ZGram - 5/11/2004 - "Lindsay: Zundel's treatment is un-Canadian"

[zgrams at zgrams.zundelsite.org]

ZGram - Where Truth is Destiny

May 11, 2004

Good Morning from the Zundelsite:

When I talked to Ernst last night, he said that the entire prison was 
in lock-down and that his attorneys were not able to meet with him 
and give him a status report about the hearing yesterday.  This 
morning I found this on my desk top:  Another court has chosen to 
pass the buck in the Zundel case. 

I can't pretend to understand all the intricacies of what was going 
on here, but anybody versed in law will be able to study the latest 
Zundel Factum in the Ontario Appeal court, to be posted on the 
Zundelsite shortly.

Here is Paul Fromm's write-up about what happened yesterday:

[START]

ZUNDEL'S TREATMENT IS "UN-CANADIAN" SAYS LINDSAY

TORONTO. May 10. After less than five minutes of private discussion at the
end of a two hour hearing, a three judge panel of the Ontario Court of
Appeals turned down Ernst Zundel's habeas corpus appeal on the grounds that
the Ontario courts do not have jurisdiction.

	"We're of the view that this Court will dismiss the appeal on 
the basis of
jurisdiction," Madam Justice Charron told the tiny Osgoode Hall courtroom
packed with free speech supporters of the 65-year old German publisher.

	Lead defence lawyer Peter Lindsay strongly disagrees and says that,
despite the hefty cost -- estimated at $75,000 -- that this case is headed
for the Supreme Court of Canada.

	An angry and disappointed Lindsay told a media scrum: "I was 
disappointed
that I wasn't able to argue on the merits. All I want to do is argue the
constitutionality of the [immigration] act. These secret trials are
unconstitutional. They're un-Canadian! In the Zundel case, the judge has
gone out and consulted with the Crown during a break. Someday, somehow
we'll get to argue the merits of this case."

	The Ontario Court of Appeals seems to be saying "that the 
only remedy is
an action in the federal Court of Canada that could take five years to be
heard," Mr. Lindsay explained in the ornate lobby of the ancient Ontario
court in downtown Toronto. "Keep in mind," he added, "that this is all
about Mr. Zundel who is in solitary confinement. He's 65 years old. He's
not been charged with a crime. He's never broken the law in Canada. Yet,
he's sat in prison for 15 months."

	"The decision by Mr. Justice Blais on detention shows it's all based on
secret evidence," the tall lanky defence lawyer explained. "I'm very
disappointed that we didn't get to argue on the merits."

	The defence was appealing a decision by Ontario Superior Court Judge
Benotto that declined to hear the Zundel habeas corpus motion in November
on the basis that the federal court was the better place for such a motion.
In his submissions, Peter Lindsay noted: "The parties agree that this Court
has jurisdiction. The question is whether this Court should exercise its
power."

	"The real issue, in my respectful submission, is whether the applicant
should be required to pursue a Federal Court action, which is less
advantageous to Mr. Zundel, than a habeas corpus action in provincial
Court," Mr. Lindsay argued. "Mr. Zundel clearly and unequivocally showed
that an action in Federal Court was less advantageous to him than a habeas
corpus motion. He submitted evidence that the average federal motion takes
five years to get to trial. Is it better for Mr. Zundel to wait for years
in solitary confinement without charges or to wait for a few months for a
habeas corpus action in Provincial Court?" Mr. Lindsay asked.

	"Please consider some of the substantive complaints about the 
Immigration
and Refugee Protection Act (IRPA)," the defence lawyer had asked the panel.
"Secret proceedings are allowed by IRPA. These can happen and have happened
repeatedly and any time during the case before the designated judge. This
is a violation of a basic principle of natural justice as guaranteed by the
Charter," he argued.

	"Also, 'anything' can be accepted as evidence under Sec. 78.j 
of IRPA. A
judge can base his decision on that, on newspaper articles, on hearsay or
triple hearsay. Mr. Zundel has faced a mountain of hearsay evidence which
is unsworn and not subject to cross-examination," he said.

	Mr. Lindsay argued that the right to hear all the evidence, 
the right to
hear sworn testimony and the opportunity to cross-examine all the evidence
are violated by the Immigration and Refugee Protection Act.

	"Section 80 of the Act doesn't require the judge to determine whether a
person is a danger to the security of Canada, but only whether the
certificate is reasonable," Mr. Lindsay explained. "A judge might find that
the person is not a threat but that it would be reasonable for the minister
to think he was and, in this case, he'd be compelled to find the
certificate reasonable."

	Even more troublesome, he said, was the fact that "Section 33 
allows for
speculation of what 'might' occur and this could lead to a person's
deportation."

	A hint of the decision to come was that the two female 
judges, Charron and
Galice, questioned Mr. Lindsay sceptically.

	Crown Attorney Donald MacIntosh countered: "Judge Benotto was 
correct. The
	Supreme Court of Canada has clearly recognized the Federal Court's
expertise in immigration matters. Also this intersects with national
security. Parliament clearly intended that the designated judges (like
Pierre Blais in the Zundel case) have exclusive jurisdiction."

	Again waving the national security banner which has been used 
to shroud so
much evidence in the Zundel case and to forbid many defence questions, Mr.
MacIntosh warned that if the Appeals Court allowed a habeas corpus action
in Provincial Court: "There would be no opportunity for the Superior Court
to look at the secret evidence."

	"But why would we have to look at the secret evidence to determine
constitutionality," Judge Rosenberg asked. Rosenberg who had earlier
granted Mr. Lindsay's motion for an expedited hearing in the matter asked
and received no answer to his question: "Is there any evidence in the
record to refute Mr. Zundel's claim about the length of time federal
actions take?"
-- Paul Fromm

[END]



Reminder: 

Help free Ernst Zundel, Prisoner of Conscience.  His prison sketches 
- now on-line and highly popular - help pay for his defense.  Take a 
look - and tell a friend.

http://www.zundelsite.org/gallery/donations/index.html
=====