ZGram - 7/21/2004 - "ZUNDEL CASE REACHES CRISIS POINT"

[zgrams at zgrams.zundelsite.org]

=====

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

July 21, 2004

Good Morning from the Zundelsite:

Yesterday I ordered a reprint of Ernst's "Setting the Record 
Straight:  Letters from Cell # 7".  After only two weeks, the first 
edition is just about sold out!

The book is extremely popular, and people are ordering 3, 5, 10 
copies at a swoop to give to friends, relatives, church and club 
members, etc..  I kept the retail price low on purpose - $10 plus 
courtesy postage - because it is more important to me to disseminate 
Ernst's story than to make money on the title. 

Also, in multiples of 100 copies, I will send you a shipment at cost 
the moment I get the reprints.  Write for instructions. (3152 
Parkway, Suite 13-109, Pigeon Forge, TN 27863, USA)

If you are media, I will send you a copy for free, provided you will 
promise to send me a tear sheet of a write-up or review. 

If you have a website, please consider linking to the Zundelsite - or 
if that is too "iffy" for you, let me send you an order blank to 
download, which you can place on your own website and thus avoid the 
Zundel Taint.  Any help at all will be welcome!

If you live in Canada, you are better off ordering your copies from 
Paul Fromm (instructions below) because you will get them faster and 
you can pay in Canadian money and avoid the exchange rates.  Also, 
there won't be the problem with customs.  So far, the books have 
passed the Kanadian Kommissars, but you know how those lobby-obliging 
censors can be - after I became associated with the Zundel name, they 
designated a 1984 autobiography of mine, Furies, as "hate" material 
and burned copies by the hundreds, even though it is the story of my 
having raised a handicapped child, and I wrote it long before I ever 
heard of something called Holocaust Revisionism!  There isn't even a 
glimmer of politics in that book, and there is nothing that a 
reasonable person would object to in Ernst's account of what happened 
with his arrest and afterwards - but just watch B'nai Brith or the 
Canadian Jewish Congress weigh in and lay down the rules on what 
Canadians can and can't read!  

To change the subject - Paul Fromm sent a scary preface about where 
the Zundel case is moving, if Judge Blais has his way - along with 
the text of yet another legal submission to the Supreme Court of 
Canada.  If you are lawyerly inclined and would like to read the 
entire text, please email me, and I will send it to you as an 
attachment.  However, most of my readers like their Zgrams short, and 
therefore I am just giving you the gist of what this case amounts to 
at this stage by sending you a portion from the text.

Paul Fromm, one of Ernst's representatives on location, first:

[START]

ZUNDEL CASE REACHES CRISIS POINT 

   Dear Free Speech Supporter:

  	We're hurtling toward a crisis point in the case of 
German-born publisher and dissident Ernst Zundel. In a June 23 Order, 
former Solicitor-General and CSIS boss Mr. Justice Pierre Blais set 
out a timetable which would see the Zundel national security 
certificate review concluded by September 14.

  	Cynics who have observed the judge's series of arbitrary 
rulings, his quashing of four crucial defence subpoenas and his 
endless chorus of "national security" to restrict the defence believe 
that the judgement has already been reached. Mr. Justice Blais could 
find the certificate "reasonable" -- not true that Mr. Zundel is a 
terrorist, but merely reasonable that the two Liberal ministers who 
signed it thought he "might be" -- on September 15. As the judge's 
decision by law cannot be appealed, Mr. Zundel could be on a plane to 
Frankfurt and a German jail on September 16.

  	The judge is in a frantic hurry because he wants to preempt 
the Zundel appeal to the Supreme Court of Canada. The Crown 
submissions in the leave to appeal motions need not be in until late 
August. That leaves just a few weeks for the Supreme Court to decide 
whether to hear Mr. Zundel's two appeals. At the glacial pace of 
justice in this Dominion, Mr. Zundel could well be back in Germany by 
that time.

  	To forestall this  judicial frog-marching of the German 
pacifist out of the country, Zundel defence counsel Peter Lindsay has 
filed the following motion with the Supreme Court seeking a stay 
(halt) to the proceedings before Mr. Justice Blais until the Supreme 
Court can rule on the leave to appeal and on the appeal itself. This 
motion makes shocking reading as Mr. Lindsay lays out the outrageous 
and prejudicial treatment meted out to Mr. Zundel in Judge Blais's 
courtroom.

  	The Crown has until August 10 to make its submissions in this 
matter. Then, says Chi-Kun Shi, Mr. Lindsay's co-counsel, the Supreme 
Court "either stops it now or they show they don't give a damn about 
this atrocity and all these illegal rulings" by Mr. Justice Blais.

  	Huge expenses have been incurred this summer and we face 13 
days more of court in July (27), August (9,10,11,12, 30, 31) and 
September (1,2, 14, and 15). We urgently need your help and pledge of 
support today. Please mail us your contribution to CAFE (Zundel 
Defence Fund), Box 332, Rexdale, ON., M9W 5L3, Canada. Send a cheque 
or your VISA number and expiry date. You can also e-mail your 
contribution by VISA. 

  	All donors of $100 or more will receive Mr. Zundel's SETTING 
THE RECORD STRAIGHT: LETTERS FROM CELL # 7, which is hot off the 
press. This incredibly eloquent and moving series of reflections from 
prison will go down among the great prison literature of our people. 
If you would simply like a copy of this book, send $20 (postage 
included) to us or $30 for two copies.

Paul Fromm,
Director,
Canadian Association for Free Expression.

[END]

Below part of the latest Supreme Court Submission.

  1.	The Applicant relies upon the Notice of Motion herein.

  PART II - STATEMENT OF QUESTIONS IN ISSUE

  2.	Is it in accordance with our fundamental values of justice to 
allow  someone to be (i) tried in secret Star Chamber style court 
proceedings and  then (ii) deported to a country to be jailed for 
views that are legal in Canada, without even first deciding whether 
this Honourable Court will review important constitutional and legal 
questions about the fairness of  the process? It is important to 
underline that the proceedings in issue in  this case have been 
ordered by Justice Blais on his own initiative to be  completed by 
September 14, 2004.  Regrettably, the Applicant is thus forced  to 
respectfully ask this Honourable Court to act now.  Failure to act 
now  will effectively legitimize and condone a 21st century Canadian 
Star  Chamber.

Should the answer to the above question be any different if the 
subject  person is notorious for holding provocative and extremely 
unpopular views?

  PART III - ARGUMENT

3.	The three-part test to be applied in determining whether a 
stay should be  granted pending a constitutional challenge or in 
other circumstances was set  out by this Honourable Court in Manitoba 
v. Metropolitan Stores, as follows:

  	(A)	Merits of case - where constitutional challenge is 
pending (as in this  case), it is sufficient that the case raises a 
serious question as opposed  to a serious or vexatious claim. In all 
other cases, a prima facie case may  be required. (Para. 31-33)

  	(B)	Irreparable harm - whether the litigant who seeks the 
stay would,  unless it is granted, suffer harm not susceptible or 
difficult to be  compensated in damages. (Para. 34)

  	(C)	Balance of convenience - where constitutional 
challenge is pending,  public interest is taken into consideration 
and weighted together with the  interest of private litigants. In all 
other cases, determination is made of  which of the two parties will 
suffer the greater harm from the granting or  the refusal of a stay. 
(para. 35, 54, 57, 79, 83)

  		Manitoba v. Metropolitan Stores [1987] S.C.J. No. 6, tab 33

  (A)	Merits of Case

   4.	The serious questions here involve the rights of any 
immigrant whom  politicians claim to be a danger to the security of 
Canada and try to deport  from Canada. Specifically, should any such 
immigrant have any of the  following rights:

  	(i)	the right to interlocutory appeal during a court 
review of  the  politicians' claim, there being no appeal or judicial 
review from the  court's final conclusion;

  	(ii)	the right to real disclosure of Crown's evidence 
against the  immigrant; and

  	(iii)	the right to protection of the Charter while the 
immigrant is detained and eventually deported without facing any 
charge, such as  protection against being subjected to a secret trial.

  5.	There is the additional very serious underlying question of 
whether our  law and our courts should treat people with extremely 
unpopular views, such  as the Applicant, differently than other 
people.

  6.	Furthermore, there is the serious question of what should be 
done where,  as here, the judicial errors in the certificate review 
as set out in the  Notice of Motion are so patently unreasonable, and 
so palpable and  overriding, that they destroy the underlying 
fairness and legality of the  proceedings and cannot be corrected on 
appeal (because there is currently no  right to launch any 
interlocutory or  final appeal).

  7.	According to Re Felderhof, the following errors are 
jurisdictional in  nature: (i) gross denial of natural justice; (ii) 
irreparable judicial  violation of constitutional rights; or (iii) 
prejudgment. It is respectfully  submitted that all of these judicial 
errors have been committed in the  security certificate review thus 
far (...). Unless the hearing is stayed, such errors will never  be 
remedied. The security certificate review is not being conducted 
fairly or according to law and therefore should be stayed forthwith.

  		Re: Felderhof [2002] O.J. No. 4103 (C.A.) at 
paragraphs 15 and 17, tab 34

  8.	Relying upon the grounds as listed in the Notice of Motion, 
which will  not be repeated here, it is respectfully submitted that 
the above questions  are all serious and important questions and the 
facts as outlined in said  Notice establish that the questions 
referred to above are sufficiently  meritorious to justify a stay.

  9.	Furthermore, as there is a constitutional challenge raised in 
the Charter  Leave Application (Court File No. 30427) which is being 
relied upon,  the  Manitoba v Metropolitan Store test only requires 
that a serious question be  raised. It is respectfully submitted 
that, if nothing else, the detention of  the Applicant without charge 
in solitary confinement for over 16 months and  the effectively 
secret trial which is occurring right now in this case (see  Notice 
of Motion, paragraphs 11-15) raise extremely serious Charter 
questions.

  (B)	Irreparable Harm

  10.	With (i) no right to interlocutory appeal; (ii) no right to 
meaningful  disclosure; and (iii) no right to Charter protection, the 
Applicant is  poised to be deported to Germany upon the completion of 
the Star Chamber  style hearing fashioned out of the unconstitutional 
Secret Trial Legislation  and all the patently wrong procedural 
rulings, without the chance to provide  a meaningful response.

  11.	Hard cases make bad law, and there is no harder case than the 
Applicant.    It would constitute irreparable harm to deport the 
Applicant without  charge without first even deciding whether this 
Honourable Court will review  important constitutional and legal 
questions about the fairness of the  process.

  12.	Unless a stay of proceedings is immediately granted, the 
Applicant's  pre-ordained removal from Canada will occur and it will 
legitimize all the  "bad law" that has been made in this "hard" case, 
some (but not all) of  which bad law is as follows:

  	(i)	A judge may prejudge a case before it is completed;

  	(ii)	Politicians' motives and intents for deporting an 
immigrant (even if  they are completely improper) are of no interest 
to the Court ;

  	(iii)	An immigrant may be deported without knowing why;

  	(iv)	"National Security" can prohibit discussion of public 
materials;

  	(v)	A judge can initiate his own discrediting of 
cross-examination  materials;

  	(vi)	A judge may then disallow use of those materials in 
cross-examination;

  	(vii)	A leading question is one with a "yes" or "no" answer;

  	(viii)	A judge may make new rules on grammar;

  	(ix)	A judge may provide the Crown much greater latitude 
than the opposing  party on admissibility of evidence;

  	(x)	The words "could be" are interchangeable with the 
words "would be" in  statutory interpretation;

  	(xi)	A judge may liberally insult counsel;

  	(xii)	Procedural issues are more important than fundamental justice;

  13.	Unless a stay of proceedings is granted, there is a distinct 
message  from all of this: it is justifiable to cut down any number 
of principles of  law and justice in order to "get" an unpopular 
person. (...)

  14.	A more recent opinion on the supremacy of the rule of law is 
that of the  U.S. Supreme Court in Hamdi v. Rumsfeld where Justice 
O'Connor, writing for  the majority, held that an American who was 
allegedly captured while  fighting with the Taliban using a 
Kalishnikov assault rifle against U.S.  troops in Afghanistan in 
2001, is entitled to the "due process of law" (p.  24) which should 
afford him the opportunity to be heard in a "meaningful  manner" (p. 
26).

  		Hamdi v. Rumsfeld 542 U.S. _2004, tab 32

  15.	If a country which had been attacked by terrorists and 
suffered the  graphic and public mass murder of its citizens on its 
own soil still  believes that a captive armed combatant should be 
entitled to a meaningful  hearing on his culpability, it is 
respectfully submitted that Canada need to  examine its own relative 
standard of rule of law as demonstrated in the case  of the 
Applicant. It is respectfully submitted that the Applicant has not 
received the "meaningful" hearing that the U.S. Supreme Court has 
championed  for an alleged machine gun toting traitor terrorist.

  16.	An even more recent opinion is from our own Minister of 
Foreign Affairs  the Honourable Bill Graham, who in the Zahra Kazemi 
death recalled our  Ambassador from Iran to protest the closed door 
hearing for the Iranian  accused in Ms. Kazemi's death and declared 
publicly that "justice will not  be done behind closed doors in Iran".

  17.	It is respectfully submitted that our Minister of Foreign 
Affair's  abhorrence of a secret trial reflects our value of openness 
being the  cornerstone of due process and justice. Justice will not 
be done behind  closed doors in Iran, in Canada, or anywhere else. 
The legality of the  Secret Trial Legislation and Justice Blais' 
error-filled implementation of  it must therefore be scrutinized if 
Canada is to maintain any credibility in  its demand for open 
justice, or as a free and democratic society.

  18.	Although traditionally, the consideration of irreparable harm 
is limited  to that of the parties involved, it is respectfully 
submitted that in this  case, not only does the Applicant face 
irreparable harm, but if a stay of  proceedings is not granted 
immediately, this proliferation of "bad law"  under the Secret Trial 
Legislation leads to the inescapable conclusion that  Canada believes 
that there is one law of open justice for Iran and a  different law 
of open justice for Canada. Furthermore, it will lead to the  very 
sad and disillusioning conclusion that there is also one law for 
ordinary people but a very different and harsher law for unpopular 
people  such as the Applicant.

  19.	If the treatment the Applicant received under our justice 
system thus  far is not condemned and halted by this Honourable 
Court, the Canadian  society will in effect be treating unpopular 
views more savagely than the  Americans treat their armed combatant 
traitor.

  20.	As Justice Binnie of this Honourable Court rightly pointed 
out in Re  Application under s. 83.28 of the Criminal Code, upholding 
constitutional  rights at times of national stress is one of the 
chief distinctions that  sets a liberal democracy apart from the 
totalitarian regimes whose threats  give rise to the stress. In Hamdi 
v. Rumsfeld, the U.S. Supreme Court has  ensured such distinction for 
the U.S. It is respectfully submitted that this  Honourable Court 
must now rise to the challenge of doing so for Canada.

  		Re Application under s. 83.28 of the Criminal Code 
[2004] S.C.J. No. 40 at  para. 113, tab 36		Hamdi v. 
Rumsfeld 542 U.S. _2004, tab 32

  21.	Justice Binnie echoed Sir Thomas More's centuries' old view 
when His  Honour wrote:

  		The danger in the "war on terrorism" lies not only in 
the actual damage  the terrorists can do to us but what we can do to 
our own legal and  political institutions by way of shock, anger, 
anticipation, opportunism or  overreaction.

  		Re Application under s. 83.28 of the Criminal Code 
[2004] S.C.J. No. 40 at  para. 116, tab 36

  22.	It is respectfully submitted that the case herein is an 
example of  opportunism. It is also the frightening harvest of the 
above  self-destructive sentiments. Unless this Honourable Court 
steps in to  protect our rule of law, this grim harvest will not stop 
with the Applicant. 

[END]