem is made worse in this case when the designated
judge receives ex parte communication as to matters such as when Mr.
Zundel speaks to his lawyer."
When political prisoner Ernst Zundel entered the Court,
his 25 supporters who nearly filled the room, noted with shock an angry
4mm welt on his wrists from the handcuffs that his five burly guards force
him to wear.
One of Mr. Lindsay's first acts was to seek permission for
Mr. Zundel to leave the prisoner's box and join him at the second counsel
table. The authorities' treatment of the German-born dissident is
"disgusting," observed Lady Michele Renouf, a model, actress and
British civil libertarian in Toronto to observe the hearing and to speak
for the Canadian Association on Thursday. Lindsay's move was important,
said Lady Renouf, "because it establishes Mr. Zundel as a human
being."
Advancing his critique of the unconstitutionality of many
aspects of the Immigration and Refugee Protection Act, Mr. Lindsay slammed
the acceptance of almost anything as evidence. "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.' Section 78(j)
of the Act apparently allows anything to be used -- articles, hearsay,
double hearsay, triple hearsay. The evidence does not have to [be] 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.
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." The
Crown, Mr. Lindsay noted, has tendered no witnesses, no viva voce
evidence, at least not in the public hearing.
Mr. Zundel's new chief defence lawyer criticized the
Immigration Act's extremely low standard of proof required to deport a
political prisoner like publisher Ernst Zundel.
Mr. Lindsay pointed out the shocking absurdity that
"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. 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."
Contending that the Superior Court of Ontario has proper
jurisdiction, a point Crown Attorney Donald MacIntosh vigorously disputed,
Mr. Lindsay explained: "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 militates in favour of granting habeas
corpus relief."
Mr. Lindsay pointed out that, while Mr. Zundel might
initiate an action in Federal Court to challenge the constitutionality of
parts of the Immigration Act, the average action takes 5.7 years to reach
its conclusion, during which time he might still be in prison.
In the afternoon, Crown Attorney Donald MacIntosh accused
Mr. Zundel of forum shopping. He, then, told Madam Justice Benotto:
"You are being asked to proceed on an incomplete evidenciary record.
In the in camera proceedings, the Minister of Justice and the Minister of
Immigration have submitted evidence showing that Mr. Zundel is a threat to
the security of Canada."
The hearings conclude tomorrow. -- Paul Fromm
