Posted Wednesday, May 5, 2004

Wednesday, May 5, 2004

The Zündel Hearings: Quash That Subpoena!

Suddenly, numerous witnesses don't want to testify; what has happened behind the scenes to make them change their minds?

by Paul Fromm

TORONTO. Tuesday, May 4, 2004. In my last CAFEGRAM entitled "Watch for Fireworks in the Zündel Case", I promised you excitement at the Zündel hearings before Mr. Justice Pierre Blais in Toronto. We had plenty of excitement and tension. Indeed, as I approached the courtroom, I learned that the drama and skullduggery had already begun.

Judge Lauren Marshall, who had confirmed orally her willingness to testify for Ernst Zündel, was backing out. Her testimony, as Mr. Zündel's lawyer in the mid-1980s, is crucial. She can explain the incredible haste with which the usually snail-like immigration department moved to commence deportation proceedings against Mr. Zündel after his "false news" conviction.

It was clear then, and it should be clear now, that Mr. Zündel is the victim of political persecution. He's a political problem for Canada's minority-run Liberal regime, not a threat to national security.

In a written statement, Mr. Zündel's lead defence attorney, Peter Lindsay, said:

"My Lord, there was been a significant change in circumstances in this matter. I had indicated to Your Lordship on Thursday (April 29) that Regional Senior Justice Marshall would testify this morning. I based that on two direct personal discussions between myself and Justice Marshall in which her Honour had specifically and unequivocally agreed to testify in this matter and we had fully discussed the subjects to be covered in her testimony. I had also served a subpoena on Her Honour, but that subpoena was only served after Her Honour had already told me personally that she was willing to testify and would testify in this matter. Yesterday morning I spoke to Her Honour by telephone and confirmed arrangements to meet her this morning at this courthouse prior to her testimony. At about 4:00 p.m. yesterday, I received a telephone call from her new lawyer, Mr. Stern, who was suddenly acting on behalf of Her Honour. Now, through Mr. Stern, Her Honour has, despite her earlier agreement to testify, brought a motion before Your Lordship, in relation to testifying in this matter, and Her Honour is not present in Court this morning."

Why had Judge Marshall suddenly developed a case of cold feet and was seeking to quash the subpoena? The idealists suggest that the lady had simply changed her mind. The cynics counter that "the big boys" got to her. In her earlier days, as Mr. Zündel's lawyer, she'd received terrifying phone calls threatening the lives of her children if she continued to act for Canada's most famous dissident.

JUDGE Marshall was not the only person who'd developed a case of shyness. Just before court opened, Mr. Lindsay informed me of the weird antics of John Farrell, the former thief whom CSIS had employed in the mid-1990s to surreptitiously open the mail of dissidents, including Ernst Zündel. It was Farrell's information that largely formed the basis of Andrew Mitrovica's book about CSIS -- Covert Entry: Spies, Lies and Crimes Inside Canada's Secret Service.

Farrell, the former thief and mail snoop, is now a teacher of religion at a West Toronto Catholic High School. [Yes, I know, not since Mary Magdalen ...] Peter Lindsay and his law clerk went to his school to serve the elusive Mr. Farrell with a subpoena. They talked to his principal. The principal advised them that Mr. Farrell was away that day. Out in the parking lot, they encountered a teacher and told them their business. "Oh," he said, "I just saw Mr. Farrell in the library." Using this helpful information, they re-entered the school and, indeed, found Farrell in deep discussion with the less-than-truthful principal of the Catholic High School. The principal charged at Mr. Lindsay and assaulted him, permitting Mr. Farrell to flee the premises. Mr. Lindsay called the police. The principal stoutly denied ever assaulting Mr. Lindsay.

As a former teacher who was twice served with legal papers at school, I find this incident extraordinary. Most school administrators have a very acute sense of deference to authority and the law and would usually be only too happy to accommodate a process server.

Today, Judge Blais seemed to accept defeat on what appeared to be the plan to rush the case through by tomorrow. Last week, with hearings lasting until after 8:00 p.m., every effort had been made to rush Mr. Zündel to judgement and, likely, deportation. Mr. Blais is now talking of arranging more court dates as far ahead as possibly December of this year. He is also talking of Mr. Zündel's next mandatory detention review in late July.

Court proceedings were dominated by submissions from a growing list of people who don't want to testify. The Crown side of the court is becoming over-crowded. It looked like the old days of the Zündel Internet case before the Canadian Human Rights Tribunal, with guest appearances by lawyers Marvin Kurz and Judy Chan, acting for Frank Dimant of the League for Human Rights of B'nai Brith and Keith Landy of the Canadian Jewish Congress, respectively. Their normally publicity seeking clients had developed a sudden case of shyness when subpoenaed to testify in the Zündel case. They were also joined by Paul Stern, representing Madam Justice Marshall and, late for the second day in a row, a Mr. Rogers, acting on behalf of author Andrew Mitrovica who also wanted no part of testifying.

Crown Attorney Donald MacIntosh led off arguing that the subpoenas against Dimant, Landy and Mitrovica should be quashed.

"Mr. Lindsay advanced the proposition that the security certificate was signed by the Minister of Citizenship and Immigration and the Solicitor-General because of pressure by the Canadian Jewish Congress, B'nai Brith and others. There isn't a scintilla of evidence. This is a fishing expedition. Evidence of intent or knowledge of the minister is not relevant. It's not what Mr. Dimant said to a minister as to whether the certificate is reasonable."

Last week, Mr. Justice Blais was so brutal to lead defence counsel Peter Lindsay that he, at one point, apologized. Today, his mood had changed and he repeatedly challenged the Crown lawyers and the lawyers seeking to quash the subpoenas.

"Why can you not go to the question of the information that is provided to the ministers by various sources?" he asked Mr. MacIntosh. "Can we not question the evidence provided to the decision makers?"

MacIntosh continued: "My friend supposes because various esteemed members of the Jewish community made representations."

"And met with the ministers. I think there were meetings," Mr. Justice Blais interrupted him. The Act is clear. Section 78.j says: 'The judge may receive into evidence anything he thinks may be relevant, even if it is not admissible in a court of law.' The ministers were provided with hearsay evidence. We don't know whether witnesses provided evidence to the ministers."

On another occasion, Judge Blais interrupted Mr. MacIntosh who was mocking Mr. Lindsay's concern about actions of ministers of immigration in the 1980s. "People in glass houses," Mr. Justice Blais remarked, reminding him that the Crown and CSIS had brought in newspaper clippings that were 23 years old as part of their case against the German publisher.

Mr. MacIntosh, becoming increasingly testy and strident, doggedly pushed the notion that B'nai Brith and the Canadian Jewish Congress merely exercised their free speech rights to make representations to cabinet ministers, just as anybody else might do. Readers who wait six months to get even an acknowledgement of a letter to a cabinet minister might differ with Mr. MacIntosh. "B'nai Brith has no more special access to the minister than any other organization making urgent representations."

He, then, went on to advance the amazing view that having to testify about their lobbying might intimidate groups like the CJC and B'nai Brith. "If individuals who made representations to ministers are subpoenaed, it will inhibit the expression of their views."

In July, Mr. Justice Blais had dismissed Covert Entry as a "novel." He now seemed to be taking it and the allegations that CSIS knew the May, 1995 pipe bomb was coming to Mr. Zündel very seriously. "We have some pieces that are missing. There is still opportunity for both sides to provide information on these matters, especially the strong allegation that CSIS knew of the pipe bomb sent to Mr. Zündel."

In the afternoon, both Judy Chan and Marvin Kurz argued that their clients shouldn't be subpoenaed. While the CJC posts pictures of prominent CJC officers grinning in meeting with cabinet ministers, Miss Chan invited the court to conclude that these meetings were nothing special. "His meeting with the minister doesn't prove Mr. Landy has any relevant evidence to give. This is a fishing expedition. It is an inappropriate use of a subpoena and it could be used to embarrass or harass my clients."

The ever voluble Mr. Kurz took the better part of an hour to urge Judge Blais to quash the subpoena as Mr. Dimant's testifying would only aid Mr. Zündel is establishing that there is "an international Jewish conspiracy" against him:

"Frank Dimant has no evidence to offer which is relevant in this case, particularly as to whether Mr. Zündel is a security risk." Kurz set up the straw man of an international Jewish conspiracy, which Mr. Lindsay had never mentioned, and then proceeded to flail away at it. "The argument of an international Jewish conspiracy is an abuse of process," he said.

"The defence's theory is that the government and Jewish groups worked together to get rid of Mr. Zündel. I didn't hear the word 'international'," Judge Blais interjected. "Whether Jewish groups intervened in the process could be relevant," he added.

"There's a great deal of evidence that Mr. Dimant and B'nai Brith and the Canadian Jewish Congress and Mr. [Bernie] Farber are very opposed to Mr. Zündel and his views. There's nothing secret there," Mr. Kurz persisted. "Both organizations have intervened in Mr. Zündel's court cases. Mr. Zündel would have you believe there's something improper about that. Mr. Lindsay would have you believe that Jews exercising their Charter rights are doing something wrong."

If the arguments of MacIntosh, Chan and Kurz limped, the submissions of Mr. Rogers, representing Andrew Mitrovica, were positively lame.

"Mr. Mitrovica has been subpoenaed simply because he's the author of a book in pursuit of his craft as an investigative journalist. He's not an expert. He does not want to appear in any sense to be supporting Mr. Zündel. He has no material evidence. The book speaks for itself."

An incredulous Judge Blais interrupted: "Even though he made strong allegations in the book? He made all those allegations about CSIS without material evidence? He made strong allegations that CSIS was involved in sending a pipe bomb to Mr. Zündel."

Mr. Rogers answered: "He is merely a conduit." He pronounced it "con-doo-it." "He is merely reporting what others told him."

Again Judge Blais interrupted: "The kind of allegations he made, how substantiated were they?"

Rogers responded: "He wrote a book for the world to see. He had no involvement in the pipe bomb. He does not have any direct evidence."

"So who does know?" Mr. Justice Blais demanded. "Mr. Mitrovica knows if information is corroborated. ... We're talking of allegations of a serious crime -- the issue of someone letting a pipe bomb go to Mr. Zündel and did nothing. In the book, Mr. Mitrovica concludes: 'CSIS is riddled by waste, incompetence, nepotism and law breaking.' Mr. Mitrovica seems to be quoting CSIS employees in violation of Sec. 18 of the CSIS Act. Making public that kind of information is against the law. He cares more about selling books."

"The book speaks for itself," Mr. Rogers repeated. "Mr. Mitrovica's evidence is not relevant."

"We don't know that. We haven't heard from Mr. Mitrovica," Judge Blais retorted.

The hearing continues tomorrow.

Paul Fromm
Canadian Association for Free Expression

Hear Paul Fromm speak about the Zündel Case when David Irving comes to Niagara Falls, NY, to speak on Sunday June 13, 2004. [register interest]

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