- TORONTO -- In my last CAFEGRAM entitled "Watch
for Fireworks in the Zundel Case", I promised you excitement at the
Zundel 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 Zundel, was backing out. Her testimony,
as Mr. Zundel'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. Zundel after his
"false news" conviction. It was clear then, and it should be
clear now, that Mr. Zundel 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. Zundel'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 Marhall 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. Zundel'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 Zundel. 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. Zundel 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. Zundel'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 Zundel
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 Zundel 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
- 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. Zundel 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. Zundel"
- 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. Zundel 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. Zundel 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. Zundel. 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. Zundel and his views. There's nothing secret there,"
Mr. Kurz persisted. "Both organizations have intervened in Mr. Zundel's
court cases. Mr. Zundel would have you believe there's something improper
about that. Mr. Lindsay would have you believe that Jews exercizing 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
- "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. Zundel. 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. Zundel."
- 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
- "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. Zundel 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," M. 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