ZGram - 9/28/2004 - "Six more months in solitary for Zundel" - Part I

[zgrams at zgrams.zundelsite.org]

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

September 28, 2004

Good Morning from the Zundelsite:

Today's and tomorrow's Zgram will deal with yet another scurrilous 
brutality inflicted on Ernst Zundel - continuing detention, courtesy 
of former CSIS boss, Judge Blair.  Usually I try to avoid overlap 
write-ups between what I send to my Zgram readers and what I include 
in our monthly "Power" and "Germania" letters for our active 
supporters.  However, the content below ought to be shared with a 
wider audience, as should the concomitant write-up by Paul Fromm, 
Director of the Canadian C-FAR, reserved for tomorrow:

[START]

So there you have it.  A victim is kidnapped and incarcerated.  He is 
treated brutally throughout.  He is mercilessly smeared and vilified 
in mainstream media, where he is not allowed to state his point of 
view.  The agency that helped to put him there, as we now know from 
Freedom of Information Act documents, knew that a bomb was sent to 
him - and did nothing.  Its former boss, Judge Blais, says this: 
"CSIS is not on trial here.  SIRC is not on trial, either. I think 
this is a waste of time."

Discerning "Power" readers might wonder whether Judge Blais at long 
last saw the light about his own disgraceful handling of the Zündel 
case in this circus of a trial and finally decided to disqualify 
himself.  Did he?  Of course not!

Not that the defense team didn't try!  The Lindsays [defense 
attorneys] had carefully worked up a series of questions.  They had 
been repeatedly told such would not be allowed, on grounds that "it 
would endanger the national security of Canada," to know what the 
specific charges against Ernst were, who the witnesses were, what 
document might have been used, etc..  Here is what Defense Attorney, 
Peter Lindsay asked on the last day of the hearings:

[START]

My lord, the first question would be - and I would ask your lordship 
that, in thinking about these questions, to think about whether there 
is any way that these would be injurious to national security.  The 
answer, in my respectful submission, is "no."

Were any live witnesses called as part of the secret evidence?  Just yes or no.

If so, how many were there?  Were any of them expert witnesses?

With respect to the witnesses, did they testify as to personal 
knowledge or as to hearsay?  Was it first hand hearsay or second hand 
hearsay or worse?

Did any such witnesses have criminal records?  Did any of them have 
any apparent bias or animus with respect to Mr. Zündel?  What 
investigation was there, if any, of any bias or animus?  Were any of 
the witnesses from groups strongly opposed to Mr. Zündel remaining in 
Canada?

Were any such witnesses promised or given anything by CSIS or the government?

Did any witness offer any corroboration or documentation to 
substantiate their testimony?

Were any documents introduced as part of the secret evidence?  How 
many documents?

Were any such documents allegedly written by Mr. Zündel introduced?  How many?

How do we know that any such documents were in fact actually written 
by Mr. Zündel?

Are any of those documents publicly available?  If so, why haven't 
they been disclosed?

Apart from witnesses and documents, what other kinds of evidence have 
been introduced as part of the secret evidence?

How many days or hours of secret evidence have been introduced?  How 
many days or hours of secret submissions have been made?

Have there been secret submissions about public evidence?

I attach quite a bit of significance to this:  In what way has the 
secret evidence been introduced?  Are witnesses sworn or affirmed? 
Are these examinations in chief followed by judicial questioning?  Is 
the evidence transcribed or are notes simply taken?  How does it 
work, in a general sense?

Was some, all, or none of the secret evidence shown to the ministers 
prior to the issuance of the security certificate against Mr. Zündel? 
If the answer is not "all", did the evidence not presented to the 
ministers exist in CSIS's hands or the Department of Justice's hands 
as of May 1, 2003 or was it gathered later?  If it was not presented 
to the ministers, will your lordship consider it on the security 
certificate review and, if so, on what basis?

Provide one example of Mr. Zündel encouraging a specific act of 
violence at any time since 1990, since that is the time period when 
his supposed activities in relation to various security started.

Provide one example of Mr. Zündel funding a specific act of violence 
at any time since 1990.

Provide one example of Mr. Zündel pulling the string with respect to 
a specific act of violence at any time since 1990.

Provide one example of Mr. Zündel inspiring a specific crime at any 
time since 1990.

Provide one example of Mr. Zündel encouraging a specific crime at any 
time since 1990.

Provide one example of Mr. Zündel being involved in a specific crime 
since 1990.

Provide one example of Mr. Zündel funding a specific crime at any 
time since 1990.

Provide one example of Mr. Zündel pulling the strings with respect to 
a specific crime at any time since 1990.

	Provide one example of Mr. Zündel inspiring any act of 
terrorism at any time since 1990.

Provide one example of Mr. Zündel encouraging any act of terrorism at 
any time since 1990.

Provide one example of Mr. Zündel being involved in any act of 
terrorism at any time since 1990.

Provide one example of Mr. Zündel funding any act of terrorism at any 
time since 1990.

Provide one example of Mr. Zündel pulling the strings with respect to 
any act of terrorism at any time since 1990.

Provide one example of Mr. Zündel inspiring anything that could 
endanger the security of Canada at any time since 1990.

Provide one example of Mr. Zündel encouraging anything that could 
endanger the security of Canada at any time since 1990.

Provide one example of Mr. Zündel being involved in anything that 
could endanger the security of Canada at any time since 1990.

Provide one example of Mr. Zündel funding anything that could 
endanger the security of Canada at any time since 1990.

Provide one example of Mr. Zündel pulling the strings with respect to 
anything that could endanger the security of Canada at any time since 
1990.


The court, based on these questions, in my respectful submission, 
really has two choices:  Number one, to provide all or at least some 
of the answers to these 34 questions so  that there can be some 
opportunity for both sides to meaningfully present a case and make 
submissions and for the court to have at least a glimpse of a 
balanced case or, number two, provide no answers, present no public 
case, and condemn Mr. Zündel by way of a secret trial.  If you are 
going to do that, I respectfully request that you please cite some 
specific reason why it "would" - not "could", but "would" - 
jeopardize national security to answer any of these questions.

Put very simply, my lord, with no answers and no public case, [this] 
is effectively a secret trial, and I cannot make any more useful 
submissions about detention in the context of evidence that is 
totally kept secret from me for reasons that are not, in my 
respectful submissions, based on national security.

[END]

I call that drawing a line in the sand! 

As I was reading this document, dated September 22, 2004, I wondered 
how on earth even a man without a conscience could wiggle out of that 
one!  I guess I had forgotten chutzpah - and chutzpah writ large is 
what you can read in this amazing piece of scurrility, which is Judge 
Blais's answer. Condensed below, this is the reason why Ernst needs 
to be kept in detention:

[START]

  (Section 4) Pursuant to subsection 83 (2) of the Act, after 6 
months, the Court has the duty to reexamine whether the detention of 
Mr. Zündel should continue.

  (Section 9)  Counsel to Mr. Zündel and his predecessor suggested 
many times that different witnesses would testify.  At the last 
minute, Counsel for Mr. Zündel decided not to bring those witnesses 
to testify.

  (Section 10)  The witnesses which Counsel for Mr. Zündel wanted to 
bring forward to testify included a former counsel for Mr. Zündel, 
who is now a judge of the Ontario Superior Court of Justice, the 
leader of the Canadian Jewish Congress, a leader of B'nai Brith 
Canada, an author and a journalist for the Globe and Mail.  All those 
subpoenas were quashed after a hearing and are the subject of another 
decision rendered on June 23, 2004.

  (Section 11)  In my decision of January 21, 2004, I indicated that 
Mr. Zündel did not provide evidence of his real relationship with the 
individuals and the organizations that are mentioned in the summary 
that was provided to Mr. Zündel in May 2003.

  (Section 12)  Mr. Zündel decided not to address those issues and not 
to clarify his relationship with those individuals and organizations. 
Mr. Zündel decided to demonstrate that he is more or less a victim of 
a vendetta by CSIS against him, and tried by different allegations to 
demonstrate that CSIS has a strong bias against him and is determined 
to deport Mr. Zündel at any price.

  (Section 16) As I stated in a previous decision, it is no secret 
that the Canadian Jewish organizations placed a lot of pressure on 
ministers and different levels of government, insisting that 
different measures should be taken against Mr. Zündel;  for example, 
the Canadian Jewish organizations exerted a lot of pressure to ensure 
that the Canadian government would not allow Mr. Zündel to reenter 
the country from the United States.  In fact, they did not succeed.

  (Section 18)  In fact, the question that has to be addressed is not 
whether there was pressure, but rather, whether the certificate 
issued by the ministers is reasonable.

(Section 19)  We are not there yet.  The hearing on the 
reasonableness of the certificate is still ongoing.  Nevertheless, I 
have a duty to reexamine whether the detention should continue.

  (Section 20)  Finally, counsel for Mr. Zündel suggests that the 
evidence that is provided in camera about Mr. Zündel creates an 
unbalanced position and an untenable position to respond.

(Section 21)  Mr. Lindsay suggests that he should be allowed to ask 
questions about the secret evidence which is classified information, 
and if answers are provided to those questions, it would be easier 
for him to adequately represent his client.

  (Section 22)  In fact, Mr. Lindsay suggests that unless he gets some 
answers to those questions, it will be very difficult if not 
impossible for him to make meaningful submissions about the 
reasonableness of the certificate, and "on the issue of detention."

  (Section 23)  Mr. Lindsay decided to read those questions in making 
his own representation and I can assure Mr. Lindsay right now that 
those questions will be taken into consideration when the Court hears 
counsel for the ministers in camera.  The Federal Court of Appeal has 
explained the burden of proof on  the review of detention.

     " The onus is always on the minister to demonstrate there are 
reasons which warrant detention or continued detention.  However, 
once the minister has made out a prima facie case for continued 
detention, the individual must lead some evidence or risk continued 
detention."

I would agree with counsel for the Ministers that even though counsel 
for Mr. Zündel has shown dissatisfaction with the disclosure of the 
evidence, Mr. Zündel has received adequate disclosure in this case. 
Mr. Zündel has received full disclosure consistent with Section 78 of 
the Act.  The disclosure was consistent with principles of natural 
justice and fairness.  In fact, referring to paragraph 20 of my 
decision of January 21, 2004, I indicated that there was, at the time 
of that decision, reasonable grounds to believe that Mr. Zündel was a 
danger to national security or to the safety of any person.  I based 
my findings, at the time, on the fact that although Mr. Zündel had 
virtually no history or direct personal engagement in acts of serious 
violence, his status within the Right Supremacist Movement was such 
that adherents would be inspired to carry out his acts pursuant to 
his ideology.  The ministers believed that, by his comportment as 
leader and ideologue, Mr. Zündel intended serious violence to be a 
consequence of his influence. . (Section 27)

In assessing carefully the evidence that was provided since that very 
decision of January 21, 2004, I have no hesitation to conclude that 
Mr. Zündel failed to provide evidence that there are no reasonable 
grounds to believe that he is a danger to national security or to the 
safety of any person. . (Section 28)

Being satisfied that Mr. Zündel should remain in detention because 
the Ministers have provided evidence that there are reasonable 
grounds to believe that he is a danger to national security or to the 
safety of any person, it will not be necessary to determine whether 
he is unlikely to appear at a proceeding or for removal.  No new 
evidence was even provided by any party regarding this question. 
(Section 29)

Therefore, THIS COURT ORDERS that:

Mr. Zündel's detention by continued in accordance with subsection 
83(3) of the Act until the designated judge again rules in regard to 
the continuation of the detention.
"Pierre Blais" - Judge

[END]

I don't know what you might see in this judgment - but I see Comrade 
Stalin grinning!

(Note:  The full transcript will be placed on the Zundelsite, 
www.zundelsite.org, shortly. )
.