Thursday, July 1, 2004

Judge quashes all four subpoenas sought by Zündel

ON June 23, 2004, in a stunning move, Mr. Justice Pierre Blais quashed all four sub poenas sought by dissident publisher Ernst Zündel's defence team.

The subpoenas were for Keith Landy, President of thre Canadian Jewish Congress; Frank Dimant, President of the League for Human Rights of B'nai Brith; Ontario Judge Lauren Marshall; and Andrew Mitrovica, author of COVERT ENTRY: SPIES, LIES AND CRIMES INSIDE CANADA'S SECRET SERVICE.

Judge Blais's decision is preposterous in its reasoning and almost laughable in its feined naivete. "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," [PARA. 15] he writes. Does "anyone" really have the same opportunity to lobby powerful ministers as do organizations like the CJC and B'nai Brith? Most of us have trouble getting our own MP to even acknowledge, let alone really answer a letter. When was the last time you called, say, the Minister of Justice for an appointment and got one? When was the first time?

The judge goes on to argue: "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." [PARA 20] On the contrary, it would be very important to know what the two Jewish lobby groups told the ministers. Were there promises made, threats, explicit or implied? Was documentation presented about Mr. Zündel? If so, what was it? As we know that Mr. Zündel's supporters did not have any access to the ministers, it might well be that having heard from only one side -- CSIS's allegations and Mr. Zündel's bitter opponents -- the ministers' decision in signing the certificate was unreasonable.

It's interesting that the usually vocal and voluble Jewish groups suddenly had an attack of shyness when subpoenaed to testify and to be closely questioned about their activities.

Mr. Justice Blais also relieves himself of another extraordinary conclusion: "The intent or motives of the Ministers is of no interest to this Court." [PARA. 19] Surely, if knuckling under to intense pressure from a powerful financial and ethnic lobby group was the ministers' motive in signing the certificate to get rid of Mr. Zündel, this motive is relevant as to whether their action was "reasonable".

It's not surprising that former CSIS boss Judge Blais -- he was Solicitor-General in 1989 and, therefore, in charge of CSIS, when they began a rampage of spying and infiltration of "right-wing" groups, including Preston Manning's Reform Party -- would seek to protect CSIS. While admitting that Mitrovica's report that CSIS knew the May, 1995 bomb sent to Mr. Zündel by anarchists was on its way and did nothing to warn him or others is a serious matter, Judge Blais insists: "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." [PARA. 30]

Those following the proceedings would have to laugh at this. The government's public case has been filled with hearsay and double hearsay evidence. The Judge under Sec. 78.e of the Immigration and Refugee Protection Act (IRPA) can accept [and has] "anything" as evidence, including things not normally accepted in a Canadian court of law. Now, Mr. Justice Blais suddenly develops an aversion to hearsay.

As Mr. Mitrovica's charges are so serious, it would be very helpful to Mr. Zündel to be able to establish their credibility. It the charges are true, they prove a murderous hostility on the part of CSIS toward the German-born dissident and call into question the "reasonableness" of the CSIS certificate calling this lifelong pacifist a "terrorist".

Judge Lauren Marshall had been one of Mr. Zündel's lawyer in the 1980s. Originally, she had agreed to testify about the extraordinary swiftness with which the government sought to deport Mr. Zündel after his 1985 conviction (subsequently overturned) for publishing "false news." This speed was is contrast to the usuaally lackadaisical pace -- five years or more -- in the judge's long experience for the government to seek the deportation of violent criminals. Her testimony would help establish the long-time bias of the Canadian government against Mr. Zündel and, therefore, undermine the "reasonableness" of the CSIS certificate branding him a "terrorist".

Nevertheless, Judge Blais concludes: "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." [PARA. 37]

In a final stroke of petty judicial one-upsmanship, Judge Blais insists he doesn't need to be told by a mere provincial court judge how to do his job. "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." [PARA. 41]

Perhaps, the only positive aspect of Judge Blais's latest attempt to cripple Mr. Zündel's defence is that he declined to award costs against Mr. Zündel.

Chi-Kun Shi, defence co-counsel, says: "The only hope left is really our appeal to the Supreme Court of Canada. We're getting very blunt in our submission about Judge Blais' behaviour and his decision about the subpoenas is just the latest example."

Paul Fromm

Director

CANADIAN ASSOCIATION FOR FREE EXPRESSION

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