- TORONTO, December 11, 2003.
Ernst Zundel headed back to prison after these two days in Federal Court,
with Mr. Justice Pierre Blais having reserved on motions that he be recused
for bias and compel the Solicitor-General to provide a list of agents who
interviewed Ernst Zundel or others in the Zundel case.
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- Judge Blais also delayed ruling on arguments that the
German-born publisher be freed on bail. Final decision on this matter that
has already consumed a staggering 12 days in Federal court and two before
the Superior Court of Ontario on a habeas corpus motion must await yet
another in camera secret hearing requested by the Minister of Immigration
and the Solicitor-General. This meeting will be held later this week. The
Crown remains violently opposed to any release under any conditions for
Mr. Zundel.
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- Mr. Douglas H. Christie opened the day with an eloquent
rebuttal of Crown Attorney Donald MacIntosh's arguments against granting
Mr. Zundel bail. "Now breaches of Canadian human rights law are seen
to be the equivalent of terrorism," he said of Crown complaints that
the Zundelsite continues to feature articles impugned in a January, 2002
Canadian Human Rights Tribunal decision. "Now they are using Section
13.1 [of the Canadian Human Rights Act], a law not meant to be punitive,
to incarcerate a person."
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- The Crown's argument is that Ernst Zundel is "an
embarrassment to Canada and, therefore, is a threat to national security.
Mr. Zundel is an embarrassment to whom?" Mr. Christie demanded. "To
German diplomats?"
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- "If embarrassment to foreign diplomats is a problem,
why not apply it to Chinese dissidents in Canada," he asked.
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- "The name for this is a police state when you determine
what political opinions will be allowed. Dissent is the essence of a free
and democratic society," the Battling Barrister reminded the court.
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- "The Minister says that the integrity of Canada's
external relations is harmed by Ernst Zundel's distribution of 'hate literature'
to Germany and Austria. Yet, there's no proof that he's ever done this.
Before you use the that definition -- 'hate' -- apply the law," Mr.
Christie admonished, noting that Mr. Zundel has never been prosecuted,
much less convicted, under Sec. 319.2 -- Canada's "hate law."
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- "The export of Mr. Zundel's material is not drugs
or guns, it's ideas. This entire trial is a war on ideas," Christie
charged. "If the Zundelsite distributed hate literature, it would
be easy for the Government to lay charges. However, then, they'd have to
prove them."
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- Referring to Mr. MacIntosh's arguments, Mr. Christie
said: "My friend seems to say, if Canada sees it's in its national
interest to incarcerate people, it's okay. What do we do with other 'embarrassments'
-- anti-free trade protesters, environmentalists? They don't go to jail
for six to eight months," Mr. Christie emphasized. "The courts
have upheld the right of those people to demonstrate."
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- "There's no threat to the security of Canada in
anything Ernst Zundel has published," Mr. Christie continued.
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- Addressing both the judge's and Mr. MacIntosh's unhappiness
with the continued operation of the Zundelsite, Mr. Christie charged: "If
he can't communicate, he can't raise money. How can a 64-year-old unemployed
artist raise money? One of the concerns anyone in his position would have
is how he is to fund a battle that may last over a year."
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- "My friend asked for a 'fair, large and liberal
interpretation of a threat to the national security of Canada.' If it's
too large," the defence lawyer argued, "we have a police state!"
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- "My friend's submission said Ernst Zundel has no
intention to comply with any order of this Court. If a Federal Court could
establish a breach of the Human Rights Tribunal order, then it would establish
that he'd committed an act. Yet, we're to detain him in custody because
of an apprehended breach," Mr. Christie challenged. "They jump
on that possibility. It's paranoid and politically motivated. It has nothing
to do with national security. It's to silence a nuisance," Mr. Christie
charged.
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- "This whole thing is about guilt by association."
Mr. Christie referred to the Crown contention that, if released, Canada's
most famous political prisoner would put a message on Mr. McAleer's long
defunct website. "Mr. McAleer is not a criminal," Mr. Christie
pointed out.
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- "The Crown says Ernst Zundel is a fascist and a
neo-Nazi. Yet, he's not a threat to national security. We allow communists
in Canada. Let's look at his needs, not his beliefs. He's not violent."
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- "Ernst Zundel has the right to use legal means to
advance what some may see as his reprehensible views," Mr. Christie
reminded the Court. Referring to one of the founders of the Heritage Front,
the Victoria civil rights lawyer explained: "Wolfgang Droege didn't
get any advice on terrorism from Ernst Zundel. He got advice on pacifism.
Does that make him associated with terrorism? If an older man seeks to
advise a younger man to obey the law, can that be a threat to national
security? To anyone who sought his advice, he advised non-violence."
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- Quoting Mr. Justice Thomas who presided over one of Mr.
Zundel's "false news" trials, Mr. Christie reminded the Court:
"'Mr. Zundel always showed respect to the Court' Mr. Zundel believes
his one chance to advance his views is the protection of the Canadian and
U.S. courts."
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- In a dramatic move, Mr. Christie presented to the Court
a statement issued by Mr. Zundel that morning in response to a request
from the judge the previous day for dialogue on possible bail conditions.
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- An angry Donald MacIntosh interrupted, accusing Doug
Christie of "trying to improve Mr. Zundel's evidence."
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- He was cut short by a furious Mr. Justice Blais. "Are
you saying I cannot inquire into possible conditions?" He then ordered
Ernst Zundel to retake the witness stand.
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- Continuing his dressing down of Mr. MacIntosh, the judge
said: "You benefit from legislation to put double and triple hearsay
into evidence. I opened the door. I know of no other legislation where
you can detain someone on such evidence. It's all extraordinary."
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- On the stand Mr. Zundel indicated that, in addition to
the posting of a surety, he would agree to surrender his expired German
passport, and report to the police. As for the Zundelsite, he would seek
to post a document explicitly renouncing violence as well as including
links to Jewish sites with different views on World War II than those expressed
on the Zundelsite.
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- Mr. Zundel was cross-examined by CSIS lawyer Rodych,
who suggested that he might use a driver's licence to sneak into the U.S.
"But landed immigrants now need a visa," Mr. Zundel shot back.
"I'd face 20 years in prison and a $250,000 fine if I did," he
added. Besides, he explained, he no longer has a valid Canadian driver's
licence.
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- Then, in a harsh statement that typified the belligerence
of the Crown throughout this case, Mr. Rodych said: "I will plainly
state the the Minister will not entertain any conditions. He is a terrorist
and has engaged in acts of violence."
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- Continuing to tease the audience with hints about bail,
Mr. Justice Blais said: "We're not there yet, but we should examine
these conditions Mr. Zundel has presented. All options remain open.
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- After a short break, Peter Lindsay who has now taken
over charge of Mr. Zundel's defence, spoke to his motion requiring the
Minister of Immigration and the Solicitor-General to provide the names
of Canadian Security and Intelligence Service (CSIS) officers knowledgeable
of this case, "those who've interviewed Mr. Zundel or others about
him."
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- Mr. Lindsay's strategy is to subpoena one or more of
these officers. Mr. Lindsay explained that the CSIS certificate "sets
out the 'belief' of CSIS that Mr. Zundel is a threat to the security of
Canada. We cannot see the mindset of CSIS in considering evidence and forming
its beliefs. The unfairness of CSIS to Mr. Zundel will be an issue at the
hearing on the certificate,' he said.
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- Live testimony is needed to probe CSIS's biases and methodology,
Mr. Lindsay argued. "In my submissions CSIS based its beliefs on pathetic
evidence. Let's get someone in the box whom I can examine."
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- "For instance," he explained, "CSIS says
it believes Mr. Zundel contributes to the growth of racism and, therefore,
should remain inadmissible. Does the service really believe that racism
is a threat to national security?"
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- The tall bearded attorney challenged the Court: "Let
me hear from one witness who can be cross-examined. Or, is a determination
to be made on a bunch of papers. We need a witness to give real evidence.
This should be helpful to Your Lordship. This is not a request without
precedent. In the Jaballah case a similar order was made." Jaballah
is an Arab being held as a threat to national security,
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- Court adjourned until January 22, 2004. -- Paul Fromm
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