The Zundelsite saga continues. The issue before the Federal Court of Canada, embedded in ten motions, means, vastly simplified: "A stay of proceedings." In other words, calling the predatory CHRC business quits in the light of the McGillis decision that held that Canadian Human Rights Tribunals were biased because the way they were constituted and paid.
Today's ZGram, reconstructed from notes and memory, picks up where yesterday's left off: with an animated Mr. Duval, Senior Counsel for the Human Rights Commission, pirouetting around the all-important McGillis decision just like some aging ballerina on skates, bending this way and that way, often turning his back on the judge to see if a point had duly registered with the Zundel-and-friends villains lining the back of the court room, as if to say: "How do you like THAT ONE?"
Had it not been so expensive, we would have enjoyed ourselves ever so much!
We were treated to quite a performance as he thrust out his chest and stroked it with great affection, intoning about "quantum leaps" and such things as rules we all know that are proven by exceptions.
"The court meant without saying..." he suggested.
"The court would not make decisions with such sweeping implications," he divined.
"The facts of this case are somewhat convoluted," he explained.
A scowling judge said at one point: "You are shifting grounds on me."
Well, no. Hate propaganda caused GREAT HARM. The threshold was SO LOW. If Zundel won, there would be no body that could render a decision on a human rights COMPLAINT. The Doctrine of Necessity APPLIED. There was a need to "immunize cases" (!) FROM ATTACKS BASED ON BIAS. A JUDGE WHO WAS NOT IMPARTIAL WAS PREFERABLE TO NO JUDGE AT ALL! In the end, French-speaking Duval meekly pleaded that, at best, Judge Richard's decision could only be no more than an interim stay! Certainleee not a permaneeent stay!
So hot got Senior Counsel Duval he actually wailed, forgetting all logic: "There goes the stay! And there goes the claim!"
Make of it what you will! The Jewish intervenors somberly looked on.
Our opposition was skating on very thin ice. A great deal was made of the legal concept of "waiver" - in other words, the twisted argument advanced that Ernst had waived his constitutional rights to a judicial review because -- now listen: BECAUSE he had faithfully attended all scheduled CHR Tribunal hearings! He had not raised the concept of "apprehension of bias" from the word go!
In other words, he hadn't complained EARLY ENOUGH! You see, Ernst Zundel isn't joooish!
Mr. Duval and his compatriots -earrings, pony tail and all! - conveniently overlooked the fact that, from the outset, the Zundel team had claimed that the Commission had no jurisdiction for territorial reasons. That had been clearly pointed out to them before, at the very opening of the hearings on May 26-27, 1997. For a year and a half, in all kinds of settings, it had been argued that the Zundelsite was located outside of Canada, was run by a non-Canadian, and was not a telephone answering machine, to put it one more time. Besides, the Internet came into being only after the "tape recorded telephone messages" statute, created in Canada especially to catch so-called "hate mongers info lines" through that "legal" instrument of censorship, was already enacted in 1977.
Our argument was all along that horse-and-buggy legislation was not applicable and would not do at a time when the rockets were aimed at the moon - to wit, the Internet was not a telephone!
The previous day, Zundel attorney Doug Christie had repeatedly pointed out that it was utterly grotesque and morally wrong to make a man spend years in front of a Tribunal that a court of higher jurisdiction has called biased - based on an endemic institutional bias under which it was created in the first place. Madame Justice McGillis and her Federal Court are superior to the Human Rights Tribunal, and thus a court of superior jurisdiction had already ruled that ***a*** Tribunal (not just ***the*** Tribunal in the Bell Canada case) was under an apprehension of bias, as long as the present state of affairs existed.
It bears stressing: A Tribunal, she stated unequivocally.
To which we say: ANY Tribunal.
Not that it made much difference. By the end of the day, that point was also brought home by Judge Richard to Mr. Duval, the Commission lawyer, who nonetheless kept dancing around the McGillis decision on Day Two as though it did not exist. It was just as he himself had put it: It was "Business As Usual!"
This Senior Counsel for the Human Rights Commission tried to put a brave face on what seemed a very weak case. He had to contend with some pretty withering glances shooting from the bench, as he was slowly forced to concede terrain after terrain on the "stay of proceedings" argument which finally fizzled out right under his wildly flying gestures. He ended up actually pleading with the judge that, at best (!) at the most (!!) Judge Richard ought to grant a temporary stay - not a permanent stay! And, please, not a "voiding of proceedings" which Doug Christie had called for as warranted after the McGillis decision in the Bell Canada case.
Next, it was time for Sabina Citron's lawyers to make his pitch, which he dutifully did, again harping away at Ernst's lawyers not having raised the Commission's "apprehension of bias" issue earlier, thus having waived his rights to raise them at this stage. Not much more was added to the debate by him. It was threadbare, and only a dunce in the room could not have known it was threadbare.
Marvin Kurz, lawyer for B'nai Brith, next waded in - or better stated, rushed in where angels fear to tread - with ever more of the same - and within minutes, Judge Richard was all over him, much like an octopus.
The judge had previously asked that arguments "not be repetitive".
"I have READ it! I can READ, you know! It does not take me LONG to read a PARAGRAPH! Give me some credit for reading what is BEFORE ME!" the judge snapped, and the lawyer of B'nai Brith was shriveling.
(Here is a little German pun: Kurz stands for "short" - and that was what was happening: the judge cut Kurz short. Such fate befalling Kurz, a man of many words! It could not have been easy. It clearly cramped his style.)
Judge Richard was not very impressed. The Assistant Chief Justice had promised "an efficient judge" who would dispose of the entire Zundel mess - and Judge Richard was true to his advance billing.
Next on the agenda was Kramer, an earring-wearing lawyer, commissioned to carry the torch for the Attorney General of Canada. Compared to the flowery Mr. Duval and the wing-clipped Mr. Kurz, Kramer was a virtual letdown in terms of the theatrics. He was slow, deliberate, measured and controlled. He made a number of legal, purely "mechanical proceedings" arguments. They, too, fell flat on the floor.
The Simon Wiesenthal Centre's lawyer did not even show up on Day Two, and no one seemed to miss her. There were plenty of Chosenites around.
Then Doug Christie's turn came to respond to the swarm of True Believers who had preceded him.
Today, Doug spoke slowly, not with the machine-gun fire rapidity of yesterday. He once again outlined all the facts and legal issues - and as he did so, one could see him warming to the challenge and picking up momentum.
Before long, he was at his best - his Battling Barrister Self that people have learned to love, fear and respect - depending where you come from. He abandoned the blizzard of papers and case studies and started to extemporize, the gist of which was this: there was no public interest harmed by a stay of the proceedings, but merely a PRIVATE INTEREST - that interest being the potential of diminished shekels!
No sitting in judgment of politically incorrect sinners - no pay cheques for the Inquisitors! Oy vey!
Doug Christie forcefully drove home the point that the Human Rights industry - and that is what he called it! - had a less than altruistic interest in keeping the proceedings going, particularly the Tribunals - for if they stopped, so would per diem!
THAT, Mr. Christie pointed out, was done for self-serving reasons. And that, said Douglas Christie, is what Madame McGillis found wrong! They had to keep judging so as to get paid! That's what was called self-interest! To just keep the gravy train going!
And, thundered Christie, did Canada NEED them, since Canada had survived for quite a while without these Human Rights advocates? Real judges in real courts, he pointed out, got paid regardless of the case load and the outcome! Whereas with Human Rights Tribunals, only a politically correct decision against a politically INCORRECT sinner translated into re-appointment.
Doug Christie was relentless. He took his verbal hammer and drove home that nail, again and again - that in the interest of Natural Justice, a constitutionally protected right in Canada, ***all*** people were entitled to be judged by an unbiased Tribunal or court - even Ernst Zundel!
"The judgment of McGillis stands, not to be ignored!" said our Douglas Christie. The McGillis decision meant: The Zundel proceedings are VOID!
It was quite a magical five or ten minutes as Christie wrapped up his argument with eloquent simplicity. He said he could not understand how a "human rights" body would have the nerve to try to curtail the human rights of others so blatantly and brazenly!
"Is it business as usual for the Commission?" he wanted to know. "It borders on contempt of court to ignore the McGillis decision!"
Wrapping up, he said that in the Bell Canada case, eight years had been wasted ". . . All for nothing! All for nothing!" Then there was a pause, a long pause, and Christie simply added: "Thank you very much!" and sat down.
The Attorney General's point man rose. Some people felt sorry for him. Here was the man who was supposed to move on the Attorney General's motion to have the whole Zundel Judicial Review stopped. Before he could utter three words, an impatient Judge Richard asked him curtly if, in light of the decisions already having been made, he still wanted to go ahead with his motion.
Kramer hemmed and hawed - and ASKED FOR A THREE MINUTE RECESS! He said: to think things over! (Maybe he just needed to pee...?)
He got his three minutes. Not four. Not five. Just three.
When the three minutes were over, Mr. Kramer stepped up to the lectern and announced in an almost inaudible voice that the Attorney General would withdraw his motion to stop the judicial review.
So that is that. If you think we have won, think again.
Here's how the balance sheet reads. Had the Attorney General's motion not been withdrawn - had he succeeded in winning his motion - all the Jewish intervenors would have lost their chance to cost Ernst Zundel more money for legal fees, more time, more inconvenience, and more Talmudic grief, and they would have lost their chance as well to claim later that they had helped "slay the Nazi Dragon" - if that is, indeed, what will happen.
So what is our gain?
We finally have a strict time table for the proceedings, hopefully culminating in a judicial review - something that we asked for for almost a year and a half. The current proceedings, that were to last three days, were cut in half by an astute, efficient judge who got a glimpse into a dubious, parasitic enterprise and seemed to have his fill.
The decision is up in the air. Judge Richard will render written judgment on the Zundel motions to stay the proceedings "in due course." We can expect that judgment fairly soon - hopefully still this week.
Will all this do us any good? In a just world, it should!
But there are cocktail circuits. There are careers at stake. Canada is a country in the terminal stages of a cancer. Rare are judges like Heald and McGillis who will fearlessly wield the scalpel and cut out the "Justice-by-Lobby" disease that is increasingly poisoning the Canadian judicial system.
I once read a story of a little boy in the last stages of an illness who was told that there was a miracle cure that would work if only he believed in it. Did he believe in it?
Said the small boy: "Do I believe in it? Sure. I believe in it. But I DON'T COUNT ON IT."
Ingrid
Thought for the Day:
"We work as though success depended entirely on our efforts, and pray as though success depended solely on the Lord!"
(Ernst Zundel, on many occasions)