Defense Attorney - 'Zundel's
Treatment Is Un-Canadian!'

From Ingrid Rimland
Good Morning from the Zundelsite:
When I talked to Ernst last night, he said that the entire prison was in lock-down and that his attorneys were not able to meet with him and give him a status report about the hearing yesterday. This morning I found this on my desk top: Another court has chosen to pass the buck in the Zundel case. I can't pretend to understand all the intricacies of what was going on here, but anybody versed in law will be able to study the latest Zundel Factum in the Ontario Appeal court, to be posted on the Zundelsite shortly.
Here is Paul Fromm's write-up about what happened yesterday:
TORONTO. May 10. After less than five minutes of private discussion at the end of a two hour hearing, a three judge panel of the Ontario Court of Appeals turned down Ernst Zundel's habeas corpus appeal on the grounds that the Ontario courts do not have jurisdiction.
"We're of the view that this Court will dismiss the appeal on the basis of jurisdiction," Madam Justice Charron told the tiny Osgoode Hall courtroom packed with free speech supporters of the 65-year old German publisher.
Lead defence lawyer Peter Lindsay strongly disagrees and says that, despite the hefty cost -- estimated at $75,000 -- that this case is headed for the Supreme Court of Canada.
An angry and disappointed Lindsay told a media scrum: "I was disappointed that I wasn't able to argue on the merits. All I want to do is argue the constitutionality of the [immigration] act. These secret trials are unconstitutional. They're un-Canadian! In the Zundel case, the judge has gone out and consulted with the Crown during a break. Someday, somehow we'll get to argue the merits of this case."
The Ontario Court of Appeals seems to be saying "that the only remedy is an action in the federal Court of Canada that could take five years to be heard," Mr. Lindsay explained in the ornate lobby of the ancient Ontario court in downtown Toronto. "Keep in mind," he added, "that this is all about Mr. Zundel who is in solitary confinement. He's 65 years old. He's not been charged with a crime. He's never broken the law in Canada. Yet, he's sat in prison for 15 months."
"The decision by Mr. Justice Blais on detention shows it's all based on secret evidence," the tall lanky defence lawyer explained. "I'm very disappointed that we didn't get to argue on the merits."
The defence was appealing a decision by Ontario Superior Court Judge Benotto that declined to hear the Zundel habeas corpus motion in November on the basis that the federal court was the better place for such a motion. In his submissions, Peter Lindsay noted: "The parties agree that this Court has jurisdiction. The question is whether this Court should exercise its power."
"The real issue, in my respectful submission, is whether the applicant should be required to pursue a Federal Court action, which is less advantageous to Mr. Zundel, than a habeas corpus action in provincial Court," Mr. Lindsay argued. "Mr. Zundel clearly and unequivocally showed that an action in Federal Court was less advantageous to him than a habeas corpus motion. He submitted evidence that the average federal motion takes five years to get to trial. Is it better for Mr. Zundel to wait for years in solitary confinement without charges or to wait for a few months for a habeas corpus action in Provincial Court?" Mr. Lindsay asked.
"Please consider some of the substantive complaints about the Immigration and Refugee Protection Act (IRPA)," the defence lawyer had asked the panel. "Secret proceedings are allowed by IRPA. These can happen and have happened repeatedly and any time during the case before the designated judge. This is a violation of a basic principle of natural justice as guaranteed by the Charter," he argued.
"Also, 'anything' can be accepted as evidence under Sec. 78.j of IRPA. A judge can base his decision on that, on newspaper articles, on hearsay or triple hearsay. Mr. Zundel has faced a mountain of hearsay evidence which is unsworn and not subject to cross-examination," he said.
Mr. Lindsay argued that the right to hear all the evidence, the right to hear sworn testimony and the opportunity to cross-examine all the evidence are violated by the Immigration and Refugee Protection Act.
"Section 80 of the Act doesn't require the judge to determine whether a person is a danger to the security of Canada, but only whether the certificate is reasonable," Mr. Lindsay explained. "A judge might find that the person is not a threat but that it would be reasonable for the minister to think he was and, in this case, he'd be compelled to find the certificate reasonable."
Even more troublesome, he said, was the fact that "Section 33 allows for speculation of what 'might' occur and this could lead to a person's deportation."
A hint of the decision to come was that the two female judges, Charron and Galice, questioned Mr. Lindsay sceptically.
Crown Attorney Donald MacIntosh countered: "Judge Benotto was correct. The Supreme Court of Canada has clearly recognized the Federal Court's expertise in immigration matters. Also this intersects with national security. Parliament clearly intended that the designated judges (like Pierre Blais in the Zundel case) have exclusive jurisdiction."
Again waving the national security banner which has been used to shroud so much evidence in the Zundel case and to forbid many defence questions, Mr. MacIntosh warned that if the Appeals Court allowed a habeas corpus action in Provincial Court: "There would be no opportunity for the Superior Court to look at the secret evidence."
"But why would we have to look at the secret evidence to determine constitutionality," Judge Rosenberg asked. Rosenberg who had earlier granted Mr. Lindsay's motion for an expedited hearing in the matter asked and received no answer to his question: "Is there any evidence in the record to refute Mr. Zundel's claim about the length of time federal actions take?" -- Paul Fromm



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