ZGram - 11/18/2003 - "DETENTION OF ZUNDEL IS UNCONSTITUTIONAL" -- Peter Lindsay

[zgrams at zgrams.zundelsite.org]

Zgram - Where Truth is Destiny:  Now more than ever!

November 18, 2003

Good Morning from the Zundelsite:

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 "Šthey 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!

Here is Paul Fromm, reporting from location:

"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