ZGram - 11/27/2004 - Ernst Zundel vs Her Majesty the Queen

[zgrams at zgrams.zundelsite.org]

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

November 27, 2004

Good Morning from the Zundelsite:

Last night, I watched a stunning video I had not ever seen before. 
It was taped at the Toronto Zundel-Haus celebration after Ernst's 
Supreme Court victory in August of 1992 that overturned the "false 
news" law under which the Canadian Jews had unsuccessfully tried to 
criminalize him.  Among many memorable moments on that tape is one 
where Ernst says forcefully:  "From now on, what we are saying is 
protected by the law.  Not that our enemies won't try another way. 
But in the future, I would like to see the Supreme Court of Canada TO 
RULE AGAINST ITSELF.  That simply will not happen!"  (Paraphrased)

Here we are - sixteen years later.  The papers filed this week by the 
Zundel Defense team are the beginning of that test.  For now, these 
papers have been filed in the Toronto Federal Court, an interim court 
on the way to the top - but they will reach the highest court in 
Canada, believe me. 

Will we see the Supreme Court of Canada rule against itself? 

I consider the document below the most important statement filed so 
far in this extraordinary case that pins one stubborn Swabian against 
the entire world power of Zion.


For the historical record, Paul Fromm below:

[START]

Zundel Sues Crown for False Detention

Dear Free Speech Supporter:

     In a dramatic move, November 24, Ernst Zundel's lead counsel 
Peter Lindsay filed a Statement of Claim in Federal Court in Toronto 
demanding that the government release Mr. Zundel and declare relevant 
sections of the Immigration and Refugee Protection Act (IRPA) 
unconstitutional as violations of fundamental freedoms guaranteed by 
Canada's Charter of Rights and Freedoms

     Specifically, Mr. Zundel is challenging his 22 months of 
detention in solitary confinement and the government's hearing of 
secret evidence which has not allowed him to make an adequate or 
informed defence. This constitutional challenge also cites the fact 
that the judge can consider "anything" -- and Mr. Justice Pierre 
Blais has -- as evidence, even hearsay and double hearsay.

 
Paul Fromm
 
Director
 
CANADIAN ASSOCIATION FOR FREE EXPRESSION.
_____________

B E T W E E N:

ERNST ZUNDEL

Plaintiff

- and -



HER MAJESTY THE QUEEN

Defendant



STATEMENT OF CLAIM

TO THE DEFENDANT:

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the Plaintiff. 
The claim made against you is set out in the following pages.

IF YOU WISH TO DEFEND THIS PROCEEDING, you or a solicitor acting for 
you are required to prepare a statement of defence in Form 171B 
prescribed by the Federal Court Rules, 1998, serve it on the 
plaintiff's solicitor or, where the plaintiff does not have a 
solicitor, serve it on the plaintiff, and file it, with proof of 
service, at a local office of this Court, WITHIN 30 DAYS after this 
statement of claim is served on you, if you are served within Canada.

If you are served in the United States of America, the period for 
serving and filing your statement of defence is forty days. If you 
are served outside Canada and the United States of America, the 
period for serving and filing your statement of defence is sixty days.

Copies of the Federal Court Rules, 1998, information concerning the 
local offices of the Court and other necessary information may be 
obtained on request to the Administrator of this Court at Ottawa 
(telephone 613-992-4238) or at any local office.

IF YOU FAIL TO DEFEND THIS PROCEEDING, judgment may be given against 
you in your absence and without further notice to you.

Date:

Issued by:_________________

Address of local office: 330 University Avenue

7th. Floor

Toronto, Ontario

TO. The Attorney General of Canada

CLAIM

1. The Plaintiff claims for:

a) a declaration that the entire legislative scheme in sections 77, 
78, 80, 81, 82 and 83 of the Immigration and Refugee Protection Act, 
S.C. 2001, c.27, as amended (the "Act"), under which the plaintiff is 
currently imprisoned without charge based on the allegation by the 
Minister of Citizenship and Immigration and the Solicitor General of 
Canada that he is inadmissible to Canada on grounds of security, 
violates sections 7, 9 and 10(c) of the Charter of Rights and 
Freedoms ("Charter"), is not saved by section 1 of the Charter and is 
thus of no force or effect pursuant to section 52 of the Constitution 
Act, 1982;

b) a declaration that the detention of the plaintiff in solitary 
confinement at the Toronto West Detention Centre pursuant to s. 82 of 
the Act, while the reasonableness of the allegation that he is 
inadmissible to Canada on grounds of security is being considered in 
the Federal Court (which allegation would, if found to be reasonable, 
result in his deportation from Canada), is unlawful and 
unconstitutional;

c) an order that the plaintiff should be released from custody 
forthwith pursuant to s. 24(1) of the Charter;

d) costs of this action; and

e) such further and other relief as this Honourable Court deems just.

(A) Overview

2. The plaintiff is a permanent resident of Canada with no history of 
violence, no criminal record and no outstanding criminal charges 
against him in Canada. A certificate has been issued by the Minister 
of Citizenship and Immigration (the "Minister") and the Solicitor 
General of Canada certifying the plaintiff to be a danger to the 
security of Canada. As a result, there are ongoing proceedings before 
Mr. Justice Blais of the Federal Court to determine whether the 
certificate is reasonable. If it is found to be reasonable, the 
plaintiff will be deported to Germany and likely jailed for denying 
the Holocaust. While the proceedings before Mr. Justice Blais have 
dragged on for many months, the plaintiff has been jailed in solitary 
confinement at the Toronto West Detention Centre. The plaintiff 
hereby challenges the constitutionality of sections of the 
Immigration and Refugee Protection Act (the "Act"), S.C. 2001, C. 27 
(as amended), under which (a) the certificate was issued (b) he was 
arrested and (c) the proceedings before Mr. Justice Blais are 
occurring.

3. The plaintiff is a 65 year old permanent resident of Canada who 
started living in Canada in 1958. He has faced repeated unsuccessful 
prosecutions for expressing his unpopular views about the Holocaust. 
He has received death threats. There have been documented attempts to 
kill him, including an incident in which his house was largely 
destroyed by arson and an incident in which a pipe bomb was sent to 
him by mail.

4. In 2000, Mr. Zundel moved to the United States. Mr. Zundel was 
later deported back into Canada by the United States on February 19, 
2003, on the alleged grounds that he had missed an immigration 
appointment. In fact, he had not missed an appointment and his 
American lawyer had been trying to reschedule the appointment due to 
a scheduling conflict for the lawyer, when Mr. Zundel was arrested. 
There was no allegation that Mr. Zundel had been involved in any 
illegal or terrorist activities in the United States or elsewhere. 
The FBI does not believe that Mr. Zundel is a terrorist.

5. The Minister of Citizenship and Immigration (the "Minister") 
detained Mr. Zundel in custody from February 19, 2003 until May 1, 
2003, when the Solicitor General of Canada (the "Solicitor General") 
and the Minister signed a certificate (the "Certificate") declaring 
Mr. Zundel, a permanent resident of Canada, as inadmissible to Canada 
on grounds of security for reasons described in paragraphs 33 and 
34(1)(c), (d), (e) and (f) of the Act. On May 1, 2003, the Solicitor 
General and the Minister also issued a warrant under section 82(1) of 
the Act for the arrest and detention of Mr. Zundel.

6. In May, 2003, the Honourable Mr. Justice Blais of the Federal 
Court thereafter began proceedings reviewing the reasonableness of 
the Certificate pursuant to sections 77(1), 78 and 80 of the Act. The 
proceedings before Mr. Justice Blais have taken place on a number of 
dates. It has now been completed and the decision as to the 
reasonableness of the certificate is pending.

7. The review of Mr. Zundel’s detention pursuant to section 83 of the 
Act has been considered by Mr. Justice Blais, and has stretched on 
for more than seventeen months without bail. (It is interesting to 
note that from about 1985 to 1992, Mr. Zundel was on various bail 
orders for his "false news" case and followed all of those orders.)

8. The "evidence" presented by the Minister and the Solicitor General 
at the proceedings before Mr. Justice Blais consists of 5 volumes 
mainly of newspaper articles, other articles, website printouts, and 
similar materials written by people not called by the Minister or the 
Solicitor General as witnesses. Most of this "evidence" is unsworn 
hearsay which is not subject to cross-examination. Interestingly, the 
Minister and Solicitor General successfully objected when Mr. Zundel 
called an actual witness who referred to hearsay.

9. At times, the source of the documents in the 5 volumes presented 
by the Minister and the Solicitor General has not even been explained 
to the Court. For example, on September 23, 2003, counsel for the 
Minister was cross-examining Mr. Zundel about a document. The Court 
asked counsel about the source of the document and did not get an 
answer. Instead, counsel simply continued questioning Mr. Zundel 
about other matters.

10. The quality of the evidence in the documents against Mr. Zundel 
sometimes goes like this:

Mr. Zundel allegedly had "sporadic contacts" with a now-dead U.S. 
based white supremacist named William Pierce (date, time, place and 
nature of contacts unspecified). Pierce wrote a book called "The 
Turner Diaries" (no suggestion that Mr. Zundel had anything to do 
with writing the book). Timothy McVeigh loved "The Turner Diaries", 
which it supposedly describes a bombing similar to the Oklahoma city 
bombing in 1995, for which McVeigh was convicted (no evidence that 
Mr. Zundel ever had contact of any kind with Mr. McVeigh).

This supposedly links Mr. Zundel to violence or terrorism.

11. The majority of the proceedings before Mr. Justice Blais has 
consisted of a lengthy cross-examination of Mr. Zundel, which could 
be described as "wide-ranging". That cross-examination took up part 
or all of six days. Among the many different topics discussed were 
far-ranging things such as Mr. Zundel's view of Adolf Hitler's view 
of interracial couples, which Mr. Justice Blais indicated was an 
important question.

12. No vive voce or affidavit evidence has been presented by the 
Minister or the Solicitor General in the public part of the 
proceedings before Mr. Justice Blais.

13. Information and/or evidence has been secretly presented to Mr. 
Justice Blais in the absence of Mr. Zundel and his counsel, which 
information and/or evidence may be used according to the Act to 
determine both whether Mr. Zundel should continue to be detained and 
whether the issuing of the Certificate was reasonable. Where secret 
information and/or evidence has been presented to Mr. Justice Blais, 
sometimes a summary has been given to Mr. Zundel and his counsel. 
Usually no summary of the information and/or evidence has been made 
available to Mr. Zundel and his counsel, even though the information 
and/or evidence may be used according to the Act both to determine 
whether Mr. Zundel should continue to be detained and whether the 
issue of the certificate is reasonable. THis has happened repeatedly, 
at every stage of the proceedings.

14. If the Certificate is held to be reasonable, Mr. Zundel will be 
deported to Germany and would be subject to being prosecuted and 
jailed for questioning the Holocaust, despite already being 
unsuccessfully prosecuted many times in Canada for similar 
activities, such as the time when the Supreme Court of Canada struck 
down the "false news" law under which he was being prosecuted as 
violating his right to freedom of expression in R. v. Zundel (1992), 
75 C.C.C. (3d) 449 (S.C.C.).

15. If Mr. Zundel is deported to Germany, he will likely be 
prosecuted and will likely go to jail each time he questions the 
Holocaust in the above manner. In fact, there is already an 
outstanding warrant in Germany for past such alleged behaviour and 
the German Federal Criminal Police Office has already specifically 
offered to pick Mr. Zundel up in Canada on "very short notice" of his 
deportation and take him back to Germany at Germany's expense. The 
German warrant, in justifying why a warrant was issued, says that Mr. 
Zundel "must expect imposition of a considerable prison sentence."

(B) The Statutory Scheme Under the Act and How It Works

16. The Act, S.C. 2001, C.27, which primarily came into face on June 
28, 2002, represents the first complete revision of immigration 
legislation in Canada since 1978. It replaces the Immigration Act, 
R.S.C. 1985, C. I-2, as amended. Section 3(3)(d) of the Act provides 
that the Act must be construed to ensure that decisions under the Act 
are consistent with the Charter.

17. Section 77 of the Act, which can lead to the removal of a person 
from Canada, is triggered by the Minister and the Solicitor General 
signing a certificate stating that someone, who is either a permanent 
resident or a foreign national, is inadmissible on grounds of (a) 
security, (b) violating human or international rights, (c) serious 
criminality, or (d) organized criminality. The certificate is 
required to be referred to the Federal Court for determination of 
whether it is reasonable. Section 78 of the Act sets out the 
following provisions which "govern" the judge’s determination.

18. The judge shall, on the basis of the information and evidence 
available, determine, inter alia, whether the certificate is 
reasonable. The judge shall quash a certificate if the judge is of 
the opinion that it is not reasonable (section 80 of the Act).

19. The determination of the judge is final and may not be appealed 
or judicially reviewed. If a certificate is determined to be 
reasonable under section 80(1), it is conclusive proof that the 
permanent resident or foreign national in it is inadmissible and it 
is a removal order that may not be appealed against and that is in 
force without the necessity of holding or continuing an examination 
or an admissibility hearing (see section 81).

(C) Relevant Provisions of the Act - Fairness and Natural Justice

20. Section 78(c) of the Act purports to inject "fairness" and 
"natural justice" into the Certificate review and detention review 
proceedings. It provides that "the judge shall deal with all matters 
as informally and expeditiously as the circumstances and 
considerations of fairness and natural justice permit".

(D) Secret Proceedings Allowed by the Act

21. The principles of fairness and natural justice include the 
principle that one party should not be allowed to give evidence to 
the decision maker in the absence of the other party. The Supreme 
Court of Canada strongly so held in the pre-Charter Kane v. 
University of British Columbia. It is worth noting that the interests 
at stake for Kane (a 3 month suspension from his job) are clearly 
less than those at stake for Mr. Zundel - deportation and a real 
chance of going to jail. (Kane v. University of British Columbia 
[1980] 1 S.C.R. 1105 at pages 6-8)

22. The principles of "fundamental justice" contained in section 7 of 
the Charter clearly include principles of natural justice plus more, 
as found by the Supreme Court of Canada. (Reference re Section 94(2) 
of the Motor Vehicle Act [1985] 2 S.C.R. 486 at pages 10-12.)

23. Section 78(b) of the Act, which allows the judge to "hear all or 
part of the information or evidence in the absence of the permanent 
resident or the foreign national named in the certificate and their 
counsel if, in the opinion of the judge, its disclosure would be 
injurious to national security or to the safety of any person", 
allows for secret proceedings. Section 78(b) thereby denies the 
person named in a certificate even the most basic entitlement to 
fairness, natural justice and thus, based on the Reference re Section 
94(2) of the Motor Vehicle Act case, "fundamental justice".

24. Section 78(b) of the Act further allows the secret proceedings to 
happen repeatedly, "on each request of the Minister or the Solicitor 
General of Canada". This provision exacerbates the denial of 
fairness, natural justice and thus fundamental justice. Such repeated 
secret proceedings have taken place in this case.

25. Section 78(b) of the Act further allows the repeated secret 
proceedings to occur "at any time during the proceedings", thereby 
further exacerbating the denial of fairness, natural justice and 
fundamental justice. It is a fundamental principle of our adversarial 
judicial system that one party presents its case fully and then the 
other party responds, knowing the case it has to meet. What has 
happened in this case is that after the Minister and Solicitor 
General presented their case and while Mr. Zundel was in the middle 
of presenting his response, the Minister and Solicitor General have 
secretly presented more of a case against Mr. Zundel. The additional 
case being presented is not limited to reply evidence. It is not 
limited at all. The case can secretly change in any way while being 
responded to. Mr. Zundel and his counsel do not know if it has 
changed in this case. Neither does this Honourable Court. It is not 
an overstatement to say that this is completely contrary to the 
fundamental principles of our judicial system.

26. To the extent that summaries of secret proceedings may be 
provided to the person named in the certificate and his or her 
counsel, the chance to have a mere summary after the fact does not 
undo the unfairness and denial of natural justice and fundamental 
justice caused by proceeding in the absence of the person and his or 
her counsel in the first place. Moreover, such summaries were not 
provided in relation to most of the secret proceedings in this case.

27. Section 78(i) of the Act provides that "the judge shall provide 
the permanent resident or the foreign national with an opportunity to 
be heard regarding their inadmissibility". The right to be heard in 
section 78(i) is an illusory right, taken in the context of a process 
which allows for information and/or evidence to be used which is 
introduced in the absence of the person named in a certificate and of 
his or her counsel throughout the proceedings.

28. There is another different way to look at the significance of the 
repeated secret proceedings permitted by the Act. In particular, the 
Act raises the issue of whether the inequality between the parties 
created by the secret proceedings destroys the appearance of 
independence and impartiality of the designated judge. It is 
inconsistent with the appearance of independence and impartiality of 
a judge for that judge to have ex parte communication with one party 
and to make decisions on materials which are not disclosed to the 
other party, while appearing at the same time maintaining the 
appearance of independence and impartiality and of doing justice 
between the parties.

29. The effect of ex parte relations between one party and the bench 
has already been explored in Canada and such relations have been 
treated seriously. For example, in Canada v. Tobiass, two judges of 
the Federal Court had had ex parte communication with a 
representative of the Attorney General of Canada in a hearing about 
revocating Tobiass' Canadian citizenship. The communication was about 
the slow pace of the proceedings. The Supreme Court of Canada held 
that the contact caused damage to the appearance of judicial 
independence and directed that the two judges have nothing more to do 
with the case. By contrast, the Act allows the designated judge to 
have ex parte communication with the representatives of the Minister 
and Solicitor General about not the pace of proceedings, but rather 
about the far more important fact of introducing secret evidence. The 
designated judge then determines the reasonableness of the 
certificate based in part on the secret evidence. The Act flies in 
the face of the principles enunciated in Canada v. Tobiass. (Tobiass 
v. Canada [1997] 3 S.C.R. 391)

(E) "Anything" Can Be Evidence

30. Section 78(j) of the Act allows the judge to "receive into 
evidence anything that, in the opinion of the judge, is appropriate, 
even if it is inadmissible in a court of law, and may base the 
decision on that evidence".

31. Section 78(j) of the Act apparently allows anything to be used - 
articles, hearsay, double hearsay, triple hearsay. The evidence does 
not have to given under oath or solemn affirmation. It does not have 
to be subject to cross-examination in order to test it. There are no 
meaningful limits.

32. As a result, in the proceedings before Mr. Justice Blais, Mr. 
Zundel faces mountains of hearsay "evidence" which is not sworn and 
not subject to challenge through cross-examination, thereby denying 
him any basic entitlement to principles of fairness and fundamental 
justice.

(F) Low and Uncertain Standards of Proof

33. Section 80 of the Act does not require the judge to determine 
whether the person is actually a danger to national security, but 
simply whether the Certificate is reasonable (a clearly lower 
standard). For example, if the judge concludes that the person is not 
a danger to national security but that others (such as the Minister 
and Solicitor General) could disagree (and have disagreed) with that 
conclusion, the judge is required to find the Certificate reasonable 
and the Certificate becomes a removal order, which is not subject to 
appeal.

34. Section 80 of the Act does not even specify the standard of proof 
with respect to whether the certificate is reasonable, that is, 
whether proof is on the balance of probabilities, or, perhaps more 
appropriately, given the severe consequences if the Certificate is 
found to be reasonable, beyond a reasonable doubt. Section 80 also 
does not clearly state who has the onus of proof.

35. In making a decision under section 80 of the Act, the judge must 
(in a security grounds case) consider section 34 of the Act, which 
defines the circumstances in which a permanent resident is 
inadmissible on security grounds. The criteria in section 34 of the 
Act are very broad. For example, a person who has assaulted his wife 
and child by slapping them is caught by section 34(e) for "engaging 
in acts of violence that would or might endanger the...safety of 
persons in Canada".

[Note that Mr. Zundel is not saying that "being a danger to the 
security of Canada" is unconstitutionally vague - The Supreme Court 
of Canada held that it was not in relation to the former Immigration 
Act in Suresh v. Canada [2002] S.C.J. No. 3 at page 29]



36. Section 33 of the Act then expands section 34 to provide that 
facts underpinning a finding of inadmissibility under section 34 may 
"include facts for which there are reasonable grounds to believe that 
they have occurred, are occurring or may occur". Section 33 thus 
allows for speculation about things that might happen to be a basis 
for a finding of reasonableness (not correctness) under section 80, 
leading to deportation of a person.

(G) No Reasonable Bail

37. Section 82(1) of the Act provides that the Minister and the 
Solicitor General of Canada may issue a warrant for the arrest and 
detention of a permanent resident who is named in a certificate if 
they have reasonable grounds to believe that the permanent resident 
is a danger to national security or to the safety of any person or is 
unlikely to appear at a proceeding or for removal. Section 83(1) of 
the Act provides that not later than 48 hours after the beginning of 
detention of a permanent resident under section 82, a judge shall 
commence a review of the reasons for the continued detention. Section 
78 of the Act applies with respect to the review, with any 
modifications that the circumstances require. Section 83(2) of the 
Act provides that the permanent resident must, until a determination 
is made under subsection 80(1), be brought back before a judge at 
least once in the six-month period following each preceding review 
and at any other times that the judge may authorize. It does not, 
however, require that the first detention review be concluded within 
the six months time limit. In this case, the first detention order 
was issued on January 21, 2004, more than eight (8) months after the 
plaintiff's s. 82 detention began.

(H) No Appeal or Judicial Review

38. Section 80 of the Act provides that "the determination of the 
judge [as to the Reasonableness of the Certificate] is final and may 
not be appealed or judicially reviewed". Section 81 of the Act 
provides that a determination that the Certificate is reasonable is 
conclusive proof that the person named is inadmissible and is a 
removal order not subject to appeal. As well, the person may not 
apply for protection, such as the protection offered to a convention 
refugee (see section 96 of the Act). So the person may be deported to 
a place where the person has a "well-founded fear of persecution for 
reasons of race, religion, nationality, membership in a particular 
social group or political opinion".

39. If a certificate is found to be reasonable after the 
fundamentally flawed and unfair process which includes secret 
proceedings and "anything" in the way of "evidence", then the 
plaintiff is completely denied the most basic right of appeal to a 
higher court (or even judicial review).

40. The lack of a right of appeal or judicial review heightens the 
appropriate concern about the other previously-described failings in 
the Act (secret proceedings, "anything" as "evidence" etc). The 
Supreme Court of Canada has held that greater procedural protections 
will be required where, as here, no appeal procedure is provided 
within the Statute, or when the decision is determinative of the 
issue and further requests cannot be submitted. (Suresh v. Canada 
[2002] S.C.J. No. 3 at page 34)

41. While the person named in a certificate found to be reasonable 
has no appeal or review rights, if a certificate is quashed as being 
unreasonable, the Crown can (and has in the past) issued a new 
certificate and started the entire unfair process again. For example, 
Mahmoud Jaballah came to Canada from Egypt. A certificate was issued 
in 1999 and was found to be unreasonable: see Jaballah v. Canada 
[1999] F.C.J. No. 1681 (T.D.). A second certificate was issued in 
2001, based on additional evidence, some of which supposedly 
contradicted evidence given in the hearing with respect to the first 
certificate: see Jaballah, Re [2003] F.C.J. No. 822 (T.D.) The second 
certificate was held to be reasonable. By contrast, there is no 
mechanism for the person named in a certificate to have a second 
"kick at the can" if that person later obtains evidence to contradict 
evidence given in a hearing in relation to a certificate found to be 
reasonable.

(I) Applicability of Charter Protection to Proceedings Under the Act

42. There is a threshold question as to whether and to what extent 
section 7 (and other sections of the Charter) apply to proceedings 
under the Act. The current solitary confinement of Mr. Zundel in the 
Toronto West Detention Centre pursuant to the Act clearly engages his 
"liberty" interest as protected by section 7. The potential removal 
of Mr. Zundel, a permanent resident, from Canada against his will 
clearly engages his "liberty" and "security of the person" interests 
as protected by section 7.

43. The engagement of section 7 is also affected by the impact of 
deportation on the particular individual. Therefore, the fact that 
there is an outstanding warrant for Mr. Zundel in Germany and that, 
he is likely to be jailed in Germany for acts of denying the 
Holocaust, which acts have not been successfully prosecuted in Canada 
because of Mr. Zundel's right to freedom of expression, militates in 
favour of engaging section 7 in this case.

44. For the above reasons, the ongoing process against Mr. Zundel 
under the Act engages his rights under section 7 (and other sections) 
of the Charter, and must therefore comply with the principles of 
fundamental justice.

(J) Constitutional Violations In This Case

45. The entire above described process, with its provisions for 
secret evidence, "anything" being used as evidence, low and uncertain 
standards of proof, no reasonable bail and no appeal or judicial 
review violates the principles of section 7 of the Charter, which 
guarantees everyone the "right to life, liberty and security of the 
person and the right not to be deprived thereof except in accordance 
with the principles of fundamental justice". The proceedings under 
the Act are completely contrary to the principles of natural justice, 
which is part of fundamental justice.

46. The legal rights contained in section 8-14 of the Charter are 
examples of the principles of fundamental justice referred to in 
section 7. Thus, in considering section 7 in this case, the Court may 
consider the principle in section 11(e) of the Charter that a person 
is "not to be denied reasonable bail without just cause", 
notwithstanding that section 11 itself does not directly apply to Mr. 
Zundel because he is not "charged with an offence". The above - 
described problems with the detention review process and the fact 
that it has taken more than six months to complete a detention review 
both violate the right not to be denied reasonable bail without just 
cause. The above described process also violates the protection in 
section 9 of the Charter against "arbitrary detention", for the 
reasons already discussed. Mr. Zundel also relies on his right under 
section 10(c) of the Charter which provides that "everyone has the 
right on arrest or detention...to have the validity of the detention 
determined by way of habeas corpus and to be released if the 
detention is not lawful". Mr. Zundel's detention is unlawful both 
under the Charter as discussed and also under the Act because of the 
lengthy delay of over six months in completing an initial detention 
review.

47. The process set out by the Immigration And Refugee Protection Act 
for determining whether the allegation that Mr. Zundel is 
inadmissible to Canada on grounds of security is reasonable violates 
Mr. Zundel’s rights under sections 7, 9, and 10(c) of the Charter. It 
allows (a) the Crown to repeatedly introduce secret evidence against 
Mr. Zundel at any time in the absence of Mr. Zundel and his lawyers, 
(b) "anything" (literally "anything" under the Act) to be used as 
evidence against Mr. Zundel - sworn or not, hearsay, double hearsay, 
triple hearsay - "anything" without limits, (c) low and uncertain 
standards of proof, (d) no reasonable bail and (e) no appeal or 
review of the court’s decision.

48. The Federal Court has dealt with a constitutional challenge to 
the provisions in section 40.1 of the former Immigration Act, which 
are somewhat similar to the provisions in section 77 and following. 
The case is Ahani v. Canada [1995] F.C.J. No. 1190 (T.D.), affd 
[1996] F.C.J. No. 937 (C.A.), application for leave to appeal to 
S.C.C. dismissed. The decision in Ahani is a) distinguishable; b) 
wrong; and c) not binding on this Court.

49. The decision in Ahani is distinguishable from the Zundel case for 
a number of reasons, including the following:

a) Mr. Ahani was not a permanent resident like Mr. Zundel (let alone 
a resident for over 40 years). Mr. Ahani was a refugee. This 
distinction is critical because of the constitutional rights given to 
permanent residents facing deportation (see paragraph 63 hereof). It 
was also critical in the mind of the trial judge in Ahani, as 
referred in paragraph 16 of the judgment in Ahani.

b) The judge in Ahani was dealing with a statute where permanent 
residents had a greater entitlement to disclosure than foreign 
nationals. That is no longer the case. Section 77 and 78 do not 
distinguish between permanent residents and foreign nationals on the 
issue of disclosure of evidence, which means that the procedural 
rights of permanent residents have now been decreased.

c) The judge in Ahani found that Ahani, unlike Zundel, was 
deliberately not pursuing a hearing on the reasonableness of the 
certificate because he did not want to be deported. Ahani's 
complaints about detention and delay were seen in that context. (see 
paragraph 20 of the judgment)

d) The Court in Ahani dealt with an expectation that the detention of 
the person will not be lengthy. It was not the case. Ahani was 
detained for over two years. Mr. Zundel had been detained for over 
nine months at the time of the habeas corpus application.

e) There were additional steps after the certificate against Mr. 
Ahani was found to be reasonable before he could be deported. There 
were also a number of appeal rights. By contrast, in the case of Mr. 
Zundel, pursuant to section 81(b) of the Act, a finding that the 
Certificate is reasonable becomes a removal order. Without a right of 
appeal, the extra step required and appeal rights given to Ahani are 
important because the Supreme Court of Canada has said that the 
finality of the decision and lack of rights of appeal or judicial 
review in a matter increases the procedural protections which are 
required (see paragraph 61 of this factum).

f) Evidence was called on behalf of the government in Ahani which was 
relied on in considering the Charter issue (see paragraph 11). There 
has been no such evidence in this case.

g) There was no issue raised in Ahani about the right not to be 
denied reasonable bail without just cause under section 11(e) of the 
Charter. That section is in issue in the case of Mr. Zundel.

50. The decision in Ahani is wrong for a number of reasons, including 
the following:

a) The Court in Ahani held that relaxed evidentiary standards 
benefitted the parties (paragraph 21). In our adversarial system, the 
litigants should have some input into the decision of what benefits 
them. Mr. Zundel is not benefitted by the unacceptably loose 
standards of evidence being applied in his case.

b) The Court in Ahani mistakenly concluded that the parties had the 
right to make submissions as to what should be disclosed (paragraph 
20).

c) The Court in Ahani effectively presumed that the Ministers are 
right and says bail is never appropriate (paragraph 23). Even the Act 
now provides for bail, at least for permanent residents.

51. In Suresh v. Canada [2002] S.C.R. No.3, the issue was the 
constitutionality of the process by which a Minister issued an 
opinion under section 53(1)(b) of the former Immigration Act that 
Suresh was a danger to the security of Canada. Section 53(1)(b) of 
the Act was upheld. However, it was found that Suresh was, in the 
circumstances of his case, entitled to a new deportation hearing. 
There are a number of important points about Suresh, including the 
following:

a) Prior to the ministerial decision, Suresh had already had 50 days 
of hearings on the reasonableness of a certificate under section 40.1 
of the former Immigration Act (paragraph 13). That was followed by a 
second deportation hearing, which led to the conclusion that Suresh 
would be deported on grounds of membership in a terrorist 
organization. (paragraph 14). The ministerial decision in issue then 
followed.

b) The section 53(1)(b) opinion could be appealed to the Federal 
Court, Trial Division with leave (paragraph 31). Mr. Zundel has no 
such appeal rights.

c) For section 7 purposes, a deprivation of liberty which is 
foreseeable and can only occur after deportation occurs engages 
section 7 Charter rights (paragraph 54). This is relevant to the 
German arrest warrant for Mr. Zundel.

d) The greater the effect in the life of an individual by the 
decision, the greater the need for procedural protections to meet the 
common law duty of fairness and the requirements of fundamental 
justice under section 7 of the Charter (paragraph 118). Deportation 
from Canada engages serious personal, financial and emotional 
consequences. It follows that this fact militates in favour of 
heightened procedures under section 53(1)(b). This is helpful to Mr. 
Zundel.

e) The Court held that "fundamental justice requires that an 
opportunity be provided to respond to the case presented by the 
Minister" (paragraphs 121-122). This is very helpful to Mr. Zundel, 
since it directly references what has been denied him.

The Suresh case is thus readily distinguishable from the case at bar.

52. In Canada v. Chiarelli [1992] S.C.J. No., the Supreme Court of 
Canada upheld the constitutionality of the statutory scheme providing 
for the deportation of a permanent resident on conviction of a 
serious criminal offence. A number of points should be made about 
Chiarelli:

a) It dealt with a fundamentally different issue - the deportation of 
a permanent resident convicted of a criminal offence for which a term 
of imprisonment of five years or more may be imposed. Mr. Chiarelli 
had been convicted of uttering threats to cause injury and possession 
of a narcotic for the purpose of trafficking. There was also evidence 
that he "was a member of a criminal organization which engaged in 
extortion and drug related activities, and further that the 
respondent personally took part in the extortion and drug related 
activities of the organization."

b) There was also a question about whether a hearing before the then 
Review Committee, which was partly ex parte, was in accordance with 
the principles of fundamental justice. Chiarelli received summaries 
of all ex parte evidence and an opportunity to cross-examine in 
camera witnesses. Mr. Zundel has received neither.

Chiarelli case is also readily distinguishable from the case at bar.

53. In Ruby v. Canada [2002] S.C.R. No. 73, the issue was secrecy in 
the context of proceedings about disclosure of files maintained about 
Ruby by CSIS and the RCMP, among others. That is nothing like the 
deportation of a long term permanent resident under the Act. Mr. Ruby 
was not facing the prospect of deportation from Canada. In Ahani v. 
Canada (2002) 208 D.L.R. (4th) 57 (S.C.C.), a non-permanent-resident 
was challenging different provisions in the repealed Immigration Act. 
This decision was thus readily distinguishable. Neither of these 
cases speak to the applicability of s. 7 to a long term permanent 
resident.

54. A comparison of the above cases with the one herein is annexed 
hereto as Schedule "A".

(K) Can Any Charter Violations be Justified Under Section 1 of the Charter?

55. If Charter violations exist with respect to the statutory 
framework complained of, then the defendant must meet the onus of 
justifying the violations under section 1 of the Charter. The section 
1 test is set out as follows in the leading case of R. v. Oakes. The 
test is set out in R v. Oakes (1986) 24 C.C.C. (3d) 321 at pages 
24-25 (S.C.C.) and R.J.R. MacDonald Inc. v. Canada [1995] S.C.J. No. 
68 at page 84.

56. It is conceded that the objective of the impugned provisions of 
the Act is of sufficient importance to meet the first point of the 
Oakes test. The second part of the Oakes test, however, is not met, 
especially the requirement that the means chosen to protect "national 
security" should impair "as little as reasonably possible" the rights 
or freedoms in question. Put bluntly, the court must not get carried 
away, in difficult times, with the buzzword "national security" and 
thereby countenance broad and overreaching infringements of rights.

57. Examples of smaller infringements which would be very possible, 
some of which were adopted in similar anti-terrorism legislation in 
the U.K., include the following:

a) Eliminate secret proceedings.

b) If there are to be secret proceedings, they could be limited to 
one occasion. Presumably the evidence exists at the start of the 
proceedings, when the certificate is issued. Any secret proceedings 
could be required to take place at that time, rather than allowing 
repeatedly secret proceedings.

c) In the further alternative, the secret proceedings could all take 
place before the person named in the certificate is required to start 
responding to the evidence against him.

d) In the further alternative, any secret proceedings after the 
person named in the certificate starts to respond could be limited to 
proper reply evidence, rather than being completely open-ended.

e) Summaries could be provided to the object of the certificate and 
his or her counsel. It is interesting to note that section 39(6) of 
the Immigration Act, which governed permanent residents named in 
security certificates until 2002, did require that a summary be made 
available to the person and his/her counsel.

f) Alternatively, withholding of summaries should only be permitted 
if "its disclosure would be injurious to national security" and not 
also "to the safety of any person". Witnesses testify every day in 
open court before accused persons in criminal cases where safety 
could be an issue. What about witnesses in an infamous case such as 
the murder trial of Hell Angels' leader "Mom" Boucher? Such witnesses 
must testify in court before the accused.

g) Have a system where some lawyers have full access to the CSIS 
files and can present a case against the secret evidence. This was 
advocated by Justice James K. Hugessen of the Federal Court of Canada 
in a speech, where His Lordship said the following about secret 
proceedings:

Often, when I speak in public, I make the customary disavowal that I 
am not speaking for my colleagues but I am speaking only for myself. 
I make no such disavowal this afternoon. I can tell you because we 
talked about it, we hate it. We do not like this process of having to 
sit alone hearing only one party and looking at the materials 
produced by only one party and having to try and figure out for 
ourselves what is wrong with the case that is being presented before 
us and having to try for ourselves to see how the witnesses that 
appear before us ought to be cross-examined... We greatly miss, in 
short, our security blanket which is the adversary system that we 
were all brought up with and that, as I said at the outset, is for 
most of us, the real warranty that the outcome of what we do is going 
to be fair and just.

The Honourable Justice James K. Hugessen, "Watching the Watchers: 
Democratic Oversight" at pages 384-385

h) Evidence must be given under oath or solemn affirmation.

i) Evidence must come from live witnesses who can be cross-examined.

j) Evidence must at least be admissible in court.

k) Evidence must not be hearsay.

l) Evidence must be, at least, be "credible and trustworthy". (a term 
used in some statutes such as section 515 of the Criminal Code with 
respect to bail hearings).

m) The Designated Judge must determine that the person is actually a 
danger to national security.

n) Facts must be proven on the balance of probabilities, rather than 
the lower standard of reasonable ground for belief in the facts.

o) Alternatively, with respect at least to facts which "may occur", 
such facts must be proven on the balance of probabilities rather than 
just on reasonable grounds of belief.

p) A right of appeal could be allowed.

q) Alternatively, at least a right of judicial review could be allowed.



58. The Charter violations cannot be justified under section 1 of the 
Charter, especially since they do not impair rights as little as 
reasonably possible. The relevant provisions of the Act are thus of 
no force and effect pursuant to section 52 of the Constitution Act. 
The entire legislative scheme in Sections 77, 78, 80, 81, 82 and 83 
of the Act is thus of no force and effect.

The plaintiff proposes that this action be tried at Toronto.

Date:

_____________________

PETER LINDSAY

Barrister and Solicitor

233 Sheppard Avenue West

Toronto, Ontario

M2N 1N2

Tel: (416)733-3313

Fax: (416)733-3433

Solicitor for the Plaintiff



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Ernst\Pleadings\pleadings.fedct\constitutional 
challenge\stmt.claim.constitutional challenge.frm

SCHEDULE "A" TO STATEMENT OF CLAIM

Zundel

Ahani1

Chiarelli2

Ruby3

Suresh4

immigrant

refugee claimant

immigrant

citizen

refugee, applied for immigrant status but never granted

42 year resident

2 year refugee

11 year resident

born in Canada

5 year refugee

Immigration and Refugee Protection Act ("IRPA")

s. 77 security certificate

Immigration Act

s. 40.1 security certificate

Immigration Act

s. 27(1)(d) - criminal conviction

s. 83 - security certificate

Privacy Act, CSIS Act re disclosure of CSIS files

Immigration Act s. 40.1 security certificate

no criminal record

no criminal record mentioned

- convicted of trafficking narcotics, max. term life, received 6 months.

- evidence of membership in extortion and drug organization

n/a

no criminal record mentioned

deportation as potential outcome

deportation

deportation

denied disclosure to CSIS file on Mr. Ruby.

deportation