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