REASONS FOR DECISION

[1] Mr. Zündel presented a motion on Friday, April 30, 2004 in the course of the hearing being held pursuant to section 80 of the Act on the reasonableness of the security certificate issued by the Ministers against Mr. Zündel. Mr. Zündel sought a declaration that leave is not required for issuance of subpoenas in the proceedings. In the alternative, Mr. Zündel sought an order dispensing with any requirement for leave under Rule 41(4)c) of the Federal Court Rules, 1998 (Rules) or, in the alternative again, that subpoenas be issued nunc pro tunc requiring the following people to attend this Court on the dates indicated on the subpoena: Mr. Keith Landy, President, Canadian Jewish Congress (CJC); Mr. Frank Dimant, Executive Vice-President, B'Nai Brith Canada; Mr. John Joseph Farrell; Mr. Andrew Mitrovica.

[2] Subpoenas have issued for those four witnesses. One witness, Mr. Farrell, apparently refused service of the subpoena. The other three witnesses have moved to quash the subpoenas, first on the basis of their validity, having not been issued under Rule 41(4)c) of the Rules, then on the basis that the witnesses did not have material evidence to provide to the Court.

[3] An additional witness, the Honourable Regional Senior Justice Marshall of the Ontario Court of Justice, had initially accepted to be a witness for Mr. Zündel. She now moves to have the subpoena quashed.

ISSUES

[4]

1. Should the subpoenas that have issued be quashed?

2. Must leave be granted to issue a subpoena in these proceedings?

Grounds for quashing a subpoena

[5] The case law on subpoenas shows that there are two main considerations which apply to a motion to quash a subpoena: 1) Is there a privilege or other legal rule which applies such that the witness should not be compelled to testify?; (e.g. Samson Indian Nation and Band v. Canada (Minister of Indian Affairs and Northern Development), [2003] F.C.J. No. 1238); 2) Is the evidence from the witnesses subpoenaed relevant and significant in regard to the issues the Court must decide? (e.g. Jaballah (Re), [2001] F.C.J. No. 1748; Merck & Co. v. Apotex Inc., [1998] F.C.J. No. 294)

[6] Privilege will apply for example in the case of Parliamentary immunity while Parliament is in session (Samson Indian Band, supra), or in the case of solicitor-client privilege, although an attorney acting in a managerial capacity may well be called upon to testify (Zarzour v. Canada, [2001] F.C.J. No. 123).

[7] As to determining whether the evidence to be presented will be useful to the trial judge, courts will be reluctant to prevent parties from calling the evidence the parties feel they need, but courts generally will not allow fishing expeditions. Thus, if one party moves to quash the subpoena, it must show the lack of relevance or significance of the evidence the party that has issued the subpoena intends to produce. Obviously, the judge who decides whether or not to quash the subpoena is not deciding on the weight to be given to such evidence, which is to be determined by the trier of fact (Stevens v. Canada (Attorney General), [2004] F.C.J. No. 98).

[8] In R. v. Harris, [1994] O.J. No. 1875 (Ont. C.A.), the Ontario Court of Appeal ruled that it was not sufficient for the party calling the witness to simply state that the witness might have material evidence; rather, the party had to establish that it was likely that the witness would give material evidence. In that case, the Court weighed the respective affidavits of the parties: on the one hand, the affidavit was that of the secretary of the legal firm that was representing the accused who had subpoenaed Crown counsel, who stated that she had been told that the evidence would be relevant to the alleged good faith of the police officers; on the other, the affidavit of the witness subpoenaed was that he had no material evidence to give. The first affidavit was pure hearsay and highly speculative, and thus the subpoena was quashed.

[9] In Nelson v. Canada (Minister of Customs and Revenue Agency), [2001] F.C.J. No. 1220, Mr. Nelson sought to subpoena a number of ministers, including the Prime Minister, in his action against the Minister of the Customs and Revenue Agency. The motion was dismissed because there was no evidence from the supporting material that any of these persons had been in any way involved in the events giving rise to the action.

[10] Thus the criterion is one of relevance and materiality of the evidence to be provided by the prospective witness.

Subpoenas at issue

Mr. Keith Landy, President, Canadian Jewish Congress

Mr. Frank Dimant, Executive Vice-President, B'Nai Brith Canada

[11] As the same issues are raised in regards to these two subpoenas, I will address them jointly.

[12] Mr. Landy and Mr. Dimant were each served with a subpoena that they attend court to give evidence and bring with them any and all documents dated January 1, 2003 and after, in any way related to Mr. Zündel, CSIS, or any meeting with any agent of the Federal or Ontario governments related to Ernst Zündel.

[13] Both have filed a motion to quash the subpoena to testify in the present proceedings, on the basis that the subpoena does not comply with the Rules, that the evidence sought is neither relevant nor necessary to this proceeding, and that the subpoena is overbroad in scope and an abuse of process.

[14] The test is whether Mr. Landy or Mr. Dimant is likely to provide any evidence which would help the Court in its determination of the reasonableness of the certificate. Much of the evidence which either is likely to give is already part of the public domain: the CJC and B'nai Brith have many times called for Mr. Zündel's deportation, and expressed publicly their dismay at seeing Mr. Zündel come back from the United States and apply for refugee status.

[15] Lobbying ministers is a legitimate exercise in an open and democratic society such as Canada. Anyone has the opportunity to lobby any minister at any time and make his or her views known. In this case, the only evidence that was provided concerned the public lobbying by both Mr. Landy's organization and Mr. Dimant's organization. They met with the Ministers, they issued press releases.

[16] The CJC and B'nai Brith have been rather vocal about this matter, so that there is little to be gained from Mr. Landy's or Mr. Dimant's testimony in this regard. They would not be able to testify as to the true influence the CJC or B'nai Brith may have had on the government, since only the decision-makers (in this case, the Ministers) know how the decision was made

[17] It appears Mr. Zündel is attempting to show that irrelevant considerations were taken into account in the Ministers' decision to issue the security certificate, related to the pressures exerted by Mr. Landy, Mr. Dimant and their respective organizations. We have evidence that the CJC and B'nai Brith have expressed strong views to the Ministers, but no evidence that they provided any material or any evidence.

[18] In Jaballah (Re), [2001] F.C.J. No. 1748, Mr. Jaballah's counsel sought to have the Ministers testify on the decision-making process which led to issuing a second security certificate against Mr. Jaballah, after the first one had been declared unreasonable by Mr. Justice Cullen (Canada (Minister of Citizenship and Immigration) v. Jaballah, [1999] F.C.J. No. 1681). Mr. Justice MacKay clearly stated that probing the motives of the Ministers in the exercise of their ministerial discretion was not proper, nor relevant, nor useful.

¶ 13 In my opinion, questioning the background knowledge or intent of the Ministers concerned at the time of their decision to issue the second certificate would merely be a fishing expedition. I am not persuaded that the evidence suggested by counsel is relevant to the determination this Court must make under subparagraph 40.1(4)(d) to determine whether the certificate filed by the Minister and the Solicitor General is reasonable on the basis of the evidence and information available to ... the designated judge. ...

¶ 14 The signature and filing of the certificate by the Ministers was done in the exercise of ministerial discretion. These were administrative actions undertaken in the discharge of statutory responsibilities vested by Parliament, in the interests of security of the state.

[19] The Ministers made the decision to issue the certificate based on all the evidence that was before them. That decision has been referred to this Court to decide on its reasonableness. The intent or motives of the Ministers is of no interest to this Court. The certificate stands or falls on the strength of the evidence supporting it.

[20] Clearly, the subpoena is too onerous in terms of production of notes and documents. Moreover, I have not been convinced that Mr. Landy or Mr. Dimant would be able to shed any new light on the reasonableness of the Ministers' decision. The intervention of the CJC and B'nai Brith has been public and consistent. It is clear that pressure has been exerted by the two organizations, both in public statements and private meetings. This, to me, has nothing to do with the reasonableness of the certificate, nor with whether Mr. Zündel presents a danger to Canadian society. The CJC and B'nai Brith have their own opinion on the matter; the least that can be said is that it is already well-known, as well as the reasons for it.

[21] Mr. Zündel's counsel was unable to specify what questions he would ask of these witnesses. All the evidence presented in support of the subpoenas related to public activities and publicly acknowledged meetings with the Ministers. For lack of relevance to the present proceedings, and given that Mr. Zündel's counsel could not specify what material evidence these witnesses would be able to provide, I do not believe Mr. Landy's or Mr. Dimant's testimony would help the Court in deciding on the reasonableness of the certificate. I would therefore allow the motion to quash the subpoenas.

Mr. Andrew Mitrovica, author and reporter

[22] Mr. Mitrovica wrote a book that was published in 2002, entitled Covert Entry. The book is based mainly on the revelations of one John Joseph Farrell, who purports to have been an agent of CSIS. The book exposes a number of failings within CSIS, and one passage in particular is of interest to Mr. Zündel, where Mr. Farrell tells Mr. Mitrovica that CSIS might have been aware that a bomb was being mailed to Mr. Zündel, and did nothing to stop it.

[23] Mr. Zündel wants to have Mr. Mitrovica testify on his knowledge of the relationship between CSIS and Mr. Zündel. Mr. Mitrovica counters that any information he would have would be hearsay, and moreover, that he would not want to betray the confidence of various sources that may have contributed to his research.

[24] The subpoena served on Mr. Mitrovica is also quite extensive; he is to bring with him all materials, documents, statements etc. in any way related to Ernst Zündel, John Joseph Farrell, CSIS or the book Covert Entry.

[25] Mr. Mitrovica argued that the subpoena should be quashed because it would require him to disclose confidential information and sources, contrary to rights recognized at common law and protected by section 2(b) of the Canadian Charter of Rights and Freedoms.

[26] These rights have recently been affirmed by a decision of the Superior Court of Justice of Ontario in R. v. National Post, [2004] O.J. No. 178, where Justice Benotto stated :

...the relationship between the reporter and the source was protected by the common law of privilege. Society's interest in protecting the confidentiality of the source outweighed the benefits of disclosing the document. To undermine the journalist-informant relationship and deprive the media of an important tool in the gathering of news would affect society as a whole.

[27] The test as to whether a journalist should be compelled to testify was set out in detail in R. v. Hughes, [1998] B.C.J. No. 1694 (B.C.S.C.), where Justice Romilly had to decide whether a journalist called to testify by a defendant in a sexual assault case could invoke the need to protect confidential sources. In that case, a publication ban was in place to protect the identity of the complainants. However, the judge ruled that the journalist could be called to testify on the content of the interviews he had held with the complainants, since their communication with him amounted to consent to have the information disclosed, and the content of the interview was highly relevant to the defence of the defendant. In that case, Mr. Justice Romilly set out the factors to be considered by the court in deciding whether to compel a journalist to testify:

a) the relevance and materiality of the evidence to the issues at trial;

b) the necessity of the evidence to the accused's case and his ability to make full answer and defence;

c) the probative value of the evidence;

d) whether the evidence was available through other means, and if so, whether reasonable efforts had been made on the part of the accused to obtain evidence from that other source;

e) if the media's ability to gather and report the news will be impaired by being called to give evidence and if so, the degree to which it is impaired;

f) whether the necessity of the evidence in the case at hand outweighs the impairment, if any, of the role of the media; and

g) whether the impairment of the media's function can be minimized by confining the evidence adduced to only that which is necessary to the accused's case and his right to make full answer and defence.

[28] Mr. Zündel has argued that Mr. Mitrovica's testimony would be relevant because it relates to CSIS' alleged campaign against Mr. Zündel. If it can be shown that CSIS deliberately did not try to stop bomb mailings to Mr. Zündel, all of the evidence which is at the heart of the Ministers' decision would be cast in doubt.

[29] Mr. Zündel has not shown how Mr. Mitrovica's testifying would add anything to what Mr. Mitrovica has already written in his book. As Mr. Mitrovica states in his motion to quash the subpoena, any evidence he may provide will be hearsay. Although that in itself is not sufficient reason to set aside such evidence, given the terms of section 78 of the Act, it does go to the probative value of the evidence Mr. Mitrovica could provide, as well as its relevance to these proceedings. Mr. Mitrovica has already disclosed his main source of information for the book. For other sources, if any, Mr. Mitrovica could invoke his privilege as a journalist, and it seems to me he would be entitled to do so. The benefits of having Mr. Mitrovica testify seem rather doubtful, as against certain harm to the freedom of the press. Lord Denning, writing in Senior v. Holdsworth, [1975] 2 All ER 1009 (C.A.) stated the case for balancing the need to know with the need to not hamper the work of journalists (at page 1015):

Next there is the special position of the journalist or reporter who gathers news of public concern. The courts respect his work and will not hamper it more than is necessary. They will seek to achieve a balance between these two matters. On the one hand there is the public interest which demands that the course of justice should not be impeded by the withholding of evidence. ... On the other hand, there is the public interest in seeing that confidences are respected and that newsmen are not hampered by fear of being compelled to disclose all the information which comes their way. ... As we said in this court as to oral testimony of a newsman:

The judge ... will not direct him to answer unless not only it is relevant but also it is a proper, and indeed, necessary question in the course of justice to be put and answered.

 

[30] Mr. Zündel's counsel did attempt to subpoena Mr. Farrell, Mr. Mitrovica's main source, but in vain. This is a separate matter which I will deal with when and if I have to do so. In the meantime, I believe Mr. Mitrovica has little material evidence to contribute beyond what has already been published. Compelling him to produce his notes and materials is unduly intrusive, and given the little probative value that I could attach to such hearsay materials, I see no need to disturb the journalistic privilege that attaches to Mr. Mitrovica's evidence.

[31] The events surrounding the bomb that was sent to Mr. Zündel, and the circumstances surrounding the individuals who were at one time suspects in this affair, are of concern to me, as I have directly stated in court. I do not think that Mr. Mitrovica is the person to shed light on these matters, and in the circumstances, I believe compelling Mr. Mitrovica to testify is unnecessary. Mr. Mitrovica has no direct evidence of CSIS activities, only what has been reported to him, the main source being someone who obviously, to put it very mildly and judging from the content of the book, is at odds with CSIS. For this reason, I do not believe Mr. Mitrovica can provide the Court with relevant evidence.

[32] The last point of the test, whether impairment can be minimized by limiting the scope of the evidence to be provided, was emphasized in Mr. Mitrovica's motion as an intermediate solution. However, for reasons already stated, I fail to see what Mr. Mitrovica can contribute to these proceedings beyond what is already part of the public domain through his book.

[33] Mr. Mitrovica's motion is allowed, and the subpoena is quashed.

The Honourable Regional Senior Justice L. Marshall (Ontario Court of Justice)

[34] Almost twenty years ago, Justice Marshall, then an attorney, acted for Mr. Zündel. Justice Marshall was to testify on the deportation proceedings which the Canadian government undertook against Mr. Zündel in 1985 immediately after he was convicted of spreading false news, contrary to section 181 of the Criminal Code. Section 181 was eventually declared unconstitutional by the Supreme Court of Canada, and Mr. Zündel was acquitted, thus putting an end to the deportation process.

[35] Justice Marshall moved to have the subpoena quashed, on the basis that its issuance was not valid and that she did not have any material evidence to give in the instant proceeding.

[36] The test in this case as in the other motions to quash is the relevance and materiality of the evidence which would be provided by the witness. I do not believe that the issue of solicitor-client privilege arises, since it is trite law that this privilege belongs to the client, not to the solicitor. If Mr. Zündel is willing to have Justice Marshall testify on certain issues, he thereby waives any privilege attaching to communications relating to those issues (S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd., [1983] B.C.J. No. 1499 (B.C.S.C)).

[37] Justice Marshall's main objection to the subpoena is the fact that she has no material evidence to provide related to the proceeding before me. Mr. Zündel has failed to convince me of the relevance of the deportation process almost 20 years ago, which was based on a conviction in a criminal court. The conviction has been voided, the deportation process halted, and the present certificate is an entirely different process, based on entirely different evidence.

[38] Mr. Zündel's counsel argued four reasons for having Justice Marshall testify: her opinion on the speed with which the government acted to have Mr. Zündel deported once he had been convicted; the fact that she had been assaulted when entering the court, at the time she was defending Mr. Zündel, by demonstrators allegedly belonging to a Jewish defence group; her expertise on how deportation is applied in the cases of convicted criminals who have appeared before her in court; and finally, most extraordinarily, Mr. Zündel' counsel would have Justice Marshall help me deal with my difficult task. The intention was to have her testify on the fact that hearing evidence in camera is a very dangerous thing, that she herself, listening only to the examination-in-chief, would sometimes have been misled had it not been for the helpful cross-examination.

[39] Unfortunately for Mr. Zündel, all these arguments failed to convince me. Justice Marshall, as she mentioned in the transcript, had no particular expertise in immigration at the time of Mr. Zündel's deportation proceeding; thus, her opinion on how the government was acting at the time has little relevance. The fact that she was assaulted 19 years ago on entering the court has no relevance to the proceeding before me.

[40] As Justice Marshall's counsel rightly pointed out, the deportation process in the case of criminal convictions has nothing to do with the certificate proceeding we are dealing with. In addition, if the evidence is to show that deportation proceedings usually take years, I would think Mr. Zündel would be a prime example of how long these proceedings can stretch out. Deportation proceedings against Mr. Zündel began in 1985. The Supreme Court judgment acquitting Mr. Zündel came out in 1992. Mr. Zündel was never deported.

[41] Finally, as to the last purpose for which Justice Marshall would testify, I will state only this. I apply the legislation, I did not write it. I have stated many times in the course of these proceedings how difficult it is to have to deal with secret evidence. I do not need to be reminded of the perils of ex parte proceedings, nor to be told how to carry out my judicial duties.

[42] I conclude that Justice Marshall has no material evidence that would be useful to this Court, and allow her motion to quash the subpoena.

Mr. John Joseph Farrell

[43] In the initial motion made to this Court by Mr. Zündel, reference is made to the subpoena issued to Mr. John Joseph Farrell. So far, there is no motion to challenge that subpoena. The motion pursuant to Rule 41(4)c) of the Rules is premature in this case.

[44] If Mr. Farrell appears before this Court, there will no doubt be some discussion on his testifying and the scope of the evidence. That will have to be determined. I would simply point out that in the case of Mr. Farrell, given what appears in Mr. Mitrovica's book, my first inclination would be to say that he has relevant evidence to provide to this Court, and I would be willing to hear him. All this is subject, of course, to any representations which may be made by the parties.

Need for leave of the Court to issue the subpoenas

[45] Given my decision on the motions to quash the subpoenas, it will not be necessary to address the issue of whether leave of the Court must be sought to issue such subpoenas.

[46] In the parties' written submissions, only one party has asked for costs of its motion. I believe that it is not appropriate to allow costs of any of the motions before the Court.

O R D E R

IT IS ORDERED THAT:

The subpoenas issued to Mr. Landy, to Mr. Dimant, to Mr. Mitrovica and to the Honourable Justice Marshall are quashed.

There shall be no costs of these motions.

"Pierre Blais"

Judge

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

DOCKET: DES-2-03

STYLE OF CAUSE: In the matter of a certificate signed

pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act")

And in the matter of the referral of that certificate to

the Federal Court of Canada pursuant to subsection 77(1), sections 78 and 80 of the Act;

 

And in the matter of Ernst Zündel

PLACE OF HEARING: Toronto, Ontario

DATES OF HEARING: May 9, 16, 2003

July 28, 29, 30, 2003

September 23, 24, 2003

November 6, 7, 2003

December 10, 11, 2003

January 22, 23, 26, 27, 2004

February 9, 12, 18, 19, 2004

April 13, 14, 29, 30, 2004

May 4, 5, 2004

 

REASONS FOR ORDER The Honourable Mr. Justice Blais

AND ORDER:

DATED: June 23, 2004

APPEARANCES:

Donald MacIntosh & Pamela Larmondin FOR THE MINISTER

Department of Justice

Toronto, Ontario

Murray Rodych & Toby Hoffman FOR THE

Canadian Security Intelligence Service SOLICITOR GENERAL

 

Legal Services

Ottawa, Ontario

Peter Lindsay & Chi-Kun Shi FOR RESPONDENT

Barristers and Solicitors

Toronto, Ontario

Marvin Kurz FOR MR. FRANK DIMANT

Dale Streiman & Kurz

Barristers and Solicitors

Brampton, Ontario

Brian MacLeod Rogers FOR MR. ANDREW MITROVICA

Barrister & Solicitor

Toronto, Ontario

Paul D. Stern FOR JUSTICE MARSHALL

Stern & Landesman

Barristers & Solicitors

Toronto, Ontario

Judy L. Chan FOR MR. KEITH LANDY

Blake, Cassels & Graydon LLP

Barristes & Solicitors

 

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