ZGram - October 21. 2004 - "Supreme Court Decision in Zundel Case expected today"

[zgrams at zgrams.zundelsite.org]

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

October 21, 2004

Good Morning from the Zundelsite:

This one is for history - again! 

Word has come down to us that today the Supreme Court of Canada will 
announce its decision on whether or not Ernst Zundel's petition for 
leave on the constitutional challenge to the Canadian Security 
Certificate Act will be accepted.  To put it more crudely, today's 
decision will tell the world whether or not a thousand years of 
Anglo-Saxon jurisprudence, imported from England to safeguard 
Canadians from government brutality, will be given the boot. 

Since the Canadian judicial system has just about been taken over by 
the cohorts of the New World Order, none of us expect a miracle.  The 
Court is packed with Zundel foes, several of them Jews who have been 
vociferous for years in protest against Zundel to speak his mind on 
history and on the so-called "Holocaust".

For the record, here is what Amnesty International, even though 
equally poisonously hostile to any help extended or even offered to 
Ernst Zundel personally, has said about the deadly, Soviet-style 
Security Certificate Act.   In a powerful Open Letter to Deputy Prime 
Minister Anne McLellan on March 31, 2004, Amnesty International 
pleaded passionately with the Canadian government to step back from 
the brink to out-and-out dictatorship. 

When Peter Lindsay, who heads Ernst Zundel's defence team, tried to 
file this Amnesty International letter as an exhibit, he ran into 
objections from Murray Rodych, counsel for the Canadian Security and 
Intelligence Service (CSIS) at the hearing.

"Should we have to try to search down whether an unsigned letter from 
Amnesty International sent to Anne McLellan is perhaps a draft?" the 
obstructionist Rodych demanded.

Over the noon break Peter Lindsay was able to satisfy the Crown's 
nitpicking and obtained a signed photostat of the Amnesty letter on 
the organization's letterhead.

The text of the Amnesty International letter follows.

=====

  The Honourable Anne McLellan
  Deputy Prime Minister and Minister of   Public Safety
  and Emergency Preparedness  
  340 Laurier Avenue West
  Ottawa, Ontario K1A 0P8

   By Fax: 990-9077

   March 31, 2004

   Dear Deputy Prime Minister McLellan,

   We are writing this open letter to you to underscore Amnesty 
International's serious concerns with respect to the security 
certificate provisions that have been part of Canada's immigration 
legislation for a number of years. 

  Over the past several years, Amnesty International has, on numerous 
occasions, written to the Canadian government, highlighting 
individual cases in which we considered that the security certificate 
process was resulting in violations of a number of fundamental human 
rights. We are aware of at least six individuals who are currently 
being held pursuant to security certificates. These individuals have 
been in detention for an extended period now, close to four years in 
one case. 

  We repeat Amnesty International's concerns below and urge that you 
take immediate steps to reform the security certificate process to 
bring it into full compliance with Canada's international human 
rights obligations. In doing so, we remind the government that the 
Immigration and Refugee Protection Act itself, in s. 3(3) (f), 
requires that the law be "construed and applied in a manner that 
complies with international human rights instruments to [part of 
sentence missing]

Unfair Proceedings 

  Amnesty International is of the view that the security certificate 
process may very well result in arbitrary detention and thus violate 
the fundamental right to liberty. The process does not conform to a 
number of essential international legal standards, which are meant to 
safeguard against the very possibility of arbitrary detention. 
Detainees are not informed of the precise allegations against them. 
They see only a summary of the evidence that is being used against 
them. Evidence may be presented in court in the absence of the 
detainee or his or her counsel. The detainee is not afforded a right 
to examine any and all witnesses who have been the source of that 
evidence. Furthermore, the Federal Court considers only the 
"reasonableness" of the decision to issue a security certificate and 
does not substantively review it. 

  Amnesty International recognizes that special measures may need to 
be taken in cases involving security matters, but any such measures 
must be consistent with international law. We realized, for example, 
that the government may have concerns about protecting the identity 
of certain sources or witnesses. If so, specific and targeted 
measures should be taken to address those particular concerns, rather 
than through the wide sweeping approach of the current legislation. 
In any case, in view of the potential for a wide interpretation by 
the detaining authorities of security information which may be the 
basis for a decision to detain, and because decisions to detain in 
such cases are often based on a prediction about an individual's 
future actions, it is imperative that there be full and effective 
judicial scrutiny of such decisions, beyond the test of 
"reasonableness" that is the present standard. 

  Amnesty International has repeatedly drawn attention, worldwide, to 
instances where the failure to comply with international human rights 
standards regarding fair trials has led to wrongful detention and 
other human rights violations. In the present circumstances, Amnesty 
International considers that individuals detained pursuant to a 
security certificate are effectively denied their right to prepare a 
defence and mount a meaningful challenge to the lawfulness of their 
detention. This is in contravention of Canada's obligations under 
articles 9 and 14 of the International Covenant on Civil and 
Political Rights. 

  While some of the provisions in articles 9 and 14 apply specifically 
to individuals who have been formally charged with a criminal 
offence, which is not the case in the issuance of a security 
certificate, they are nevertheless widely recognized as reflecting 
general principles of law and are relevant in so far as they set out 
the basic essential elements of a fair hearing. Furthermore, some of 
the provisions apply to all detainees, such as those guaranteeing the 
right to challenge the lawfulness of their detention. That right to 
challenge must be in accord with recognized international fair trial 
standards. 

  Other international standards highlight the importance of ensuring 
that all detainees enjoy the same level of fairness. The UN Body of 
Protection of all Persons under any Form of Detention or 
Imprisonment, adopted by the UN General Assembly in 1988 establish 
that anyone who is detained shall be given an "effective opportunity: 
to be heard by a judicial or other authority, has the right to defend 
him or herself, and shall receive "prompt and full communication" of 
any order of detention "together with the reasons therefore." The 
Basic Principles on the role of Lawyers, adopted in 1990, underscore 
that lawyers must be given access to "appropriate information, files 
and documents" so that they can provide their clients with "effective 
legal assistance." Amnesty International considers that these 
standards require that the detainee be given detailed reasons as to 
why he or she is detained, access to the full evidence that is being 
used against them, and a substantive hearing to examine the 
lawfulness of the detention. 

  On the basis of these concerns, Amnesty International has repeatedly 
urged the Canadian government to reform the security certificate 
process so as to bring it into line with Canada's international human 
right as obligations, incision by ensuring a substantive review of 
the reasons for detention and by making all evidence available to the 
individual detained so that any potentially unfounded allegations can 
be effectively and meaningfully challenged. 

  Protection against Refoulement 

  Amnesty International is doubly concerned about the fundamentally 
flawed and unfair security certificate process because it is 
frequently applied in cases where the likely outcome is deportation 
to a country where the individual concerned is at serious risk of 
torture or other grave human rights violations. Given such 
potentially severe consequences, it is all the more critical that the 
security certificate process fully comply with international human 
rights standards governing arrest and detention. 

  International law is absolute, no one should be deported to a 
country "where there are substantial grounds for believing that he or 
she would be in danger of being subjected to torture."1 The United 
Nations Committee against Torture, in 2000, informed Canada that it 
is a violation to the UN Convention against Torture to deport an 
individual to face a substantial risk of torture, including when 
there are security concerns. In 2002, the Supreme Court of Canada, in 
the Suresh case, recognized that international law provides absolute 
protection against being returned to torture, but left open a 
possibility that such returns might be allowed under the Canadian 
Charter of Rights, in extraordinary circumstances which the Court did 
not define. 

  There is a mechanism in Canadian law which requires an assessment to 
be carried out by an immigration officer prior to deportation to 
determine whether an individual does face a substantial risk of 
torture. However, if a security certificate has been issued and found 
to be "reasonable" by a judge, that possibility is no longer 
available to the individual concerned. Both before and since, the 
Suresh ruling Amnesty International has urged the Canadian government 
to amend Canadian law so as to clearly prohibit any individual being 
returned to country where there is a substantial risk of torture. 

  Conclusion 

  Amnesty International is very much aware that the government alleges 
that individuals detained pursuant to security certificates 
constitute a danger to the security of Canada. However, Amnesty 
International urges Canada to adopt a response to security concerns 
what does not result in violations of such fundamental human rights 
as the protections against arbitrary detention and torture. Canada's 
response should instead focus on bringing individuals to justice in 
criminal proceedings that meet international fair trial standards. 
That is the best means of ensuring both that both justice and 
security will prevail. 

  Sincerely, 
Alex Neve 
Secretary General 
Amnesty International Canada 
(English-speaking) 

  Michel Frenette 
Director 
Amnistie Internationale Canada 
Francophone