Zundel Case -
Jurisdictional Ping-Pong

From Ingrid Rimland
For the lay person, it is very easy to lose track of where the Zundel case is going in the various courts in Canada and the United States, since so many side tours and detours are involved. One of the issues Ernst is battling in both court systems has to do with jurisdiction: Just who, precisely, is going to grit his teeth, remember that he has a spine, take the talmudic bull by the proverbial horns and really, REALLY look at what is going on in this abomination called a "security certificate hearing"!
Let me simplify the situation in the Canadian system, as I understand it: There exist in Canada two sets of parallel courts - provincial courts and federal courts. On paper, they have equal standing. On paper, a defendant may choose the court most advantageous to his circumstances and the facts around his case.
In reality, a victim of the system can be made to spend huge sums of money, and lose valuable time and energy, getting bounced from one court system to the other - back and forth, and back and forth again, ad nauseam!
In Ernst's case, the choice was the provincial court system for a start. No luck there, as you will remember. The female judge just washed her hands and said, "wrong court."
Now, normally, we would have regrouped and gone to the federal court with Ernst's complaint like good little players in a very evil game. The snag there is that Ernst's case would not have been heard FOR UP TO FIVE YEARS because of the federal court backlog!
In the meantime, our legal costs grind on the notorious Judge Blais, whose anti-Zundel rulings are so unashamed that they make even some of the traditionally hard-boiled media mavens cringe.
What to do? The Zundel team decided on a motion to the Supreme Court of Canada to at least bring the Judge Blais hearings to a stop - "stay the hearings", as it's called - and thus save costs and nerves until the SC judges, now on summer holidays, can reconvene and look at the Blais mess from a national interest and national precedent point of view.
Zundel motion and government reply motion were filed. Tradition allows one last reply to the Zundel defense team before the case is going to be heard.
Below is that reply, filed July 27th. You can deduce from this reply just what is playing here:
Please find the Applicant's Reply for Motion for Stay and Other Relief as follow:
1. The Crown's submissions are telling in what is relies upon and what is omitted.
What the Crown Relies Upon
2. The Crown's submissions are dominated by procedural arguments thereof. It is respectfully submitted that there are much more important substantive issues at stake here, as previously set out in the Applicant's Memorandum of Argument herein.
3. The Crown also relies heavily upon a familiar refrain: that the Applicant is in the wrong court. The Crown did so when the Applicant brought his constitutional challenge before the designated judge (wrong court) and before the Ontario Superior Court (wrong court). According to the Crown, the Applicant should either go through a five year federal court action and be deported before the action is heard (right court), or he should go back to the designated judge now, and look forward to the Crown's steadfast response: WRONG COURT.
4. It is respectfully submitted that this jurisdictional ping-pong is unbecoming of the Crown and of any court. It brings the administration of justice into disrepute by turning it into an exercise of grinding individual right-seekers into silence.
5. It is particularly objectionable that the Crown has answered the Applicant's concern of jurisdictional ping-pong with suggestions of playing more jurisdictional ping-pong: bounce the Applicant once more and he will be gone for good, as there are no more courts to which the Applicant can go.
What the Crown Omits
6. The Crown's submissions contain no answer to any of the documentary and transcript evidence in support of the Applicant's motion, except one, that due to procedural concerns, this Honourable Court should disregard them.
7. It is respectfully submitted that the Crown relies on procedural arguments because it simply has no meritorious rebuttal to the Applicant's substantive evidence and argument.
8. It is respectfully submitted that what the Crown has asked this Honourable Court to do is to choose between enforcing murky procedure or enforcing substantive justice.
9. Finally, the Applicant will address two procedural points raised by the Crown. The first is the Applicant's timing of this motion. Contrary to the Crown's assertion of this being a last minute motion, the timing of this motion has been expeditious and has been driven by the conduct of the security certificate review hearing judge, the Honourable Justice Blais.
10. As recently as May 5, 2004, the court and all counsel scheduled dates for this hearing all the way to December 16, 2004. However, on June 23, 2004, Justice Blais quashed all of the Applicant's subpoenas to Applicant's witnesses and unilaterally ordered that this hearing end by September 14, 2004, making it imperative that this motion be brought and heard very quickly if the Applicant's appeal and all the issues of secret trials and fundamental justice raised by it are to be addressed on their merits.
11. As this motion relies upon both the Application herein and Application no. 30427, both Applications had to be completed before this motion could be brought. Within the four weeks after Justice Blais' order dated June 23, 2004, this so-called last minute motion was completed together with Application no. 30427 while Applicant's leading counsel Peter Lindsay went through serious throat surgery on July 13, 2004. The Application materials included excerpts from transcripts which by now total in excess of 4,800 pages. This motion has been forced upon the Applicant by the conduct of the security certificate review court and has been brought on a timely manner.
12. Secondly, as to the Crown's claim that the Applicant is, again, in the wrong court, the Applicant has made it very clear that this motion is actually brought under the auspices of both the Application herein (from the Federal Court of Appeal) and Application no. 30427 (from the Court of Appeal for Ontario). The Applicant relies on materials from both Applications to support this motion. It is therefore not an option to bring the motion to stay before any single appellate court below. Moreover, the Applicant has also requested the remedies of consolidation and expedition, which only this Honourable Court can grant.
13. It is respectfully submitted that in order to defeat this motion, the Crown ought to have a substantive answer to the atrocious violation of fundamental rights and values of justice raised by the Applicant as the basis for this request for stay, and do more than, once again, dodge the issues.
14. Our new Foreign Minister lectures Iran that the "government of Canada continues to insist that justice be done. The process has to be both transparent and credible...I hope that the Iranian judiciary will have the courage to act".
15. It is respectfully submitted that a stay of proceedings should be granted as well as consolidation and expedition in order to bring this matter to at least the standard of justice Canada demands of Iran.
Date: July 27, 2004
Peter Lindsay Chi-Kun Shi
Counsel for the Applicant
Well, guess what? The motion was denied in less than a day - not only that, Ernst has been assessed costs to reimburse the opposition!
The motion to stay the hearings was denied by one lone judge who, Ernst said yesterday, has always been hostile to him. I asked Ernst what that meant - was this now the end, and did this latest mean that his choice was to sit out five years in the Canadian Gulag until the federal court saw fit to hear his case, or be deported as a danger to the security of Canada on the simple, arbitrary say-so of Judge Blais *before* the substantive matter can be dealt with properly in the Supreme Court of Canada?
Ernst said that Judge Blais has had the option of aborting the trial all along - and he might well decide to do so at this point. However, two motions pertaining to the constitutional issues are still pending. Eventually, the Canadian Supreme Court judges will have to come up with a ruling - in simplest terms, if secret hearings such as Stalin practiced are okay in Canada where no defense is possible.
Will this be done while Ernst is still in Canada, or after he is gone?
Your guess is as good as my guess. Be prepared for a few more surprises.



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