A Kangaroo "Court" orders the Deportation of historian David Irving from Canada The official Canadian transcript, with Mr Irving's commentary.

IN RESPONSE to appeals from the Holocaust lobby, Kenneth McVay, Webmaster of their ADL-funded Nizkor Website, procured a copy of the Canadian government file recording the ugly events leading up to David Irving's arrest and subsequent expulsion from Canada on November 13, 1992. Writing to Deborah Lipstadt on February 21, 1996, McVay boasted to the Holocaust author: "I have the Canadian Immigration Adjudication tribunal record for David Irving in hand, and am now scanning it. I expect to have it in Irving's directory [dossier] here in a few hours:" Posting the Adjudication Summary on his Nizkor Website a few hours later, McVay commented that contrary to the propaganda being circulated in the newsgroup alt.revisionism and elsewhere, "Mr. Irving's deportation from Canada was, quite clearly, fully justified, as this report from the Immigration Adjudicator demonstrates."  By clicking on the links, visitors to our own Website can read for the first time Mr Irving's comments, both those made as the Adjudication was actually being read out, and his commentary now, all of which demolish the "Adjudicator's" devastatingly inaccurate and biassed findings.  KEN McVAY, the thoroughly incorruptible Webmaster of the Nizkor site, imperceptibly deleted all Mr Irving's comments and remarks [printed below in dark blue] from the transcript of this session posted on the Nizkor site, leaving only the Adjudicator Mr Kenneth Thomson to speak.

David Irving, Adjudication File No: 9543-8079     Minutes of an Inquiry concerning    DAVID IRVING    held at Niagara Falls, Ontario, on the 13th of November, 1992   PERSONS PRESENT   ADJUDICATOR - K. J. Thomson  CASE PRESENTING OFFICER - S. MCCAFFERY  PERSON CONCERNED - David Irving  OBSERVER - P. Norris  OBSERVERS - Media

 

ADJUDICATOR: This is the resumption of an immigration inquiry concerning David Irving at Niagara Falls, Ontario, the 13th of November, 1992.   My name is Ken Thomson. I'm an immigration adjudicator.   Once again Mr McCaffery is present as is Mr. Irving.   Mr Christie, your Counsel, is not here, but he consented to this matter proceeding today without his presence.   A number of members of the media are also present.   The issue is whether or not you are a Canadian citizen or a permanent resident and if not, whether you are a person described in paragraph 27(2)(i) of the Immigration Act.  Paragraph 27(2)(i) reads as follows:  "......that a person in Canada, other than a Canadian citizen or permanent resident, is a person who has not left Canada on or before the date specified in a departure notice that was issued to that person or. having so left Canada. has been allowed to come into Canada pursuant to paragraph 14{1)(C)."  The evidence discloses that you entered Canada as a visitor at Niagara Falls on October 26th, 1992 and that you subsequently became the subject of an immigration inquiry at Vancouver, British Columbia on October 30th, 1992.  As a result, you were issued a departure notice to leave Canada on or before midnight, November 1st, 1992.  The most significant evidence to come out of this inquiry which is the centre of dispute between yourself and immigration officials, is your assertion that you left Canada on October 30th, 1992 at Blaine, Washington and reentered Canada later that same day.  This purported departure is pivotal, since if it is factually accurate, it would mean that the action taken against you by immigration officials in Niagara Falls on November 1st, 1992 was based on erroneous facts; namely, that you were a person attempting to leave Canada pursuant to a yet unexecuted departure notice.  If, as you claim, you did in fact depart and then reenter Canada at the Washington/B.C. border crossing then it might be said that you had already satisfied the terms of your departure notice and therefore could not be a person referred to in paragraph 14(1)(C) of the Act.  However, the question as to whether you did or did not leave is an issue of fact for this tribunal to determine.  The evidence discloses that at the conclusion of your inquiry in Vancouver on October 30, 1992 you were approached by Mr. Brian Fisher, a Canadian citizen, who resides in the United States.  You claim Mr. Fisher sought you out in order to have you counter sign fifty lithographs which had been executed by the notorious Konard Kujau who is known for the infamous forgery of the Adolph Hitler diaries.  You testified Mr. Fisher is a collector of memorabilia and had acquired these sets at a considerable expense.

 

Mr. Kujau had pencilled his signature on the prints and Mr. Fisher wanted your signature on them as well.  You agreed to do Mr. Fisher this favour in return for his help in gathering your personal effects from Vancouver Island. He agreed to drive you to the Island and back, in return you agreed to go to his home in Ferndale, Washington State to sign the lithographs.  You testified that you left the mainland at 2:00 p.m. and upon your arrival in Victoria you gathered your belongings and consulted with your lawyer.  You left Vancouver Island on the 8:00 p.m. ferry arriving on the mainland at 9:4O p.m.. You drove directly down route 99 to the United States border at Blaine, Washington crossing between 10:15 and 10:30 p.m.  Mr. Fisher presented both of your passports to an United States Immigration Officer who, upon looking at your document, made a comment concerning your name which you felt was off colour. No stamp was placed in your passport and you were granted entry.  You proceeded to Mr. Fisher's home in Ferndale, a community located a short distance from Blaine. You arrived at Mr. Fishers home shortly before 11:00 p.m.. where you were met by Helga Ashton whom you describe as Mr. Fishers ladyfriend.  She offered you a beer and you watched the Canadian news on television where you saw film coverage of yourself outside the courthouse in Vancouver earlier in the day driving away with Mr. Fisher in his car.  You placed three telephone calls while at this residence. The first telephone call was to the residence of Mr. Heinz Koppe, your Vancouver area organizer. You testified that there was no answer.  This caused you concern and you were worried that the Koppe family may have already gone to bed and you would therefore not be able to collect the boxes of books you had stored there.  You then called the Koppe home minutes later and Sandra Koppe answered the telephone. You testified that this was at 11:15 p.m.  You also placed a telephone call to Mr. Paul Norris, an associate in Toronto in order to cancel some speaking engagements in the Ottawa area and to advise him of your desire to concentrate your efforts in Toronto.  You then signed the fifty lithographs and departed Mr. Fisher's residence at 11:20 p.m..  Mr. Fisher drove you back to Canada and you appeared at the Canadian border at 11:25 or 11: 30 p.m. You claim Mr. Fisher presented both of your passports to a Canadian officer who looked at the documents and handed them back without question or comment.  You then proceeded into Canada where you met with Sandra Koppe at an exit off the highway. She guided you and Mr. Fisher to their family home where you stayed until 1:00 a.m.  You then went to the Delta hotel near the airport and departed to Toronto on a 8:00am flight.  On November 1st, 1992 you travelled by auto to the United States border at Niagara Falls. At 23:20 hours you were refused admission and returned to Canada.  You were interviewed by a Canadian immigration officer, who upon learning of the earlier departure notice, allowed you to come into Canada pursuant to paragraph 14(1)(C) of the Immigration Act then arrested you.  Immigration authorities now contend that you did not, at any time in fact, physically leave Canada until this attempted entry to the United States at Niagara. Well, this is an anal... my analysis of the evidence

 

As for the issue of what you understood your obligation to be with respect to the procedure for confirming your departure from Canada, you were, I would suggest, in somewhat of a different position than a tourist for example.  You were a person who had been found at a quasi-judicial proceeding to be in violation of the Immigration Act for the manner in which you had originally gained entry. Even prior to this you had been informed in writing by Canadian Immigration authorities that you were probably inadmissible.  Given this situation, you could have become the subject of a deportation order following your original inquiry but were granted a departure notice, presumably upon your commitment to the adjudicator to leave Canada by a certain date.  Thus the state had an interest in knowing that you had departed Canada and to that end you were provided with instructions as to the procedures to be followed.  In that regard it should be noted that a departure notice holder who fails to confirm departure is, administratively at least, presumed to have remained in Canada and may become the subject of a warrant of arrest.  Thus you were not free to simply slip across the border into the United States and return as an ordinary tourist while ignoring the departure notice.  You have made much to-do out of the stamp which appears on the manila envelope which has been marked as exhibit P-6 and reads as follows:  "IMPORTANT. Please hand this document in to Canadian Authorities at the time of your departure from Canada. Your departure will be verified by return of this document to the issuing office" Contained inside this envelope was exhibit C-4, a Confirmation of Departure Form, IMM56. This form has been established by the .Minister of Employment and Immigration to confirm a persons departure from Canada. It is the same form issued to persons under a Removal Order.  You testified that you did not hand this document into immigration authorities when you departed at Blaine on October 30, 1992 because you had agreed with immigration officials in Vancouver to hand the document to officials at the Rainbow Bridge in Niagara Falls where you had announced you would be leaving Canada.  You claim that because the stamp on the manila envelope says "please hand this document in to Canadian immigration authorities" instead of "you must hand this into immigration authorities" you did not feel obliged to confirm your departure from Canada at Blaine, Washington on October 30, 1992.  I had a great deal of difficulty accepting this explanation of your conduct.  Your case has generated a lot of interest and given its high profile at the time is it not reasonable that immigration officials would go to great lengths to ensure that you were fully aware of your obligations of complying with the departure notice and the importance of confirming your departure.  Mr. Murray Wilkinson, the Case Presenting Officer at your Vancouver inquiry made a statutory declaration (exhibit C-5) wherein he declares that at the conclusion of your inquiry he spoke to you about the procedures necessary to confirm your departure from Canada at the Place where you left Canada.  There is no mention of a deal to have you confirm your departure in Niagara Falls.

 

Why would immigration officials care where you left Canada as long as you complied with the departure notice and confirmed your departure?  It was your decision and yours alone to depart through the Niagara area just minutes before your departure notice was due to expire. You had to have realized that the adjudicator did not include or intend an interim departure/reentry provision as a term of your departure notice and that you had to confirm your departure immediately upon leaving Canada.  The evidence with respect to an October 30th, 1992 trip to the state of Washington consists of the testimony of yourself and Brian Fisher as well as the telephone record from Mr. Fisher's residence (exhibit P-9).  Consequently we are talking here of an event that would have taken place less than two weeks ago.  If, as you have testified, the trip to Washington state occurred exactly as you described in your detailed testimony, one would expect that at least the most significant and important aspects would coincide in the respective testimony of you and Mr. Fisher, the owner-driver of the vehicle in question.  In such a case the Immigration authorities who obviously could not produce a witness to conclusively establish the event never occurred would be left with an array of essentially secondary evidence suggesting you in fact remained in Canada throughout the period in question.  In such a scenario, the best evidence rule wherein actual witnesses testified under oath and were cross-examined by the Immigration representative, would almost certainly have prevailed to establish that the trip did take place.  However, a comprehensive review of the testimony provided establishes that there are several significant discrepancies and inconsistencies with respect to important points of detail, the impact of which in my view undermines the trust of your evidence as a whole and the personal credibility of both yourself and Mr. Fisher.  In my view there are four areas where significant contradiction appear between Mr. Fisher's testimony and the other evidence before this inquiry.  Mr. Fisher testified that you entered the United States in his vehicle at Blaine, Washington at approximately 10:15 p.m. and that you went to his residence and re-entered Canada at Douglas at 11:30 p.m.  He testified that when examined by a Canada Custom's official he did not show the officer either his passport nor yours. A review of your testimony clearly shows that on two occasions during this inquiry you were adamant that the Customs official at the Canadian border was shown both of your passports by Mr. Fisher.  Secondly, Mr. Fisher testified that the two of you proceeded into Canada and met a car on the side of the highway where Mr. Fisher dropped you off and then returned immediately to the United States...     PERSON CONCERNED [David Irving]: No, that wasn't the testimony![*]   ADJUDICATOR: ... You testified that you met Sandra Koppe as described by Mr. Fisher and that Mr. Fisher and yourself followed her to the Koppe residence a short distance.

 * All passages printed in dark blue were omitted from the transcript published by KenMcVay on the ADL-funded Nizkor site.

PERSON CONCERNED [David Irving]: That was his testimony too!  ADJUDICATOR: ... Okay, there's no need for you to say anything now. PERSON CONCERNED [David Irving]: Well, this is serious . . .  ADJUDICATOR: ... Well, it is very serious... PERSON CONCERNED [David Irving]: ... a serious matter for me.  ADJUDICATOR: ... but you're not going to say anything now. You had your chance. Now it's my turn. PERSON CONCERNED [David Irving]: Well, you're implying. . . ADJUDICATOR: Okay? PERSON CONCERNED [David Irving]: . . . that I committed perjury. ADJUDICATOR: Well, that will be. . . that is for me to determine. PERSON CONCERNED [David Irving]: Right. ADJUDICATOR: So either you be quiet or I'm going to have you evicted and I; going to put you back in the cell back there and I'll give the decision for the rest of the people here. Okay? So, there's no need for you to say another word.  Third, Mr. Fisher testified that he returned to the United States at the Blaine crossing at approximately twelve o'clock midnight on October 30th, 1992. He testified he drove straight to his residence and thereafter did not leave. He stated that no one else had access to his car.  The United States Immigration Service printout, TECS II, (Exhibit C-13) shows Mr. Fisher's car entering the United States at Blaine at 0311 hours on October 31, 1992, some three hours later than he testified to.  This is significant because we are now talking of not merely a negative query but rather a positive record of an entry at a time at which Mr. Fisher cannot account for.  The fourth contradiction is contained in Mr. Fisher's affidavit. He testified that he dropped you off on the highway near Vancouver and returned to the United States around midnight. In his affidavit (P-7) he swore that he drove to the residence of Heinz Koppe and departed at 12:45 a.m.  As you can see Mr. Irving, your witness has not only contradicted your testimony but he has contradicted under oath his own sworn affidavit of November 5th, 1992.    PERSON CONCERNED [David Irving]: This is ridiculous.[*]

 * All passages printed in dark blue were omitted from the transcript published by KenMcVay on the ADL-funded Nizkor site.  

ADJUDICATOR: In addition, exhibit P-9, shows that four long distance telephone calls were made from Mr. Fisher's telephone number on October 30, 1992. He testified the first call made at 0:913 was made by Helga Ashton to her answering service in Vancouver. He was unaware who made the second call.  The third call at 10:18 p.m. was made to the residence of Mr. Paul Norris in Toronto. The fourth call was made to the Koppe residence in Newton, British Columbia. Mr. Fisher testified that you made both of these calls.  I am at a loss as to how you could have telephoned Mr. Norris at 10:18 p.m. when you testified that you did not arrive at the Fisher residence until sometime around 10:45 p.m.    PERSON CONCERNED [David Irving]: My memory was faulty, that's all. We now have the records.[*]  ADJUDICATOR: Mr. Fisher in his affidavit also states that you arrived at his home at the same time. Both of you have sworn that you were at the Blaine border crossing between 10:15 and 10:30 p.m. on October 30th, 1992.  How could you have made this phone call when you testified you were elsewhere?  The telephone record (P-9) also shows a telephone call was placed to the Koppe residence at 10:43 p.m. This contradicts your oral testimony that you did not get an answer at the Koppe residence until 11:15 p.m.  In my view, these unexplained discrepancies in your evidence represent irreconcilable versions of events as to times and location, as well as, improbable lapses in procedure on the part of two employees of U.S. and Canadian border agencies, the very evening that your name and case was the subject of local media coverage.  I've also examined the three notarized statements which you have tendered as evidence to support your testimony, Exhibits P-2, 3, and 4. On closely examined [sic], a number of discrepancies again become apparent.  In Exhibit P-2, a sworn statement by Sandra Koppe, she states that she received a telephone call from you at 10:45 p.m. on October 30th, 1992 and that you indicated that you were calling from the United States. This statement contradicts your testimony that you telephoned the Koppe residence twice and did not get an answer until 11:15 p.m.      PERSON CONCERNED [David Irving]: My memory . . .[*]   Secondly, Mr. Heinz Koppe's dep..., declaration, Exhibit P-4, states that you arrived at his home by car at approximately 11:30 to 11:45 p.m. on October 30, 1992 and further states you were accompanied by another man who dropped you off then left.  When this evidence is compared to Mr. Fisher's testimony and affidavit (exhibit P-7), another discrepancy appears. At point 9 of his affidavit, Mr. Fisher declares "that upon entering Canada Mr. Irving was asked no questions and made no statements and that we were waved through the border and drove to the residence of Heinz Koppe where I left Mr. Irving at 12:45 p.m..  This is at... also at odds with Mr. Fisher's testimony.    PERSON CONCERNED [David Irving]: It is not!... It is not! This is what he ... precisely what he said in the witness box.[*]   ADJUDICATOR: I'm not here to debate this with you.   PERSON CONCERNED [David Irving]: The journalists have heard it.

 * All passages printed in dark blue were omitted from the transcript published by KenMcVay on the ADL-funded Nizkor site.  

ADJUDICATOR: Okay, you have... I'm not going to warn you again. One more outburst and you're going to be removed from this room. PERSON CONCERNED [David Irving]: I'm not going to be railroaded.  ADJUDICATOR: Furthermore, you were... testified that you spoke with Sandra Koppe at 11:15 p.m. yet Mr. Fisher's... in his affidavit at point 7 says that you left his residence at 11:10 p.m.  Your testimony was that you left the Fisher residence at 11: 20 p.m.. Mr. Koppe's affidavit states you told him you were in the United States for a couple of hours yet your testimony and the statement of Mr. Fisher indicate it was closer to one hour.  Now, in examining the affidavits of Heinz Koppe, Sandra Koppe and Joyce Chen, I have noted that you were the source of the information concerning your purported trip to the United States on October 30th, 1992. None of these parties have any independent evidence which would show that you did in fact leave Canada as you have claimed.  In light of this fast and in view of the discrepancies I have pointed out, I have given little weight to this evidence when examined in relation to the other evidence before me.  The Immigration officials have presented a persuasive case against you, Mr. Irving. The most damaging evidence is the computer printout from the United States Immigration and Naturalization Service in Blaine, Washington entitled TECS II (exhibit C-13, attachment A).    PERSON CONCERNED [David Irving]: An incomplete report.  ADJUDICATOR: It shows that Mr. Fisher's 1990 blue Lincoln entered the United States several times between September 11th, 1992 and November 4th, 1992 at Blaine, Washington. It does not show any entry for October 30th, 1992 when you claimed to have entered the United States in Mr. Fisher's vehicle.  When this piece of evidence is examined in relation to the other evidence before this inquiry, one has to be convinced that your short trip to the United States never happened.  I find it difficult to believe that a United States Immigration Officer upon seeing your passport would not examine you closely before granting you entry. Your case had been front page news, particularly in the Vancouver area that very day.  U.S. immigration officials had an interest in you which I believe is confirmed by the fact they refused your admission at Niagara Falls a few days later.  I simply cannot believe that the officer would not have examined you closely before granting you entry, at a minimum placing an entry stamp in your passport.  I also have difficulty accepting your evidence that you were able to travel back into Canada without question or comment from the Canada Custom's Primary officer.  At the port of Douglas there was only one lane open coming into Canada between 11:25 and 11:40 p.m., on October 30, 1992 as declared by Customs Inspector, Sanddip Basra.  This officer was on duty at the primary inspection line at the time you claim to have reentered Canada. He has sworn that he did not see you at anytime during his shift that night.  This evidence is significant, especially in light of other evidence that a lookout was placed concerning you at the port of Douglas on October 30, 1992. The lookout was located in the primary inspection line booth and contained a photograph of you. The lookout notice stipulated that you were to be referred to immigration secondary if seen on the primary line by a Custom's inspector.

 * All passages printed in dark blue were omitted from the transcript published by KenMcVay on the ADL-funded Nizkor site.  

I suggest to you that given this evidence, if you had in fact shown your British passport, the mere sight of it would have generated more than a cursory look from the Custom's inspector at Douglas, B.C. on the evening of October 30, 1992.  Other persuasive evidence comes from Mr. Harold Musetesiu and Mr. Kevin Tufford, both of whom are immigration investigators from Toronto.  They have made sworn statutory declarations that they spoke with you on November 01, 1992 at the Primrose Hotel in Toronto (exhibits C-9/10).  You were asked if you had left Canada at any time since your inquiry in Vancouver on Friday October 30, 1992, entered the United States then reentered Canada. You told the officers that you had remained in Canada continuously since your arrest in Victoria, British Columbia.  You had acknowledged that you made this statement to the officers but did so because you did not believe Mr. Musetesiu was an immigration official. You had doubts about him because he was wearing a uniform... was not wearing a uniform as immigration personnel apparently do in Britain and because he was wearing fatigue pants, a black t-shirt and a leather jacket, had long hair and an earring.  Mr. Musetesiu was called as a witness. He testified that upon arrival at the Primrose hotel he spoke with Wolfgang Droege, who was involved in the organization of your lecture. Mr. Droge was asked to summon you to an adjacent empty banquet room.  Mr. Droege and Mr. Musetesiu are well known to each other from previous dealings with each other.  Mr. Droege introduced Musetesiu to you as an immigration officer and Musetesiu testified that he showed you his badge and identification card to you at the outset of your interview with him which you have denied.  Upon return to the lecture room, you had lingering doubts about Mr. Musetesiu so you sent your assistant, Paul Norris to confirm his credentials, which he did.  Later that same evening you encountered Mr. Musetesiu in the elevator of the hotel and you again asked to see his ID which he showed you reluctantly.  Even if you were not entirely satisfied that Mr. Musetesiu was a immigration officer, you had to believe that it was at least a possibility, in light of your introduction by Mr. Droge and the line of questioning that followed in your interview by the officers.  I am at a loss as to why you simply would not have told the officers that you had left Canada and reentered, if this was in fact what had happened.  You offered no reasonable explanation as to why you felt compelled not to tell the truth. If you were so leery of Mr. Musetesiu why would you not just simply refuse any of their questions and walk away.  In assessing your evidence as a whole, you have been unable to persuade me that you did leave Canada on October 30, 1992. I have a great deal of difficulty accepting your evidence. It did it not have the ring of truth to it, but observing you and listening to your testimony, I could not help but get the impression that you were at times re-citing a rehearsed script.  I found you to a difficult witness who was often confrontational with the Case presenting officer when he asked you straightforward questions.  When viewed as a whole this evidence can lead to only one conclusion, that the event was a total fabrication that never took place. I can only speculate that you and your supporters concocted your story to garner further publicity and prolong your stay in Canada, both of which you have done with some success.   PERSON CONCERNED [David Irving]: This is a travesty!

 * All passages printed in dark blue were omitted from the transcript published by KenMcVay on the ADL-funded Nizkor site.  

ADJUDICATOR: That being the case I find that the action taken by Canadian Immigration authorities at Niagara Falls on November 1st, 1992 was based on facts that at the time appeared indisputable and have now been found to have been valid, namely that you were at the time of your attempted entry to the United States on November 1st, 1992 a person to whom a departure notice had been issued but who had not been granted lawful permission to be in the United States.  Accordingly, I find you to be a person described in paragraph 27(2)(i) of the Immigration Act in that you are a person in Canada other than a Canadian citizen or permanent resident, who left Canada on or before the date spesified in a departure notice but has been allowed into Canada pursuant to paragraph 14(1)(c).  Consequently pursuant to section 32(6) of the Immigration Act you are hereby ordered deported.     PERSON CONCERNED [David Irving]: Mr Thomson, I'm afraid I have to serve this writ in the Courts of Ontario on you, which I ask you to take notice of... ADJUDICATOR: Very good. Just have a ...   PERSON CONCERNED [David Irving]: ... (incomprehensible)  ADJUDICATOR: ... seat. PERSON CONCERNED [David Irving]: I also have a writ to serve on Mr ... ADJUDICATOR: Okay, have a seat. PERSON CONCERNED [David Irving]: On Mr ... on Mr McCaffery (incomprehensible). ADJUDICATOR: Mr McCaffery, would you please summon the guards in here. PERSON CONCERNED [David Irving]: This is the time now when the real courts can take over and the kangaroo courts have had their say.   CASE PRESENTING OFFICER: Jerry.

 * All passages printed in dark blue were omitted from the transcript published by KenMcVay on the ADL-funded Nizkor site.  

PERSON CONCERNED [David Irving]: I'm entitled to serve a High Court writ on this Court and on the Crown representative and this is precisely what I've done.    ADJUDICATOR: You may seek judicial review of my decision within fifteen days. You can discuss that with Mr Christie.  You are hereby ordered retaken into custody pending your removal from Canada. [Three hours later Mr Irving was bundled aboard an Air Canada flight out of Toronto to London, England. Friendly officers at Toronto's Pearson airport told him that they had instructions to phone the Minister, Bernard Valcourt, the oment the plane took off with Mr Irving aboard.]