- TORONTO -- German publisher
Ernst Zundel's new lead defence lawyer Peter Lindsay told an Ontario Superior
Court Judge today: "The detention of Ernst Zundel is unlawful and
unconstitutional." Lindsay asked Madam Justice Mary Lou Benotto for
an order "declaring declaring that the entire legislative scheme in
section 77, 78, 80, 81,82 and 83 of the [Immigration and Refugee Protection]
Act violates sections 7 and 9 and 10(c) of the Charter, is not saved by
section 1 and is thus of no force or effect." He, therefore, sought
"an order releasing Mr. Zundel from custody forthwith."
-
- Mr. Lindsay argued, first, that the Ontario Superior
Court has proper jurisdiction in this habeas corpus hearing and that, secondly,
Mr. Zundel's rights have been massively violated by the long delays of
the hearings in federal Court before Mr. Justice Blais and by such aspects
of the Immigration and Refugee Protection Act as the secret hearings, the
admission of triple hearsay evidence and the fact that there is no right
of appeal against the judge's decision.
-
- In his factum [the full text of which is on the CAFE
site -- canadianfreespeech.com], Lindsay explained: "Mr. Zundel is
an unpopular 64 year old 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 and the Solicitor General of Canada certifying Mr. Zundel
to be a danger to the security of Canada. As a result, there are ongoing
proceedings before Mr. Justice Blais of the Federal Court of Canada (Trial
Division) to determine whether the certificate is reasonable. If it is
found to be reasonable, Mr. Zundel 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, Mr. Zundel has been jailed in solitary confinement
at the Toronto West Detention Centre. The appropriateness of his detention
has not even been determined. Mr. Zundel herein challenges, by way of
application for a writ of habeas corpus ad subjiciendum and for a writ
of certiorari in aid thereof, the constitutionality of sections of the
Immigration and Refugee Protection Act."
-
- "This case is about much more than the notorious
Mr. Zundel. The very serious and important question to be answered in this
case is as follows: In these times of prevalent concerns about security
and terrorism, to what degree will we undermine our most cherished principles
of fairness and justice in our free and democratic society in order to
allegedly protect society from perceived threats? Will we ensure that
such principles are undermined as little as reasonably possible?"
Mr. Lindsay asked the Court.
-
- Outlining Mr. Zundel's flawless record as a lawabiding
landed immigrant in Canada, Mr. Lindsay proceeded: "Since coming to
Canada in 1958, Mr. Zundel has never been involved in any violence. Mr.
Zundel has no criminal record in Canada and faces no outstanding criminal
charges in Canada. Mr. Zundel 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 in the mail. In the arson incident,
witnesses saw a man carry a red gas can tothe front of Mr. Zundel's home
and set the fire. In the bombing incident, the Toronto Sun reported that
'On May 15, [1995], Zundel received a bomb with a Vancouver return address.
Police exploded the device - which was packed with shrapnel - at the Leslie
Street spit.' On March 19, 1997, in a 63 page information to obtain a
search warrant, Constable Warren Ryan of the RCMP in British Columbia swore
that he had reasonable grounds to believe that Darren Thursan and David
Barbarash were guilty of trying to murder Mr. Zundel in May 1995 by mailing
an explosive device to him. Messrs. Thursan and Burbarash were not charged
with attempted murder. Mr. Zundel has also been the victim of other harassment
and mistreatment for many years, based on the unpopularity of his views.
His one time lawyer, now Her Honour Judge Lauren Marshall, received death
threats while representing Mr. Zundel, including a telephone threat made
to her 7 year old child that 'If your mommy goes to court, she'll be killed.'"
-
- Mr. Lindsay took aim at the secret hearings which have
run parallel with Mr. Zundel's public hearings before the Immigration and
Refugee Board in February, March and April and, more recently, in Federal
Court. "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, as follows: 'It is a cardinal principle of our law that, unless
expressly or by necessary implication, empowered to act ex parte, an appellante
authority must not hold private interviews with witnesses (de Smith, Judicial
Review of Administrative Action (3rd ed.) 179) or, a fortiori, hear evidence
in the absence of a party whose conduct is impugned and under scrutiny."
-
- Then, referring to the Kane case, Mr. Lindsay observed:
"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."
-
- Pursuing his denunciation of the secret testimony that
has dogged the Zundel case, Mr. Lindsay argued: "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'. It is
respectfully submitted that this provision exacerbates the denial of fairness,
natural justice and thus fundamental justice. Such repeated secret proceedings
have taken place in this case. Section 78(b) of the Act further allows
the repeated secret proceedings to occur 'at any time during the proceedings',
thereby, it is submitted, 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 (see paragraph 20 above). 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."
-
- Me. Lindsay insisted that the secret hearings are a wholesale
violation of Mr. Zundel's Charter rights: "It is respectfully submitted
that 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. ... 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. The problem is made worse in
this case when the designated judge receives ex parte communication as
to matters such as when Mr. Zundel speaks to his lawyer."
-
- When political prisoner Ernst Zundel entered the Court,
his 25 supporters who nearly filled the room, noted with shock an angry
4mm welt on his wrists from the handcuffs that his five burly guards force
him to wear.
-
- One of Mr. Lindsay's first acts was to seek permission
for Mr. Zundel to leave the prisoner's box and join him at the second counsel
table. The authorities' treatment of the German-born dissident is "disgusting,"
observed Lady Michele Renouf, a model, actress and British civil libertarian
in Toronto to observe the hearing and to speak for the Canadian Association
on Thursday. Lindsay's move was important, said Lady Renouf, "because
it establishes Mr. Zundel as a human being."
-
- Advancing his critique of the unconstitutionality of
many aspects of the Immigration and Refugee Protection Act, Mr. Lindsay
slammed the acceptance of almost anything as evidence. "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.' Section 78(j)
of the Act apparently allows anything to be used -- articles, hearsay,
double hearsay, triple hearsay. The evidence does not have to [be] 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. 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." The Crown, Mr. Lindsay noted,
has tendered no witnesses, no viva voce evidence, at least not in the public
hearing.
-
- Mr. Zundel's new chief defence lawyer criticized the
Immigration Act's extremely low standard of proof required to deport a
political prisoner like publisher Ernst Zundel.
-
- Mr. Lindsay pointed out the shocking absurdity that "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.
It is respectfully submitted that 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."
-
- Contending that the Superior Court of Ontario has proper
jurisdiction, a point Crown Attorney Donald MacIntosh vigorously disputed,
Mr. Lindsay explained: "If it can be shown that the review and appeal
process under the Act is less advantageous than the habeas corpus jurisdiction,
the Superior Court should exercise its discretion to grant relief on a
habeas corpus application. That review and appeal process, with respect
to constitutional issues, is to bring an action in Federal Court, which
will take years. The timing of the remedy was specifically considered
by the Court of Appeal for Ontario in Baroud in relation to the 'less advantageous'
test, and, based on the evidence of Federal Court delay in bringing actions,
strongly militates in favour of granting habeas corpus relief."
-
- Mr. Lindsay pointed out that, while Mr. Zundel might
initiate an action in Federal Court to challenge the constitutionality
of parts of the Immigration Act, the average action takes 5.7 years to
reach its conclusion, during which time he might still be in prison.
-
- In the afternoon, Crown Attorney Donald MacIntosh accused
Mr. Zundel of forum shopping. He, then, told Madam Justice Benotto: "You
are being asked to proceed on an incomplete evidenciary record. In the
in camera proceedings, the Minister of Justice and the Minister of Immigration
have submitted evidence showing that Mr. Zundel is a threat to the security
of Canada."
-
- The hearings conclude tomorrow. -- Paul Fromm
|
