- I suspect 65-year-old Holocaust-denier Ernst Zundel dearly
wishes he were a security threat. Unlike Federal Court Justice Pierre Blais,
however, I don't think he is. I think the obnoxious pamphleteer is just
a contemptible crank.
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- But whether Judge Blais was right or wrong last week
when he found Zundel a security threat isn't the important issue. The important
issue is what's happening to the rule of law in Canada.
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- Until recently, if the authorities believed that someone
committed an offence, they could arrest him. If they were able to convince
a court that he was dangerous or a flight risk, they could have the judge
deny him bail. Prosecutors could hold an accused in custody until trial,
then present whatever evidence they had in open court, and let the chips
fall where they may.
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- What the authorities couldn't say was:
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- "Trust us, judge, he's a bad guy. Can't tell the
public how we know, and we certainly can't let him test the evidence,
but take our word for it."
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- This changed on June 18, 2002, when the Immigration
and Refugee Protection Act (IRPA) came into effect. IRPA enables the authorities
to arrest, hold without bail, and eventually deport a person by satisfying
one Federal judge, on evidence that need not be revealed to the suspect
and his lawyer, at a hearing that neither the suspect nor his lawyer is
entitled to attend, that the detainee is a security risk.
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- Currently, IRPA affects only foreign visitors and permanent
residents, not Canadian citizens. Still, it's a law fit for a police-state.
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- IRPA isn't unique. In the wake of 9/11, similar laws
have been passed in several Western nations, including the United States
(The Patriot Act) and Great Britain (Prevention of Terrorism Bill). The
latter was recently revised after Britain's Law Lords told the government
how they felt about it.
-
- Defending the revised version in Parliament, British
Prime Minister Tony Blair said last week that "we have listened to
the Law Lords, but also to our police and security chiefs." Decoded,
Mr. Blair's phrase meant that the state retained as much arbitrary power
as it believed it could get away with.
-
- When terrorists crashed planes into the Twin Towers,
they injured the West in three ways. Tragic as the loss of thousands of
lives was, it was the least injurious. Greater harm resulted from the
intrusiveness and inconvenience of unavoidable security measures. The greatest
injury, however, came when society's reaction let Big Government burst
from its garbs like the Incredible Hulk.
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- IRPA-type laws are the state's immune system run amok.
They're a form of lupus, attacking the body politic. When the state's
case cannot be tested, there's no presumption of innocence any longer.
The law doesn't become Draconian as much as Kafkaesque. With the accused
presumed guilty, the potential for error expands exponentially. Immigrants
become vulnerable to blunders, from mistaken identity to personal vendetta
by informers.. Dissent is criminalized. The line between opinion and conduct
is obliterated. The authorities start proceeding against people of objectionable
views who pose no security threat whatever, as officials are notoriously
poor at telling evil-thinkers from evil-doers.
-
- IRPA-type laws tend to degenerate into a tool of identity
politics - used, say, against the likes of Zundel to placate the Jewish
lobby which is upset with the government for having previously placated
the Arab lobby. Worse, such laws lead to a general erosion of due process.
Secret hearings against suspected terrorist aliens blossom into secret
hearings against suspected terrorist citizens and end with secret hearings
against all citizens.
-
- Slippery slope? Let's just say it's a tendency for today's
exception to become tomorrow's norm. Even in traditional criminal trials,
where defendants have an opportunity to cross-examine witnesses, miscarriages
of justice occur. It's easy to see how unreliable the system becomes under
an IRPA-type regime, with most safeguards removed.
-
- Noting this isn't to dismiss the real threat posed by
terrorists. Security is paramount - except it isn't enhanced by the incarceration
or deportation of people who do nothing to jeopardize it.
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- In modern times the road to statism is paved with the
rulings of well-intentioned judges. Looking at the cast of characters in
last week's psychodrama reveals a painful irony. Zundel, the historical
revisionist, is an arthropod. His denial of the Holocaust - episodes of
which I witnessed myself as a child in Nazi-occupied Europe - makes him
not only repugnant but ridiculous.
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- In contrast, Justice Blais is a distinguished jurist
with a sound understanding of history. Yet when he ruled that it was all
right for the government to deport the pamphleteer - having held him in
solitary confinement in a Toronto jail without a charge for two years,
on a national security certificate issued by the Solicitor-General and
the Minister of Immigration and Citizenship - I contend the eminent judge
posed a threat to civil liberties and the rule of law in Canada the verminous
Nazi-apologist could only dream of.
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