ZGram - 7/30/2004 - Jurisdictional ping-pong in the Zundel Case

zgrams at zgrams.zundelsite.org zgrams at zgrams.zundelsite.org
Fri Jul 30 10:45:26 EDT 2004





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

July 30, 2004

Good Morning from the Zundelsite:

For the lay person, it is very easy to lose track of where the Zundel 
case is going in the various courts in Canada and the United States, 
since so many side tours and detours are involved.  One of the issues 
Ernst is battling in both court systems has to do with jurisdiction: 
Just who, precisely, is going to grit his teeth, remember that he has 
a spine, take the talmudic bull by the proverbial horns and really, 
REALLY look at what is going on in this abomination called a 
"security certificate hearing"! 

Let me simplify the situation in the Canadian system, as I understand 
it:  There exist in Canada two sets of parallel courts - provincial 
courts and federal courts.  On paper, they have equal standing.  On 
paper, a defendant may choose the court most advantageous to his 
circumstances and the facts around his case. 

In reality, a victim of the system can be made to spend huge  sums of 
money, and lose valuable time and energy, getting bounced from one 
court system to the other - back and forth, and back and forth again, 
ad nauseam!

In Ernst's case, the choice was the provincial court system for a 
start.  No luck there, as you will remember.  The female judge just 
washed her hands and said, "wrong court." 

Now, normally, we would have regrouped and gone to the federal court 
with Ernst's complaint like good little players in a very evil game. 
The snag there is that Ernst's case would not have been heard FOR UP 
TO FIVE YEARS because of the federal court backlog!

In the meantime, our legal costs grind on the notorious Judge Blais, 
whose anti-Zundel rulings are so unashamed that they make even some 
of the traditionally hard-boiled media mavens cringe.

What to do?  The Zundel team decided on a motion to the Supreme Court 
of Canada to at least bring the Judge Blais hearings to a stop - 
"stay the hearings", as it's called - and thus save costs and nerves 
until the SC judges, now on summer holidays, can reconvene and look 
at the Blais mess from a national interest and national precedent 
point of view. 

Zundel motion and government reply motion were filed.  Tradition 
allows one last reply to the Zundel defense team before the case is 
going to be heard. 

Below is that reply, filed July 27th.  You can deduce from this reply 
just what is playing here:

[START]

Please find the Applicant's Reply for Motion for Stay and Other 
Relief as follow:

APPLICANT'S REPLY

1.	The Crown's submissions are telling in what is relies upon 
and what is omitted.

What the Crown Relies Upon

2.	The Crown's submissions are dominated by procedural arguments 
thereof. It is respectfully submitted that there are much more 
important substantive issues at stake here, as previously set out in 
the Applicant's Memorandum of Argument herein.

3.	The Crown also relies heavily upon a familiar refrain: that 
the Applicant is in the wrong court. The Crown did so when the 
Applicant brought his constitutional challenge before the designated 
judge (wrong court) and before the Ontario Superior Court (wrong 
court). According to the Crown, the Applicant should either go 
through a five year federal court action and be deported before the 
action is heard (right court), or he should go back to the designated 
judge now, and look forward to the Crown's steadfast response: WRONG 
COURT.

4.	It is respectfully submitted that this jurisdictional 
ping-pong is unbecoming of the Crown and of any court. It brings the 
administration of justice into disrepute by turning it into an 
exercise of grinding individual right-seekers into silence.

5.	It is particularly objectionable that the Crown has answered 
the Applicant's concern of jurisdictional ping-pong with suggestions 
of playing more jurisdictional ping-pong: bounce the Applicant once 
more and he will be gone for good, as there are no more courts to 
which the Applicant can go.

What the Crown Omits

6.	The Crown's submissions contain no answer to any of the 
documentary and transcript evidence in support of the Applicant's 
motion, except one, that due to procedural concerns, this Honourable 
Court should disregard them.

7.	It is respectfully submitted that the Crown relies on 
procedural arguments because it simply has no meritorious rebuttal to 
the Applicant's substantive evidence and argument.

8.	It is respectfully submitted that what the Crown has asked 
this Honourable Court to do is to choose between enforcing murky 
procedure or enforcing substantive justice.

9.	Finally, the Applicant will address two procedural points 
raised by the Crown. The first is the Applicant's timing of this 
motion. Contrary to the Crown's assertion of this being a last minute 
motion, the timing of this motion has been expeditious and has been 
driven by the conduct of the security certificate review hearing 
judge, the Honourable Justice Blais.

10.	As recently as May 5, 2004, the court and all counsel 
scheduled dates for this hearing all the way to December 16, 2004. 
However, on June 23, 2004, Justice Blais quashed all of the 
Applicant's subpoenas to Applicant's witnesses and  unilaterally 
ordered that this hearing end by September 14, 2004, making it 
imperative that this motion be brought and heard very quickly if the 
Applicant's appeal and all the issues of secret trials and 
fundamental justice raised by it are to be addressed on their merits.

11.	As this motion relies upon both the Application herein and 
Application no. 30427, both Applications had to be completed before 
this motion could be brought. Within the four weeks after Justice 
Blais' order dated June 23, 2004, this so-called last minute motion 
was completed together with Application no. 30427 while Applicant's 
leading counsel Peter Lindsay went through serious throat surgery on 
July 13, 2004. The Application materials included excerpts from 
transcripts which by now total in excess of 4,800 pages. This motion 
has been forced upon the Applicant by the conduct of the security 
certificate review court and has been brought on a timely manner.

12.	Secondly, as to the Crown's claim that the Applicant is, 
again, in the wrong court, the Applicant has made it very clear that 
this motion is actually brought under the auspices of both the 
Application herein (from the Federal Court of Appeal) and Application 
no. 30427 (from the Court of Appeal for Ontario). The Applicant 
relies on materials from both Applications to support this motion. It 
is therefore not an option to bring the motion to stay before any 
single appellate court below. Moreover, the Applicant has also 
requested the remedies of consolidation and expedition, which only 
this Honourable Court can grant.

13.	It is respectfully submitted that in order to defeat this 
motion, the Crown ought to have a substantive answer to the atrocious 
violation of fundamental rights and values of justice raised by the 
Applicant as the basis for this request for stay, and do more than, 
once again, dodge the issues.

14.	Our new Foreign Minister lectures Iran that the "government 
of Canada continues to insist that justice be done. The process has 
to be both transparent and credible...I hope that the Iranian 
judiciary will have the courage to act".

15.	It is respectfully submitted that a stay of proceedings 
should be granted as well as consolidation and expedition in order to 
bring this matter to at least the standard of justice  Canada demands 
of Iran.

	ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Date:	July 27, 2004


_______________________________		_______________________________
	Peter Lindsay	Chi-Kun Shi

Counsel for the Applicant


[END]

Well, guess what?  The motion was denied in less than a day - not 
only that, Ernst has been assessed costs to reimburse the opposition! 

The motion to stay the hearings was denied by one lone judge who, 
Ernst said yesterday, has always been hostile to him.  I asked Ernst 
what that meant - was this now the end, and did this latest mean that 
his choice was to sit out five years in the Canadian Gulag until the 
federal court saw fit to hear his case, or be deported as a danger to 
the security of Canada on the simple, arbitrary say-so of Judge Blais 
*before* the substantive matter can be dealt with properly in the 
Supreme Court of Canada?

Ernst said that Judge Blais has had the option of aborting the trial 
all along - and he might well decide to do so at this point. 
However, two motions pertaining to the constitutional issues are 
still pending.  Eventually, the Canadian Supreme Court  judges will 
have to come up with a ruling - in simplest terms, if secret hearings 
such as Stalin practiced are okay in Canada where no defense is 
possible. 

Will this be done while Ernst is still in Canada, or after he is gone? 

Your guess is as good as my guess.  Be prepared for a few more surprises.

NO SURRENDER!

Ingrid





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