- Ernst Zundel
- _________________________
-
- Complaint under the Optional Protocol to the International
Covenant
- on Civil and Political Rights
- ________________________
-
- January 4, 2005
-
- To: M. Patrick Gillibert
-
- United Nations Human Rights Committee
- United Nations Office at Geneva,
-
- Palais Wilson
-
- 1211 Geneva 10, Switzerland
- Fax: + 41 22 917 9022
-
- Date: January 4, 2005
-
- Name of Complainant: Ernst Zundel
- Nationality: German
- Date of Birth: April 24, 1939
- Complainant's Lawyer:
- Barbara Kulaszka,
- Barrister & Solicitor,
- P.O. Box 1635, 41 Kingsley Ave.,
- Brighton, Ontario Canada K0K 1H0
- Telephone: 613-475-3150
-
-
- Complaint:
-
- This complaint is made by Ernst Zundel (hereinafter referred
to as "Zundel") under the Optional Protocol to the International
Covenant on Civil and Political Rights against the State of Canada for:
-
- (a) violation of article 7, his prolonged detention and
conditions of detention entail cruel, inhuman and degrading treatment;
-
- (b) violation of article 9, paragraph 1, because of the
failure of the State party to ensure the security of person, in particular,
because of the failure to investigate and prosecute numerous threats and
attacks on the person and property of Zundel;
-
- (c) violation of article 9 because of arbitrary detention
and prolonged detention, in particular violation of article 9, paragraph
3, because of denial of bail; the denial of the right to know the charges
against him;
-
- (d) violation of article 10 because of the conditions
of detention;
-
- (e) violation of article 14, paragraph 1, because he
has been denied a prompt and fair hearing by a competent and impartial
tribunal;
-
- (f) violation of article 14, paragraph 2, because of
violation of presumption of innocence on matters which are essentially
of a penal nature, although under the Canadian system they are dealt with
as civil and administrative matters;
-
- (g) violation of article 14, paragraph 3, because of
undue delay in bringing the case to trial and violation of all right to
due process and a fair hearing;
-
- (h) violation of articles 18 and 19, because of his detention
is for his opinions on historical matters and because of his expression
of said opinions
-
- (i) violation of article 26, because over the years Zundel
has not been treated equally by the Canadian authorities, and, in particular,
has been subjected to discrimination and denied citizenship because of
his historical and political opinions.
Interim measures:
-
- Mr. Zundel has been held in solitary confinement in Canadian
detention centres since February 19, 2003, almost two years. He is currently
held in the Toronto West Detention Centre, 111 Disco Rd., Box 4950, Rexdale,
Ontario, Canada, M9W 1M3.
-
- He is coming to the Committee now to request interim
measures of protection under rule 86 of the rules of procedure, in particular
-
- 1) release pending trial, bearing in mind that he has
been held for a very long period of time; 2) prohibition of deportation
to Germany for as long as the Committee is seized of the matter
-
- The matter is urgent, as a decision by the designated
judge against Zundel, will result in his immediate deportation.
Chronology of Events:
-
- Zundel was born in Germany in 1939 and lived in Canada
for 42 years from 1958 to 2000 as a permanent resident. He married a Canadian
in 1959 and has two sons in Canada and several grandchildren.
He became a very successful graphic artist with businesses in Montreal
and Toronto. He was also active politically, appearing on numerous radio
talk shows and arranging anti-Communist demonstrations in Montreal. He
was the ethnic organizer for the Social Credit Party in Quebec and subsequently
joined the Liberal Party of Canada.
He increasingly became concerned about anti-German propaganda in the media
and its affects on his own children and others of German descent. As a
result, he started the organization "Concerned Parents of German Descent".
He lobbied the Ontario government numerous times to bring charges under
Canada's hate law against those disseminating anti-German hate materials.
He gave testimony and provided written submissions to the Task Force on
Human Relations chaired by Mr. Walter Pitman in Toronto in 1977. His submissions
decried the stereotyping of Germans in comics, newspapers and such movies
and TV programs as Marathon Man, Hogan's Heroes, The Diary of Anne Frank
and North of the 49th Parallel.
In 1968, he ran for the leadership of the Liberal Party of Canada, on a
platform urging greater recognition for immigrants. Prior to running, he
had applied for his Canadian citizenship and his application was approved
by the Citizenship judge. However, the application was subsequently refused
by the Minister for Immigration. No reason was given. Years later, in applications
under the Privacy Act, he was informed by the Immigration Department that
no record existed in his files as to why his application for citizenship
had been denied.
During this time period, Zundel started investigating historical issues
pertaining to Germany. He became convinced that allegations that the German
nation had committed an extermination of Jews during World War II were
not true and constituted wartime atrocity propaganda. He traveled extensively
interviewing many individuals and writers who had personal knowledge of
events during World War II or had studied the era extensively. During this
period, Zundel averaged 160 interviews a year during the 1970s in radio
talk shows. Typical topics were UFO's and the history of World War II.
He eventually began publishing his own materials and newsletters in outreach
programs. He incorporated his own publishing company, Samisdat Publishers
Ltd. in 1977.
In the early 1980s he published the booklet "Did Six Million Really
Die?" written by Richard Harwood. The booklet was sent to hundreds
of religious pastors and ministers, Members of Parliament and legislative
assemblies and the media. The booklet explored the historical issue of
the treatment of Jews during World War II by Germany and expressed doubt
that six million Jews could have been killed by the Nazis. It also questioned
whether gas chambers ever existed as alleged in such concentration camps
as Auschwitz and Birkenau.
Samisdat also started producing videos, such as "Genocide by Propaganda",
which set out many examples of anti-German stereotyping and hate propaganda.
In 1981, following a complaint lodged by the Canadian Holocaust Remembrance
Association, an Interim Prohibitory Order was made by the Minister responsible
for Canada Post Corporation against Zundel's publishing company, Samisdat,
banning it from the use of the mails on the grounds that Samisdat was using
the mails to send hate propaganda, contrary to the Criminal Code. The primary
documents complained of were the pamphlet "The West, War and Islam"
and the booklet "Did Six Million Really Die?". Following a five
day hearing, a Board of Review appointed to inquire into the facts of the
case, held that the order should be lifted. It held:
"While the Board finds that Mr. Zundel's writings are in bad taste
and no doubt offensive to some, the Board is not satisfied that it has
been established that this material amounts to the promotion of hatred
contrary to Section 281.2(2) of the Criminal CodeThe Board believes that
what is before it is a much larger problem or struggle between two peoples
i.e. the Germans and the Jews and is reluctant to recommend to the Minister
that the interruption of mail service should be continued.
- Samisdat's mailing privileges were restored by the Minster
in November of 1982.
-
- In 1984, he was privately charged by Sabina Citron, the
head of the Canadian Holocaust Remembrance Association, with the criminal
offence of spreading false news in the booklet, "Did Six Million Really
Die?".
Citron further charged Zundel with spreading false news in "The West,
War and Islam," the same pamphlet that had been the subject of the
postal hearings. The pamphlet attempted to warn Muslims of the demonization
of Islam which was occurring in the West and how such distorted viewpoints
were being used to goad the West into a criminal war against the Islamic
World. In the pamphlet Zundel stated: " Certainly, the West has at
its disposal tremendous facilities for the education of the public but
until now, these facilities of information, education and entertainment
have been used purposely to misinform, to miseducate and to instill hatred
against the Islamic peoples. Just as certainly, this situation has not
come about by accident, for the media by which disinformation is being
disseminated are controlled by a small group of unscrupulous men who know
exactly what they are doing and who will stop at nothing in order to attain
their criminal and murderous ends." He urged Muslims to use informational
campaigns to educate Westerners about Islam and their culture and warned
that unless they did so, they would suffer the same fate as the Germans.
The criminal proceedings were taken over by the Crown as a public prosecution.
Zundel's graphic arts business was destroyed as a result of the prosecution.
In 1984, shortly before his trial began, a bomb exploded outside his house,
damaging his garage. No person was ever charged with this offence.
Zundel was beaten on the steps of the courthouse by members of a violent
Jewish group when he appeared for court dates. No persons were ever convicted
for these attacks. Thereafter, Zundel wore a hard hat and bulletproof vest
to court appearances.
Zundel was acquitted on all charges concerning "The West, War and
Islam."
He was convicted, however, of the charges with respect to "Did Six
Million Really Die?" and sentenced to fifteen months' imprisonment,
plus three years' probation with the condition that he "not publish
in writing or by speaking in public by word of mouth, directly or indirectly,
in his name or in any other name, corporate or personal, anything on the
subject of the Holocaust or on any subject related directly or indirectly
to the Holocaust." He was released on bail pending appeal under extremely
stringent conditions.
The federal government immediately commenced deportation proceedings and
a deportation order to Germany was issued on April 29, 1985. This removal
order was quashed in 1987 on the grounds that it was made contrary to law.
Zundel successfully appealed his criminal conviction and a new trial was
ordered. On January 18, 1988, Zundel's second jury trial on the charge
of spreading false news in the pamphlet "Did Six Million Really Die?"
commenced. Zundel was convicted after a four month trial and on May 13,
1988 was sentenced to nine month's imprisonment. Zundel was again released
on bail on stringent conditions.
Zundel appealed both his conviction and sentence to the Ontario Court of
Appeal. The appeals were heard in September of 1989. Both appeals were
dismissed on February 5, 1990.
Zundel applied for and received leave to appeal to the Supreme Court of
Canada on the issue of the constitutionality of the "false news"
law. The appeal was heard on December 10, 1991 and on August 27, 1992,
the appeal was allowed. Zundel was acquitted. The Court held that that
the "false news" law was in violation of Zundel's guarantees
to freedom of expression under the Canadian Charter of Rights and Freedoms
which could not be justified in a free and democratic society.
Throughout the years 1985 to 1992, Zundel was subjected almost continuously
to stringent bail conditions requiring him not to publish certain opinions,
to inform authorities of his whereabouts when he traveled and to be of
good behaviour. Zundel complied with all bail conditions.
Several days after Zundel's acquittal by the Supreme Court of Canada, the
Canadian Jewish Congress laid a lengthy complaint against him with police
alleging that "Holocaust denial" was hatred and anti-Semitism
and that Zundel's statements to the media that the "Holocaust was
a hoax" constituted "Holocaust denial." In March of 1993,
the Pornography/Hate Literature Section of the Ontario Provincial Police
informed the Canadian Jewish Congress that the statements had been investigated
and were found not to constitute the offence of inciting hatred contrary
to the Criminal Code. As a result, no charges were laid.
In 1993, Zundel applied for Canadian citizenship for the second time. Several
months later, in June of 1994, Toronto Sun newspaper columnist Christie
Blatchford revealed that Zundel had applied for citizenship and wrote that
a senior official in the Ministry of Citizenship and Immigration told her
that they would "try very hard to deny it" notwithstanding that
the application was "flawless." Newspaper stories and editorials
across the country demanded that Zundel not be given citizenship because
of his unpopular views on the Holocaust.
In the spring of 1994, several Marxist street groups organized to attempt
to drive Zundel out of his neighbourhood in Toronto. Pamphlets were distributed
calling him a "hatemonger" and "white supremacist"
and calling for his charging under Canada's hate laws. These groups began
a campaign of posters put up across Toronto with Zundel's face in a rifle
sight, giving directions to his home with instructions on how to build
Molotov cocktails. Street graffiti appeared on fences and buildings calling
for people to "drive Zundel out." Zundel lodged complaints
-
- On April 14, 1995, Zundel received a razorblade attached
to a mousetrap in his mail from a group called "Anti-Fascist Militia."
The group warned that a bomb would be next. No person was ever charged
with this offence.
On May 7, 1995, an arsonist torched Zundel's house which was almost completely
gutted on the second and third floors, causing over $ 400,000.00 in damages
and destroying an extensive library and rare book collection. No person
was ever charged with this offence. After the arson, Zundel suffered from
severe anxiety, loss of memory, and loss of concentration.
At the end of May 1995, a powerful pipe bomb was sent to Zundel through
the mails from Vancouver, British Columbia. Suspicious of the parcel, he
took it unopened to the police. The bomb contained nails and metal shrapnel;
Toronto police determined it would have killed anyone who opened it and
anyone within 90 metres of the blast.
In 2002, the book "Covert Entry" written by journalist Andrew
Mitrovica and published by Random House Canada, raised the serious possibility
that Canada's federal intelligence agency, the Canadian Security Intelligence
Service (hereinafter referred to as "CSIS") knew about the bomb
sent to Zundel but allowed it to pass through the mail system unhindered.
CSIS at the time had Zundel under constant surveillance and opened and
intercepted much of his mail.
In a 63 page information to obtain a search warrant sworn on March 19,
1997 by Constable Warren Ryan of the Royal Canadian Mounted Police in British
Columbia, Constable Ryan swore that he had reasonable grounds to believe
that Darren Thurston and David Barbarash were guilty of the offence, inter
alia, of attempted murder of Zundel, by mailing an explosive device, contrary
to section 239 of the Criminal Code. However, when charges were laid against
Thurston and Barbarash in March of 1998, the attempted murder of Zundel
was not included. In 2000, all charges against Thurston and Barbarash were
stayed. No one has ever been charged with his attempted murder.
In August of 1995, Zundel was given notice that his application for citizenship
had been suspended on the grounds that the Minister for Citizenship and
Immigration believed reasonable grounds existed to believe that he was
a threat to the national security of Canada.
On October 30, 1995, Zundel was served with the Statement of Circumstances
outlining why he was allegedly a threat to national security. The certificate
alleged that Zundel had never committed any violence himself but that his
status in the "right wing" meant that he might advocate others
to do so in the future.
In November of 1995, Sabina Citron, the Jewish woman who had instituted
the criminal proceedings against Zundel in 1984, laid a private information
against Zundel again, this time for criminal defamatory libel and conspiracy
to incite hatred contrary to the Criminal Code. The charges alleged that
Zundel conspired with Ewald Althan, David MacLeer and Christian Worch in
1994 and 1995 to promote hatred based on the TV program W5. The second
charge alleged that Zundel committed defamatory libel of Beate Klarsfeld,
Simon Wiesenthal, Sol Litman, Rabbi Cooper, Michael Berenbaum and Deborah
Lipstadt in his newsletter published in May of 1994. In March of 1996,
the Crown took over and withdrew the charges on the grounds that there
was no reasonable prospect of a conviction.
In 1996, Sabina Citron and then Toronto mayor Barbara Hall, representing
the Toronto Mayor's Committee on Community and Race Relations, filed complaints
against Zundel with the Canadian Human Rights Commission, alleging that
Zundel was inciting hatred in the "Zundelsite", a website, contrary
to section 13 of the Act. Several publications were complained of, including
the pamphlet "Did Six Million Really Die?."
The hearing before the Human Rights Tribunal commenced in May of 1997 and
ended in February of 2001 with some 53 days of hearings. Zundel was not
allowed to call any evidence as to the truth of the publications in issue,
nor of his intent, both of which had been defences to the false news law
and attempted charges under the hate propaganda law.
On January 18, 2002, Reva Devins and Claude Pensa, Tribunal Members, found
"Did Six Million Really Die?" and other materials complained
of to constitute hate propaganda. Pensa and Devins held that Zundel controlled
and operated the "Zundelsite", the website complained of in hearing,
in spite of evidence that the website was situated in America and run by
Zundel's wife, Ingrid Rimland Zundel.========
-
- Zundel withdrew his application for citizenship in December
of 2000. As no further basis for the security hearings existed, the proceedings
were ended. Zundel left Canada in 2000 to live with his wife in America,
hoping for peace and relief from the violence and persecution he had endured
in Canada for twenty years.
-
- Zundel has no criminal record in Canada or the United
States.
-
- Zundel was deported from the United States to Canada
on February 17, 2003 after being accused of missing an immigration appointment.
He has now taken legal proceedings in the United States challenging the
validity of the deportation and its legality.
-
- Canadian officials refused to allow United States immigration
officials to bring Zundel into Canada on February 17th and he was taken
to a holding centre in Batavia, New York. On February 19, 2003, he was
taken again to the Canadian border at Fort Erie and this time was allowed
entry into Canada and immediately taken into detention.
-
- He claimed refugee status immediately. The Canadian Minister
of Citizenship and Immigration Denis Coderre expressed fury that Zundel
had applied for refugee status and threatened to take all action necessary
to prevent the system from being "trampled on." (Toronto Star,
February 21, 2003).
-
- Zundel has been in prison in Canada in solitary confinement
since February 19, 2003.
-
- He was initially detained under section 55 of the Immigration
and Refugee Protection Act. Two reports were issued against Zundel under
44(1) of the Act. The first report stated that Zundel was inadmissible
under paragraph 34(1)(d) of the Act in that there were reasonable grounds
to believe that he was a permanent resident who was inadmissible on security
grounds for being a danger to the security of Canada. The second report
stated that Zundel was inadmissible under section 41(b) in that there were
grounds to believe that Zundel was a permanent resident who had failed
to comply with the residency obligations of section 28 of the Act.
-
- With respect to his claim for Refugee Protection, on
February 24, 2003, the claim was deemed eligible for decision by the Refugee
Protection Division of the Immigration and Refugee Board. On the same day,
however, the Refugee Protection Division was notified by Citizenship and
Immigration Canada that pursuant to section 103(1) of the Immigration and
Refugee Protection Act, the Division was required to suspend consideration
of the refugee claim on the grounds that Zundel's case had been referred
to the Immigration Division for a determination on inadmissibility on grounds
of security.
-
- Zundel was ordered held in detention and thereafter began
a series of detention review hearings pursuant to section 58 of the Act.
In each of these hearings, it was held that the Minister was taking steps
to inquire whether reasonable grounds existed that Zundel was a threat
to national security. Zundel's detention was ordered to be continued after
each hearing.
-
- On May 1, 2003, the Minister of Citizenship and Immigration
and the Solicitor General of Canada signed a certificate against Zundel
finding him to be inadmissible to Canada on grounds of security. This certificate
was issued pursuant to section 77 of the Act:
-
- 77. (1) The Minister and the Solicitor General of Canada
shall sign a certificate stating that a permanent resident or a foreign
national is inadmissible on grounds of security, violating human or international
rights, serious criminality or organized criminality and refer it to the
Federal Court, which shall make a determination under section 80.
-
- Zundel was served with an arrest warrant while held in
detention in the Niagara Detention Centre. The warrant was issued pursuant
to section 82 of the Act:
-
- 82. (1) The Minister and the Solicitor General of Canada
may issue a warrant for the arrest and detention of a permanent resident
who is named in a certificate described in subsection 77(1) if they have
reasonable grounds to believe that the permanent resident is a danger to
national security or to the safety of any person or is unlikely to appear
at a proceeding or for removal.
-
- The provisions of the Immigration and Refugee Protection
Act regarding the certificate review hearing and detention review are contained
in section 78-84 of the Act, as follows:
-
- 78. The following provisions govern the determination:
-
- (a) the judge shall hear the matter;
-
- (b) the judge shall ensure the confidentiality of the
information on which the certificate is based and of any other evidence
that may be provided to the judge if, in the opinion of the judge, its
disclosure would be injurious to national security or to the safety of
any person;
-
- (c) the judge shall deal with all matters as informally
and expeditiously as the circumstances and considerations of fairness and
natural justice permit;
-
- (d) the judge shall examine the information and any other
evidence in private within seven days after the referral of the certificate
for determination;
-
- (e) on each request of the Minister or the Solicitor
General of Canada made at any time during the proceedings, the judge shall
hear all or part of the information or evidence in the absence of the permanent
resident or the foreign national named in the certificate and their counsel
if, in the opinion of the judge, its disclosure would be injurious to national
security or to the safety of any person;
-
- (f) the information or evidence described in paragraph
(e) shall be returned to the Minister and the Solicitor General of Canada
and shall not be considered by the judge in deciding whether the certificate
is reasonable if either the matter is withdrawn or if the judge determines
that the information or evidence is not relevant or, if it is relevant,
that it should be part of the summary;
-
- (g) the information or evidence described in paragraph
(e) shall not be included in the summary but may be considered by the judge
in deciding whether the certificate is reasonable if the judge determines
that the information or evidence is relevant but that its disclosure would
be injurious to national security or to the safety of any person;
-
- (h) the judge shall provide the permanent resident or
the foreign national with a summary of the information or evidence that
enables them to be reasonably informed of the circumstances giving rise
to the certificate, but that does not include anything that in the opinion
of the judge would be injurious to national security or to the safety of
any person if disclosed;
-
- (i) the judge shall provide the permanent resident or
the foreign national with an opportunity to be heard regarding their inadmissibility;
and
-
- (j) the judge may receive into evidence anything that,
in the opinion of the judge, is appropriate, even if it is inadmissible
in a court of law, and http://laws.justice.gc.ca/fr/I-2.5/48068.html#article-79
- Proceedings suspended
-
- 79. (1) On the request of the Minister, the permanent
resident or the foreign national, a judge shall suspend a proceeding with
respect to a certificate in order for the Minister to decide an application
for protection made under subsection 112(1).
-
-
- Proceedings resumed
-
- (2) If a proceeding is suspended under subsection (1)
and the application for protection is decided, the Minister shall give
notice of the decision to the permanent resident or the foreign national
and to the judge, the judge shall resume the proceeding and the judge shall
review the lawfulness of the decision of the Minister, taking into account
the grounds referred to in subsection 18.1(4) of the Federal Courts Act.
-
- 2001, c. 27, s. 79; 2002, c. 8, s. 194.
-
- http://laws.justice.gc.ca/fr/I-2.5/48068.html#article-80
- Determination that certificate is reasonable
-
- 80. (1) The judge shall, on the basis of the information
and evidence available, determine whether the certificate is reasonable
and whether the decision on the application for protection, if any, is
lawfully made.
-
-
- Determination that certificate is not reasonable
-
- (2) The judge shall quash a certificate if the judge
is of the opinion that it is not reasonable. If the judge does not quash
the certificate but determines that the decision on the application for
protection is not lawfully made, the judge shall quash the decision and
suspend the proceeding to allow the Minister to make a decision on the
application for protection.
Determination not reviewable
-
- (3) The determination of the judge is final and may not
be appealed or judicially reviewed.
-
- http://laws.justice.gc.ca/fr/I-2.5/48068.html#article-81
- Effect of determination -- removal order
-
- 81. If a certificate is determined to be reasonable under
subsection 80(1),
-
- (a) it is conclusive proof that the permanent resident
or the foreign national named in it is inadmissible;
-
- (b) it is a removal order that may not be appealed against
and that is in force without the necessity of holding or continuing an
examination or an admissibility hearing; and
-
- (c) the person named in it may not apply for protection
under subsection 112(1).
-
- Detention
-
- http://laws.justice.gc.ca/fr/I-2.5/48068.html#article-82
- Detention of permanent resident
-
- 82. (1) The Minister and the Solicitor General of Canada
may issue a warrant for the arrest and detention of a permanent resident
who is named in a certificate described in subsection 77(1) if they have
reasonable grounds to believe that the permanent resident is a danger to
national security or to the safety of any person or is unlikely to appear
at a proceeding or for removal.
-
-
- Mandatory detention
-
- (2) A foreign national who is named in a certificate
described in subsection 77(1) shall be detained without the issue of a
warrant.
-
- http://laws.justice.gc.ca/fr/I-2.5/48068.html#article-83
- ==Review of decision for detention
-
- 83. (1) Not later than 48 hours after the beginning of
detention of a permanent resident under section 82, a judge shall commence
a review of the reasons for the continued detention. Section 78 applies
with respect to the review, with any modifications that the circumstances
require.
-
- Further reviews
-
- (2) The permanent resident must, until a determination
is made under subsection 80(1), be brought back before a judge at least
once in the six-month period following each preceding review and at any
other times that the judge may authorize.
-
- Order for continuation
-
- (3) A judge shall order the detention to be continued
if satisfied that the permanent resident continues to be a danger to national
security or to the safety of any person, or is unlikely to appear at a
proceeding or for removal.
-
- http://laws.justice.gc.ca/fr/I-2.5/48068.html#article-84
- Release
-
- 84. (1) The Minister may, on application by a permanent
resident or a foreign national, order their release from detention to permit
their departure from Canada.
-
-
- Judicial release
-
- (2) A judge may, on application by a foreign national
who has not been removed from Canada within 120 days after the Federal
Court determines a certificate to be reasonable, order the foreign national's
release from detention, under terms and conditions that the judge considers
appropriate, if satisfied that the foreign national will not be removed
from Canada within a reasonable time and that the release will not pose
a danger to national security or to the safety of any person.
-
- In May, 2003, the Honourable Mr. Justice Pierre Blais,
P.C. of the Federal Court of Canada (Trial Division), one of the judges
designated by the Chief Justice of the Federal Court to conduct certificate
reviews, began proceedings to review the reasonableness of the Certificate
pursuant to sections 77, 78 and 80 of the Act.
-
- These proceedings have taken place on a number of dates
from May 2003 to November 2004, including the following: 2003 - May 9,
16; July 28-30; September 23-24; November 6-7; December 10-11; 2004 - January
22-23, 26-27; February 9, 12, 18-19; April 13, 14, 29, 30; May 4, 5; June
9; July 27; August 6, 11; August 30, 31; September 1, 2, 14, 16, 17; October
19, 20; November 1, 2.
-
- The decision by Justice Blais as to the reasonableness
of the certificate is currently under reserve and may be rendered at any
time. A finding that the certificate is reasonable will result in the immediate
deportation of Zundel.
-
- Secret proceedings took place before Justice Blais prior
to the commencement of the hearing and throughout the hearing. No notice
of the secret proceedings was ever given to Zundel's lawyers.
-
- Secret proceedings took place after the detention hearing
had concluded, while Justice Blais had reserved and was considering whether
to grant bail to Zundel. After the secret sessions, Justice Blais issued
his order denying bail. After the Minister and Solicitor General had finished
presenting their public case and while Zundel was in the middle of presenting
his response, the Minister and Solicitor General repeatedly presented more
secret evidence against Zundel. Justice Blais even had a secret session
with the Crown during a lunch break in the public proceedings. The secret
case is not limited to reply evidence. The case can secretly change in
any way while being responded to. Zundel and his counsel do not know how
it has changed in this case. There will be (or have been) secret final
argument by the Crown after the completion of public final arguments.
-
- The public case by the Ministers alleges that Zundel
is a "white supremacist" which the government defines as "racists,
neo-Nazis and anti-Semites who use violence to achieve their political
objectives." Zundel is alleged to be an "influential individual"
who has "supported violence" and "exercises influence over
violent and/or influential individuals and organizations in the Movement
in Canada and internationally. Zundel seeks to destroy the multicultural
fabric and underpinnings of Canadian society."
-
- A large part of the "White Supremacist Movement"
that CSIS alleges Zundel influences and directs is a group called "The
Heritage Front". The Heritage Front is a pivotal aspect of the case
against Zundel and covers the years 1989 to 1994 in particular. In 1994,
it was revealed in a major Toronto newspaper, that one of the co-founders
of the group, Grant Bristow, was in fact an agent of Canada's spy agency,
CSIS. Bristow had formed the group in 1989 with another man, Wolfgang Droege,
during the period when Justice Blais was the Solicitor General of Canada,
having direct Ministerial responsibility for CSIS.
-
- Bristow himself had initiated many of the acts of violence
alleged against the Heritage Front or influenced them. What became known
as the "Heritage Front Affair" became a huge scandal in the Canadian
press. The Security Intelligence Review Committee ("SIRC"), the
agency charged with monitoring CSIS, was forced to commence an investigation
and to make a report to the Solicitor General of Canada. This report was
filed in December of 1994.
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- While he was Solicitor General, Justice Blais had issued
in October of 1989 a direction to CSIS regarding the use of human sources.
In its 1994 report, SIRC stated that these directions were "seriously
deficient" and should be "re-examined" given what had happened
with Grant Bristow and the Heritage Front.
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- Justice Blais was the Solicitor General during the time
period that is at issue in these proceedings against Zundel which span
the period from about 1981 to the present day. This raises a direct conflict
of interest between Justice Blais and the defence positions of Zundel.
Zundel brought a motion before Justice Blais requesting that he remove
himself from the case given this direct conflict but he refused.
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- No witnesses were called against Zundel in the public
portion of the hearings by the Minister and Solicitor General.
-
- The sole public evidence against him consisted of 5 volumes
mainly of newspaper articles, other media articles, website printouts,
extracts from books and similar materials written by people not called
by the Minister or the Solicitor General as witnesses. The evidence against
him was compiled by CSIS. Zundel was not even mentioned in almost all of
the documents presented. Only two or three documents, out of hundreds,
were actually written by Zundel. These few documents by Zundel have been
published for many years and have never been the subject of any criminal
proceedings in Canada, a country which has hate propaganda criminal laws.
-
- Not one of the authors of the documents introduced into
evidence directly by the Minister's lawyers (not through any witness to
prove the provenance of the documents) was called for cross-examination.
-
- The Minister and Solicitor General have admitted that
the public evidence does not prove that Zundel was a threat to the security
of Canada. Therefore, the real case against Zundel is in fact totally secret.
-
- Two CSIS agents were subpoenaed by the defence but the
cross-examination of them was almost totally destroyed by interventions
and rulings of Justice Blais.
-
- Counsel for Zundel brought motions for Mr. Justice Blais
to recuse himself from the case on various grounds, including the fact
that he was a former Solicitor General who was in charge of CSIS, the organization
providing all of the evidence against Zundel, during the very time period
in question in the proceedings. Mr. Justice Blais refused all applications.
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- Mr. Justice Blais refused to grant bail to Zundel notwithstanding
the fact that the government admits that Zundel is not violent and has
no record of any violent activity.
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- Violation of Optional Protocol to the International Covenant
on Civil and Political Rights
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- Zundel alleges Canada is violating Articles 7, 9, 10,
14, 18, 19 and 26 of the Optional Protocol.
Articles 7 and 10:
Zundel suffers from depression as a result of his prolonged detention in
solitary confinement.
-
- He is not allowed to have a chair in his cell.
-
- He is not allowed to wear shoes.
-
- The lights are on 24 hours a day in his cell and only
dimmed slightly at night.
-
- He is not allowed to use a pen, only a pencil stub.
-
- He is not allowed to take his herbal remedies for his
arthritis and extremely high blood pressure.
-
- His request to see a dentist was ignored for one year.
-
- He is allowed only ten minutes a day outside. He has
no access to any gym or other facilities for walking or exercising.
-
- The cell in winter is brutally cold, such that he has
to wrap himself in sheets and blankets.
-
- The food served is always cold and of very poor quality.
-
- Mail (ingoing and outgoing) is often withheld for weeks.
-
- There are hundreds of unnecessary strip searches.
He suffers from a mass in his chest which may or may not be cancerous.
Justice Blais has been aware of this condition for over a year yet refused
to release him on bail.
Article 9:
Zundel has been detained under national security legislation but has never
been informed of the real case against him. The government has admitted
that the public case against him does not prove that he is a national security
threat. Therefore, it is in the secret proceedings that the real case against
him is being presented to the judge without any knowledge of that case
by Zundel or his lawyers or any means of countering that case.
The judge hearing his case refused to deal with the detention of Zundel
in a timely manner but insisted that all evidence heard on the detention
review also went to the case itself. The result was a lengthy hearing into
the detention before the judge finally ruled 8 months later that he would
not be allowed bail.
Zundel has been refused bail repeatedly notwithstanding that he is non-violent,
has no criminal record in Canada and has a record of fulfilling all bail
conditions imposed on him from 1985 to 1992 during the criminal proceedings.
There is no appeal procedure to question the refusal to grant bail. The
only procedure available is to bring a full-blown action in the Federal
Court to challenge the validity of the national security provisions of
the Immigration and Protection of Refugee Act. This procedure will entail
years of litigation.
Further, Canada has violated article 9, paragraph 1, because of the failure
of the State to protect Zundel from attacks, and the failure to properly
investigate the two bomb attacks, death threats, the devastating arson
of his home and business and the razorblade incident. This amounts to a
failure by Canada to ensure "security of person", as required
under article 9, paragraph 1. No persons have ever been charged with any
of these serious offences. The consistent pattern of failing to apprehend
the perpetrators of these serious, violent and extremely damaging offences
over a period of years indicates Canada failed in the most basic way of
protecting Zundel's security and upholding its own laws.
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- This failure is made all the more serious by the fact
that a former CSIS agent has alleged that the intelligence service knew
that a pipe bomb was being sent from Vancouver to Zundel through the post
office, yet did nothing.
Article 14:
The proceedings against Zundel are not criminal, but are under national
security legislation. He is charged with no offence, but is stated to be
inadmissible to Canada on the grounds of being a threat to the security
of Canada for "engaging in terrorism," "being a danger to
the security of Canada," "engaging in acts of violence that would
or might endanger the lives or safety of person in Canada" and "being
a member of an organization that there are reasonable grounds to believe
engages, has engaged or will engage" in the above-noted acts. These
facts include those that "have occurred, are occurring or may occur"
in the future.
The government is not required to prove any facts beyond a reasonable doubt
nor even on a balance of probabilities. It is required only to show that
the certificate is reasonable.
It is submitted that national security legislation places a far greater
penalty on the defendant than criminal legislation. All rights are taken
away from such a person. He is not informed of the case or the evidence
against him. This is evident in the Zundel case where Canada has admitted
that the real case against him has been revealed in the secret hearings,
not in the public evidence. Hearsay evidence is admissible against him.
Yet, he is subject to the burden of being classified as a terrorist, rendered
inadmissible to Canada where he has lived for 42 years and has children
and grandchildren, and deported to Germany where he may face further prosecution
for offences not applicable in Canada.
It is submitted that such persons, by analogy, must be entitled at the
minimum, to the presumption of innocence and due process. Further, the
government must be required to prove its case against such a defendant
with a burden of proof that goes beyond mere "reasonableness."
The entire case against Zundel is secret. The "public hearing"
is a sham, a show trial to give the impression that some sort of justice
is being done. While the form of fair hearings with due process has been
maintained, the requirements of natural justice have been gutted and destroyed.
Zundel has a reasonable apprehension that the Justice Blais is biased against
him. Justice Blais is a former Solicitor General of Canada. He had direct
Ministerial responsibility for CSIS in 1989, within the time frame during
which it is alleged Zundel became a national security threat. 1989 was
also the year that the Heritage Front was formed using a CSIS human source,
Grant Bristow. Zundel's alleged associations with members of this group
form the crucial aspect of the public case against him. Repeated motions
to have Justice Blais remove himself from the case have been unsuccessful.
Justice Blais has repeatedly interrupted the defence case and treated Zundel's
lawyers with contempt. He has denied crucial lines of cross-examination
and argument.
Article 18 and 19:
The ICCPR states that "Everyone shall have the right to freedom of
thought, conscience and religion." And "Everyone shall have the
right to hold opinions without interference." The articles go on to
clarify these rights. Importantly, they protect the right of individuals
"freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in print,
in the form of art, or though any other media of his choice."
In this case, Zundel has been imprisoned and classified as a national security
threat because of what he allegedly might say in the future and what others
might do who listen to him and read his materials. In the words of the
Canadian government, "Zundel has virtually no history of direct personal
engagement in acts of serious violence. However, his status within the
milieu is such that adherents are inspired to actuate his ideology."
Zundel lived in Canada from 1958 to 2000 and has no criminal record. He
has never been charged with any offence involving any type of violence
directly or indirectly. He has never been charged with the offence of inciting
hatred notwithstanding numerous attempts by groups which support the State
of Israel to have such charges laid.
In the United States, the FBI conducted an investigation of Zundel as part
of the immigration process. It concluded: "In view of the fact that
there is no indication that the subject is, or ever has been involved in
any acts of violence, acts of domestic terrorism, or any other criminal
activity within the United States, recommend this case be closed administratively."
(Investigative Report, U.S. Department of Justice, Federal Bureau of Investigation,
04/09/2001)
Zundel is being held in prison under national security allegations that
rest, not on serious violence or any type of violence, but solely on his
opinions which question the British/United States version of Germany's
treatment of its Jewish population during World War II and his work in
sharing that information with others and receiving information from others.
This is the very type of activity that Articles 18 and 19 are designed
to protect. Zundel is a researcher, a writer, a publisher, a producer of
radio and TV documentaries and interview-type shows. He shares his opinions
with others. He receives information and opinions from others. He may or
may not share the opinions of people that he speaks with or interviews.
Yet, Canada has held Zundel in prison in solitary confinement for two years
based solely on his activities as a writer and publisher.
Canada admits it has no evidence that he is violent or has engaged in any
type of violence. But it dislikes his historical views. Nevertheless, Zundel
has never been charged with inciting hatred against Jews or any other group
in Canada notwithstanding the fact that powerful Zionist organizations
have attempted numerous times to have such charges laid.
Zundel is not a hate propagandist under Canadian law.
The national security charges against Zundel are politically motivated
and arbitrary and violate all civilized norms enshrined in Articles 18
and 19.
Zundel is being held essentially as a political prisoner because of his
beliefs. The fact that he does not believe in the Allied version of the
Nazi treatment of Germany's Jewish population, does not constitute a threat
to national security.
Zundel has endured and continues to endure persecution because of his convictions.
Zundel, in good conscience, believes that there are numerous aspects of
the established historiography on the fate of the Jews during World War
II that require further research and revision. He believes that the current
historiography entails an illegal attack on the honour and reputation of
all Germans and contributes to discrimination against Germans in many fields.
Zundel does not intend to defame Jewish individuals or Jewish people, but
he wishes to prevent further defamation and discrimination of Germans.
Zundel believes that open discussion on the issues surrounding this historical
issue is necessary in a democratic society and that it is not the function
of lawyers and judges to pronounce dogma on historical matters. Zundel
has proven the authenticity and the strength of his belief by suffering
considerable social and economic ostracism because of his views. Zundel
believes that his opinion on historical matters is protected not only under
article 19 but also under article 18 of the Covenant.
Article 26:
-
- Zundel has not been treat equally under the law of Canada
by the Canadian authorities for many years, but in fact has been subjected
to discrimination and denied citizenship because of his historical and
political opinions.
-
- Repeated complaints and prosecutions were made over and
over regarding the same publications, namely, "Did Six Million Really
Die?" and "The West, War and Islam." These prosecutions
were conducted under various statutes, dealing with mail, crimes, human
rights and national security, but all had the purpose of persecuting Zundel
for his lawful opinions regarding World War II. When a prosecution failed
under one statute, another prosecution was started under another law.
-
- Canada used the allegation that he was a threat to the
security of Canada to disallow his application for citizenship, which a
government official admitted was "flawless." The State party
of Canada searched for a way to disallow the citizenship application and
it used the national security provisions of the law to do so. The law was
applied, not to protect Canadians, but for the ulterior and improper purpose
of denying Zundel his Canadian citizenship. They also had the effect of
stopping Zundel's claim for refugee status, which the Minister for Citizenship
and Immigration expressed such fury about.
-
- The national security provisions of the citizenship laws
were the only ones that could have been used to deny Zundel his citizenship
and they were so used in a discriminatory, abusive and reprehensible manner.
Exhaustion of local remedies in Canada
-
- Zundel has attempted to engage the courts in a review
of his detention, but has been unsuccessful for two years.
-
- Zundel brought an application before the Ontario Superior
Court of Justice for a writ of habeas corpus with certiorari in aid together
with a challenge to the constitutional validity of the Immigration and
Refugee Protection Act. On November 23, 2003, the Superior Court refused
to hear the application on the grounds that, although it had jurisdiction
over the matter, any constitutional arguments should be made to the Federal
Court of Canada.
-
- Zundel appealed this decision but it was dismissed by
the Ontario Court of Appeal on May 19, 2004. Although the court acknowledged
that it had sole authority to grant the writ of habeas corpus, it refused
to exercise this authority on the ground that it had not been proven that
the procedure before the Federal Court of Canada was inappropriate or less
advantageous. (R. v. Zundel, [2004] O.J. No. 2087 (Ont. C.A.); Application
for leave to appeal to the Supreme Court of Canada dismissed at R. v. Zundel
[2004] S.C.C.A. No. 316)
-
- In doing so, the Canadian courts ignored the clear guarantee
to habeas corpus in section 10 of the Canadian Charter of Rights and Freedoms
which provides:
-
- "Everyone has the right on arrest or detention (c)
to have the validity of the detention determined by way of habeas corpus
and to be released if the detention is not lawful."
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