Last night, I watched a stunning video I had not ever seen
before. It was taped at the Toronto Zundel-Haus celebration after Ernst's
Supreme Court victory in August of 1992 that overturned the "false
news" law under which the Canadian Jews had unsuccessfully tried to
criminalize him. Among many memorable moments on that tape is one where
Ernst says forcefully: "From now on, what we are saying is protected by
the law. Not that our enemies won't try another way. But in the future, I
would like to see the Supreme Court of Canada TO RULE AGAINST ITSELF. That
simply will not happen!" (Paraphrased)
Here we are - sixteen years later. The papers filed this
week by the Zundel Defense team are the beginning of that test. For now,
these papers have been filed in the Toronto Federal Court, an interim court
on the way to the top - but they will reach the highest court in Canada,
believe me.
I consider the document below the most important statement
filed so far in this extraordinary case that pins one stubborn Swabian
against the entire world power of Zion.
In a dramatic move, November 24, Ernst Zundel's lead counsel
Peter Lindsay filed a Statement of Claim in Federal Court in Toronto
demanding that the government release Mr. Zundel and declare relevant
sections of the Immigration and Refugee Protection Act (IRPA)
unconstitutional as violations of fundamental freedoms guaranteed by
Canada's Charter of Rights and Freedoms
Specifically, Mr. Zundel is challenging his 22 months of
detention in solitary confinement and the government's hearing of secret
evidence which has not allowed him to make an adequate or informed defence.
This constitutional challenge also cites the fact that the judge can
consider "anything" -- and Mr. Justice Pierre Blais has -- as
evidence, even hearsay and double hearsay.
CANADIAN ASSOCIATION FOR FREE EXPRESSION. _____________
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
