- The Supreme Court of Canada has refused Holocaust denier
Ernst Zundel a chance to challenge the constitutionality of secret trial
legislation that was passed after the September 11, 2001 terrorist attacks.
- The court announced Thursday morning that it would not
hear an appeal of an Ontario Court of Appeal decision that refused the
appeal on procedural grounds.
- Mr. Zundel, 65, has been held in solitary confinement
in Toronto for the past 18 months. Closing arguments are currently being
heard before Federal Court Judge Pierre Blais as to whether Mr. Zundel
should be deported to Germany as a threat to national security.
- "When you allow procedures that are too loose and
don't contain enough guidance, all sorts of unfairness can happen,"
defence lawyer Chi-Kun Shi said in an interview Thursday morning. "It
is unfortunate that the Supreme Court will not hear our constitutional
challenge of the legislation."
- In a brief that Ms. Shi and co-counsel Peter Lindsay
supplied to the Supreme Court in support of their request, they argued
that it is "the true measure of our system of justice is how it treats
the marginalized and the unpopular, such as the applicant.
- "Hard cases make bad law. There is no harder case
than the applicant and no harder challenge for this honourable court than
to reject the popular option of making bad law under it."
- Mr. Zundel lived in Canada from 1958 to 2000, building
a publishing empire that supplied material to dozens of countries denying
the extent of the Holocaust. He has no criminal record.
- Mr. Lindsay and Ms. Shi challenged the fundamental fairness
and constitutionality of the secret-trial legislation by way of a habeas
corpus application in the Superior Court of Ontario and the Ontario Court
of Appeal. Both courts, however, said they could not conduct the review
for procedural reasons.
- "It is respectfully submitted that, in placing procedural
concerns over constitutional rights, both courts erred in law," they
said in their brief to the Supreme Court. "Is it appropriate for courts
to allow litigants to procedurally sandbag the other party and bounce him
from court to court in a jurisdictional ping-pong game?"
- They said that the secret trial procedures allow a judge
to receive any evidence he think is "appropriate,' even if it would
normally be inadmissible.
- "In accordance with it, Mr. Justice Blais has admitted
articles, hearsay, double hearsay, triple hearsay," they said. "As
a result, the applicant faces over 1,800 pages of hearsay 'evidence' against
him which is not sworn and not subject to challenge through cross- examination."
- Anyone named in a security certificate under the secret-trials
legislation is subject to detention without charge and a "Star Chamber"
hearing for which there can be no appeal, they said.
- "The impact of these consequences on not only the
Applicant, but more importantly on the integrity of our rule of law in
Canada make it imperative that this Honourable Court reviews the constitutionality
of the Secret Trial Legislation without any further delay," the lawyers