ZGram - 11/17/2004 - "Teleconference without a transcript? Why?"

[zgrams at zgrams.zundelsite.org]

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

  November 17, 2004

  Good Morning from the Zundelsite: 

The FBI Report stating that Ernst Zundel has an absolutely clean 
slate seems to have really spooked the Zundel foes!  Here's another 
one for the record!

Read Peter Lindsay's letter to Judge Blais, prefaced by Paul Fromm's intro: 

[START] 

  Dear Free Speech Supporter:

      Wouldn't you know it? No sooner had the public hearings as to 
the "reasonableness" of the CSIS certificate labelling Ernst Zundel a 
"terrorist" and threat to national security ended than an application 
under U.S. Freedom of Information coughed up a stunning FBI report 
that their investigation revealed that Ernst Zundel was no threat to 
U.S. "national security."  He was, as he's contended all along in 
Canadian court, a Revisionist, not a "White supremacist". 

      Mr. Zundel's lawyer Peter Lindsay has submitted this document to 
Mr. Justice Pierre Blais and made written submissions. Crown Attorney 
Donald MacIntosh has pooh-poohed the F.B.I. report as unimportant and 
of no weight. 

      What follow is Peter Lindsay's most recent submission:

  [START]

  PETER LINDSAY B.A., LLB. 

  BARRISTER 233 Sheppard Avenue West

  Toronto, Ontario

  M2N 1N2

  Tel: (416) 733-3313

  Fax: (416) 733-3433

   November 12, 2004

   BY FAX: 416-973-2154

   The Administrator

  Federal Court of Canada

  Canada Life Building

  330 University Avenue

  7th. Floor

  Toronto, Ontario

  M5G 1R7

   Dear Sir/Madam:

   Re: Zundel, Ernst

  Court File No. DES-2-03

    I ask that this letter be brought to Mr. Justice Blais' attention 
and filed in the court file for this matter.

  I write to the court to make reply submissions pertaining to the 
"FBI documentation" which was filed as an exhibit in these 
proceedings, during the conference call on November 5, 2004.

  I wish to raise an initial point about the manner in which the FBI 
documentation was handled.  On Friday, November 5, 2004, a 
representative of the Court called my office at about noon and 
insisted to Ms. Shi that there had to be a conference call at 2 p.m. 
that day "no matter what".  I was at court in the middle of a trial 
and was unable to attend. (In fact, I did not even know about a 
request for a conference call until about 4:30 p.m.)  The conference 
call was thus arranged for 6 p.m. that day.  The call proceeded at 
that time, without the Court advising us that there was no reporter 
present in the Court.  There had always been a reporter present in 
all of the past conference calls in which I have been involved in 
this matter.  Transcripts of those previous calls were thus 
available.  The Court knew that there was no reporter this time, but 
did not advise us of that fact.  (Had I known, I would not have 
proceeded.)

  As a result, there is no proper verbatim record of what was said on 
November 5, 2004.  That includes the Court's harsh criticism of me 
for providing documentation (which was public documentation obtained 
through a freedom of information request in the United States) to the 
press (which documentation was first provided to the Court).  It also 
includes my response that there was nothing wrong with my providing 
the FBI documentation to the press, as part of the important value of 
open justice.  Unfortunately, the record of these matters, and of the 
proceedings surrounding them, simply does not exist in a verbatim 
form.

  Similarly, there is no verbatim record of my question as to whether 
the Court had discussed the FBI documentation with the Crown 
privately, which the Court said that it could not answer without 
getting into other documents.  There is also no verbatim record of my 
asking all of the Crown counsel whether they had seen any of the FBI 
documentation prior to my sending it to them on November 4, 2004 and 
the refusal of Mr. MacIntosh (apparently on behalf of all counsel) to 
answer.  This is significant in part because there is a basis for 
thinking that Mr. MacIntosh might have seen the FBI documentation 
prior to November 4, 2004.  On April 1, 2003, Mr. Zundel told Mr. 
MacIntosh about the FBI's investigation of him during 
cross-examination in the detention review at the Immigration and 
Refugee Board.  On that same date, Mr. MacIntosh made the following 
submissions to the Board, at page 79 of the transcript:

  Mr. Zundel acknowledged in cross-examination that he has never seen 
the FBI file, therefore obviously he is not in a position to state 
whether or not as a result of conversations he had with this 
particular FBI Agent has dispelled what he describes the ridiculous 
and unfounded notions that he had connections to international 
terrorism.

  Certainly, this provides additional information which the Minister 
would have cause to investigate with the FBI specifically, namely 
whether or not Mr. Zundel has connections to international terrorism 
and what the FBI's position is with respect to that very issue.  Mr. 
Zundel has advised this tribunal that by his documentation that he 
was accused of having and that provides further support to the 
serious allegations that Mr. Stewart testified to before you. 
(Emphasis added.)

  One might appropriately ask (and I do ask):

  1. Did Mr. MacIntosh (or others) make investigations with the FBI, 
as he suggested to the Board that there was cause to do?  If not, why 
not?

  2. Did Mr. MacIntosh (or others) receive documentation in connection 
with any investigation, such as (possibly) the FBI documentation? 
When? What documentation?

  3. Was any such documentation provided by the Crown to Mr. Justice 
Blais? When? If not, why not?  Why was it not provided to Mr. Zundel?

  There are important questions which go directly to the fairness of 
the process against Mr. Zundel.  It is the duty of the Court, it is 
respectfully submitted, to publicly consider such questions (and the 
answers to them) under subsection 78(c) of IRPA, which provides as 
follows:

  Judicial consideration - the following provision govern the determination:

  (c) the judge shall deal with all matters as informally and 
expeditiously as the circumstances and considerations of fairness and 
natural justice permit.

  I respectfully submit that the questions should be answered by the 
Crown.  For the Crown to say that the Crown counsel was not under 
examination by me, as was done on November 5, 2004, is essentially to 
say that the fairness of the process  is not something the Crown is 
prepared to address.  That surely should not and would not be 
satisfactory to the Court.

  Moving on to the specific content of the FBI documentation, my key 
submission is that the FBI documentation supports the conclusion that 
the certificate is unreasonable and must be quashed. There are a 
number of reasons for this submission.

  First, counsel for the Crown refers (on page 1, paragraph 2 of his 
letter) to "the weight, if any) that should be given to the 
documentation" (emphasis added).  The FBI documentation suggests, 
among other things, that Mr. Zundel is not a leader of any white 
supremacist group but is rather a leader in the Revisionist movement. 
This corroborates  Mr. Zundel's testimony to the same effect. ("I 
have never been a white supremacist..." - Ernst Zundel, May 9, 2003, 
page 121.) Since the Crown appears to try to discount the reliability 
of anyone who corroborates Mr. Zundel's evidence, does the Crown now 
say that the FBI is unreliable?  On what basis? The suggestion that 
Mr. Zundel is not the leader of any white supremacist group directly 
disputes the Crown's theory against Mr. Zundel.  It is thus 
surprising to hear the Crown suggest that such documentation might be 
given no weight. Whether it tips the balance is up to the Court - 
however, it must be carefully considered and cannot be just given no 
weight, despite the  Crown's suggestion to that effect.  The Crown 
thought it was worth investigating on April 1, 2003 - surely the 
results of the investigation, even if they do not support the Crown's 
theory, have some relevance.

  Second, counsel for the Crown maintains (on page 2, paragraph 1) 
that "[t]he tepid and qualified language used by the source is such 
that the opinions expressed by the Knoxville source have no relevance 
to this case." The documentation says in part as follows:

  Source does not believe that Zundel is the leader of any white 
supremacist groups but rather a leader in the "Revionist" movement. 
. .

    The Knoxville source does not believe the subject has any direct 
connections to the National Alliance or the Aryan Nations and the 
subject is a "Revisionist," not a white supremacist per se.  The 
source has never heard the subject espouse any hatred toward any 
minority groups or discuss or encourage any type of violent activity 
against anyone, including Jews.

  This is hardly tepid.  The source unequivocally describes Mr. Zundel 
as a Revisionist not a white supremacist per se.  The subject has 
never heard Mr. Zundel express any hatred or discuss or encourage 
violence.   Moreover, given the Crown's exclusive reliance on 
documents in its public case against Mr. Zundel, it is quite ironic 
to hear the Crown attack clearly relevant documents and to suggest 
that their contents have no relevance and that they might be given no 
weight.  The FBI documentation has more relevance to this case than 
any document produced by the Crown.  Unlike almost all Crown 
documents, it addresses the issues in this case.  Another document 
which does so, which is also supportive of Mr. Zundel, is Exhibit 
D-29, in which CSIS Director Mr. Ward Elcock said "Mr. Zundel is 
certainly a widely known and a very serious extremist on the 
right-wing side.  I'm not sure I would go so far as to call him a 
terrorist, but an extremist he certainly is."

  Third, counsel for the Crown refers to the "extensively documented" 
case presented by the Ministers (page 2, last paragraph).  The case 
is "documented" because it consists of no witnesses, at least 
publically.  Mr. Zundel questions whether there has been any 
witnesses privately.  He has asked whether there have been.  The 
Court has refused to tell him. The further problem is that the Crown, 
in referring to its "extensively documented" case, then cites in its 
submissions the Court's indication that the Court "reviewed in camera 
with intense scrutiny the information provided." (page 2, paragraph 
6)  As usual, the answer to questions and evidence presented 
publically, such as the FBI documentation, is to point to the secret, 
unknown, unchallengeable evidence.  It's all about the secret 
evidence.  To say, by the way, that there have  been public hearings 
and many hundreds of pages of public hearsay filed, is no answer. 
The key evidence, in which refuge is always sought, is kept secret. 
Even when counsel tried to get to the truth of the little real public 
evidence, such as the so-called enemies list, counsel's efforts were 
shut down in the name of national security.  As the Court will 
recall, the Heritage Front report contained an assertion about an 
enemies list and Mr. Zundel's emphatic denial of involvement in such 
a list, using the words "absolutely nonsense".

    Mr. Zundel's counsel attempted to clarify the matter, but was not 
permitted to do so, as can be seen at pages 4184, 4187, and 4192 of 
the April 29, 2004 transcript:

  Q. Do you on behalf of CSIS know whether Mr. Zundel's version is 
correct, i.e., that it is absolutely nonsense, or whether the other 
version presented in this document is correct? Do you know which is 
correct on behalf of CSIS?

  Mr. MacINTOSH: Objection.

  Mr. LINDSAY: I am not allowed to ask the question?

  THE COURT: Reformulate it. I don't see how it could be helpful.

  Q. Do I take it, sir, that you on behalf of CSIS are not able to say 
which of the two versions is correct?  Is that a fair summary, sir? 
Mr. Rodych: I object, my lord.  For Mr. Stewart to answer that 
question is going to be a matter of national security. Mr. Lindsay: 
why is it a matter of national security? The COURT: I think this is a 
matter of national security, and the objection will be sustained.

  Mr. Lindsay: I guess that's that. 

  Q. Does CSIS have any information at all that Mr. Zundel had direct 
knowledge of the enemies list or a list referred to in relation to 
either Mr. Droeger or Mr. Long?

  MR. RODYCH: Objection on the grounds of national security.

  The COURT: I think we had an objection on that particular point 
earlier, not with you but with your predecessor, and I upheld the 
objection.

  There is not a meaningful public case.  No one should pretend that 
there is.   Moreover, the Crown (and the Court) just blithely say to 
Mr. Zundel that he can respond to the secret evidence by filling in 
the gaps of his real relationship with a bunch of people. In other 
words, respond to the secret evidence which you don't know.  It's 
easy, supposedly.  That attitude reflects a tragic misunderstanding 
of the critical importance of being able to know and confront the 
specific allegations against you.

  Fourth, the submissions of Crown counsel underline the "guilt by 
contact" upon which the Crown relies.  Counsel for the Crown refers 
to Mr. Zundel saying that he had no contact with white supremacist 
group since coming to Tennessee.  Therefore, says to the Crown, he 
had contact with such groups earlier, in Canada.  Even if that is 
true, contact is not enough.  There is no evidence of complicity.  To 
similar effect, the Crown thinks the FBI source's not ruling out 
indirect contact (which is not proven) with the Aryan Nations 
matters. (Page 1, paragraph 4).  So does the fact that Mr. Zundel 
"met" with leaders of the "movement" (Page 2, paragraph 5).  Contact 
is enough, says the Crown.  Mr. Zundel says that what really matters, 
and what is lacking, is evidence of involvement of Mr. Zundel in 
matters affecting the security of Canada.

  Fifth, it is interesting to note how often Crown counsel comes back 
to the January 21, 2004 detention decision in arguing its case. It is 
almost as if that decision foretold the ultimate decision in this 
case.

  Sixth, the Crown correctly notes that the period of time that Mr. 
Zundel was in the United States was relatively short.  However, 
evidence that Mr. Zundel is a revisionist rather than a white 
supremacist is important with respect to all time periods. 
Statements from a confidential source, obviously familiar with Mr. 
Zundel privately, that he was not expressing any hatred toward any 
minority groups or encouraging any type of violent activity, are 
clearly relevant to the "private" Mr. Zundel that the Crown alleges 
does encourage violent activity. The FBI source says he does not. 
Mr. Burdi corroborates it.  So does Mr. Christie.

  The bottom line is that the certificate was, is and always will be 
unreasonable and should be quashed.  This is an appropriate 
conclusion without the "FBI documentation". That documentation only 
strengthens the case in favour of Mr. Zundel.

   Yours truly,

    Peter Lindsay

   c.c. Mr. Donald MacIntosh by fax: 416-954-8982

  Mr. Murray Rodych by fax: 613-842-1345

[End]