Posted Wednesday, May 12, 2004

Court won't hear Zündel's appeal

By Kirk Makin
JUSTICE REPORTER

HOLOCAUST denier Ernst Zündel could spend as long as five more years in solitary confinement, after an Ontario Court of Appeal decision that it cannot hear his challenge to a federal anti-terrorism law.

The court agreed with federal prosecutors yesterday that it lacks legal jurisdiction to consider Mr. Zündel's challenge to the "security certificate" system. Mr. Zündel can now either seek leave to have the Supreme Court of Canada overturn the ruling, or resign himself to waiting years before his case is heard in the Federal Court of Canada .

"Obviously, I'm very disappointed," his lawyer, Peter Lindsay, told reporters. "The Crown has never been prepared to argue its case on its merits. If they want to argue the merits, they should just argue the damned merits. Somehow, some day, we will get to argue this."

Mr. Zündel has been behind bars since 15 months ago, when federal authorities launched proceedings to deport him to Germany. The government claims the 64-year-old man, who has been in Canada since 1958 and has no criminal record, poses a danger to Canada.

The entire case against Mr. Zündel has been heard in secret before a Federal Court judge, a contentious procedure that forms part of the underpinning of his constitutional challenge.

A security certificate -- normally targeted at alleged spies and terrorists -- is signed by two federal cabinet ministers who decide, on the basis of secret intelligence, that an immigrant should be deported as a danger to Canadians. The immigrant is not permitted access to the precise allegations against him.

Federal lawyer Donald MacIntosh argued yesterday that one of the reasons Federal Court is the more appropriate place for a constitutional challenge is that its judges are more experienced with immigration matters.

Mr. Lindsay and co-counsel Chi-Kun Shi rejected his suggestion. They maintained their client is legally entitled to pursue his challenge in the fashion that is most advantageous to him and that his preferred route is through the Ontario Superior Court and the Ontario Court of Appeal.

"My position is that this court is perfectly able to deal with it properly," Mr. Lindsay told Madam Justice Louise Charron, Mr. Justice Marc Rosenberg and Madam Justice Eileen Gillese.

Mr. Lindsay and Ms. Shi maintain that the attempt to deport Mr. Zündel is based on bogus evidence and is attributable to cabinet ministers who were successfully lobbied by interest groups.

"All Canadians should be concerned about living in a country where secret proceedings occur," Mr. Lindsay said yesterday. "Secret trials are fundamentally unfair."

 

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