Zundel Case Reaches Crisis Point
From Ingrid Rimland
Yesterday I ordered a reprint of Ernst's "Setting the Record Straight: Letters from Cell # 7". After only two weeks, the first edition is just about sold out!
The book is extremely popular, and people are ordering 3, 5, 10 copies at a swoop to give to friends, relatives, church and club members, etc.. I kept the retail price low on purpose - $10 plus courtesy postage - because it is more important to me to disseminate Ernst's story than to make money on the title.
Also, in multiples of 100 copies, I will send you a shipment at cost the moment I get the reprints. Write for instructions. (3152 Parkway, Suite 13-109, Pigeon Forge, TN 27863, USA)
Online orders
If you are media, I will send you a copy for free, provided you will promise to send me a tear sheet of a write-up or review.
If you have a website, please consider linking to the Zundelsite - or if that is too "iffy" for you, let me send you an order blank to download, which you can place on your own website and thus avoid the Zundel Taint. Any help at all will be welcome!
If you live in Canada, you are better off ordering your copies from Paul Fromm (instructions below) because you will get them faster and you can pay in Canadian money and avoid the exchange rates. Also, there won't be the problem with customs. So far, the books have passed the Kanadian Kommissars, but you know how those lobby-obliging censors can be - after I became associated with the Zundel name, they designated a 1984 autobiography of mine, Furies, as "hate" material and burned copies by the hundreds, even though it is the story of my having raised a handicapped child, and I wrote it long before I ever heard of something called Holocaust Revisionism! There isn't even a glimmer of politics in that book, and there is nothing that a reasonable person would object to in Ernst's account of what happened with his arrest and afterwards - but just watch B'nai Brith or the Canadian Jewish Congress weigh in and lay down the rules on what Canadians can and can't read!
To change the subject - Paul Fromm sent a scary preface about where the Zundel case is moving, if Judge Blais has his way - along with the text of yet another legal submission to the Supreme Court of Canada. If you are lawyerly inclined and would like to read the entire text, please email me, and I will send it to you as an attachment. However, most of my readers like their Zgrams short, and therefore I am just giving you the gist of what this case amounts to at this stage by sending you a portion from the text.
Paul Fromm, one of Ernst's representatives on location, first:
Dear Free Speech Supporter:
We're hurtling toward a crisis point in the case of German-born publisher and dissident Ernst Zundel. In a June 23 Order, former Solicitor-General and CSIS boss Mr. Justice Pierre Blais set out a timetable which would see the Zundel national security certificate review concluded by September 14.
Cynics who have observed the judge's series of arbitrary rulings, his quashing of four crucial defence subpoenas and his endless chorus of "national security" to restrict the defence believe that the judgement has already been reached. Mr. Justice Blais could find the certificate "reasonable" -- not true that Mr. Zundel is a terrorist, but merely reasonable that the two Liberal ministers who signed it thought he "might be" -- on September 15. As the judge's decision by law cannot be appealed, Mr. Zundel could be on a plane to Frankfurt and a German jail on September 16.
The judge is in a frantic hurry because he wants to preempt the Zundel appeal to the Supreme Court of Canada. The Crown submissions in the leave to appeal motions need not be in until late August. That leaves just a few weeks for the Supreme Court to decide whether to hear Mr. Zundel's two appeals. At the glacial pace of justice in this Dominion, Mr. Zundel could well be back in Germany by that time.
To forestall this judicial frog-marching of the German pacifist out of the country, Zundel defence counsel Peter Lindsay has filed the following motion with the Supreme Court seeking a stay (halt) to the proceedings before Mr. Justice Blais until the Supreme Court can rule on the leave to appeal and on the appeal itself. This motion makes shocking reading as Mr. Lindsay lays out the outrageous and prejudicial treatment meted out to Mr. Zundel in Judge Blais's courtroom.
The Crown has until August 10 to make its submissions in this matter. Then, says Chi-Kun Shi, Mr. Lindsay's co-counsel, the Supreme Court "either stops it now or they show they don't give a damn about this atrocity and all these illegal rulings" by Mr. Justice Blais.
Huge expenses have been incurred this summer and we face 13 days more of court in July (27), August (9,10,11,12, 30, 31) and September (1,2, 14, and 15). We urgently need your help and pledge of support today. Please mail us your contribution to CAFE (Zundel Defence Fund), Box 332, Rexdale, ON., M9W 5L3, Canada. Send a cheque or your VISA number and expiry date. You can also e-mail your contribution by VISA.
All donors of $100 or more will receive Mr. Zundel's SETTING THE RECORD STRAIGHT: LETTERS FROM CELL # 7, which is hot off the press. This incredibly eloquent and moving series of reflections from prison will go down among the great prison literature of our people. If you would simply like a copy of this book, send $20 (postage included) to us or $30 for two copies.
Paul Fromm, Director, Canadian Association for Free Expression.
Below part of the latest Supreme Court Submission.
1. The Applicant relies upon the Notice of Motion herein.
2. Is it in accordance with our fundamental values of justice to allow someone to be (i) tried in secret Star Chamber style court proceedings and then (ii) deported to a country to be jailed for views that are legal in Canada, without even first deciding whether this Honourable Court will review important constitutional and legal questions about the fairness of the process? It is important to underline that the proceedings in issue in this case have been ordered by Justice Blais on his own initiative to be completed by September 14, 2004. Regrettably, the Applicant is thus forced to respectfully ask this Honourable Court to act now. Failure to act now will effectively legitimize and condone a 21st century Canadian Star Chamber.
Should the answer to the above question be any different if the subject person is notorious for holding provocative and extremely unpopular views?
3. The three-part test to be applied in determining whether a stay should be granted pending a constitutional challenge or in other circumstances was set out by this Honourable Court in Manitoba v. Metropolitan Stores, as follows:
(A) Merits of case - where constitutional challenge is pending (as in this case), it is sufficient that the case raises a serious question as opposed to a serious or vexatious claim. In all other cases, a prima facie case may be required. (Para. 31-33)
(B) Irreparable harm - whether the litigant who seeks the stay would, unless it is granted, suffer harm not susceptible or difficult to be compensated in damages. (Para. 34)
(C) Balance of convenience - where constitutional challenge is pending, public interest is taken into consideration and weighted together with the interest of private litigants. In all other cases, determination is made of which of the two parties will suffer the greater harm from the granting or the refusal of a stay. (para. 35, 54, 57, 79, 83)
Manitoba v. Metropolitan Stores [1987] S.C.J. No. 6, tab 33
(A) Merits of Case
4. The serious questions here involve the rights of any immigrant whom politicians claim to be a danger to the security of Canada and try to deport from Canada. Specifically, should any such immigrant have any of the following rights:
(i) the right to interlocutory appeal during a court review of the politicians' claim, there being no appeal or judicial review from the court's final conclusion;
(ii) the right to real disclosure of Crown's evidence against the immigrant; and
(iii) the right to protection of the Charter while the immigrant is detained and eventually deported without facing any charge, such as protection against being subjected to a secret trial.
5. There is the additional very serious underlying question of whether our law and our courts should treat people with extremely unpopular views, such as the Applicant, differently than other people.
6. Furthermore, there is the serious question of what should be done where, as here, the judicial errors in the certificate review as set out in the Notice of Motion are so patently unreasonable, and so palpable and overriding, that they destroy the underlying fairness and legality of the proceedings and cannot be corrected on appeal (because there is currently no right to launch any interlocutory or final appeal).
7. According to Re Felderhof, the following errors are jurisdictional in nature: (i) gross denial of natural justice; (ii) irreparable judicial violation of constitutional rights; or (iii) prejudgment. It is respectfully submitted that all of these judicial errors have been committed in the security certificate review thus far (). Unless the hearing is stayed, such errors will never be remedied. The security certificate review is not being conducted fairly or according to law and therefore should be stayed forthwith.
Re: Felderhof [2002] O.J. No. 4103 (C.A.) at paragraphs 15 and 17, tab 34
8. Relying upon the grounds as listed in the Notice of Motion, which will not be repeated here, it is respectfully submitted that the above questions are all serious and important questions and the facts as outlined in said Notice establish that the questions referred to above are sufficiently meritorious to justify a stay.
9. Furthermore, as there is a constitutional challenge raised in the Charter Leave Application (Court File No. 30427) which is being relied upon, the Manitoba v Metropolitan Store test only requires that a serious question be raised. It is respectfully submitted that, if nothing else, the detention of the Applicant without charge in solitary confinement for over 16 months and the effectively secret trial which is occurring right now in this case (see Notice of Motion, paragraphs 11-15) raise extremely serious Charter questions.
(B) Irreparable Harm
10. With (i) no right to interlocutory appeal; (ii) no right to meaningful disclosure; and (iii) no right to Charter protection, the Applicant is poised to be deported to Germany upon the completion of the Star Chamber style hearing fashioned out of the unconstitutional Secret Trial Legislation and all the patently wrong procedural rulings, without the chance to provide a meaningful response.
11. Hard cases make bad law, and there is no harder case than the Applicant. It would constitute irreparable harm to deport the Applicant without charge without first even deciding whether this Honourable Court will review important constitutional and legal questions about the fairness of the process.
12. Unless a stay of proceedings is immediately granted, the Applicant's pre-ordained removal from Canada will occur and it will legitimize all the "bad law" that has been made in this "hard" case, some (but not all) of which bad law is as follows:
(i) A judge may prejudge a case before it is completed;
(ii) Politicians' motives and intents for deporting an immigrant (even if they are completely improper) are of no interest to the Court ;
(iii) An immigrant may be deported without knowing why;
(iv) "National Security" can prohibit discussion of public materials;
(v) A judge can initiate his own discrediting of cross-examination materials;
(vi) A judge may then disallow use of those materials in cross-examination;
(vii) A leading question is one with a "yes" or "no" answer;
(viii) A judge may make new rules on grammar;
(ix) A judge may provide the Crown much greater latitude than the opposing party on admissibility of evidence;
(x) The words "could be" are interchangeable with the words "would be" in statutory interpretation;
(xi) A judge may liberally insult counsel;
(xii) Procedural issues are more important than fundamental justice;
13. Unless a stay of proceedings is granted, there is a distinct message from all of this: it is justifiable to cut down any number of principles of law and justice in order to "get" an unpopular person. ()
14. A more recent opinion on the supremacy of the rule of law is that of the U.S. Supreme Court in Hamdi v. Rumsfeld where Justice O'Connor, writing for the majority, held that an American who was allegedly captured while fighting with the Taliban using a Kalishnikov assault rifle against U.S. troops in Afghanistan in 2001, is entitled to the "due process of law" (p. 24) which should afford him the opportunity to be heard in a "meaningful manner" (p. 26).
Hamdi v. Rumsfeld 542 U.S. _2004, tab 32
15. If a country which had been attacked by terrorists and suffered the graphic and public mass murder of its citizens on its own soil still believes that a captive armed combatant should be entitled to a meaningful hearing on his culpability, it is respectfully submitted that Canada need to examine its own relative standard of rule of law as demonstrated in the case of the Applicant. It is respectfully submitted that the Applicant has not received the "meaningful" hearing that the U.S. Supreme Court has championed for an alleged machine gun toting traitor terrorist.
16. An even more recent opinion is from our own Minister of Foreign Affairs the Honourable Bill Graham, who in the Zahra Kazemi death recalled our Ambassador from Iran to protest the closed door hearing for the Iranian accused in Ms. Kazemi's death and declared publicly that "justice will not be done behind closed doors in Iran".
17. It is respectfully submitted that our Minister of Foreign Affair's abhorrence of a secret trial reflects our value of openness being the cornerstone of due process and justice. Justice will not be done behind closed doors in Iran, in Canada, or anywhere else. The legality of the Secret Trial Legislation and Justice Blais' error-filled implementation of it must therefore be scrutinized if Canada is to maintain any credibility in its demand for open justice, or as a free and democratic society.
18. Although traditionally, the consideration of irreparable harm is limited to that of the parties involved, it is respectfully submitted that in this case, not only does the Applicant face irreparable harm, but if a stay of proceedings is not granted immediately, this proliferation of "bad law" under the Secret Trial Legislation leads to the inescapable conclusion that Canada believes that there is one law of open justice for Iran and a different law of open justice for Canada. Furthermore, it will lead to the very sad and disillusioning conclusion that there is also one law for ordinary people but a very different and harsher law for unpopular people such as the Applicant.
19. If the treatment the Applicant received under our justice system thus far is not condemned and halted by this Honourable Court, the Canadian society will in effect be treating unpopular views more savagely than the Americans treat their armed combatant traitor.
20. As Justice Binnie of this Honourable Court rightly pointed out in Re Application under s. 83.28 of the Criminal Code, upholding constitutional rights at times of national stress is one of the chief distinctions that sets a liberal democracy apart from the totalitarian regimes whose threats give rise to the stress. In Hamdi v. Rumsfeld, the U.S. Supreme Court has ensured such distinction for the U.S. It is respectfully submitted that this Honourable Court must now rise to the challenge of doing so for Canada.
Re Application under s. 83.28 of the Criminal Code [2004] S.C.J. No. 40 at para. 113, tab 36 Hamdi v. Rumsfeld 542 U.S. _2004, tab 32
21. Justice Binnie echoed Sir Thomas More's centuries' old view when His Honour wrote:
The danger in the "war on terrorism" lies not only in the actual damage the terrorists can do to us but what we can do to our own legal and political institutions by way of shock, anger, anticipation, opportunism or overreaction.
Re Application under s. 83.28 of the Criminal Code [2004] S.C.J. No. 40 at para. 116, tab 36
22. It is respectfully submitted that the case herein is an example of opportunism. It is also the frightening harvest of the above self-destructive sentiments. Unless this Honourable Court steps in to protect our rule of law, this grim harvest will not stop with the Applicant.



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