Real History and the internment of writer Ernst Zündel

Posted Wednesday, May 5, 2004

A cynical person would say some pressure has been brought to bear on her Honour -- Ernst Zündel's lawyer.

Faurisson, Zündel, Leuchter

Image added by this website: above, Robert Faurisson, Fred Leuchter at Carlton SAtreet; Zündel seated in background

Toronto, Wednesday, May 5, 2004

"The only reason everybody has their tail feathers in a knot is because I'm a judge"

An Ontario judge stunned a courtroom awaiting her testimony at Holocaust denier Ernst Zundel's deportation hearing yesterday by instead launching a bid to avoid testifying.

By Kirk Makin
JUSTICE REPORTER

AN Ontario judge stunned a courtroom awaiting her testimony at Holocaust denier Ernst Zündel's deportation hearing yesterday by instead launching a bid to avoid testifying.

Ontario Court Judge Lauren Marshall -- who represented Mr. Zündel in the 1980s -- retained lawyer Paul Stern virtually overnight to try and quash her subpoena, claiming that she has no "material evidence" to offer.

"It is not a matter of any kind of backing off," Senior Regional Judge Marshall said in a telephone interview yesterday. She was adamant that she has not been under pressure. "Absolutely not," Judge Marshall said. "The only reason everybody has their tail feathers in a knot is because I'm a judge."

Mr. Zündel's legal team reacted angrily. Lawyer Peter Lindsay said Judge Marshall's change of heart was inexplicable in light of her "specific and unequivocal" agreement as recently as Monday morning to freely recount the extraordinary lengths to which authorities went in their efforts to deport her former client.

"A cynical person would say some pressure has been brought to bear on her Honour," Mr. Lindsay said. "I don't have any other explanation. Ironically, her unwillingness to testify may support my theory that Zündel is treated differently than anyone else. So much pressure is brought to bear that even a judge will agree to testify and then later decide not to."

He said he only issued a subpoena to her after ascertaining that she would voluntarily appear.

"Until I started to talk to her lawyer, there was zero doubt she was coming voluntarily," Mr. Lindsay added. "In fact, I met with her on several occasions for a total of two hours and talked about everything she was going to say."

While Judge Marshall had no intention of supporting Mr. Zündel's views, Mr. Lindsay said, she told him that she would describe the government's approach to deporting Mr. Zündel as "outrageous." Judge Marshall also said she had been "shocked" and "dumbfounded" at the degree of political direction she had perceived in the Zündel case, Mr. Lindsay said.

He said that in addition, Judge Marshall planned to describe being set upon by members of the Jewish Defence League at Mr. Zündel's 1985 court appearances, and that she was spat on and hit with a stick.

Mr. Lindsay and co-counsel Chi-Kun Shi are seeking to strike down a controversial anti-terrorism measure known as a security certificate, used to deport non-citizens who may pose a security risk. A security certificate is signed by two federal cabinet ministers who, based on secret intelligence, decide that an immigrant should be deported as a danger to Canadians.

Even alleged spies and terrorists normally targeted this way are not permitted access to the precise allegations against them. The two lawyers maintain that Mr. Zündel's removal is attributable to cabinet ministers who were successfully lobbied by interest groups.

Judge Marshall said in the interview that until she read a Globe and Mail article last Friday revealing her coming court appearance, she had been "naive enough" to think she could pop by the courtroom, answer a few questions on the witness stand, and be on her way.

"I didn't even think I needed counsel until I saw the story and realized this thing could take on a life of its own," she said. "Once it all gets straightened out, I fully expect that I may be testifying. If so, I will co-operate fully."

Judge Marshall said that when Mr. Zündel's lawyers originally approached her to testify, she saw no reason not to perform her civic duty and do so. "I was persuaded that I might have some relevant evidence. As a result, I said that if I was subpoenaed, I wasn't going to fight the subpoena."

However, some have since misunderstood this to mean she was somehow "crusading" on behalf of Mr. Zündel, Judge Marshall said. She said that after looking into the matter more closely, she realized that she might be required to answer questions that infringe on solicitor-client privilege.

Federal Court of Canada Judge Pierre Blais was unable to hear arguments from Mr. Stern yesterday.

The hearing continues today.