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April 1, 2003
IMMIGRATION AND REFUGEE BOARD
- IMMIGRATION DIVISION -
Record of a Detention Review under the
Immigration and Refugee Protection Act, concerning
ERNST ZUNDEL
HELD AT: Niagara Falls Office
DATE: April 1, 2003
BEFORE: R. Murrant - Member
APPEARANCES:
E. Zundel - Person Concerned
W. Reid - Minister's Counsel
D. MacIntosh - Minister's Counsel
T. Hoffman - Minister's Counsel
P. Fromm - Counsel
N/A - Interpreter
MEMBER: This is the resumption of a detention review
originally opened by me, Robert Murrant, an Immigration and Refugee Board
Member yesterday, the 31st of March 2003. The resumption is taking place
today, the 1st of April 2003 in Niagara Falls and all of the same parties
are present.
When we adjourned yesterday Mr. Fromm had presented a
document which was titled German Legal Proceedings 1981 to 2003. There was
an objection from the counsel for the Minister indicating that all of the
document was not in English, nor was it translated.
Have you had an opportunity to look at this document now?
MR. MACINTOSH: Yes, I have.
MEMBER: Does your objection stand or?
MR. MACINTOSH: My objection stands. First of all, we've been
given overnight an updated portion of this document, German Legal
Proceedings 1981 to 2003 and I would note that if you turn sort of midway
through the document after the article Revisionist, the heading at the very
top says Unverified Partial Translation from German into English.
MEMBER: Sorry, where are we? You've got me here, right?
MR. MACINTOSH: We're about five pages after that picture.
MEMBER: Okay, thank you.
MR. MACINTOSH: It says Unverified Partial Translation from
German to English and I would note that in the Regulations pertaining to
IRPA, Regulation 25(1) says as follows. "All documents used at a
proceeding must be in English or French or if in another language be
provided with an English or French translation and a translator's
declaration."
There's no translator's declaration that's contained in
respect of these pages. So therefore, it doesn't meet the requirements of
Regulation 25 of IRPA.
Furthermore, aside from that particular issue, it doesn't
provide this tribunal with any opportunity to ascertain whether or not this
is an accurate translation because on the face of the document it says that
it's unverified and as you're well aware in examining the totality of
evidence you have to turn your mind as to whether or not you consider the
evidence to be credible and trustworthy and how can you consider the
evidence that's been adduced in respect of these pages to be credible and
trustworthy when neither you nor anyone else here is in a position to know
whether or not this is an accurate translation?
Whoever translated this didn't certify that it's an accurate
translation. I mean, you have..these pages stand sort of contra-distinction
to the affidavit that's at the end of this document where you have a lady
who is employed by All Languages who has filed an affidavit in which he
deposes that she understands German and English, that she's compared the
translation, et cetera, and it's the best of your knowledge and ability a
true and correct translation of the said document.
Obviously, you know, counsel are aware of the need for such
an affidavit as evidenced by the fact that they produced an affidavit in
relation to some documents in their very materials and have failed to do so
in relation to these pages.
So, in my respectful submission these pages shouldn't be
admitted into evidence and what you should do is you should direct counsel
to take those pages out of the material.
MEMBER: Mr. Fromm?
COUNSEL: I can only offer by way of explanation the fact
that the Revisionismis (ph) was brought to my attention only on the weekend.
I did my best last night to get a translation by the gentleman who's here
yesterday who is a fluent English speaker and German, native German speaker.
We did try to get a translation of the pertinent sections
that deal with Ernst Zundel and if you recall yesterday you're pointing to
Mr. MacIntosh that the rules of the Immigration hearings require five days
notice and I think in response to you he said - this was very quickly
written down, I may not have it exact - but something to the effect that we
have discretion to assess requests.
I would submit that this is an honest and in good faith
translation and I think there are enough German speaking people in the room
including probably on the other side and there's no attempt here to misstate
what the German does say, but there was a critical paragraph in there that
was very important to Mr. Zundel's case.
MEMBER: I'm not prepared to allow you to tender this. It's
uncertified, it's partial and without some sort of clear indication that
it's a certified translation I'm not prepared to accept it.
So what I suggest you do is take out those portions of this
Exhibit. What I'll do is I'll give you a recess and you can over it with
counsel just so that you're both clear on what you're doing.
If you're not prepared to do that I won't accept it as an
Exhibit at all. That's your choice.
COUNSEL: Okay. Can we do that? Can we proceed and take it
out of the Exhibit..take it out of the document at the next break or do you
want us to do that right now?
MEMBER: It's easier..take it now and then I've got the
Exhibit. If I'm going to have to follow what Mr. Zundel is saying with this
Exhibit I want to be able to, okay? So quick recess. This shouldn't take
long.
--- PROCEEDINGS RECESSED
--- PROCEEDINGS RESUMED
MEMBER: This detention review is resumed. Mr. MacIntosh, I
take it you agree with counsel on this now?
MR. MACINTOSH: Yes.
MEMBER: Okay, thank you. Okay, what I've been presented with
is a document titled German Legal Proceedings 1981 to 2003. I'm going to
mark this as DR number 6. It consists of ten pages.
--- ATTACHMENT DR-6: Document titled, German Legal
Proceedings 1981 to 2003 - 10 pages
MEMBER: Okay. Mr. Fromm?
COUNSEL: Mr. Murrant, I don't know if you need this or not.
I have the original copy of part of that. That's the affidavit of the
Germany attorney, Yurgen Reigel (ph). I don't know if you need the original
which is part of that.
MEMBER: I'd prefer the original. It's already in here, is
that right?
COUNSEL: It's in there.
MEMBER: I prefer the original
COUNSEL: Here's the original then, Mr. Murrant.
MEMBER: Okay, thank you. So, you were asking questions of
Mr. Zundel when we left yesterday and I take you will continue, is that
right?
COUNSEL: Yes.
CONTINUING EXAMINATION OF ERNST ZUNDEL
CONTINUING EXAMINATION BY: COUNSEL Q: Just to recap I show
you this document entitled German Legal Proceedings and I call your
attention to the first item in the document which appears to be a letter to
Mr. Alan Bolaboy from yourself dated November 4th, 1982? A: Yes, it is.
Q: Do you recognize this? A: I recognize the writing, yes.
Q: Could you explain the circumstances that caused you to
write this letter? A: There had been a huge media brouhaha about these raids
in Germany that had resulted for myself in mass demonstrations outside my
house. Twelve hundred Jewish people arrived on May 31st, 1981 and the
Toronto Riot Squad had to be called out. Even some cruisers with shotguns
mounted on the front dashboard arrived at the end the traffic was blocked
for about two hours.
So, when the victory came in Germany one year later
naturally it was sweet for me. I was exonerated because it had led to this
massive media feeding frenzy and these mass demonstrations. It had tarnished
my reputation. Certainly the police were upset that the whole traffic on
Carlton Street which is a main thoroughfare in Toronto was cut off for two
hours and so I felt duty bound to let everybody know that the prosecutor,
after looking for a whole year at all these kinds of documents in those
police riots found that there was no evidence of literature and no evidence
of illegality and since I was a member of the Canadian Civil Liberties
Association for 25 years, Alan Boloboy and I had frequent conversations and
the Canadian Civil Liberties Association had represented me in Ottawa during
the postal hearings, I felt duty bound to let him know what I was exonerated
and I thought that this was going to be my comeback. Boy, little did I know.
I also sent it to this whole list of what you could call
Canadian opinion shapers and opinion molders, famous lawyers, editorialists,
I sent it to every police force in the country, to the then Attorney
General, Roy McMurtry, with...
Q: That would be the Attorney General of Ontario? A:
Attorney General of Ontario who had been under tremendous pressure to charge
me under the Hate Literature law. They never did.
Q: Now, was this the incident referred to in paragraph 4 of
the document discussed yesterday or presented yesterday by the Crown,
summary report Ernst Zundel? A: That's right. That is...
Q: The raids that were carried in the March 25th, 1981
edition of The Toronto Star? A: This is the basis for CSIS's including it in
the summary report against me and this is the newspaper article. Q: This
letter was part of your response to... A: To this inflammatory headline and
the misstatement of the facts and it was a kind of a justice that German
courts saw it my way and freed my bank accounts that was seized at the time,
gave me back all my money and paid my attorney's fees and certainly did not
charge me criminally under Germany's Hate Laws, which are far more stringent
in Canada, in which truth is not a defense.
Q: But what was happening to you in Canada as a result of
the publicity which included The Toronto Star article referring to the raids
in Germany? A: The Toronto Star article caused an avalanche of death threats
and hate calls to my house, so the Toronto police put a tracing device on my
telephone for the first time and that tracing device was on, and to my
knowledge is still on because I'm still being traced for calls from Toronto,
and they caught eventually three individuals, all of them Jewish, who made
the most vile death threats out of the thousands that were made. They were
prosecuted and they were convicted.
Q: What was happening to your business as a result of all
this publicity? A: I was a well known graphic artist. I had 12 employees. I
was well-to-do and many of my customers who were Jewish, the greatest
percentage of them who were Jewish, naturally distanced themselves from me
and it was the beginning of the end really for my graphic arts business.
Q: What were you trying to accomplish with this letter to
Mr. Bolaboy and various other people that you sent copies to? A: I was
trying to outline to all the recipients of this letter that I was a
legitimate dissident, a writer, a publisher, a spokesman defending my German
ethnic group against all these media borne malevolent accusations that had
been floating around for the last 40 years. This was really first my first
big public statement to the Canadian media and Canadian elite media.
Q: I was wondering if you could read on the first page of
this paragraph 5 near the bottom, the one that begins, "I am not?"
A: We're talking here 1982 November.
Q: Yes. A: "I'm not, nor have I ever been a member of
any Nazi party and I reject those labels of Nazi and neo-Nazi not only
because they are untrue, but because they serve as ploys to deprive me of my
human right to communicate ideas. I do not advocate the censorship of
anyone, so I'm far less of a Nazi than those who would censor me.
Anyone who makes political statements may have something
more or less in common with Nazi ideas which, after all, were totalitarian
in concept and thus still with every subject under the sun."
Q: Now you wrote that about 21 years ago, in 1982. Would you
still stand by the statements... A: Certainly.
Q: ...you made in that letter I just had you read? A: Yes, I
do.
Q: So, it's your testimony that you reject the
identification as a neo-Nazi of yourself? A: To call someone a neo-Nazi is
to call somebody a Communist under the McCarthy era or call somebody a
fascist under the Communist regime or call somebody a PLO member in the West
Bank of Israel. You will become an outcast.
The moment when somebody makes the label Nazi, neo- Nazi
stick on you today you become marginalized.
Q: Did your..the letter that you sent to all of these people
succeed in the goal that you had of clearing the air? A: Not really. Not
really. I mean, Barbara Frumm for instance, the late Barbara Frumm, who had
a very famous Canadian radio program called As It Happens, she invited me on
her program for three-quarters of an hour on a UFO book I had written and we
had sometimes private conversations. Same with Morty Shulman. He had a
famous t.v. program and I asked Morty Shulman and I asked Barbara Frumm to
chair a symposium in which I was offering to pay the rent for half of Maple
Leaf Gardens. I would pay half and I asked the Jewish community leaders to
pay the other half and suggested that we don't need court cases. That we go
and meet with each other and we thrash out these sort of issues and I
specifically by letter wrote to Morton Shulman and the other one was Barbara
Amiel (ph) and asked them to chair the meetings.
Barbara called me back and said, oh Ernst, this is too hot a
potato for me. Morty Shulman never called me back.
Q: If I could direct your attention to the third page of the
document which appears to be news stories, news stories from The Toronto
Sun. In your letter, in the third letter of page 2, you say, "The
enclosed translation of the ruling of the District Court of Stuttgart in
which the West German's charge of hate was to be laid is unequivocal in its
verdict of innocence. Is that the...is that what you're referring to there?
Is that on page 3 in Ein Ganasoca (ph)? A: That's right. It is..I'm
reproducing photostatically or with photocopy the letter that was sent to me
by the German prosecutor headed Ein (inaudible) which means District Court
Stuttgart and that means decision of 23rd August 1992 in the criminal matter
of Ernst Zundel and I gave my dates and where I live and so on, and they say
that the request by the state prosecutor to proceed against me and to issue
an arrest warrant was refused and the whole cost of the proceedings were
going to be paid by the state.
Q: So... A: And then they give the court gave the reasons
why they did that, but I didn't reproduce that.
Q: So the article there from The Toronto Star put to you
yesterday... A: Yes.
Q: ...that caused you so much trouble, those raids in
Germany, you were tied in..it was tied into some of those raids. At the end
of the day the decision of the German court was? A: To not charge me.
Q: To not charge you? A: There was no arrest warrant issued
and I was not charges. Insufficient evidence that I'm a hate monger.
Q: Okay. I'd like to call your attention to the remainder of
this document. It's a letter in German from Yurgen Reiger and then a
notarized translation. Do you recognize the letter from Yurgen Reiger? A:
Yes I do because...
Q: Who is Yurgen Reiger? A: Yurgen Reiger is my longtime
German attorney who's been my attorney for 24 years.
Q: And did you solicit this letter from him? A: Because I
was in front of SIRC, Security Intelligence Review Committee, at the time
after CSIS leveled these accusations that I was a security threat to Canada
I asked him to present me a letter with the disposition of the cases that he
had handled for me at that time in the German court.
Q: I wonder if you would go to the English translation. A:
Mm'hmm.
Q: The certified English translation. I mean the notarized
English translation. A: Yes.
Q: At the end of the document I gave you. I wonder if you
could read the first paragraph? A: This relates to these raids in Karidan
Uzler (ph) and it says, "For submission before any public authority or
court I hereby affirm..confirm the following. One, I represented you in the
preliminary proceeding before the District Court of Stuttgart. In that
connection your post office savings account was impounded. That was in
1988." He made a mistake there. It is in 1981. "Without any
penalty being imposed the proceeding was closed and the money in the post
office bank were released."
Q: And is that true? A: Yes.
Q: I'd like you to just turn the page and read the second
paragraph? A: Yes. "I filed the complaint on your behalf before the
administrative court and then before the administrative court of Muenster
because the German Federal Republic refused to issue you a passport.. issue
a passport to you. The suit was successful. The passport was issued."
I want to come to this for a minute. One of the spin-offs of
this particular upset was that the German authorities refused to give me a
new passport and naturally that grounded me in Canada for over six and a
half years of litigation and finally, as he says, the administrative court
in Muenster which is the highest court involved in such matters ruled that
no German person could be deprived of a passport for their political
opinions and that ruling has stood since and I got the passport. I got my
passport back.
Q: Paragraph 2 that you read is true? A: Absolutely.
Q: Read the third paragraph, please? A: "I represented
you with the Public Prosecutor's Office of the State Court of Nuremberg Furt
(ph) because of an anonymous letter that was sent from Canada which in
Germany was assumed to have been sent by you. That was in 1994. Since it was
discovered that this letter did not originate from you the proceedings were
closed."
See, it was a very vile letter that some anonymous person
had written to somebody to cause me grief and eventually the police
investigated and my lawyer got involved and that's the way it was disposed
of. It was discovered that I had not sent the letter.
Q: Is that true? A: Yes.
Q: To your knowledge? A: Yes.
Q: I just wonder if you could read paragraph 4, please? A:
"I represented you in a criminal proceeding before the District Court
of Muenster in 1991. In 1991 you were sentenced by the District Court of
Muenster to pay a fine of 12,600 marks because of the video created and
distributed in Canada which dealt with historical questions and which was
not liable to prosecution of the Canadian law.
I launched an appeal on this decision on your behalf. I was
present at the appeal hearing but you were not. This was the case because
you were ill. Medical certificates to this effect issued by a Canadian
doctor was admitted. Notwithstanding the court disallowed your appeal on the
grounds of your allegedly unexcused absence. The medical certificate was not
recognized.
The highest court of Bavaria upheld the dismissal of your
approval.."
Q: No, your... A: "Dismissal of your appeal."
Excuse me. "Dismissal of your appeal. Since all legal means in Germany
had thereby been exhausted I turned to the European Human Rights Commission
in Strasbourg. The proceeding in this matter is still pending there."
Q: Is that true to your knowledge? A: To my knowledge that's
what he told me when I was still free. I called him about it and he said
still they haven't ruled on it yet.
Q: I wonder if you could read paragraph 5? A: "The post
office savings bank wanted to close your account for political reasons. This
I was able to prevent out of court by means of negotiations."
Q: Is this true to your knowledge? A: Well, I think for Mr.
Murrant's benefit, in Germany and like in England and France the post office
runs the bank and I had a postal bank account to which all my customers,
these people who were the subjects of the raids, paid their money or
donations and he's talking about that was the third seizure of my account
and he was able negotiate rather than to go to litigate. That's what this
means.
Q: Thank you. It's written there... A: Yes, they did not
seize my money or that again.
Q: I wonder if you could read paragraph 6? A: "Some
contributions which dealt with matters concerning periodicals and which were
distributed over the Zundel site as internet contributions were classified
as allegedly endangering young people by the Office of the Federal Examiner
for Written Materials that Endanger Youth. I appealed against this ruling on
your behalf. I won the provisional proceedings before the administrative
court of Cologne with a legally binding decision insofar as paragraph 80,
paragraph 5," whatever the rest, "administrative procedure
laws," he says, "I also won the proceedings on the essential issue
before that administrative court of Cologne, however before the upper
administrative court administered the essential issue proceedings
(inaudible) whereby according to my opinion the charges for political
(inaudible) of justice by the Cologne court correspond to prevailing legal
practice."
Q: Is that true to your knowledge? A: That's the state of
affairs. These legal texts in Germany are so utterly convoluted that I have
to take his word for it.
Q: Okay. A: No legal consequences or criminal consequences
issue from this. This is something, an organization we don't have in Canada
or America. It's a youth protection thing. It was basically started to
protect young people against pornography.
Q: I wonder if you would read the conclusion of... A:
"In summary..."
Q: ...Mr. Reiger's letter? A: "In summary it is clear
that you have suffered no criminal sentences except for a monetary fine
before the lowest court, the District Court, and that judgement took place
more than 11 years ago nor are any further proceedings pending against you
to the best of my knowledge."
Q: And is that true to your knowledge? A: At the date of his
writing it was, but it's not now because...
Q: What's the date of his writing? A: 1996.
Q: Now... A: No, here. March 17th, 2003. Excuse me. You're
absolutely right. This is a letter he wrote based on all the cases, but an
arrest warrant was issued against me on March 17th by the Germans and he
could not have known about it. It was faxed to me here in jail in Toronto.
In other words, at this very moment there's an arrest
warrant out for me in Germany and my attorney at the date of this writing
did not know that because it was issued the same day.
Q: And it was faxed to you in jail here in Toronto? A: Yes,
was by Mr. Reiger from the Minister's Representative, yes. And so...
Q: Did you mean Toronto? A: In Toronto..no, actually in
Thorold. Excuse me. So, Mr. Reiger, of course, he's right because he didn't
know about the arrest warrant. The document itself is dated.
Q: Okay. We'll move on. If I can call your attention to a
document which I've given my friend and to Mr. Murrant as well, called..it's
from Ingrid Rimland. It's a Chronology of our Application for Petition for
the Adjustment of Status and Permanent Residence of my Husband, Ernst Zundel.
MEMBER: Sorry, can I see that?
MR. MACINTOSH: We just had this given us this morning so I
would just realize that you have discretion as I alluded to yesterday with
respect to the time in which materials is disclosed to the other side.
There's no doubt that you have a discretion, but I would
just ask for a few moments to look through it.
MEMBER: I take it there's no objection?
COUNSEL: No.
MEMBER: Recess.
--- PROCEEDINGS RECESSED
--- PROCEEDINGS RESUMED
MEMBER: This review is now resumed. I've been provided with
a document dated the 26th of February 2003 and consists of 23 pages.
Counsels have been given a copy as well.
I take it you want to enter this as an Exhibit, Mr. Fromm?
COUNSEL: Yes.
MEMBER: Any objection, Mr. MacIntosh?
MR. MACINTOSH: No.
MEMBER: Mark this as DR number 7.
--- ATTACHMENT DR-1: Document Entitled Chronology of our
Application of Petition for the Adjustment of Status and Permanent Residence
of my Husband, Ernst Zundel, 23 pages
MEMBER: Mr. Fromm?
CONTINUING EXAMINATION BY: COUNSEL Q: Yes, Mr. Zundel, I
show you this document that appears to be a letter from Ingrid Rimland
Zundel and is entitled A Chronology of our Application Petition for
Adjustment of Status and Permanent Residence of my Husband, Ernst Zundel,
and it's dated February 23rd, 2003 and it's a document of 23 pages. Do you
recognize that document? A: Yes, I do.
Q: Could you give us an executive summary of what it is? A:
I'll make it very brief. Mr. Murrant, I've overstayed my welcome with you
with such long documents here.
Q: That's our hope. Your welcome will not be overstayed. A:
Well, no, it's just that Mr. MacIntosh at the last hearings and Mr. Reid at
the very first hearing suggested that I was an irresponsible man, that I did
not keep an Immigration hearing. Now, in my own defense, I will say that
I've been in front of Canadian courts, Mr. Murrant, for 23 years including
this period and I have kept every single bail order, every single court
hearing, every single court date that I was required to be present. I kept
and I fully intended to keep this American one and unfortunately either we
have not gone to the bottom yet, come to the bottom yet, what happened to my
fate in this matter in the United States. It's still under investigation.
There are three legal moves that we have undertaken pending
in the United States and if I may go to page 6 on paragraph 3, on page 6,
there's an important point that I make in a letter to my attorney, my
American Immigration attorney. My application was not moving forward and I
say to him...
Q: Well, just to create some cogency here. When you moved to
the United States what were you applying for? A: Permanent resident alien
status. I wanted to be with my wife. I was married to her May 19th, 2000 and
then I moved..I went to the United States on the 21st and applied within
which was my right to convert my I-34 or my I-94 visa to a permanent
resident visa and all this document it details all the steps that I
undertook being the responsible type that I am when it comes to courts.
Believe me, I knew how important it was to keep meetings.
So, the only thing I want to point out, Mr. Murrant, is
this. I had intended to come back to Canada because number one, I have two
grandchildren..four grandchildren, two sons here and my business was still
being run by me from the United States. I was the President of Zamnistat
Publishing Corporation, an Ontario registered corporation since 1977. I paid
my Canadian corporate income taxes, my personal income taxes, all my
Canadian bills and everything, OHIP even, until May 19..until May 2000 and
my last payment for taxes in Canada was 2002. 2002 and I got a refund
actually from the Federal Government. So...
Q: So in the year 2000 you were in the United States on a
document called I-94. Now what did that entitle you to? A: No, I was no
longer on that. I-94 is a little green card that you get at the border when
you across at Niagara Falls and it allowed me as a German citizen to be in
the United States as a visitor for 30 days, 90 days excuse me. Ninety days.
Q: Paragraph 3 on page 6 to which you're calling our
attention indicates your attempt to do what? A: To signal or to show Mr.
Murrant that I intended to come back here and to let my Canadian permanent
resident or whatever you call it in Canada, my immigrant status...
Q: Wouldn't that be permanent resident status? A: Yes, to be
converted to something that I could possibly run my company here still or if
not to wind it up and my Immigration attorney or the I.N.S., the Immigration
authority there basically was moving so slow like molasses and I was frantic
because I knew that by the old law after 180 days I could be barred from
re-entering Canada. Luckily the law was changed in my absence so my chances
are better now than they were.
Now, I will come back to page 11 and I think we could leave
it at that. If you go to the bottom there it's the last bottom paragraph and
this is a letter from my American Immigration attorney to the Immigration
Service, and it says, "I am..."
Q: Who is this gentleman? A: Babaoglu. Mr. Babaoglu. We have
an affidavit here that you have given Mr. Murrant.
Q: We'll get to that in a moment. A: Yes.
Q: Can we spell his name for the record? A: B A B A O G L U.
He is a Russian of Georgian origin.
Q: That's his last name? A: His last name. Rehim.
Q: His first name is? A: Rehim, R E H I M.
Q: And he's your American Immigration attorney? A: Over 30
years. He has 30 years experience, yes. So, this is what Mr. Babaoglu wrote
to the I.N.S., page 11, bottom paragraph. "I am in receipt of your
appointment letter for the interview concerning the application for
adjustment of status." That's what they call it when you convert your
90 day visa to a permanent visa. "But Mr. Zundel unfortunately I will
not be able to attend this interview and am requesting that it be
rescheduled." He's requesting it to be rescheduled, "to any date
between June 20th and July 22nd and any Wednesday morning as I am a Divorce
Protectorate in Circuit Court. For the presently scheduled appointment I'm
due to appear that afternoon on two cases in front of the Immigration judge
in downtown Memphis in the Federal building, hence my schedules conflict and
I am respectfully requesting rescheduling of this appointment."
Mr. Murrant, that's the crucial letter that it will be
figuring very big in the litigation in the United States for me because we
did the responsible thing and this man asked for a rescheduling. He never
heard anything of it and what he said was that after the attack in New York
on the Towers the Immigration Service was overwhelmed. Every Immigration
agent was investigating terrorists, and so they thought that he did not get
a response because the agency was in disarray.
But a year later he writes again. This is the same letter.
It's in this documentation and one year later he again writes a letter. This
time with pink envelope, return signature, proof that the I.N.S. received
letters from us.
Q: Could you point that out to us in this document? A: I'll
have to see where the heck that is. Oh, here. I reversed the dates. So that
would be the 6th of May.
Q: And which page is that on? A: It's at page 14.
Q: Page 14, and that would be... A: And that would be...
Q: Would you point that out to us? A: Yes. It says Memphis
Attorney. MA stands for Memphis Attorney. "Letter to I.N.S." you
know, Immigration and Naturalization Service, "Certified return receipt
requested. Requesting that an interview be scheduled for..that an interview
be scheduled for June 12th, 2001 was requested to be rescheduled. Copy sent
to clients," and that was sent to me.
So my attorney again with return receipt requested, signed
by the Immigration Service Officer who received the letter asked for a
rescheduling. So it's not that I didn't want to keep or was willfully hiding
or running away or something. We repeatedly asked that these hearings be
rescheduled and finally in 2003 a day after my arrest, there was another
letter by Mr. Babaoglu before that, there is a letter and it says,
"Memphis..."
Q: Where is this? A: It's at page 16.
Q: One six? A: Yes. "Memphis Attorney. Faxed
rescheduling and appointment request to I.N.S. Memphis Deportation Section
with request to reconsider decision in light of the enclosed evidence
proving that contrary to the I.N.S. assertion there were requests made to
reschedule Ernst's interview of June 21."
In sum total, Mr. Murrant, my attorney at my urging and
pushing made three separate letters and this, the fourth letter after my
arrest, to have this matter looked at again and again and again. I was
willing and as you will see through the document I went through every step
like I had to do when I emigrated to Canada.
X-rays, injections, inoculations, complete medical. I went
to get fingerprinted by the FBI. I paid all those fees and the reason why my
wife and I did not personally appear at their offices even though we had the
attorney contact them was that the I.N.S. and the document says, and I won't
take your time with it, you can check for yourself, it says that we will not
answer individual requests. If we had called in they said we will not answer
individual calls from people. Your matter is being processed within 36
months and I was arrested well within the period of 36 months.
We were happily living in our (inaudible). I was painting
and getting video of my art gallery, planting flowers and the next thing I
know I'm in striped pants like in they Keystone Cops movies, you know, in
the street gangs, and I was arrested in a high security prison and end up
here in front of you, sir. So that's the reason why I wanted to do...
Q: Mr. Zundel, have you had a chance to examine the
transcript of the detention hearing of a month ago, February 28th? A: I have
not, no.
Q: Okay. I'd like to put to you a statement by Mr. MacIntosh
in his submissions. It's on page 41 of the transcript and it says..lines...
A: I don't have it.
Q: I'll read it to you. It's very brief. A: Yes.
Q: "Mr. Zundel was most recently in the United States.
He was issued a warrant of deportation. He overstayed a visitors visa in the
United States which is an indication that he flouted American law. He was
required to show up for an administrative review of his status and he failed
to do so." Do you feel that you have addressed that issue? Is there
anything else that you'd like to say about it? A: I think that the affidavit
by my attorney...
Q: We'll get to that in a minute. A: Okay. No, I believe
that this long document makes amply clear to any fair minded person that I
did not flaunt American or any other law. I did everything that a person
could possibly do. My one oversight was possibly that I shouldn't have taken
my attorney's word when he sent that letter to the I.N.S., ignored his
letter and driven to the hearing, but he assured me on the telephone, Ernst,
you are married to this American citizen, this is a matter of routine. It
happens all the time, don't worry.
Q: But... A: I was fooled. I should have driven there and
then I wouldn't be sitting here.
Q: I'd like to draw your attention to this affidavit that
I'm putting before you. My friend has a copy and I'm giving a copy to Mr.
Murrant. Can you identify this affidavit? A: Yes, it was sent to me by FedEx
to my jail cell in Thorold by my wife.
Q: And who..who is it from? A: It's by my American
Immigration attorney, Rehim Babaoglu in Memphis.
Q: And the first sheet is an affidavit? A: That's right.
Q: Who is Boyd Venable (ph)? A: I think that's two separate
documents.
Q: I see. A: Yes, this affidavit by Mr. Babalglu was needed
to show that he did undertake the steps that he claimed he did and that our
letters from him to me prove that he did. That he did contact the..as you
can hear down here. "I'm an attorney licensed, practice in
Tennessee." Statements here, "I sent a letter to the I.N.S.,"
Immigration Service, "asking them to reschedule a personal interview
examination appointment that had been sent for June 12th, 2001. This is the
standard procedure for resetting hearings in which counsel has a conflict.
Copy of the letter I sent is Exhibit A."
Either we can produce it..I think we actually have it in
evidence from the last Immigration hearing before Mr..yes, we do. Mr.
Thomson. I had that then there and so...
Q: To your knowledge that paragraph that you read, paragraph
2 of Rehim Babaoglu's affidavit, is that true? A: That sets out exactly the
facts.
Q: Would you read the third paragraph?
MR. HOFFMAN: Sorry, Mr. Murrant, I'm sorry to interject. My
apologies, Mr. Zundel. Do we have that attachments? You said you have them,
but they're not attached to this.
PERSON CONCERNED: The letter by Mr. Babaoglu is in evidence
that I gave to Mr. Thomson in the last hearing.
MR. HOFFMAN: And are you planning to submit this...
PERSON CONCERNED: Yes, we are.
MR. HOFFMAN: ...Exhibits to this proceeding because I don't
think you've asked Mr. Murrant to do that as yet.
COUNSEL: I'm sorry. I would like to tender this as an
Exhibit.
PERSON CONCERNED: If Mr. Murrant...
MR. HOFFMAN: So we only have the first letter, but not the
second?
COUNSEL: Well, you have the affidavit.
MR. HOFFMAN: Right, and...
COUNSEL: And the notarized statement.
MR. HOFFMAN: But it refers to Exhibit A and Exhibit B. From
what Mr. Zundel said Exhibit A was submitted last hearing but you don't...
PERSON CONCERNED: Yes, these are letters that Mr. Babaoglu
sent and they were submitted to Mr. Thomson, five or six things were
submitted to Mr. Thomson by me. They were the letters by Babaoglu to the
I.N.S.
MR. HOFFMAN: All I'm suggesting is that if it's going to be
admitted it should be admitted as a complete document with Exhibits
attached.
COUNSEL: I would submit that even fi the Exhibits are not
available to us today the affidavit stands on its own as a statement of what
Mr. Babaoglu did.
MR. HOFFMAN: Then, Mr. Murrant...
COUNSEL: The other documents simply support it.
MR. HOFFMAN: ...if you're going to admit it I submit that
you give it very little weight. That's at your discretion.
PERSON CONCERNED: Mr. Murrant, if I may interject? The date
that he mentions on there, the date of the letters that Mr. Thomson has as
evidence that I gave him at the last hearing and in order to be absolutely
sure I asked my wife that Mr. Babaoglu make this just so that everybody
could be satisfied.
MEMBER: Well, I'll accept this as it stands and mark it as
DR number 8.
--- ATTACHMENT DR-8: Affidavit of Rehim Babaoglu
COUNSEL: Did you mark the chronology as DR-7?
MEMBER: Yes, I have. And again, given that the attachments
are not there I'll look at it and decide how much weight I'm prepared to
give it.
CONTINUING EXAMINATION BY: COUNSEL Q: Could you read the
third paragraph for us, please? A: "After hearing nothing for some
time," this is Mr. Babaoglu in his affidavit, yes. "After hearing
nothing for some time I sent another letter by certified mail, return
receipt requested, a copy of which is attached hereto, Exhibit B, the return
receipt is attached with that Exhibit."
I believe, Mr. Murrant, this is also in the things that I
turned over to Mr. Thomson. There were about six or seven documents. It's
like a very poor photocopy.
MEMBER: I have the material that was marked, that you
presented last week.
PERSON CONCERNED: Yes, last month.
MEMBER: Or last month, sorry. What are you telling me about
it?
PERSON CONCERNED: Yes, is there like a very poorly
reproduced sheet?
MEMBER: There's a letter dated February 13th. Is that what
you're talking about?
PERSON CONCERNED: Yes, what year?
MEMBER: I'm sorry, 2003.
PERSON CONCERNED: Yes, that's the one that I mentioned to
you in the chronology. Yes, February 6th, 2003 is mentioned by Mr. Babaoglu,
that he sent that to the I.N.S. So that's one Exhibit.
Then there should be other letters that he sent on June
12th, 2001 and then a really..no, that's not it. It's a very small type face
that he uses.
MEMBER: Okay, we'll look for those later and see what we can
find.
CONTINUING EXAMINATION BY: COUNSEL Q: Could you read us the
fourth paragraph of Mr. Babaoglu's affidavit? A: "After Mr. Zundel was
unexpectedly arrested by the I.N.S. I called the I.N.S. District Director's
Office and I was advised to provide the above referenced document to the
Acting Officer in Charge of the Memphis Office, I.N.S. Office. February 6th,
2003 I caused to be faxed a request to re-open the application due to an
I.N.S. error and attached copies of the first letter requesting rescheduling
of the interview and a second letter requesting an interview with I.N.S.
with proof of receipt by I.N.S."
So there is honestly nothing else that my wife or I could
have done to comply except had I gone against the advice of my attorney and
travel, but when you hire an attorney, Mr. Murrant, that comes highly
recommended and he says it's standard procedure and he repeats in his
affidavit it's standard procedure, what can I plead?
Q: And that's true to your knowledge? A: That is true to my
knowledge.
Q: And since your deportation from the United States have
you any taken any further steps in terms of the I.N.S.? A: There are three
lawsuits or Motions pending in the United States. One in Tennessee, one in
Sixth District Court which is I think Cincinnati and one is currently either
being filed or..this is what this is for and this in Cleveland.
Q: And what is your goal with these legal actions in the
United States? A: My goal is to clear up the error mostly likely, if it's
not more sinister, a bureaucratic error that has happened in this agency
which is error prone and has caused many headlines in the United States. So
we are trying to get back on track with this application.
Q: So it's not your intention to flout American Immigration
law? A: No, it never was my intention. Listen, I was happy to escape this
constant persecution and I hoped I could work a bi-country thing where the
business I had built painstakingly over 30 years could be run and I could
keep my t.v. production stuff going here in Canada and possibly appoint a
manager. Had I been free to do it to be traveling. That would have been my
intent and so I would have paid taxes the way I did. I paid for the last
three years I was in the United States, taxes in Canada and taxes in
America. There was nothing crooked about it, nothing double dealing. I
thought I did everything by the book.
Q: Those would be my questions about the American legal
situation. I'd like to... A: Excuse me, Paul, you forgot this affidavit by
the other American attorney because you see, what he refers to, he has
launched for me a case in Tennessee with the Immigration service. This man.
Q: This is from the affidavit from Boyd... A: Boyd Venable,
yes. He's a local (inaudible) Smokey Mountain area where I live lawyer and
Mr. Babaoglu's affidavit is what he refers to here as Exhibit A. This is
perfectly.."I filed a Motion for reconsider ration of decision,
District Director and (inaudible) of Immigration Service of 2503 denying
application of Ernst Zundel to adjust status with the Bureau of Homeland
Security in Memphis, Tennessee on March 7th, 2003. Attached to that Motion
was an affidavit of Rehim Baboglu, former attorney for Ernst Zundel and
Ingrid Zundel. A true and exact copy of that affidavit is attached hereto as
Exhibit A.
I personally observed Mr. Babaoglu sign that affidavit and I
personally attached that original affidavit to the Motion for
reconsideration filed with the Bureau of Homeland Security prior to close of
business on March 7th, 2003."
Mr. Murrant, we only submit that to show to you that we were
super-responsible and this is not a moot situation and we have...
Q: Mr. Venable is your new attorney in this case? A: He is
one of these. Unfortunately there are three other attorneys involved, so you
know the legal bills are mounting, but we are trying to do everything by the
book even though I've already been deported from the United States. The
legal beavers are telling me that this can be reversed and my wife says
you'll be home at the mountains soon. That's it.
MEMBER: Any objection to this being entered?
MR. MACINTOSH: No.
MEMBER: Mr. Fromm, I realize you're not familiar with a lot
of the rules, but I'll accept this and I'll enter it as an Exhibit, but when
something says it's got attachments the attachments should be attached.
I mean, you're giving me half documents is what's happening.
Now I don't think a great deal turns on most of this, but just so you know.
The other thing too, just while we're on it, you made a
little bit yesterday about providing disclosure to you, why you hadn't got
disclosure earlier and that you should be given time to look at documents
and then today you've come in and you've provided documents to the other
side that hopefully you would have had yesterday that you could have gave
them. This works both ways. Okay, so I'm going to mark this DR number 9.
ATTACHMENT DR-9: Affidavit from Boyd Venable
MR. MACINTOSH: I think we got this just this morning.
MEMBER: Thank you.
CONTINUING EXAMINATION BY: COUNSEL Q: Mr. Zundel, I'd like
to draw your attention to the contents of this binder titled, Ernst Zundel -
Canadian Legal Proceedings.
MR. MACINTOSH: Well, before counsel does that we received
this this morning. I've had the briefest opportunity to examine this
document. It's a voluminous document consisting of some 206 pages in length
and we will need probably about 40 minutes to go through it and make a
determination as to whether we have any objections with respect to the
admissibility of any of the materials that are contained in this document
and indeed whether any of them have any relevance to the issue before you.
MEMBER: Mr. Fromm? Did you have this document yesterday? Why
didn't you give it to them yesterday? I mean, after we went through the
whole concern of yours with the other witness being here and documents
presented and you saying I just simply don't have time, there's too much
material here, I should have been given notice, why would you not have given
notice to the other side?
COUNSEL: Sorry, it was an oversight. I did try to give them
material for today, except for this, last night at the close of proceedings
yesterday.
MEMBER: And what is this going to be in aid of?
COUNSEL: Well, this will outline some of the legal
proceedings in Ernst Zundel..all the legal proceedings Ernst Zundel has been
involved in here. We have in here...
MEMBER: To what end?
COUNSEL: To the end basically of showing that every bail
order that he received that he fulfilled. He's received bail on a number of
previous occasions and every case has fulfilled the conditions of those
bails.
MR. MACINTOSH: That is an over-simplification of the
document. I want an opportunity to look at it, but the document contains
additional material related to a historical record, articles of revisionism
that are of questionable validity.
So, to say that this is an attempt to outline factually what
proceedings have happened in Canada, it's an attempt to do much more than
that.
MEMBER: Well, let's stop here for a minute. The purpose of
you entering this document is to say that Mr. Zundel has complied with any
recognizance or orders from courts for him to attend at any given time?
COUNSEL: There's a lot in this document...
MEMBER: Well, is that what you're telling me?
COUNSEL: ...that's what I intend to use it for.
MEMBER: Is that what you're telling this was all about?
COUNSEL: I intend to use it for that.
MEMBER: Mr. MacIntosh, do you contest that Mr. Zundel has at
any time failed to appear on notices to appear or to attend in court when
he's required?
MR. MACINTOSH: With respect to the Canadian proceedings I
don't contest with that. With respect to the American proceedings I
absolutely contest that.
MEMBER: Okay. These are Canadian? No problem with the
Canadian?
MR. MACINTOSH: No. To the best of my knowledge I have no
problems.
MEMBER: Then I don't know why we need this.
PERSON CONCERNED: Mr. Murrant...
MEMBER: Yes?
PERSON CONCERNED: ...may I speak up in my own defense? Mr.
MacIntosh was absolutely right in saying it's an over-simplification this is
only about bail orders. This is an over-simplification.
MEMBER: Well, no, when I asked your counsel what he was
entering this for he told me what he was entering it for and it's not in
dispute and I'm not accepting it.
PERSON CONCERNED: I see. Okay.
MEMBER: Okay?
PERSON CONCERNED: Fine.
MEMBER: Let's carry on.
COUNSEL: I was wondering if we could have a brief recess?
MEMBER: Okay. Recess for ten minutes. If you have any other
documents that you want to give them please give them to them.
COUNSEL: No, they gave me a document this morning.
MEMBER: Okay. Recess.
--- PROCEEDINGS RECESSED
--- PROCEEDINGS RESUMED
MEMBER: This review is now resumed. Mr. Fromm?
COUNSEL: Those are my questions of Mr. Zundel.
MEMBER: Thank you. Mr. MacIntosh or Mr. Hoffman, do you have
any questions of Mr. Zundel?
MR. MACINTOSH: Yes, I do.
CROSS-EXAMINATION BY: MR. MACINTOSH Q: Mr. Zundel, yesterday
you referred to what you described as your truth as you found it. That was
your terminology that you used, correct? A: It's a phrase that I have used,
yes.
Q: Now, and the fact is your truth is that you're an admirer
of Adolf Hitler, right? A: Yes, I am.
Q: And in fact you refer to him as The Great One, correct?
A: That's correct.
Q: Now, you said that you were never a member of the
Heritage Front, correct? A: Correct.
Q: Have you ever communicated with members of the Heritage
Front? A: Certainly.
Q: How many occasions? A: I have no idea, Mr. MacIntosh. I
have no idea.
Q: Is that because your communications with members of the
Heritage Front have been so extensive that you can't remember all the
communications you've had? A: So extensive? People who were members of the
Heritage Front I had known since they were teenagers.
Q: So you've had pretty extensive communications with
members of the Heritage Front, is that right? A: I had inter-action with
them on a social basis, Mr. MacIntosh. Mostly.
Q: Social basis mostly. So that would suggest that you've
also had some professional dealings with them, correct? A: I gave I think
one or two talks at the Heritage Front about my trials, about my thinking. I
did. It's not a crime in Canada yet.
Q: Now, you said yesterday that you didn't have a copy of
the Heritage Front membership list, correct? A: Absolutely.
Q: All right. And you also testified that if you needed to
get a copy you could ask for it? A: Certainly.
Q: Right? A: Certainly.
Q: And you also testified... A: I could have asked CSIS
agent, Grant Bristol.
Q: Just listen to my questions, Mr. Zundel, and I'll give
you a chance to elaborate. A: Good.
Q: You also testified that if you needed a copy you could
ask for it, correct? A: Correct.
Q: Right. And you also testified that if you needed a copy
you could obtain one? That's what you said yesterday, isn't that right, sir?
A: I doubt that. I doubt that. I doubt that.
Q: Well, that's what you said? A: I doubt. No, can we..I
would not have said that. What I said is I could have asked for one. Whether
they would give it to me that's a different question, Mr. MacIntosh.
Q: So it's your position you could have asked for it, even
though you've had extensive associations with them, they wouldn't have given
it to you? A: That's correct.
Q: That's your position, correct? A: Mr. MacIntosh, I have
lots of inter-actions with lots of people. I have never given these people
my mailing list. Now, that's the answer to that. I never asked for it. I
found no need for it. These were mainly young people that were part of the
Heritage Front. They were not really a market for my product.
Q: So you're in the habit of asking things for which you
have no hope of obtaining, is that your evidence? A: Can you explain that?
Q: I said it is your position to ask for documents that you
know won't be given to you, is that what you're telling Mr. Murrant? A: I'm
not saying to Mr. Murrant anything of the sort. You're trying to put words
into my mouth, Mr. MacIntosh.
Q: I'm just asking you questions, sir. A: No, you're trying
to put words into my mouth...
MEMBER: Mr. Zundel, I'm not sure I understand either. I
think what I understood Mr. Zundel to say is that if he wanted a copy of the
membership list he could have asked for and whether or not after he asked
for it he would have gotten it he doesn't know because that's their
decision.
MR. MACINTOSH: Well, that's what he said today but it's my
position what he said yesterday is different. We'll have to look at the
transcript.
CONTINUING CROSS-EXAMINATION BY: MR. MACINTOSH Q: Now, you
said yesterday in your examination-in-chief that you'd not used a short-wave
broadcast as a method of communications since you moved to the U.S. three
years ago, is that correct? A: Absolutely correct.
Q: So you did use short-wave broadcasts as a method of
communication in Canada, correct? A: Not in Canada. Short-waves go all the
way around the world. They go around the globe, Mr. MacIntosh, and I had
short-waves for decades. From United States, from Russia, from the Ivory
Coast, from Monaco, even.. yes, that's it.
Q: So you used short-wave extensively over the years
broadcasting, is that correct? A: I have.
Q Thank you. Do you agree with me in December 1991 you were
convicted in Germany of inciting hatred? A: One of the...
Q: No, sir, just listen to the question. Do you agree with
me that in December 1991 you were convicted in Germany of inciting hatred?
A: Part. Part of the accusation was that, but there was more than one
charge. It was like multiple charges. For instance anti-state activities was
one of the charges which then the judge at the sentencing made light of,
which he said and it was reporting by this refused document which was not
properly translated to your satisfaction, that there was no danger to the
German state because I was so insignificant they didn't even want to give me
a jail term so they didn't make me a martyr. That was the judge's ruling I'm
saying, multiple elements to that court case and one of them was hatred.
Q: Okay. Well, let's go back to my original question. Would
you agree that on the count of inciting hatred you were convicted by a
German court in December 1991? Correct? A: Which is still under appeal in
the Strasbourg Human Rights Court. It's not finally disposed of.
Q: I understand that, sir. I'm asking you if you were
convicted of that charge in December 1991? A: Yes, I was.
Q: Now, you said that you send dissident material to the
home country? A: That's right.
Q: Correct? A: That's where I was born.
Q: And I take it that by the home country you mean Germany,
is that correct? A: Correct.
Q: And I suggest to you that what you describe as dissident
material the German authorities consider to be material that incites hatred
and that's why you were convicted in the German court in December 1991,
would you agree with that? A: No, I don't. Some of the material might have
been.. my relation to Germany has been going on for 40 years and this is one
instant out of 40 years where one piece of my writing or piece of videotape
was pillared by the German state and that's not a record in 40 years and it
is dissident material.
Q: Well, that's how you describe it, but the German courts
view it differently, don't they, sir? A: Well, Stalinist courts, any other
dictatorship basically marginalizes its dissidents. I am in a long line from
Dilas (ph) to Saloman Rushtie (ph). So...
Q: So, in your view the German legal system is a Stalinist
totalitarian system, is that correct? A: The German legal system was imposed
by the ally military conquerors of Germany in the state that they created to
serve them. Germany is not a democracy. It is not founded on democratic
principles. It is an occupation regime, Mr. MacIntosh. An illegal, an
illegally imposed occupational regime with democratic (inaudible) where
truth is not a defense.
Q: Do you agree that you funded groups in Germany? A:
Totally disagree.
Q: So you've never sent any funds to Germany for any
purposes, is that your evidence? A: That's not my evidence. That's not what
I said. There is a big difference between funding a group, Mr. MacIntosh,
and sending money to somebody that publishes something or that organizes a
meeting. For instance, I'll give you an example. When East Germany was still
Communist I rented a hall in the Dresden Civic Center to allow David Irving,
the much maligned British historian, to give a talk to 5,000 Germans there.
That's what I funded. A talk by a British historian and author of 35 books.
One job, one speech, one time. Perfectly legal, by the way, in Canada to do
that.
Q: So, yesterday you testified that an individual known as
Ebald Altans (ph), that you did not contribute any support to him... A: I
never...
Q: ...presently, is that right? A: He's been out of any
political activity for the last eight years and so I do not fund people who
lie on the beach in Antwerp.
Q: You said you hadn't heard from him in seven years, is
that your evidence? A: I think he was..yes, about seven years. I think he
came out of jail, was convicted, was in jail for awhile and...
Q: So you contributed to him in the past, correct? You
contributed monies to him in the past? A: He was, as I said yesterday, an
advance man, a publicity person for me. He went to Russia for me. I paid him
for that. He set up meetings that I could go with my video crew to interview
Russian Parliamentarians, Russian publishers, Russian thinkers, Russian
historians. Yes, I paid him for the flight. I paid him for the hotels. I
paid him for his food just like any other person would do that does a job
for me.
Q: You testified that today he works with what you termed
his homosexual lover. That was your testimony, correct? A: He told me the
last time he communicated with me after he came out of jail, I'm in a
homosexual relationship after denying me eight years that he was and that it
was very good for him and that was the last contact that we had.
Q: So you know him well enough to know what the nature of
his personal relations are, don't you, Mr. Zundel? A: Actually I didn't. He
denied that to me for eight years that he was not gay and then on the
telephone he told me he was gay. So I'm basing it on what he said.
Q: So he's someone that you had frequent conversations with,
Mr. Zundel? A: Altans worked for several years on publicity projects for me.
Of course I've communicated with him.
Q And I suggest to you that you've had ongoing
communications with him, isn't that correct? A: You tell me. You want to cut
if off and I can tell you whener you're right or wrong? CSIS is absolutely
wrong to say that I am in touch with him now. They updated it from the last
month thing till now. I have not been in touch wit him for yeas. I have no
reason to be in touch with him. I'm not into antique dealing that he's
apparently with his friend there is dealing in antiques. I'm not into
antiques so I have no reason to communicate, to support him or anything else
with Ebald Altans.
Q: Now, yesterday you testified that you were not a violent
man. Do you recall giving that evidence? A: Absolutely.
Q: Have you ever made the following statement, "Blood
will run as high as the horse's bridle. A Holocaust is coming. I just hope I
live to see it." A: I'd like to see the source for that. Somebody in
prison said that some of my..my wife number two apparently said that I said
that. I don't recall ever making that statement. It sounds very similar to
the statement made in the book called The Hoax of the 20th Century, talking
about Biblical or a Biblical reference or a Talmudic reference where a
Jewish writer says that blood will flow to the bridle..to the stirrup of a
horse in Israel. Some Biblical deal. It's something that I found that very
strange that I'm supposed to have said that.
Q: You're aware that your second wife, Irene Margarelli
(ph), gave evidence before the Canadian Human Rights Commission? A: Yes, I
am.
Q: And you're aware that she has testified that you did make
those statements? You're aware of that fact, right? A: I don't recall that.
I don't...
Q: You don't recall? A: I don't recall that blood flowing in
the streets. I must have been absent totally at the time. I do not recall.
Q: You must have been absent? Well, which is it, Mr. Zundel?
Do you not recall making the... A: Don't get huffy.
Q: Just a moment. Are you saying that your mental faculties
were impaired or are you saying you can't remember where you made the
statement? A: I resent this from you, Mr. MacIntosh. If you want to question
me, you cast aspersions about my mental faculties. I do not recall my wife
making that statement and I'd like to see the transcript. If you have it,
please? Not some newspaper article, Mr. MacIntosh. Show me the transcript.
Q: Well, sir, you testified yesterday that you had a 70 page
copy of the decision of the Canadian Human Rights Commission. That was your
evidence, wasn't it? A: It's in the decision? I've got the thing here. Okay,
let's go and have a look. I hav it right here. You point to me, Mr.
MacIntosh, where in this document my wife said that. Come on?
Q: I'm asking you questions, sir, you're not asking me
questions. A: Prove to me that in the 70 page decision my second wife said
that. I've got the whole ruling right here from Mr. Penza (ph). I do not
recall it.
Q: Well, I'm showing you... A: Okay.
Q: ...an article.. A: Oh, trial by newspaper again.
Q: Well, sir, you obviously thought newspapers were credible
because you've introduced them as part of your own testimony. A: Since you
made it the battle of newsclippings, I did, but I've never seen that. Can
you point out to me, Mr. MacIntosh where I find it so I don't waste Mr.
Murrant's time. You mark it yellow there for me? Where is it?
Q: Look over at the left hand corner..first of all, if you
look at the left hand corner is that your picture? A: Yes, at the Liberal
convention when I ran against Pierre Elliot Trudeau for Prime Minister of
Canada in 1968.
MEMBER: Does someone have a copy for me?
MR. MACINTOSH: Sorry.
MR. HOFFMAN: Sorry, Mr. Murrant, I thought you'd seen that
before.
MEMBER: I just thought I'd like to be involved in this.
Thank you.
MR. MACINTOSH: You've identified your picture...
MEMBER: Just one sec.
MR. MACINTOSH: Sorry.
MEMBER: Mr. Fromm, any objections to this being entered?
COUNSEL: No.
MEMBER: Okay, it'll be marked as Exhibit DR-10 and it is
a..well, I'll let you describe it, Mr. MacIntosh. What is it?
COUNSEL: Was there a DR-9?
MEMBER: I believe there was. I think that was the affidavit
of Mr. Boyd, or Boyd Venerable, the attorney.
COUNSEL: Okay, thank you.
MR. MACINTOSH: It is an article written by a Globe and Mail
journalist, surname Cheney, spelled C H E N E Y, first name Peter. It's
headed, The Wives of Ernst Zundel and it's dated Saturday, March 8th, 2003.
--- ATTACHMENT DR-10: Article of March 8th 2003 written by
Peter Cheney, Globe & Mail
CONTINUING CROSS-EXAMINATION BY: MR. MACINTOSH Q: Now,
you've identified the picture that appears in the bottom left hand corner as
being your picture? A: That's right.
Q: All right. Just below that is the statement, "Blood
will run as high as a horse's bridle. A Holocaust is coming. I just hope I
live to see it." That's in quotation marks. Now it's a quote from your
ex-wife, Irene Margarelli, spelled M A R G A R E L L I, and then if you go
over to the second last column, or sorry, the long column that appears in
the right portion of the paper... A: Yes.
Q: ...about three paragraphs from the bottom where it says,
"She described Mr. Zundel's adulation of Hitler who he referred to as
The Great One." Do you see that? A: Yes.
MEMBER: I'm having trouble finding it. Where are we?
PERSON CONCERNED: It's my first wife's wedding picture on
the right hand side, Mr. Murrant, just diagonally down a bit one inch,
second column from the right starting with, "She described Zundel's
adulation."
MEMBER: I'm sorry, carry on.
CONTINUING CROSS-EXAMINATION BY: MR. MACINTOSH Q: "She
described Zundel's adulation with Hitler who he referred to as The Great
One. She told investigators that the Fuhrer's birthday was a sacred day in
their household and Mr. Zundel believed Hitler was alive instead of
committing suicide in the Fuhrer bunker. He was spirited away in a spaceship
designed by (inaudible) German scientists." Well, let's start with her
reference to your quotation as Hitler as The Great One? A: I've already told
you. He is the great one to Germans.
Q: So, when she says you call him The Great One that
statement is an accurate quotation of what you said, is that correct, sir?
A: That one is, yes.
Q: Right. So she was right about that, right, sir? A: One
one count so far.
Q: Right. And then just going down here it says, "She
also gave evidence about a frightening incident in February of 1997. While a
Jewish journalist was interviewing Mr. Zundel at the bunker Ms. Magarelli
said her husband attacked the man and told him, "The Jews would
die," she recalls. Mr. Zundel told the man that, "Blood would run
as high as the horse's bridle. A Holocaust is coming. I just hope I live to
see it." A: I attacked the man? He was across a writing desk that was
two meters wide. Are you saying that I attacked the guy physically?
Q: Well, let's just start with one proposition at a time,
Mr. Zundel. A: Okay.
Q: When she says that a Jewish journalist interviewed you in
your house is that a true statement? A: He was from Yehidot Aharnot (ph),
that's right.
Q: So when she says you were interviewed by a Jewish
journalist in 1997 that's true, is that correct? A: Up to that point she's
right.
Q: For how long did that interview take place? A: For how
long did it last?
Q: Yes, approximately? A: For easily an hour. Easily. Maybe
a little more.
Q: Were there any other people present besides the
journalist, you and your wife? A: I think there were, yes.
Q: How many other people were present on that occasion? A:
Always bodyguards in my place. One, two. My wife was coming in and out
serving coffee and cookies.
Q: And you mentioned the journalist's name. What was his
name? A: No, I didn't mention his name. I mentioned the newspaper and the
article was supposed to be published in Israel for Hitler's birthday, April
20th.
Q: What was his name? A: I can't remember now.
Q: Okay. What was the newspaper? A: I think it's Yehidot
Aharnot.
Q: Can you spell that, please? A: Oh boy, I can only give
you phonetically. Maybe Y E H I D O T, phonetically that's the way it would
be and then Aharnot, A H A R N O T. It is one of Israel's most popular..it
would be like The Toronto Sun for Israel. It was a very popular newspaper.
Working class. It was supposed to be an article about Hitler's birthday,
April 20th. The cowards never published it. Amazing.
Q: So, when she says that..when she quotes you as saying
that you told him that the Jews would die, you're saying that she's a liar
when she says that? Is that your evidence? A: My evidence is that my wife
has..that wife had a long history of manic depression and was on medication
for almost her whole life. Since the age of three and so I do not recall
that. I have no files. If you can show me anything, play me anything, I'll
be glad to revisit it. It does not sound like I would make such a statement.
Whatever was said it is in quotation marks forwards. There's obviously
something that precedes it, so I'll be happy to revisit it with you if you
have any expanded version of it.
Q: So, you're saying that you don't recall whether or not
you made that statement, is that your evidence? A: I do not recall that I
made a statement like that in 199..must have been 1996, 7, 6? Six maybe.
Q: 1997. A: 1997.
Q: That's when you just previously testified that this
interview took place, 1997? A: With Yehidot Aharnot? When did I say that?
Q: Just a few moments ago. A: No, I did not.
Q: Yes, you did. Well, the transcript will reveal that you
did. A: No, I did not.
Q: The transcript will clearly show that you said 1997. A:
Not that they..Mr. MacIntosh, I recall two minutes and three minutes ago...
Q: That's fine. A: ...I might not five or six years, but not
two or three minutes ago. I did not give you a date. I don't remember the
day. I'm trying to reconstruct it when I married that girl and when she went
over to the police.
Q: Now... A: Trial by disgruntled wife.
Q: So you deny making this statement, "Blood will run
as high as a horse's bridle. A Holocaust is coming. I just hope I live to
see it." A: It does not sound like me. It does not sound like me. If
you can show me evidence to the contrary we'll look it.
MEMBER: Just one minute, please.
--- PROCEEDINGS RECESSED
--- PROCEEDINGS RESUMED
MEMBER: Sorry, go ahead.
CONTINUING CROSS-EXAMINATION BY: MR. MACINTOSH Q: Well, your
wife says that that statement was made as part of the same interview with
that journalist and you just finished telling me you didn't recall whether
you made a statement to the journalist to the effect that Jews would die.
Are you saying you have a recollection with respect to this statement,
"Blood will run as high as the horse's bridle" or are you saying
you don't have a recollection? Which is it? A: I do not have a recollection.
That does not sound like me and if it is it must be a chopped up sentence
taken out of context. And by the way you were right, it must be 1997 because
the next paragraph says, "Next month she moved to be interviewed by
investigative agencies," which was 1997. So you were right there.
Q: Now, your counsel has referred to ostensive documents,
materials, and I'm going to be referring to document DR number 7, Mr.
Murrant, which consists of some 23 pages in length. In this particular
document, Mr. Zundel, it's my understanding that you were interviewed by
agents of the FBI... A: One agent
Q: ...in the United States. An agent of the FBI, is that
correct? A: Kosinski. Must be spelled in this affidavit. I mean, in this
chronology.
Q: And he interviewed you in the year 2001, is that correct?
A: That's right.
Q: And that interview took place at your home, is that
correct? A: No, he came briefly and I refused to talk to him at length. I
went with an attorney and drove to the FBI headquarters in downtown
Knoxville and I submitted for three and a half hours a tape recorded
interview at the headquarters of the FBI in the presence of my attorney.
Q: So the interview took place at the headquarters of the
FBI rather than at your home, is that correct? A: That's right.
Q: Well, maybe counsel, if you could just ask him..do you
have a copy of that document in front of you? A: Yes, I do. I have it in my
hands.
Q: All right. A: The chronology, right?
Q: That's right. A: Okay.
Q: Let's go to page 10. A: Page 10? Okay.
Q: In the third paragraph on page 10 it says, "MA
receives a fax from Ernst Zundel advising that the FBI has been asking
questions about him from a local preacher," and on the 3rd/21/01
Special Scott Kosinski," and it's spelled here... A: Yes.
Q: ...K O S I N S K I. A: It's Kowinski with a W.
Q: Okay. "Dropped in to visit at the house."
That's what it says here A: Yes, it was a very short conversation just
before my garage door.
Q: So, he did have a conversation with you at your house, is
that right? A: Possibly three sentences, four.
Q: It then says, "A conversation was had concerning the
agent's investigation of "international terrorism." Mr. Zundel
advised on 3/28/01 Agent Kosinski telephoned and wanted to see him that
week." So he in fact was conducting an investigation as to whether or
not you were involved in international terrorism, is that right? A: No, he
was not. Mr. MacIntosh, don't get ahead of yourself. Here's what he asked.
There was a man who killed, I think it was either an abortion doctor or
somebody. He killed somebody in the United States. A man called Rudolph and
Mr. Kosinski came and he said this man is still on the loose. We feel that
he is in the mountains. The Smokey Mountains are right five minutes away
from where I lived and he said we're investigating that. I thought at first
he was talking about a revisionist called Rudolph, a German fellow who also
lives in the United States. No, no, he cleared that it up. It was this man
who killed this official or this doctor or whoever it was.
I said I wouldn't know anything about that. I said, look I
want to have my attorney present according to legal advice that I had before
I moved to the United States I did not need to talk to the FBI if he was not
investigating an Immigration matter. So I said, Agent Koskinski, are you
investigating an Immigration matter? He said no, it concerns international
terrorism. I said in that case I would like to speak to you only with my
attorney present and since you drove an hour and a half here to my house
I'll return the courtesy. I'll contact my attorney, we'll set up an
appointment, I come to FBI headquarters, I'll submit myself to all the
questions that you want to ask with my attorney present. That's the fact.
And he did say to me smiling, Ernst, your Canadian friends
have turned over your files to me. What can I say? That's what he said. I
don't know if he meant the RCMP or he meant the Jewish Congress or the ADL,
whoever. I have so many friends, you see.
Q: Well, the fact is you don't know who he meant, do you? A:
No, I don't.
Q: Right. A: Having so many friends I don't.
Q: Well, let's go to page 11, Mr. Zundel. A: Okay.
Q: You say here on page 11, "This FBI interview took
several hours and Ernst was very impressed with Kosinski's professional
conduct and interview skills. He felt that a genuine American cop had done a
superb job and that Ernst had dispelled any ridiculous and unfounded notions
that he had "connections to international terrorism."" That's
how you summarized it? A: That's right.
Q: Obviously on the basis of what you yourself have said in
this document which you obviously took some time to prepare the FBI agent
was conducting an investigation of you with respect to your, what you
described as connections to international terrorism. That's what you said in
your own document, Mr. Zundel. A: Number one, the document was not prepared
by me, it was prepared by my wife from her recollections of my conversation.
Now, as to what Special Agent Kovinski asked me in the interview it was one
of the most wide ranging, probing interviews. We talked about art, music,
culture because he knew I was going to start my art gallery, he was an art
devotee, he was surprised at all the art stuffs that I knew. I had never met
a cop that asked such detailed and probing and intelligent questions about
art and he did ask me about all kinds of names, Mr. MacIntosh. He did and I
said look, I don't know this man, I don't know that man. I interviewed this
one, that one. I couldn't help him with this man Rudolph because I never
knew the man. Even don't know what the heck he was on the lam for. I thought
he was being hunted because he had shot somebody. That's what Kosinski said.
So if anybody comes to my doorstep here and if there is any
indication, there is any violence involved I will call you as I have done
repeatedly in Toronto, to Metro Intelligence. Crazies and goofballs talk
violence at my house I would call the cops and I said look, there is this
crazy around and you know it turned out, Mr. MacIntosh, 90% of the time they
were police agents who were later on exposed to try to get people to do
things illegally.
Q: Well, you said this document was prepared by your wife.
That's what you just told me a few minutes ago, correct? A: That's exactly
right.
Q: And you entered this document today before Mr. Murrant
because in your view the document is credible and trustworthy. That's why
you submitted it into evidence, isn't that right? A: Absolutely.
Q: Right. A: My wife does not lie, Mr. MacIntosh. She knows
that our life together is at stake and why should she lie? We are
heartbroken about what the hell happened.
Q: Needless to say you don't have access to Mr. Kosinski's
FBI file, do you? A: Well, you might.
Q: No, I'd asked you whether you did, Mr. Zundel? A: I
don't, no. I don't, no.
Q: Right. A: I don't have it.
Q: So therefore you don't know what conclusions he's drawn,
do you? A: Well...
Q: Because you don't have access to his file, right? A: Mr.
MacIntosh, Special Agent Kosinski never called me again, never contacted me
again, no American police official came to see me after that time. So I
thought that I had dispelled and satisfied all the questions that the FBI
had of me by my co-operation. What else can I assume? I can't read the mind
of Special Agent Kosinski.
Q: That's right. You're basing your testimony on a series of
assumptions that you've made without access to any of the FBI files, right?
A: Mr. MacIntosh, I'm not CSIS and I'm not the Department of Justice. You
have other avenues to approach. I can't. I can't answer your question. He
was a very nice cop. One of the most competent people I've ever met in the
police force.
Q: If I could just have a ten minute break?
MEMBER: Okay, ten minute recess.
--- PROCEEDINGS RECESSED
--- PROCEEDINGS RESUMED
MEMBER: The review is now resumed. Mr. MacIntosh?
MR. MACINTOSH: Thank you.
CONTINUING CROSS-EXAMINATION BY: MR. MACINTOSH Q: Now, Mr.
Zundel, on May 18th, 2001 you received a notice from the Immigration and
Naturalization Service ordering you to attend for an interview, is that
correct? A: Right.
Q: And the interview was scheduled for June 12th, 2001, is
that correct? A: Just a second. Can you direct me to my wife's chronology?
Q: I'm just asking you without looking at the chronology
whether or not you remember that it was scheduled for June 12th, 2001? A: I
want to make sure I got the date right and there it is. We received this
letter June 9th, 2000. On June 12th, 2000 Ernst replied to this mailing by
fax. Is that what you're referring to?
Q: I'm referring to page 20 of the... A: Page what?
Q: Page 20. A: Oh, sorry.
Q: Of Exhibit DR number 7. A: Okay, and where? Oh, that's
the one here. Okay.
Q: Now, without looking at that document let's just.. you've
already testified that you received a notice requiring you to attend an
interview on June 12th, 2001. You got the notice, correct? That's what you
said? A: Mm-hmm.
Q: And you didn't attend that interview on June 12th, 2001,
did you? A: Because our attorney could not make it and I did not want to
face these people without my attorney present and that's why he wrote a
letter for rescheduling. We have been through that.
Q: The question I asked you was whether or not you attended
the interview on June 12th, 2001? A: I did not because...
Q: Right. A: ...my attorney did not have time to be there.
He was in the Superior Court..Superior jurisdiction.
Q: You testified before Mr. Murrant that you had no
intention of flouting American Immigration laws. That was your testimony? A:
Absolutely I did not.
Q: And despite that fact you did not attend an interview on
June 12th, 2001 that you were required to attend by the I.N.S., right? A:
That's how you maybe as a lawyer see it. How my lawyer said it is a routine
matter, we will reschedule it, I've done it hundreds of times over my 30
years and I took his advice. That's why I paid him.
Q: All right. A: Had I your advice and my experience in
hindsight now I'd been at that meeting lickedy split, you bet your life.
Q: Subsequent to the June 12th, 2001 date where your
attorney has indicated that he had a conflict were you in touch with your
attorney with respect to these Immigration matters? A: Repeatedly.
Q: Repeatedly? A: That's right, repeatedly.
Q: So what does repeatedly mean? How many times were you in
touch with him, Mr. Zundel? A: By telephone. We asked him by telephone, any
news, because we were getting concerned and he said no, as I told you the
argument was the I.N.S. agents all busy chasing the terrorists and maybe
that's the reason for the delay, we have 36 months, we've got a piece of
paper that says it'll take about 36 months at the outside until your thing
has been processed and we couldn't call the I.N.S. because they said they
would not respond to individual inquiries and so we had to call the attorney
and then he sent another letter and then finally another letter and on
February 6th he sent another letter of this year.
Q: So he sent a number of letters on your behalf... A:
Right.
Q: ...after you were repeatedly in touch with him, is that
correct? A: That's right.
Q: Okay. Well, look at page 20. A: Okay.
Q: Page 20 says the following, reading from the third
paragraph, lengthy paragraph from the top, "You failed to appear on
June 12th, 2001 for your scheduled interview. The Service held your
application in abeyance for six month period, however no communication was
received from you requesting rescheduling nor withdrawal. Your failure to
appear on a request of rescheduling resulted in the termination of your
petition and application based on abandonment of January 30th, 2002."
So, they held the matter in abeyance for a period of six months and they
didn't receive any communication from you. That's what they've said there?
A: That's their version of the story and that's why there's ongoing
litigation because my attorneys say they did not follow procedures. That we
could not respond to something that we didn't know was open to us and so
therefore that is what the legal dispute is and that's why I tell you there
are three court cases pending in the United States.
Q: So, I suggest to you, Mr. Zundel, that you've had ample
opportunity to comply with American Immigration law and you deliberately
flouted the law and your chose not to do so and not only did you not show up
for an interview, you failed to communicate with them subsequent to the
interview? A: That's your version of events...
Q: That's not our versions of... A: It is your version of
events, Mr. MacIntosh. You're misstating the case because you're not
familiar with it.
Q: Listen to the question... A: No, you...
Q: ...and then I'll give you an opportunity to answer. A:
Okay.
Q: It's the I.N.S.'s version of events. That's what they
cited in your own material that you filed today, Mr. Zundel? A: Is that the
first time in your life that a kind of an official body has made an error,
to put it mildly for the time being? It is being investigated. This case is
not over yet. Until the jury..the jury is still out on the Zundel case as
far as the deportation is concerned and who caused this and why this was
done so quickly and so on.
Q: Well, you just finished telling me a few moments ago that
the materials which have been tendered in this Exhibit were credible and
trustworthy? A: They are.
Q: Right. A: Of course they are. You cannot read the mind of
public officials. There's no documentation that the I.N.S. is correct in
their statement. My lawyers say they are not. They have completely screwed
up the application and that's it. Until such time that a proper court in the
United States has looked at that the case is still open.
Q: Now, you agree with me that the Canadian Human Rights
Commission found that you had control over the Zundel site? A: Erroneously.
Q: Would you agree that they made a finding that you control
the site? A: Erroneously.
Q: And you agree that they made a finding that having been
ordered to remove certain offending material from the site that you failed
to remove that material? A: I was no longer in Canada and therefore no
longer under the control of the Human Rights Commission. It did not apply to
me. Their decision was moot. Mr. Penza says he passed a symbolic decision. I
was protected by the United States Constitution the moment that I applied
for status in the United States. My wife who owns, runs, designs, has done
so with this web site since 1996 is an American citizen. She is totally
protected by the United States Constitution, has a Constitutional right to
say anything on the web site because the President of the United States,
Clinton and also President Bush, the 9th Circuit Court and the Supreme Court
have ruled that the internet content is inviolable.
Q: Well, let's just go back to what you just said a few
minutes ago. You just finished telling me that because you were not in
Canada the order didn't apply to you. That was your evidence, correct? A:
It's an American based web site on an American ISP, the Americans have a
Constitutional right to say anything and do anything on an American based
web site. My wife is an American. I was by then living in America, therefore
my legal advice was from American attorneys and from two Canadian attorneys,
that the point was moot.
Q: And in fact, previously at your detention review held
before the Immigration and Refugee Board member, Mr. Thomson, you referred
to the Canadian Human Rights Tribunal as a hick tribunal. That was your
statement, correct?
COUNSEL: What page is it?
MR. MACINTOSH: I'm referring to page 56 of the transcript to
the last proceeding.
PERSON CONCERNED: I am not sure if I said that, but if I
said that, it is not...
CONTINUING CROSS-EXAMINATION BY: MR. MACINTOSH Q: Well, Mr.
Hoffman will show you the transcript... A: Okay.
Q: ...to refresh your memory.
MEMBER: Mr. Hoffman?
MR. HOFFMAN: One sec. This is the page.
PERSON CONCERNED: Okay.
CONTINUING CROSS-EXAMINATION BY: MR. MACINTOSH Q: Do you see
those words that are at the bottom of page 56: "Now, she is not going
to stop the web site because some Canadian hick tribunal is going to rule
against it, besides I was living lawfully in the United States." Do you
see that? A: Yes.
Q: That's your statement you made last time? A: Yes.
Q: Right. Now, I suggest to you that if in fact you were
released by a member of the Immigration and Refugee Board having regard to
your lack of respect for Canadian administrative tribunals and the fact that
you described those Canadian administrative tribunals as being hick
tribunals, you in effect think you're a law until yourself and you wouldn't
comply with any orders made by this tribunal. Do you agree with that, sir?
A: No, I do not and I'll tell you the reason why I don't. On page 9 of the
Canadian Human Rights Tribunal that were sent to me to jail Mr. Penza's
ruling is that he knew full well that my wife was an American citizen. That
the web site was located in the United States and here is on paragraph 14 he
says, "At the outset of the hearing the respondent," me myself,
"applied for a stay alleging that for a variety of reasons complaints
were not properly before us. Leave was sought to lay the foundation for the
Motion by calling Ingrid Rimland of California, who it was said was the
creator, controller, publisher and author of the materials on the Zundel
site. The purpose of calling this witness presumably was to bolster the
affidavit evidence filed in support in the Motion to support that argument
that control of the Zundel site was solely in her hands."
In a previous hearing I have submitted my wife's affidavit,
15, paragraph 15, "In effect," Mr. Penza says, "the
application if acceded to would have constituted a summary dismissal of
these proceedings." Since he did not I say Mr. Penza appointed at the
whim of the Prime Minister, not like a regular Canadain judge all the people
that run tribunals are former bigwigs or money raisers for the Liberal Party
or the Conservative Party. It's solely a political job and he wrote number
one my wife now, not then my wife, she was sitting in the hearing room ready
to testify. She had submitted the affidavit and Mr. Penza refused to hear
her because he knew in effect that if he acceded to this request by us it
would have constituted a summary dismissal of the proceedings.
He spent $500,000 of taxpayers money, five years of hearings
because he refused to acknowledge right at the outset that even CSIS in the
summary says they couldn't touch the web site since it was based in the
United States on an American ISP. Mr. Penza had a political job to do. He
did it and that's why I consider somebody who abuses this particular thing a
hick tribunal.
Q: You know a lot about web sites, don't you, Mr. Zundel? A:
No, I don't.
Q: You're very familiar with the terminology as you've
demonstrated in your testimony today and yesterday, aren't you, Mr. Zundel?
A: No, you tell me where I demonstrated that? Tell me?
Q: I'm making that suggestion to you and you can either
agree or disagree? A: I totally disagree. I'm a total computer illiterate.
Q: And you're the person who created the Zundel site,
correct? A: No, I'm not.
Q: Can you tell me why it is that the Zundel site has as
statement on it saying that you created the Zundel site? A: What are you
talking about?
Q: Take a look at that. A: My wife said. This is my wife.
Q: Sir, let's go to page 1, just down, let's see. One, two,
three, four...
MEMBER: Okay, well let's identify this first. What is it?
MR. MACINTOSH: It's the Zundel site. It's called Reamers
(ph) of the Zundel Site, an Explanation to all Censorship Busters on the
Internet and I'd ask that it be marked as an Exhibit.
MEMBER: Counsel, any objection?
COUNSEL: When was this downloaded?
MR. MACINTOSH: Well, it's not an issue as to when it was
downloaded. The point is...
COUNSEL: I'm asking you when was it downloaded?
MR. MACINTOSH: I'm not sure exactly. I can't give you a
specific date. Certainly within the last month.
MEMBER: Well, what's the date at the bottom, 27th of
February 2003?
MR. MACINTOSH: Well, I'm not sure whether or no that's the
date and that's why I'm not..it appears to be, but...
MEMBER: Okay.
MR. MACINTOSH: The heading is Reamers of the Zundel Site, A
Note of Explanation to Call Censorship Busters of the Internet.
COUNSEL: I got that.
MR. MACINTOSH: In my submission the document speaks for
itself as credible and trustworthy and is relevant evidence with respect to
these proceedings and the issues at hand and should be admitted.
COUNSEL: It can only be admitted if Mr. Zundel recognizes it
as being the Zundel site.
MR. MACINTOSH: Well, no that's not the test for
admissibility. The test for admissibility is whether a document is relevant
and credible and trustworthy. Whether Mr. Zundel can recognize it or not is
not a touchstone for admissibility in proceedings in Canadian courts.
If that were the standard then only evidence that the person
concerned agrees with would be admitted.
MEMBER: Do you have any reason to believe this is not from
the web site?
COUNSEL: I was asking when it was downloaded and how current
it is.
MEMBER: Okay, and you're saying it came from the web site?
MR. MACINTOSH: Yes, that's correct.
MEMBER: From a computer. No information that it's not from
the web site. It certainly appears to be from the web site and so I'm going
to accept it as an Exhibit. I'll mark it as DR-11. It consists of two pages.
--- ATTACHMENT DR-11: Two Pages Downloaded from Zundel Site
titled Reamers of the Zundel Site, A Note to all Censorship Busters of the
Internet
CONTINUING CROSS-EXAMINATION BY: MR. MACINTOSH Q: Now, Mr.
Zundel, you've had a chance to look at this document? A: Yes, I have.
Q: Thank you. Now, if we go down to about the fourth
paragraph starting with number 1 it says, "I created the Zundel site
with the help of friends and associates who felt it was time to respond to
the fanciful tales and outright lies told by World War II Germans and
entertainment media, education from kindergarten all the way through the
fancies of doctorals." You just told me you didn't create the Zundel
site? A: No, I did not.
Q: I wonder if you can explain to me why it is this document
that's downloaded from your own site says that you created the Zundel site?
A: I have no explanation for it. I have never had the passport (sic) for
it..the password for it. My wife, now my wife but not then my wife in 1996,
created the Zundel site. She actually chose the name for the Zundel site.
She copyrighted it in 1996 for Z-grams (sic) or Zee-grams as they call it in
America and she typed this because as you can see in paragraph 3 already
it's no longer "I" it says "We took the (inaudible) the
Zundel site." It was her and her friends in the United States.
Paragraph 3. So...
Q: Well... A: ...I don't know.
Q: Mr. Zundel... A: I have never created a web site. I'm
incapable of it.
Q: Mr. Zundel, turn to page 2. A: Okay.
Q: In the second..in the last paragraph on page 2 it says,
"I am on the record wondering why people are so determined not to let
me embarrass myself all over the internet if my ideas are so wrong it's all
very simple. If I am what my enemies define me to be then I will
self-destruct. If they are what I think they are then they will
self-destruct." A: Mm-hmm? What does that prove? What I'm saying...
Q: I'm suggesting that's your admission statement, that is
your philosophy, isn't it, Mr. Zundel? A: No, it's very simply this. My wife
has made that web site, basically the record of most of my speeches and
thoughts and debates and there's all kinds of books listed on that. You
could see that it is the repository of my life and so...
Q: And because it's the repository of your life it's
something that you created, isn't it, Mr. Zundel? A: No, my wife did that
out of admiration for myself.
Q: And you notice at page 2 it says in typed there,
"Ernst Zundel?" A: That's what she typed, sure.
Q: Right. A: Not signed by me, but that's what she typed in.
Q: Right. A: And surprisingly...
Q: And do you agree that in this document it doesn't refer
to..your wife's name is not referred to in these two pages, is it? A: That's
right.
Q: Right. Have you ever...
COUNSEL: Mr. Chairman, in fairness and accuracy on the
second page under the banner, "Ernst Zundel needs your help or needs
your support. The Zundel defense fund. E-mail us at ingridrimland.irimland@dot.site.org."
MR. MACINTOSH: All right. Her name appears under that
portion. I stand corrected.
CONTINUING CROSS-EXAMINATION BY: MR. MACTINOSH Q: Now, have
you ever referred to Jewish people as a parasitic race? A: I saw that in the
CSIS Report. I could not have because I do not believe Jews are a race, Mr.
MacIntosh, because Sammy Jr. Junior said he was a Jew and Elizabeth Taylor
was Jewish and so was Marilyn Monroe and Golda Meir (ph). Now, they are four
different people whose skins certainly and their ethnic appearance. I am
white. There are some people who are colored. So if we're talking about a
race, no, they are not a race. Hitler had it right. Hitler called them a
race of the mind.
Q: All right. Ever used the word parasite referring to Jews
or Jewish people? A: To Jews who shake down, certain Jewish organizations
and officials and if you want to show me..I was reading that. You show me
the context. Show me the context of what you're complaining about there. Not
just out of context, show me the context where I said it because you will
find that these are organizations that Normal Finklestein (ph), a Jewish
professor who has published a book called The Holocaust Industry also says
they have become a shakedown industry, they shake down governments for
billions of dollars. The Holocaust has become an industry and this is
parasitic. If you get billions of dollars for an enterprise that is based on
lies that is parasitic.
Q: You just told me that you used the word parasite to refer
to Jews who shake down... A: Not as a race. They are not a race.
Q: Now, let's go back to this article. A: Yes, I've got it.
Q: Look at the picture on the lower left hand corner? A:
Yes.
Q: "Blood will run as high as the horse's bridle. A
Holocaust is coming. I just hope I live to see it." A: Yes.
Q: Right? Do you agree with me that that in effect is a
rallying cry, those words? A call to arms? A: Absolutely not. Number one,
I...
Q: I put it... A: I dispute that I said it. You prove it
first to me where I said it in the proper context. I don't believe that I
ever said that, and besides, it might well be that there's going to be
another Holocaust. The Jews are constantly saying if we don't watch this and
that and the other there'll be a Holocaust. They have got Holocaust on their
brain for the last 50 years.
Q: Well, I suggest to you that the language that's used
there is a rallying cry or a call to arms said by you, Ernst Zundel? A: Let
me tell you, Mr. MacIntosh. You be very careful with words like that. I have
said yesterday and proven far more conclusively that CSIS, the enforcing arm
of the spy agency, sent me bombs to kill me knowing what P.O. Box it was
going to come from in Vancouver and you are trying to say this is a rallying
cry for violence. Here is the state agency sending bombs to me and warning
their agents not to open the parcels to me. So, if there is any violence
being done in this country and any evidence led at these proceedings here,
the violence is done, two bombings of my house, one arson that burned down
and caused $400,000 damage, police found the people who sent the bombs.
Now, have I been found out in any of those 45 years that
I've been here counseling anybody to commit violence? I have not. There is
not one single shred of evidence in the 1,000 pages Mr. Stewart brought in
here yesterday that have ever attributed any such statement. For anybody to
say that, "Blood will flow." It doesn't say I said, I will cause
the blood. You have not brought me the source except a disgruntled wife in a
Toronto Star article highly edited. Am I going to be barred from Canada
because a disgruntled wife attributes something to me? Is that it?
Q: Mr. Zundel... A: Yes?
Q: ...the member of the Immigration and Refugee Board will
consider the totality of evidence that's been presented in these
proceedings. Those are my questions. A: Okay.
MEMBER: Mr. Fromm, this is your opportunity to redirect,
right?
COUNSEL: Yes.
MEMBER: You know what I mean by that, right?
COUNSEL: Yes.
MEMBER: Okay.
RE-EXAMINATION BY: COUNSEL Q: Mr. Zundel, could I draw your
attention to DR-10? A: Mm-hmm.
Q: The article from The Globe & Mail, March 8th. Now, is
that your picture down in the lower left hand corner? A: Yes, it is.
Q: And do you recall when that picture was taken? A: It was
taken on the podium of the Ottawa Civic Stadium in 1968 and I was running
for leadership of the Liberal Party and had I been elected I would have been
Prime Minister of Canada.
Q: Were you so elected? A: No, because Pierre Elliot Trudeau
beat me to it. He spent 100 times more money than I could raise.
Q: Did you make that statement, "Blood will
run..." A: No.
Q: Hold on. "Higher than a horse's bridle. A Holocaust
is coming. I just hope I live to see it." Did you make that statement
at the Liberal Convention? A: No, of course not. At the Liberal Convention?
You must be kidding. We were talking Canadian issues, of what was of
interest to French Canadians and me, as an immigrant, I was basically
running as the immigrant's candidate and I got into seventh spot which was a
big surprise to everybody and we were talking about police surveillance. Mr.
Murrant, I was probed and investigated by the Mounties when I submitted to
my campaign. They came to see me about the background and so on when I was
assigned the official person. Made it to the inner circle, to the run-offs.
That was no 1968.
Under the Freedom of Information Act my lawyers dug into one
of my legal proceedings. The very first time that anybody started to
investigate me was the Mounties in 1962 in a little Church, Presbyterian
Church in Greenfield Park, Quebec. 1962. I'd given a speech at that time, an
anti-Communist speech, which I was, and at the time the Cuba crisis had been
on and so on, so that's the first time that I know when Canadian official
sources, police, the RCMP at the time, began to check into me. 1962. So...
Q: How do you know that? A: Because under the Freedom of
Information Act we applied for all these documents.
Q: So you had cause to be make a request under the Access to
Information Act to see the RCMP... A: Many times. Many times, yes.
MR. MACINTOSH: This is not proper re-examination. He's
canvassing a whole series of issues.
MEMBER: Well, carry on, Mr. Fromm.
COUNSEL: Sorry. This does relate to the question asked by my
friend.
CONTINUING RE-EXAMINATION BY: COUNSEL Q: You were subject to
a postal hearing you testified yesterday in 1981? A: That's right.
Q: And in the course of that postal hearing was there
testimony by the police? A: By Toronto Police.
Q: By Toronto Police. And did they indicate at that time
you'd been under surveillance? A: Absolutely.
Q: For what period of time? A: Well, I know there was a
Sergeant Maywood (ph). He was like...
Q: Would that be Ross Maywood? A: Yes, Ross Maywood. He was
in charge of the Intelligence and later on he was in charge of the Hate
Squad and he was like a shadow to me. Whenever we would have demonstrations
I would call Ross Maywood, as a Sergeant, we're going to have demonstrations
and here is how many people there are going to be, here are the signs we're
going to be carrying and so on.
My relation to the Toronto Police has been an open one. For
instance, whenever there were demonstrations outside my house they would
come inside the house, they would check the security of the house and you
know, I said you can check in any cupboard for weapons and so on. I was
totally dependent on the goodwill of the Toronto Police and so that's why I
was like an open book. Still am like an open book.
Q: And finally, you've made many speeches over the years,
meetings of your own, public meetings, et cetera. Do you tape your speeches?
A: There are thousands of tapes of speeches and...
Q: And did you sell..when you were more politically active
did you sell copies of your speeches? A: On the web site I understand there
are hundreds of videotapes and audio tapes. They're usually broadcast after.
Q: If you're computer illiterate, I'm probably semi-
illiterate, but can you..are these..are tapes of your speeches available on
the Zundel site? A: I believe, yes. I'm not sure if they're just...
Q: Are they available on another site called The Freedom
Site? A: I have no idea about that, but I know that we had a catalogue of
audio tapes for broadcast. Usually when I would make a broadcast and after a
certain time they would be offered to the public for sale.
Q: But your speeches are available in audio and videotape
from? A: CSIS in 1995 in that document that was unfortunately inadmissible
has about ten of them. There are ten of them right in there by CSIS.
MR. MACINTOSH: You can't refer to evidence that's not before
the panel.
PERSON CONCERNED: Okay. Oh, okay.
CONTINUING RE-EXAMINATION BY: COUNSEL Q: No, but say
somebody were interested in one Ernst Zundel...
MEMBER: Well, what's this about now?
COUNSEL: That's fine.
MEMBER: Do you want to add something?
COUNSEL: Those are my questions.
MEMBER: Okay. Now, do you have any further evidence?
COUNSEL: Yes, I have one more witness.
MEMBER: Who's your witness?
COUNSEL: My witness is Reverend Doctor Robert Countess.
MEMBER: Spell the last name?
COUNSEL: C O U N T E S S.
MEMBER: And what is it that you intend to have him testify
to?
COUNSEL: I intend to have him offer his knowledge of Ernst
Zundel in terms of whether Mr. Zundel is a White Supremacist of racist.
MEMBER: Okay. And how long do you think his testimony is
going to be?
COUNSEL: Five minutes.
MEMBER: Five minutes?
COUNSEL: From my side.
MEMBER: Okay.
MR. MACINTOSH: Well, maybe we can break for lunch. I mean,
you know it's..five minutes is probably...
MEMBER: Well, okay...
MR. MACINTOSH: ...optimistic by anybody's standards.
MEMBER: ...I agree. We'll stop for lunch till 2:00.
--- PROCEEDINGS RECESSED
--- PROCEEDINGS RESUMED
MEMBER: This review is now resumed. Mr. Fromm, you wanted to
call a witness?
COUNSEL: Yes.
MR. MACINTOSH: Before my friend does that I'd like to canvas
in more detail as to whether or not this witness should be permitted to
testify and therefore I want my friend to outline what the purpose of his
testimony would be. Since I assume the witness is in the room I would ask
that the proposed witness be excluded so that he won't have the benefit of
hearing my submissions in relation to my friend's outline of what the
proposed testimony will be.
MEMBER: Mr. Fromm?
COUNSEL: Do you want him excluded?
MEMBER: Is there any reason why I should not exclude him?
COUNSEL: No.
MEMBER: Okay. Then I'd ask you to ask him to leave and we'll
call you when we want you back, if we want you back.
MR. MACINTOSH: It appears that this witness is being called
as an expert witness and accordingly we would have been entitled to have
received an expert report with the witness's qualifications outlining what
it is he's prepared to testify to so that we can, and you can judge more
importantly, whether or not he is an expert.
My friend has provided the briefest outline as to what the
witness's evidence is intended to be and I would just like to have him spell
out how he thinks this witness's evidence is relevant in light of the
Immigration Act, specifically Section 67 and 58 of the Immigration Act.
COUNSEL: I'm not tendering Dr. Countess as an expert
witness. I'm tendering him as a character witness. In the CSIS summary
report which was provided by the CSIS the allegation of White Supremacy is
made repeatedly, including in paragraph 2, "Zundel was viewed as a
patriarchal leader of the White Supremacist Movement."
Mr. Zundel has vigorously disputed that during examination
and I'm tendering Dr. Countess, who is his spiritual adviser and a friend of
some standing, some time standing, to testify as to what he knows about
Ernst Zundel just in terms of the allegation of White Supremacy.
He doesn't purport to be an expert on White Supremacy. His
academic training is in a different area. We're simply tendering him as
somebody knows him well, a man of some stature and credibility, giving his
take on a man he's known for many years as to whether he is a White
Supremacist or a racist.
MEMBER: Mr. MacIntosh?
MR. MACINTOSH: Well, as he's not being tendered as an expert
and just in relation to character evidence then that's fine.
MEMBER: Call him in. Okay, would you come forward, please?
Remain standing and place your right hand on the Bible. Do you solemnly
swear to tell the truth, the whole truth and nothing but the truth, so help
you God?
WITNESS #3: I do.
MEMBER: Thank you. Please be seated.
--- ROBERT COUNTESS (Witness #3): SWORN
EXAMINATION OF ROBERT COUNTESS
EXAMINATION BY: COUNSEL Q: Would you state your name please
and spell and it for the record? A: Robert H. Countess, C O U N T E S S.
Q: Could you give us your address? A: 28755 Sagewood Circle,
Toney, T O N E Y, Alabama zip code 35773.
Q: Dr. Countess, I am correct in addressing you as Doctor?
A: That is correct.
Q: Can you give us very briefly your academic background? A:
BA, MA, PhD with a second Masters Degree, various schools, field is,
doctoral field is New Testiment Greek and second Masters Degree was in the
field of Humanities and Philosophy and I've traveled to some 40 foreign
countries. I'm a retired U.S. Army Chaplain.
Q: How long were you a Chaplain in the U.S. Army? A: Well,
all together my military career was about 22 years combined active duty and
reserve time. I was enlisted as well as an officer, retired as a Captain,
and I'm now age 65 retired and living near Huntsville, Athens, Alabama.
Q: I referred to you and introduced you as Reverend Doctor.
Just briefly outline your religious... A: Yes, 1965 I was ordained in the
Presbyterian Church and when I became a Chaplain I was endorsed by a
Presbyterian body. Endorsement is required by an authorizing agency of a
Church for the U.S. Army or other branches.
Q: When you were in the U.S. Army as a Chaplain did you do
counseling? A: I did counseling. I was also at one time involved in alcohol
and drug abuse education and counseling.
Q: I tendered you as a witness about Ernst Zundel, not for
your academic background, so I'm going to move quickly to that. What is your
relationship to Ernst Zundel? A: I have Mr. Zundel off and on probably since
1988 or so basically through conferences whereby historical events were
focused upon in lectures and I don't remember all the details, but 1987 I
was first on New York radio talking about problems in the Holocaust studies
and I must have been aware then of the 1985 Zundel trial in Toronto and in
'88 I'm sure I followed that trial because of Fred Lucher (ph) and the
Lucher Report and all that.
Q: So you knew him in sort of an academic historical context
at that time? A: Yes, basically from a distance until I think August of 1988
when my wife and I drove to Toronto and we visited the house on Carlton
Street and I can't remember if Ernst was away when we arrived, but I think
he may arrived during the weekend we were there and it may have been the
first time to meet. I don't remember exactly, but so I've had more of a
distant relationship with Ernst until he moved to Pigeon Forge area and we
have visited there on several occasions because we're only a five hour drive
away.
Q: So your relationship or knowledge of him increased since
he moved to the United States approximately three years ago? A: That is
correct, yes.
Q: So, what is your role in his life at this particular
time? A: Well, we've had numerous contacts having to do with common interest
in historical exactitude and Holocaust studies and the Holocaust industry
and I've been interviewed by him on I think video and radio for some of his
short-wave and other shows over the years.
Q: Have you had any role in counseling Ernst Zundel? A: Not
in a formal paid sense, but in an informal sense I have recorded for him
some music. We've talked.. Christian music. We've talked about theological
matters. I visited him in the detention center Sunday evening for a period
of time. I had a hymnal with me for him. I also sent him a copy of a Dosnoya
(ph) testament, German New Testament I thought he might find helpful. I
don't know if he received it yet, and Ernst has a Protestant background as I
do, although from a different kind of Protestant background, but we have a
lot in common there and I think that I'm correct in saying he does not
identify himself as a practicing Christian at this point, but he has
sympathy for the Christian faith and so we have a lot to talk about.
Q: Dr. Countess, I'd like to focus very narrowly on one area
that you might be able to assist Mr. Murrant. From your knowledge of Ernst
Zundel over these years can you make any comment as to whether he is a White
Supremacist or a racist? A: I can give an opinion and an opinion is like
asking for a cup of coffee at Tim Horton's, I guess. In order to get it
you've got to give them money, but my opinion is that based on numerous
hours of conversation with Ernst Zundel, reading his newsletters which he's
graciously sent me over the years, I would find no basis at all for a valid
case to be made against him that he is a racist or a White Supremacist. I
think that it is indeed correct to say that he has an extraordinary interest
in trying to right the record about his people and as a university teacher
for many years and having taught at three predominantly black universities
in our country I remember hearing on many occasions my black students and
faculty talking about "my people," "our people,"
referring to blacks which I think is most appropriate, but in our day and
time it's considered to be mal-appropriate for white people, as Mr. Zundel,
to speak about Germans and his people and I think that's unfortunate.
Q: I was wondering if you have had any opportunity to
observe him interacting with people other than whites? Blacks, let's say? A:
I can point concretely to an incident about a year ago. Our neighbor, Audrey
Pink, and her father and brother and her two sons, one adopted from Haiti,
Jonathan and her natural son, Anthony who is white, lived down the street
from us four doors away and one evening she left our house in early March to
take the family to Huntsville for dinner, birthday dinner, and they had this
tragic automobile accident seven or eight miles from our house. She died
instantly and others were injured and about four or five weeks later I
arranged, in agreement with her family members, a memorial service at a
Baptist Church in Athens, Alabama and Ernst and his wife, Ingrid, came down
for that and I gave people an opportunity to speak who knew either
personally or through the internet this Audrey Pink and Ernst I believe said
a few words, his wife Ingrid said a few words and some others, and after the
service was over there was hugging and poeple weeping and so forth and
Jonathan whom I said is very black and from Haiti, he's 14 years old now, he
was hugged very, I thought very genuinely, by both Ernst and his wife,
Ingrid, and I saw what I would take as a genuine expression of sympathy and
empathy at a time of great sorrow.
Q: So, your testimony would be that Ernst Zundel embraced
this young fellow from Haiti and comforted him in the period of his loss? A:
That is correct. Of course, I had no way of getting into Mr. Zundel's heart,
but I have to go by people's actions and I thought it was genuine and in our
own conversations we have talked about a wide range of topics in the world,
religion and history and the like and I have no reason to believe that Ernst
Zundel is, as has been characterized by the Crown, some kind of lightening
rod for people who have been adduced here in some sort of list.
Q: Did Ernst Zundel make any financial contributions to the
young fellow? A: Well, I don't think that I know they made a contribution
directly to him, but to the family members who survived they did, as did
other people as well.
Q: I have one final question. In your years of counseling
people in the United States Army did you have occasion to meet people who
you would consider to be racists or White Supremacists? So, did you have
some knowledge of that... A: Oh yes, I definitely do. Not so much in the
military but I've had some contact with people who call themselves today
Christian Identity. I don't know if the court, anyone knows about this, but
I would regard them as Christian Protestant fundamentalists. They
transmogrify the Old Testament concept of Hebrew and Israelite into white
Europeans and they don't believe in missionary activities to people around
the world and I've learned about them through internet contacts and I think
I have a pretty good grasp of their point of view. Some of them are out in
Idaho and Montana and I think I would call these people at least white
racists if not Whit Supremacists and of course I, from a Christian
standpoint since I take the New Testament seriously where the Apostle Paul
says that in Christ there is neither Jew nor Gentile, male nor female, and
it goes on down the line, slave nor free, there cannot be racial
distinctions in the Church of Jesus Christ, from my standpoint.
Q: And just to finalize and focus, having known people that
you would consider at least racists would you consider Ernst Zundel to be a
racist or a White Supremacist? A: No, I would not.
Q: Thank you. Those are all my questions.
MEMBER: Mr. MacIntosh?
CROSS-EXAMINATION BY: MR. MACINTOSH Q: Sir, I take it you're
a friend of Ernst Zundel's, is that correct? A: Of his what?
Q: I take it, sir, that you are a friend of Ernst Zundel, is
that correct? A: Oh, yes.
Q: And... A: And by the way, sir, I do distinguish between
friends and acquaintances and for me an acquaintance is somebody I have
occasional contact with. A friend would be someone in whose home I spent the
night, taking meals and who stayed in my home.
Q: So all of that has occurred with respect... A: That is
correct, yes.
Q: ...to Ernst Zundel? A: Right.
Q: And you've known him since approximately August 1988? A:
I think that would be correct.
Q: And you visited his home in Carlton Street... A: That's
correct, yes.
Q: ...during that year? A: And then later I went back for
the Canadian Human Rights Commission, what was that, five years ago. I was
invited by him to become an expert witness in my field of New Testament
Greek concerning proviamaitism (ph) and I must say if I may be allowed, Mr.
MacIntosh, when I put my hand on the Bible today I wanted to ask if the
standard of the Canadian Human Rights Commission was in effect here which
says truth is no defense...
Q: Well, sir... A: ...and I put my hand on the Bible I
wanted to ask them does it really matter if I swear to tell the truth. So
I'm glad that it does not apply here.
Q: Well, do you consider yourself a good friend of Mr.
Zundel's? A: The word good as an adjective is ambiguous, but I'll go and
ahead and accede to that and say yes.
Q: Right. And I suggest to you as a good friend of Mr.
Zundel's you're not really an objective observer whether or he's a White
Supremacist, are you, sir? A: Well, first of all as a philosopher I don't
believe objectivity is something any human being has. It's something that a
person works towards. So I will never espouse the word objectivity for
myself or for anyone else because not one of us in the human finite
experience is objective about anything.
Q: Well you agree that some people are more objective than
others, isn't that correct? A: More detached than others I would say anyway.
That would be correct.
Q: Some people are more detached than others, is that
correct? A: That's absolutely correct.
Q: And as a close personal friend of Mr. Zundel's you're not
very detached with respect to whether or not he's a White Supremacist are
you, sir? A: The danger is always there. I will admit it, yes, and so you
have to accept what I say congranas alus (ph), with a grain of salt.
Q: Thank you very much. Those are my questions. A: Thank
you.
MEMBER: Any redirect?
COUNSEL: No.
MEMBER: No?
COUNSEL: No.
MEMBER: Okay, thank you. You may be excused.
WITNESS #3: Thank you.
MEMBER: Any further evidence, Mr. Fromm?
COUNSEL: No.
MEMBER: Mr. MacIntosh, I take it you have no further
evidence? You're finished with your evidence?
MR. MACINTOSH: That's correct.
MEMBER: And so we're at a position for submissions. Do you
need time to make your submissions?
MR. MACINTOSH: No, I'm ready to start right now..
MEMBER: Okay.
MR. MACINTOSH: Mr. Murrant, you indicated to both parties at
the outset of the proceedings in reviewing the statutory criteria under the
Immigration and Refugee Protection Act that if you were satisfied that the
Minister has met the test set out in Section 58(1)(c) of the Act, namely
that, "The Minister is taking necessary steps to inquire into a
reasonable suspicion that a person is inadmissible on grounds of security or
violating human or international rights," it would be unnecessary to
deal with the other factors that are prescribed in the Section.
It's our respectful submission on behalf of the Minister of
Citizenship and Immigration that the Minister has satisfied the test set out
in Section 58(1)(c).
We've heard extensive evidence from the CSIS Officer, Dave
Stewart, in relation to that issue, the parameters of the test set out in
Section 58(1)(c) and Mr. Stewart's evidence which in this respect is
certainly uncontradicted, is that the Minister is conducting..the Minister
is conducting an investigation and appraisal as to whether Mr. Zundel
constitutes a danger to the security of Canada. He indicated that there is
an ongoing consultation between CSIS and the Minister of Citizenship and
Immigration in that regard.
You also have the benefit of hearing in-camera testimony
that relates to this particular issue. It is important for you to consider
the totality of evidence and all the evidence that has been adduced in the
public forum, but also the evidence that was presented to you in the
in-camera session, which evidence in my respectful submission is credible
and trustworthy.
Mr. Stewart gave his evidence, in my respectful submission,
in a forthright manner. The evidence is credible and trustworthy and the
evidence was not undermined in any way on cross-examination.
Now, it's my respectful submission that the evidence that is
contained in the unclassified report which is quite extensive buttresses the
Minister's submission that the Minister is conducting an investigation into
whether or not Mr. Zundel constitutes a danger to Canadian security and Mr.
Stewart adopted the unclassified report in its entirety and said that he
relied upon that and clearly that has to be kept in mind.
There are a number of salient facts that are contained in
the unclassified report. Under background you have, in paragraph number 2,
that "Mr. Zundel is viewed as the patriarch or leader of the White
Supremacist Movement in Canada." He was and still is a leading
distributor of revisionist neo-Nazi propaganda worldwide. He maintained
White Supremacist contacts internationally and channeled money through those
contacts to promote his cause."
In my respectful submission that evidence wasn't cast in
doubt on cross-examination or substantially challenged in any way and in
fact, Mr. Zundel himself in places buttresses Mr. Stewart's evidence because
he has admitted to sending literature to Germany. He's admitted the
extensive nature of the literature that he has sent over the years to
Germany and he's admitted that he operated his publishing company from his
Toronto residence and he's made a number of admissions in that regard, all
of which are telling in my respectful submission.
You can also consider in assessing the totality of evidence
the material which Mr. Zundel has adduced before you today and in Exhibit
DR-7, which is the 23 page extensive document, there is reference to an
interview that took place at Mr. Zundel's home with an FBI Agent which as
set out in this document the FBI Agent was was investigating Mr. Zundel with
respect to international terrorism.
Now, obviously this extensive material was read very
carefully by Mr. Zundel and his representative and that's why they adduced
it. He admitted in cross-examination that this document was credible and
trustworthy and on..the references that I'm referring to are set out on
pages 10 and 11.
Mr. Zundel acknowledged in cross-examination that he's never
seen the FBI file, therefore obviously he's not in a position to state
whether or not as a result of conversations he had with this particular FBI
Agent he dispelled what he describes the ridiculous and unfounded notions
that he had connections to international terrorism.
Certainly this provides additional information which the
Minister would have cause to investigate with the FBI specifically, namely
whether or not Mr. Zundel has connections to international terrorism and
what the FBI's position is with respect to that very issue Mr. Zundel has
advised this tribunal that by his documentation that he was accused of
having and that provides further support to the serious allegations that Mr.
Stewart testified to before you.
I would also refer you in terms of the unclassified summary
to paragraphs 17 and 18 which in my respectful submission are salient.
Paragraph 17 says, "Although Zundel is unlikely to resort to violence
himself, he financially and ideologically supports militant White
Supremacist neo-Nazi groups. There are reasonable grounds to believe he
supported groups who advocate and use violence to achieve their
objectives."
Paragraph 18, "As a consequence of his participation
and involvement of neo-Nazi White Supremacist Movement in Canada there are
reasonable grounds to believe that Zundel has been and would be in a
position to influence his followers to commit acts of serious violence in
Canada or abroad."
The test that's averted to here of course is reasonable
grounds and reasonable grounds is less than the balance of probability and
it's less than the prima facie standard and clearly when one considers the
totality of evidence the standard of reasonable grounds has more than been
met.
As a matter of fact, in my respectful submission the
standard that the Minister has met would be closer to the high end of the
balance of probabilities.
Now, Mr. Zundel has testified that he's not a violent
person. Firstly..and he's also testified that he has contacts and has had
contacts over the years with members of the Heritage Front. The Heritage
Front is an organization that his well known for violence in my respectful
submission.
He admitted under cross-examination that he saw members of
the Heritage Front on social occasions, as he described it, and he also
admitted that he had a professional interaction with members of the Heritage
Front although he attempted to suggest that in terms of his professional
interactions those were limited.
It's my respectful submission that if he considered the
ideological beliefs of the Heritage Front to be the antithesis of his
ideological beliefs he wouldn't be socializing with members of the Heritage
Front, to use his terminology. The fact that he socializes with members of
the Heritage Front indicates that members of the Heritage Front espouse
views that are similar to his.
Now, one of the things that's set out in the summary in
paragraph 8 is that it says, "Zundel describes the Jews as being a
physically, spiritually, economically and culturally corrupt parasitic
race." Now, in cross-examination it's significant that when Mr. Zundel
was asked whether or not he described Jews as being a parasitic race he
answered that he didn't consider Jews or Jewish people to be a race, but in
further probing he admitted that he had used the word parasite in describing
Jewish people.
This dovetails with what Mr. Stewart has said in
paragraph..sorry, not Mr. Stewart, but what the Service has said in
paragraph 8. Mr. Stewart has acknowledged in his testimony that he did not
prepare this unclassified summary. The summary of course is an compendium
from a multiplicity of sources.
This dovetails with what Mr. Stewart's testimony has been
and with what is set out in paragraph 8 of this particular document and in
my respectful submission, generally Mr. Zundel's testimony is totally
lacking in credibility. He is not credible and trustworthy.
He was asked whether or not he had created the Zundel site
and he denied he created the Zundel site, yet his own web site contains a
document which is in evidence before you. In one of the paragraphs in that
document, specifically paragraph 1, it says, "I created the Zundel site
with the help of my friends and associates who felt it was time to respond
to the fanciful tales and outright lies told about World War II Germans in
entertainment media and education from kindergarten all the way through the
fancies of doctoral footwork."
This is the type of contradiction which is central to one of
the issues before you that you have to decide and that is, of course, the
credibility of witnesses who testified in front of you.
In my respectful submission it's a contradiction that
undermines Mr. Zundel's entire testimony and indicates that his testimony is
fully lacking in credibility and that if he were released on terms and
conditions he would comply with any of those terms and conditions because he
hasn't testified truthfully before you.
In relation to statements that Mr. Zundel was cross-examined
about with respect to The Globe & Mail, specifically the statement where
it was put to him that he said, "Blood will run as high as the horse's
bridle. A Holocaust is coming. I just hope I live to see it," his
ex-wife quoted him as saying that.
First of all, in my respectful submission, he has, although
he..he took a variety of positions with respect to this statement. First of
all he testified that he couldn't remember whether or not he made this
statement and then in re-examination when he was taken to that particular
statement he said that he didn't make that statement at a Liberal
convention.
Of course, you'll recall that he ran for leader of the
Liberal Party. Well, if he can remember that he didn't make that statement
at a Liberal convention there's quite an inconsistency there with the fact
that he has no recollection as to whether or not he made the statement. His
memory is very selective in my respectful submission and further indicates
that he has no credibility.
This statement which, in my respectful submission, he did
make is a call to arms to likeminded individuals, people who believe that
violence should be used to achieve what they regard as their objectives.
It's obviously a racist statement and it's designed to incite likeminded
individuals.
He's admitted that insofar as his former wife, Ms. Irene
Margarelli, spelled M A R G A R E L L I, quoted him as saying that he
referred to Hitler as The Great One, that that was an accurate statement. So
clearly with respect to some of the things of that particular comment that
his former wife said he has no difficulty in acknowledging the accuracy of
that comment.
So when he described, as he did, her as being someone who
was disgruntled, clearly the fact whether she is or is not disgruntled is
obviously something you don't have to decide, the fact of the matter is that
he's admitted that he referred to Hitler as The Great One. Clearly, he
adores Adolf Hitler and all that Hitler represents and that's something for
you to consider when you come to consider the parameters of Section
58(1)(c).
In my respectful submission, given the record that is
voluminous, just in the evidence that's been adduced in front of you by both
sides, it's clear that this is a complex situation and is a situation which
would require considerable investigation on the part of the Minister of
Citizenship and Immigration with respect to updating the threat that the
Minister believes that Mr. Zundel poses with respect to the security of
Canada and the fact that counsel for Mr. Zundel has introduced voluminous
documents, some of which in my respectful submission provide further
grounds, such as this particular document that I'm referring to, for an
investigation taking place.
Certainly as I indicated before, Mr. Zundel himself has said
he was being investigated by the FBI for international terrorism. Now, it's
not possible to know to what extent such an investigation was taking place,
but certainly that is a matter which the Minister would be remiss in not
investigating.
There's also the fact that this web site continues to
operate and there's uncontradicted evidence that it does continue to operate
and you have evidence before you that the Canadian Human Rights Tribunal
found as a fact Mr. Zundel exercised control over the web site. He was
ordered to cease and desist and you have the evidence of Dave Stewart that
he did not do so. That is, cease and desist his activities, and in fact he
was convicted in a German court for inciting hatred in December 1991.
In proceedings before the Immigration and Refugee Board last
time at the detention review referred to the Canadian Human Rights
Commission as a hick tribunal, something which he acknowledge today in
evidence and then proceeded to give an explanation for those remarks.
In my respectful submission that only goes to show that he's
not willing to comply with any orders made by any Canadian administrative
tribunal in respect to conducting lawful activities and so, accordingly, if
he were released he would only continue activities which cause the Minister
to have a reasonable suspicion that he's a danger to the security of Canada
and in that regard I would say that in respect to the two sureties, or one
lady was a surety and the other gentleman offered to provide accommodation.
First of all I would note that it's the position of the
Minister of Citizenship and Immigration that no amount of money would be
sufficient or no bond would be sufficient to alleviate the Minister's
concern that there's a reasonable suspicion that Mr. Zundel is inadmissible
on grounds of security. No amount would be sufficient to alleviate the
concerns that have been expressed in the material that you've considered, in
the in-camera forum, in the material, in the unclassified summary and indeed
the factors set out in Dave Stewart's testimony that was given before you.
Having said that I would also say that in my respectful
submission the proposed surety is totally inadequate in that first of all
she didn't give any indication as to what her house is worth. So we could
have no independent..there's no evidence as to what her house is worth.
Secondly, there's not an independent real estate evaluation
in that regard and thirdly, and most importantly, an overarching factor in
terms of a requirement for a surety, it's obvious that she could provide no
control whatsoever over Mr. Zundel's activities and in cross-examination she
simply stated that she trusted him.
Well, that's not grounds for being a surety. A surety is
someone who has to be willing to exercise some sort of supervision over the
person that is being released into that person's care and it's significant
that you have two different people that are proposed that would be involved
in this process. He wouldn't even be living with her, he'd be living with
another individual. So how she could be expected to exercise some control it
simply couldn't happen.
In respect too I would note that Mr. Zundel, in my
respectful submission, has flouted American law and he failed to show up for
an Immigration interview in the year 2001, June 2001, having admitted under
cross-examination that he received notice of the interview.
He has some explanations as to why he didn't show up, but
the fact of the matter is he didn't show up and notwithstanding the fact
that his lawyer wrote a letter and asked for an adjournment because the
lawyer was engaged in another matter, Mr. Zundel should have been there
according to American law. He didn't show up.
Furthermore, even more importantly, he wasn't in
communication afterwards, subsequently, with representatives of the
Immigration and Naturalization Service as evidenced by his own documentation
that he's provided. This document - I won't take you to the pages again -
but this documents that is marked as Exhibit DR-7, where you have the
portions of the I.N.S. statements that are set out where they say that, I
think there was a period of six months where this arrest warrant was not
executed, obviously to give him some sort of opportunity to contact the
Immigration and Naturalization Service. He didn't do so.
So, what is his record? His record with respect to
government agencies is that he flouts the law. He flouted the law in the
United States. he flouted the law in Canada with respect to complying with
orders of the Canadian Human Rights Commission and in fact he would flout
the law here if he were released because he would continue to operate his
web site disseminating anti-Semitic material in my respectful submission,
funding groups abroad in Germany that incite hatred against other people.
I'd also like to refer to the Kikstra (ph) case just briefly
and that's set out at tab 1 of the materials and I'm going to be referring
to page 748, Justice Dixon's judgement.
MEMBER: What page?
MR. MACINTOSH: Seven forty-eight. In the second paragraph at
page 748 Justice Dixon says as follows, "The threat to self-dignity of
target group members is thus matched by the possibility that prejudiced
messages will gain some credence with the intended result of discrimination
and perhaps even violence against minority groups in Canadian society.
With these dangers in mind the Cohen Committee (ph) made it
clear in its conclusion that the presence of hate propaganda existed as a
baleful and pernicious element and hence a serious problem in Canada."
So the Chief Justice in upholding the Constitutionality of
Section 319(2) of the Criminal Code is a reasonable limit prescribed by law
in a Democratic society under Section 1 of the Charter has taken into
consideration the fact that hate propaganda can lead to violence.
Furthermore, at page 752 of the decision, starting at 741,
sorry, refers to a number of International Covenant or Conventions, one of
which is the International Covenant of Civil and Political Rights. The
bottom paragraph, "The International Covenant of Civil and Political
Rights was adopted by the United Nations in 1966 and in force in Canada
since 1976. It guarantees freedom of expression while simultaneously
prohibiting the advocacy of hatred.
Article 19(2) says everyone shall have the right to freedom
of expression. This right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers either orally or
writing or in print in the form of art or through any other media of his
choice."
Three, the exercise of rights provided for in paragraph 2 of
this Article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only be such
as are provided by law and are necessary a) for the respect of the
reputation or rights of others, b) for the protection of national security
or public order or of public health or morals.
Article 20, any propaganda for war should be prohibited by
law. Article 22, any advocacy of national or racial or religious hatred that
constituted incitement to discrimination, hostility or violence shall be
prohibited by law."
Now, it's significant that you do not have an unchanneled
right of freedom of expression. There are certain restrictions to
international law, one of which is related to dissemination of hate
propaganda and this Convention draws a link between hate propaganda and
protection of national security or public order or morals as set out in
Article 19(3)(b) of the Convention.
That's just one of the International Conventions that house
those limitations and there are certainly several others.
At page 787, Chief Justice says as follows in the second
paragraph, "Few concerns can be as central to the concept of a free and
democratic society as the dissipation of racism and the especially strong
value which Canadian society attaches to this goal must never be forgotten
in assessing the facts of an impugned legislative measure."
MEMBER: I'm sorry, you're reading from what page?
MR. MACINTOSH: Page 787. I'll read it again.
MEMBER: Do you want to just come up here for a minute
please?
MR. MACINTOSH: Page 787 in the second paragraph it says,
"Few concerns can be as central to the concept of a free and democratic
society as the dissipation of racism and especially strong value which
Canadian society attaches to this goal and must never be forgotten in
assessing the effects of an impugned legislative measure."
And then if I can just briefly ask you to turn to tab 2,
which is the Zundel case, starting with page 764, as Mr. Zundel has referred
to any number of times he was charged under the false new Section, Section
181 of the Criminal Code and his conviction after his second trial which was
overturned by the Supreme Court of Canada which found Section 181 of the
Criminal Code was unconstitutional and Madam Justice MacLaughlin then states
at 764..sorry, starting at 763.
She distinguishes between hate propaganda in Section 319(2)
of the Criminal Code and the issue involved in the Kikstra case, the
unconstitutionality of the Section dealing with hate propaganda and the
false new Section, under Section 181, and she says, "All this stands in
sharp contrast to the hate propaganda provision of the Criminal Code at
issue in Kikstra, Section 319(2). Well, if the text of that provision in its
long and detailed Parliamentary history involved in Canada's international
human rights obligations the Cohen Committee and the report of the Special
Committee and the participation of visible minorities in Canadian society
permitted ready identification of the objective Parliament has in
mind." Section 319(2) under challenge in Kikstra was part of the
amendments to the Criminal Code. The evil addressed was hate mongering,
particularly in a racial context.
The provision at issue on this appeal is quite different.
Parliament has identified no social problem much less one of pressing
concern justified in Section 181 of the Criminal Code. To suggest that the
objective of Section 181 is to combat hate propaganda or racism is to go
beyond its history and its wording and to adopt the shifting purpose
analysis this court has rejected."
So, when Mr. Zundel attempts to draw an analogy as he did in
his testimony between this case and Kikstra's analogy is totally misplaced
because as you can see the Sections are totally different and one Section
has nothing to do with the other one.
So, in no way does the fact that his conviction was
overturned because Section 181 of the Criminal Code was found to be
unconstitutional take away from the dissemination of hate propaganda and the
pernicious effect that hate propaganda has on society and the fact that the
hate propaganda Section in the Criminal Code was upheld by the Supreme Court
of Canada in Kikstra as being constitutional.
Furthermore, this is the last reference I'll take you to in
that case, page 765 Madam Justice MacLaughlin says as follows in the second
paragraph, "Like my colleagues, I readily acknowledge the pernicious
effects of propaganda of hate. Such effects are indeed of relevance to a
Section 1 analysis of Section 319 as was evidenced in this court's decision
in Kikstra."
So, when Mr. Zundel attempts to suggest that the Chief
Justice of this country somehow allied with him because she writing for the
majority of the Supreme Court found this Section to be unconstitutional he
doesn't understand the effect of the judgement in Zundel.
Nothing could be further from the truth. The Chief Justice
of Canada has recognized the pernicious effect that hate propaganda has in
Canadian society and that any reasonable person would recognize in my
respectful submission.
If I could have a moment. I would also say that in no way,
shape or form do we accept that the document, the excerpts that were tended
last day from Mr. Fromm on behalf of Mr. Zundel that relate to the book,
Covert Entry, are germane, relevant or pertinent to any issue that you have
to decide under Section 58(1)(c) of the Immigration and Protection Act or
any issue that you have to decide under Section 57 as to whether Mr. Zundel
should be detained or should be released from custody.
Certainly that book is not evidence of the truth of its
contents and we don't accept it as being credible and trustworthy in our
respectful submission. It's a political book that contains inflammatory
statements which aren't supported by fact in my respectful submission.
Now, in my respectful submission..oh yes, I would also note
that there are outstanding charges in Germany in relation to Mr. Zundel that
were referred to last day. They're in a transcript, for inciting hatred, and
that provides further evidence to support the Minister's concern that
there's reasonable suspicion that he's inadmissible on the grounds of being
a danger to security and it's certainly something that calls for continued
investigation.
I would also point out that in light of the fact that the
two witnesses who testified in relation to the surety issue goes really
towards the other two grounds, whether he's a danger to the public and
whether he'll be likely to show up for removal, to some extent the danger to
security overlaps with the ground to being a danger to the public.
It's also our submission that Mr. Zundel is a danger to the
public given that he incites hatred and has used his web site to incite
hatred against minority groups and identified groups of people, including
Jewish people first and foremost, and others as well and it's also our
respectful submission that..I'm only dealing with this because I don't know
whether you're going to find the Section 58(1)(c) has been met.
It's also our respectful submission that he would not show
up for removal from Canada. While he would show up to attend the proceedings
that are held by the Immigration and Refugee Board, it's likely that he
would show up, he certainly wouldn't show up for removal from Canada.
His record in the United states belies any suggestion on his
part that he would show up for final steps were he removed from Canada as a
result of an admissibility hearing or even as a result of a failed refugee
claim.
The Minister, of course, is evaluating as to whether or not
to proffer a certificate under Section 77 of the Federal Court Act or
whether to proceed in relation to an admissibility hearing under Section 36
of IRPA and that evaluation is going on.
I would say in relation to the last witness that Mr. Zundel
called obviously he's a personal friend of Mr. Zundel and has been for some
years. As he admitted himself he's not someone who's detached and therefore
he's not really in a position to say whether or not Mr. Zundel is a racist
or whether his views are anti-Semitic or indeed whether or not they
constitute Nazism or neo-Nazism. He's not dispassionate. He's not objective
and he's not independent. Subject to any questions you may have those are my
submissions.
MEMBER: Mr. Fromm?
COUNSEL: Might I have just five minutes at this point of the
day.
MEMBER: Recess.
--- PROCEEDINGS RECESSED
--- PROCEEDINGS RESUMED
MEMBER: This review is now resumed. Mr. Fromm?
COUNSEL: Mr. Murrant, one of the terms that's being used
repeatedly by my friend is to invite you to consider the totality of
evidence the totality of the requirements of the Immigration Act and the
Section you particularly directed us to yesterday, 58(1), says, "The
Immigration Department shall order the release of a permanent resident or a
foreign national unless it is satisfied taking into account prescribed
factors that the Minister is taking necessary steps to inquire into a
reasonable suspicion that they are inadmissible on grounds of security or
for violating human or international rights."
So, in my respectful submission that also has to be read in
conjunction with Section 3..Section 3(d). "This Act is to be construed
and applied in a manner d) that ensures the decisions taken under this Act
are consistent with the Canadian Charter of Rights and Freedoms including
its principles of equality and freedom from discrimination and of the
equality of English and French as official languages."
In my respectful submission you are directed in your
application of this to take into account the protections and provisions of
the Charter which Section 11 of the Charter, "Anyone charged with an
offence has the right a) to be informed promptly of the specific offence, b)
to be tried within a reasonable time, c) to be presumed innocent until
proven guilty according to law in a fair and public hearing by an
independent and impartial tribunal and, d) not to be denied reasonable bail
except on grounds and in accordance with the procedures established by
law."
So, in my respectful submission it is not enough that the
Minister has indicated he may be continuing to investigate Ernst Zundel in
terms of whatever danger he might pose to national security. I think you
also have to look into the reasonableness of that and that's something I
wish to address, the reasonableness of the suspicion that Ernst Zundel
constitutes a threat to national security.
So I'd like to just review before I get to that what we have
presented. We brought before you yesterday a lady, Karen Kruger, who's
prepared to put up bail. She has put bail for Mr. Zundel on previous
occasions. We brought before you as well Gerhard Hass who's prepared to give
him a place to stay.
We did present a document this morning, but it was agreed by
my friend that he had no evidence that Ernst Zundel had not complied with
the numerous bail conditions, bails he had obtained in the past. My
recollection is it's close to a dozen different times he had received bail
from the courts in one case or another or in appeals, et cetera, and it was
to be..he indicated in his evidence and this was not disputed, that in every
one of these occasions he had complied with these conditions.
So, when my friend said it's likely if you were to grant him
bail that he would abscond and not fulfil the conditions that clearly is not
the record and one of the things that may assist you in this case, Mr.
Murrant...
MR. MACINTOSH: Excuse me, I don't want to interrupt my
friend but I think he's mis-characterizing what I said. I think what I said
was I was satisfied that he's shown up for court proceedings in Canada. I
didn't make any reference to the bail conditions.
MEMBER: Okay. Well, you'll be given an opportunity. I'll let
you reply. Let him finish first his submissions.
COUNSEL: Mr. Murrant, one of the things that might assist
you in this case is that unlike perhaps some of the individuals who come
before you who are very new to this country and perhaps may not even have
given you their right names, about who you know very little, Ernst Zundel
has been a public figure in this country at least going back to the time he,
in a chaotic fashion, contested the Liberal leadership in 1968.
Whatever else Ernst Zundel may be he is not a secretive
person. He has a document we were not able to bring before you this morning,
but I don't think I'm bringing it in the back door because it's been said by
other people as well, he is in some way a publicity seeker. I think he would
probably agree with. He's a publicist, a promoter of ideas, a person who
indicated to us in re-direct just before lunch that he's a person whose
tapes are out there on the internet. He's prepared to sell you a tape of his
speech.
His views and his activities are well known and he has a
record and part of that..I mean a public record, and part of that record is
that of a person who has diligently complied with the legal system, has gone
through the legal system, not of his own choice, but on a number of
occasions here in Canada. There is signing off with the denial of his postal
service. He fought that, got it back. Several go-rounds on the false news
charges, all the way to the Supreme Court. They were struck down. Several
attempts to charge him for hate propaganda. They came to nothing and various
other cases before the courts and every case Ernst Zundel sought to fight
for his rights within the legal system and through the legal system.
It's my respectful submission that should he be granted bail
and it seems to me that the rights of the Charter are paramount here. That
absent an overwhelmingly strong reason to keep him incarcerated his Charter
guaranteed rights are to be released and I show you this.
This is a pencil and in detention Thorold under the archaic
rules of the Ontario Justice system this what he has to write with. A stubby
pencil. He's not allowed to have a pen. If he were back in the Volunteer
State of Tennessee he'd be allowed to have a pen but not a pencil.
Now, I submit to you that this Board is on cruel and unusual
punishment (sic). He's a 64 year old man who has never had a history of
fleeing a jurisdiction, who has complied with numerous bails that he has
received over the years and he is trying to fight a legal case, actually a
complexity of cases. He's indicated there's cases in the United States,
there is an application for judicial review in the Canadian Human Rights
Tribunal case, there are several other aspects of this Canadian Immigration
case, yet he is expected to do that in solitary confinement in Thorold with
a pencil like this.
Now, I submit to you that absent overwhelming evidence of a
threat to national security that it violates his rights under the Charter to
keep him in jail with a stub of a pencil.
When this hearing began yesterday we were confronted with
the new and improved version of the summary report concerning Ernst Kristof
Freidrich Zundel and I undoubtedly don't have the experience of my friend,
but I have been involved in a number of Human Rights Tribunals and I must
say I have never seen a more biased, inflammatory document that purports to
be a report from an investigative body of the Canadian government.
In this four page report, not even quite four pages. In this
three and a half page report there are 18 mentions of either the..18 uses of
the word either Nazi or neo-Nazi. There are eight White Supremacists. There
are four anti-Jewish or anti-Semitic, six to racial and so on.
In my respectful submission these are loaded words. These
are not in most cases descriptions of fact. I questioned Mr. Stewart
yesterday as to whether the individuals that were, in some cases for
instance the Heritage Front, would identify themselves for instance as we
are a White Supremacist group. I was not quite clear what the answer was
there.
I asked him to his knowledge if Mr. Zundel identified
himself as I'm a neo-Nazi or I'm a White Supremacist and I think I got the
information that that was not the case. These are highly charged,
inflammatory terms. This is like 40 or 50 years ago a person who was in
favor of Medicare might be called a Pinko Commie. The suggestion was that he
was a follower of Karl Marx or Josef Stalin.
In truth, the term Commie could only be used if a man was
card carrying member of the party, but often in polemical debate people who
for instance were in favor of progressive social measures like Medicare were
denounced as Commies. Today, years have gone by, except in one or two places
in the world, Communism is no longer around but we now have similar
inflammatory terms that don't necessarily describe anything, but certainly
set up feat and barriers and I note that this is an incredibly hostile
report based, when push comes to shove, on two things, a 1981 Toronto Star
newspaper report and a 1993 The Fifth Estate television program.
Now, in my limited experience it is normal that the person
who is the author of the report would be the one who would be examined on
it. Now, this took some work, but it turned out that Mr. Stewart says he is
not the author of the report but he adopted it.
I asked him to comment on certain aspects of the report, as
to whether for instance being the patriarchal leader of the White
Supremacist Movement in Canada in fact was..in fact constitute a threat to
national security. He said he couldn't answer that. I was told he can't
answer that because he was not in a position to offer legal opinions. I
found that grotesque.
You see, because the CSIS Act, and he read us the definition
of threat to national security and the CSIS Act makes it quite clear and I'm
sure you'll recall that in the early 1980's the old Security Intelligence
Branch of the RCMP had become disgraced politically. There were allegations
that they had become almost a political police that would be involved in the
attempted theft of a Parti Quebecois membership list, that it had been
involved in the burning of some barns in rural Quebec and an attempt to lay
that at the foot of the Separatists and Parliament at that time decided it
was going to reorganize the way Canada would collect security intelligence,
deal with security intelligence.
A Civilian Board, a civilian organization named the Canadian
Security Intelligence Service was set up and Parliament, to reflect the
concerns at the time, made it quite clear what a threat to national security
was.
We know all the world governments, sometimes with the very
worst of intentions, invoke national security, to hide things, to imprison
people, to do underhanded or highhanded things, and Parliament at the time
wanted to make it quite clear what a threat to national security was.
It's not just anything that displeases the government of day
or politically inconvenient or even annoying. This is what it said and this
is what Mr. Stewart confirmed. A threat to nationals security is,
"Espionage or sabotage that is against Canada or detrimental to the
interests of Canada or b) foreign influence activities within or relating to
Canada detrimental to the interests of Candy, c) activities within or
relating to Canada in support of a threat or use of acts of serious violence
against persons or property for the purpose of achieving a political,
religious or ideological objective within Canada or a foreign state."
And I got at that time Mr. Stewart to..where is the rest of
it. I got Mr. Stewart to read the next paragraph which indicated and
Parliament was again quite emphatic about this that, "Non-violent
dissent and protest were not threats to national security."
So, it's against that background, Mr. Stewart, (sic) I want
you to assess the evidence here because you're being asked to determine
whether it's likely, not a certain fact, but whether it's likely that Ernst
Zundel poses a threat to national security and that the Minister is looking
into this.
To review the words again in 58(1), "The Minister is
taking necessary steps to inquire into a reasonable suspicion that they
are," I guess in this case Mr. Zundel, "is inadmissible on grounds
of security." So, a reasonable suspicion and I think that is what you
have to..that's what I submit you have to look at.
Now, we have all..anyway, I think I've fairly summarized
what came after the definition of a threat to national security. I'm sorry,
there it is. "But the threat to national security does not include
lawful advocacy, protest or dissent." "Does not include lawful
advocacy, protest or dissent."
As I indicated, this summary report is filled with
inductive. It's filled with characterizations other than facts and I found
in cross-examining Mr. Stewart that in some ways I was batting at a ghost
because on important questions of fact he was not able to give an answer.
For instance, for paragraph 4, the reference to the famous
Toronto Star article of March 25th, 1981, seizures of literature across
Germany, et cetera, et cetera, back on February 28th Mr. Zundel asked Mr.
Stewart did he know the disposition of these cases. He said he did not.
On March 31st I asked Mr. Stewart did he know the
disposition of these cases. He said he did not. Now, if he is indeed
adopting this report, having been alerted a month ago that there might be
something here worth further investigation, apparently in the intervening
month he did nothing.
Now, he was not the author of the report although on
questioning yesterday he indicated he had edited it because between the
report on the 28th and the report for the hearing yesterday we find that
Ernst Zundel's battle is no longer for the New World Order, but against the
New World Order.
Well, I would submit that Mr. Stewart's testimony completely
lacks credibility. In fact, on key matters in this report of which he
adopted he was simply ignorant of the facts. He testified a month ago, he
testified yesterday. He didn't know the disposition of these charges in
Germany. I submit to you that's incredibly important.
The Toronto Star report of February 25th, 1981 (sic), over
two decades ago, was a very inflammatory sort of thing. The article shows a
big picture of Ernst Zundel, neo-Nazi material, hundreds arrested and so on,
but you know, to make a determination you will want to know and then what,
what happened at the end of the day?
Well, what happened at the end of the day, as we pointed out
in the evidence this morning and as Mr. Zundel pointed out as well, what
happened at the end of the day was there were no charges and yet this aura,
neo-Nazi, hate propaganda and all the rest of it, is meant to stick to Mr.
Zundel. These inflammatory terms.
It's very much like a situation where there's a big
publicity that a number of individuals have been arrested on sex charges.
People are shown covering their faces, marched off to jail, and then six
months, nine months, a year later it turns out the charges are all dropped
and so on.
Mr. Zundel is being made to carry the burden of a highly
inflammatory news article from over 20 years ago and when at the end of the
day all the charges were dropped, or certainly any of the charges as
relating to him were dropped.
I come back to the question of what is likely to be a breach
of national security and the CSIS Act really helps us. I think because
there's been no submissions to the contrary, nobody is suggesting that Ernst
Zundel has been involved in espionage or sabotage, nobody seems to be
suggesting that he's being paid by some foreign power to do whatever it is
he does, it would seem that the only, the only twig on which the government
wishes to hang its accusations against Mr. Zundel would be Section 3,
"Activities within or relating to Canada directed towards or in support
of the threat or use of acts of serious violence against persons or property
for the purpose of achieving a political, religious or ideological objective
within Canada..sorry, within Canada or a foreign state" and that seems
to be theb urden of the conclusion of the CSIS report.
"Although Zundel is unlikely to resort to violence
himself he financially and ideologically supports militant White Supremacist
neo-Nazi groups," and it goes on to say, "There are reasonable
grounds to believe that he has supported groups and individuals who advocate
and use violence to achieve their objectives."
Now, Ernst Zundel has been under the microscope for well
over 20 years. I was able to establish from him this morning that as early
as 1981 he'd been told he'd been investigated by the Metropolitan Toronto
Police. He was visited by the RCMP when he visited for the Liberal
leadership in 1968.
Mr. Stewart was very coy and I was not allowed to pursue the
question as to how long CSIS has had an interest in him, but Mr. Stewart
indicate that he was known to them. Well, he's certainly well known to them
as we indicated from the book, Covert Entry, back in the mid-1990's that
CSIS was opening Mr. Zundel's mail.
So, Ernst Zundel's public record is well known. He indicated
that his speeches are available on the internet. His writings are widely
available. He sends his material all over the world and for at least the
last 20 or so years the police have been keeping an eye on him.
He's been before the courts on a number of different
occasions. What Ernst Zundel has said, what he advocates, is well known. He
told you repeatedly he is not a violent man. I asked him whether he
advocated violence. He said he had not. I said well during all those
provocations, your place was firebombed, there's a bomb left outside your
house, a bomb was sent to you and nearly blew up and killed you, you were
sent to prison on a number of occasions. On any of those occasions what did
you ask your followers to do. It all seems pretty mundane. Write their
Member of Parliament or in the United States write their United States
Congressman or protest or have a demonstration.
He never advocated it. Nowhere has anybody suggested that he
ever advocated to anybody go out and commit an act of violence and in my
respectful submission, absent that, there is no..sorry. It is not reasonable
to believe that Ernst Zundel advocates, supports the threat or the use of
serious violence against persons or property despite the fact that he's been
attacked on a number of occasions in ways that were quite lethal, bombs and
firebombs, he has never retaliated in this way.
And, I might suggest for your consideration, Mr. Murrant,
that unlike some other people who might come before you who may not have an
easily accessible record, the Canadian government has a record about Ernst
Zundel. What Ernst Zundel has said and done over the years, it's an open
book, and while indeed anything in this world is possible and the conclusion
here in the government's report is because of his neo-Nazi White Supremacist
connections, "There are reasonable grounds to believe that Ernst Zundel
would be in a position to influence his followers to commit acts of serious
violence in Canada."
Well, he might be in such a position, but that has not been
his past record and this is not speculative. It's not as though you were
being asked to imagine what he would do. He's been here before and he has
not done that. He has been in prison on a number of occasions awaiting
trial, he has not done that. He has had his home burned complete to the
ground, a library that took a lifetime to collect, has he..did he incite his
followers to act with violence? No, he did not.
So, in my submission you must look at the Section of the
Immigration Act, 15(1)(c), that uses the word reasonable. Is it reasonable
to believe that he will depart completely from all of his previous political
activities and turn to violence?
Well, I wold suggest with the public record that this man
has it is not reasonable to believe that because his past record indicates
he wants to fight this through the legal system and naturally were his
followers to resort to violence not only would his bail be cancelled, his
chances of any success before the legal system would be very, very much
reduced. This is just not this man's modus operandi. He does not operate in
this way and it is therefore unreasonable to pursue the allegation of being
a threat to national security.
I come back as well to the longstanding police surveillance
of Ernst Zundel. There's much we don't know. I'm sure you know the in-camera
session which again I want to register my objection to because it's contrary
to natural justice and it's further..it's a further indication of an
absolute poisonous ill-will between the Canadian Security and Intelligence
Service and Mr. Zundel.
This report is inflammatory, light on facts, long on
rhetoris, long on Nazi, neo-Nazi, White Supremacists. Ernst Zundel has told
you directly he is not a White Supremacist. He's indicated from his own
experience his relationship with other people of other colors and Reverend
Dr. Countess indicates what he knows of that. Whatever else Ernst Zundel
might be he is not a White Supremacist. This is all lumped together in this
inflammatory report.
Part of what I see as the actions of an organization that
every bit as much as the old Security Intelligence Branch of the RCMP is
becoming a political police that is absolutely out of control and the
evidence and my friend dismisses it as unsubstantiated, but the evidence is
there in a book widely circulated by a reputable publisher, that the
Security Intelligence Service, in addition to other activities, at least in
the case of Mr. Zundel was opening his mail and apparently had knowledge of
a bomb being sent to him and apparently did nothing.
I invite you to look at the very bad will that seems to
exist on the part of the Canadian Security Intelligence Service, to look at
this inflammatory document and a word of thought from an organization that
has a budget of several Mililani dollars, they would be able to produce
something more in keeping with what Sergeant Joe Friday used to ask for,
just the facts, Ma'am, just the facts. This is heavy on inflammatory terms
and very light on facts.
But let's assume that Ernst Zundel is a patriarch White
Supremacist. Let's assume for the moment that he is a distributor of
neo-Nazi, revisionist neo-Nazi propaganda. Let's assume that. Even if it's
true this does not make him a threat to national security because being a
White Supremacist thinking whatever that man..I can recall Mr. Stewart
indicated it meant you thought the white race was the greatest race and you
didn't like others, even if that were true that does not make him a threat
to national security.
That has nothing to do with advocating or practicing serious
acts of violence against persons or property. It has nothing to do with it.
Just because you might think you're better than others on the basis of race
has nothing..it doesn't cross the line into being a threat to national
security.
In fact, we're right back to something the CSIS Act says is
not a threat to national security, that is the lawful advocacy to protest or
dissent. Whether you're dissenting in a way people find popular or whether
you're dissenting with views a lot of people find repugnant that is
protected. That is not a threat to national security. Even if he is indeed
an anti-Semite or a neo-Nazi, and he denies. He says he's not a neo-Nazi.
Even if he were that is not a threat to national security.
That is not a threat. That is protected as lawful advocacy, protest or
dissent. Often at any given time the dissenters are seen by the mainstream
as the oddballs. I don't know whether Ernst Zundel's views are accurate or
all right or not, but dissenters all down through the ages when they first
come upon the scene often find themselves very unpopular, but unpopularity,
annoying people, getting on people's nerves or rubbing certain people the
wrong way that is not a threat to national security and that is what you're
being asked to decide. Not to make a final decision, but to decide whether
there are reasonable grounds for Ernst Zundel to be further investigated as
a threat to national security.
Now ,what the government may wish to do or not wish to do is
up to them, but in my humble submission it's dilatory on the part of the
government to continue to ask you to hold Ernst Zundel in prison, unable to
make an adequate defense, while they are supposedly continuing to
investigate.
In my humble submission, having watched him for many, many
years, and we're not privileged to know how many, but being the subject of
police investigations for many, many years the government surely knows all
there is to know about Ernst Zundel, either he advocates and practices
serious acts of violence against persons or property or he does not.
I suspect they know every bit as well as I know and I
suspect you, yourself, sir, know that Mr. Zundel does not. Whatever else he
is, he s is not a person who practices or advocates serious acts of violence
against persons or property. He was born a Seventh Day Adventist, he comes
out of a pacifist background, he testified he comes to Canada to escape
military service because he is a pacifist.
Whatever else he is, he would not seem reasonably to
constitute to national security and if he does not constitute a threat to
national security then he should not be cooling his heels in the Thorold
lock-up.
My friend cited a number of quotations from various..from
various decisions of the Supreme Court of Canada, in the Kikstra case and in
the false news case involving Ernst Zundel and a number of the things he
cited, the references he made, were to Section 319 of the Criminal Code, the
Hate Law, and how restrictions are on hate propaganda were justified. What
Mr. Justice Dixon for instance said in regards to that, but in my submission
that's irrelevant.
Ernst Zundel is not here before you as a person guilty of
violating Section 319 of the Criminal Code although there was talk and this
was gone over in examination yesterday. There was talk of charging Ernst
Zundel at various times, but the fact is he was never charged under Section
319 and he has never been convicted.
What my friend is trying to do is to slide the abusive terms
in under what is much more narrowly defined in the Criminal Code as hate
propaganda. In political (inaudible) today hate is any strong opinion of the
other guy which you don't agree with, but under Canadian law, under Section
319 of the Criminal Code, it's very narrowly and carefully defined and there
are defenses against the charge of hate.
In my submission this is..the quotations from the Supreme
Court, from Mr. Justice Dixon and I believe also from Madam Justice
MacLaughlin in terms of Section 319 are largely irrelevant because Ernst
Zundel is not and has never been charged with the willful dissemination of
hate propaganda in Canada and the other places in which the term hate are
used require a far lower level of evidence.
Under the Canadian Human Rights Act one doesn't have to
willfully promote hate, the communications need only be repeated and likely
to expose to hatred or contempt and we have a long list of privileged
groups. Likely, and of course likely is a very vague terms. It's not just
hatred, it could be contempt, and becomes a very, very broad and loose
concept.
So, the defenses of hate propaganda legislation offered by
my friend don't apply to that at all and our international obligations don't
apply whatsoever to that.
Furthermore, at least Mr. Zundel indicated, that the laws of
Germany are even broader and there are fewer defenses and I'm not sure if I
just mentioned this, but under the Canadian Human Rights Act a charge under
Section 13(1) does not allow or at least jurisprudence thus far is that it
does not allow the defendant to use the defense of truth.
Mr. Zundel has never been charged under Section 319 of the
Criminal Code, so the comments on that score are really not helpful, in my
submission.
I'd like to draw your attention if I might to a couple of
statements made in the same Book of Authorities that the Crown has tendered
and the first is from the decision in the Crown versus Kikstra and these are
the remarks by Madam Justice, now Chief Justice MacLaughlan and it's on page
798.
Reading from about two-thirds of the way down the long
paragraph there, "In Kiran J.A.'s (ph) view, nothing in the Charter
suggests a legally enforceable orthodoxy in manners of expression. On the
contrary, our commitment to the marketplace of ideas precludes us from
presuming that promote hatred will be successful implementing it among the
majority of Canadians."
I find that comment perhaps helpful to you because a lot of
inflammatory terms have been used about Ernst Zundel, many of which we would
challenge, maybe not al, but terms like anti-Semite, hate propaganda,
neo-Nazi, Nazi, White Supremacist, the understanding of Madam Justice
MacLaughlan here is that there is not to be a legally enforceable orthodoxy
in manners of expression.
So, as reprehensible as many might find some of the views
that Ernst Zundel has expressed, the fact that he may march to a different
drummer, the fact that these views may not be orthodox or politically
correct, does not make them illegal and certainly does not make him a threat
to national security because we pinch ourselves once again, in my respectful
submission, threat to national security would have to be the practice of
advocacy of serious acts of violence against persons or property and Ernst
Zundel has never done that and there's certainly no evidence tendered by my
friend that he has.
Now, I draw your attention to a comment a little farther on
in Crown versus Kikstra and it's a comment by Madam Justice MacLaughlan and
it's on page 829. At the bottom of the page, "While many may find Mr.
Kikstra's ideas unsettling it is not suggested that they are made with the
intent or have the effect of compelling Jewish people or anyone else to do
one thing or another, nor do they urge violence against the Jewish
people."
This was the context in which threat was used in delivery.
"Mr. Kikstra's communications were offensive and propagandistic but
they do not constitute threats in the legal sense of the word."
It's my submission that the CSIS summary seeks to perform a
segue from views that they characterize as White Supremacist or neo-Nazi and
to violence. There's been no contrary submission and it's certainly been Mr.
Zundel's evidence and his political record that he has never practiced or
advocated violence and MacLaughlan, Madam Justice MacLaughlan here is
suggesting that even though some statements might even be hateful they do
not constitute a threat of violence.
If I may draw your attention further on that..no, that's the
page. That's the same page. If I may draw your attention to the judgement of
the Supreme Court that my friend alluded to and this was the Crown versus
Ernst Zundel. This was the final disposition of the false news charges and I
say the false news law and that's at tab 2. At the bottom of the page...
MEMBER: Sorry, which page?
COUNSEL: This is page 732. Once again the reminder of the
important of freedom of expression. Pierre Lafourieux (ph), Larue Dubay
(ph), Sapinka, MacLaughlin, "Section 181 of the Code infringes the
guarantee of freedom of expression. Section 2(b) of the Charter protects the
right of a minority to express its view, however unpopular it may be."
I might say as an aside that Ernst Zundel indicated that his
motivation was to protect the reputation or to salvage the reputation of the
German people and tried to say that obviously they're a minority in Canada.
"All communications which convey or attempt to convey
meaning are protected by Section 2(b) unless the physical form of which..by
which the communication is made, for example, a violent act, excludes
protection. The content of the communication is irrelevant. The purpose of
the guarantee is to permit free expression to the end of promoting truth,
political or social participation and self-fulfillment. That purpose extends
to the protection of minority groups which the majority regards as false or
wrong." That might well be the case with Ernst Zundel
"Section 181 which may subject a person to criminal
prosecution, conviction and potential imprisonment because of the words he
published has undeniably the effect of restricting freedom of expression and
therefore imposes a limit on it."
Now, I know my friend will argue that freedom of speech and
expression are not totally open-ended and unlimited, that certainly has been
the judgement in certain other cases before the Supreme Court of Canada,
nonetheless they are important rights and whether one agrees with Mr.
Zundel's views or not, these views do not constitute a threat of violence.
They do not constitute violence. They may be unpopular, but they certainly
do not constitute reasonable grounds to see him as a threat to national
security and I think this hearing hinges on that term, reasonable.
Are there reasonable grounds to continue to deny him his
freedom, and the Charter indicates that's a very important right. CSIS says,
well we're investigating and in my respectful submissions CSIS has been
investigating for years. Various other police agencies on various occasions
have investigated.
I asked Mr. Stewart yesterday to read from the 1993
transcript of The Fifth Estate program about the various allegations of
Ernst Zundel being involved with putting out hate propaganda and he read and
it was his testimony though certainly does not appear in the report, but
after all the efforts by various Canadian police forces there were never
grounds to charge Ernst Zundel with an offence under the Criminal Code.
So, while his views may be reprehensible to many he is
certainly not in violation of the..sorry. He does not seem on reasonable
grounds to constitute a threat to national security and it's my submission
that this vague accusation is being held over his head to keep him in
detention and I think perhaps all of us in North America experienced a
reality check on September 11th, 2001.
I ask you, Mr. Murrant, or it's my submission to you that
after September 11th I think most of us have a fairly clear idea what a
threat to national security is. It's buildings going boom. Airplanes going
boom. People getting shot.
It's not a 64 year old publisher with the stub of a pencil
and if I might share with you a thought I had last night. I don't think
anybody remembers the name of the judge in Dublin who in the spring of 1916
sentenced some people to death, but everybody remembers the name of Patrick
Pearson (ph).
MEMBER: Mr. MacIntosh, any reply?
MR. MACINTOSH: Yes, thank you. First of all, contrary to
what Mr. Fromm said, there's no Charter right to be released. If the law
were as simple as that there would be no need for judicial interim release
hearings under the Criminal Code and there would be no need for hearings
pertaining to detention or release under the Immigration Act. The law is a
far more textured complex instrument than that.
Secondly, with respect to Mr. Fromm has said Mr. Zundel is a
publicity seeker. I quite agree. That's all the more reason that he wouldn't
comply with any terms and conditions which you set with respect to release.
That is all the more reason why he didn't comply with the terms and
conditions of the Human Rights Commission. Because he's a publicity seeker
and because his goal has never deviated and his goal is, in my respectful
submission, to engage in activities which could be objectively regarding as
inciteful (sic) of hatred against particular groups of people, first and
foremost Jewish people.
Secondly, Mr. Fromm said that oh well, the fact that certain
members of the Heritage Front or other organizations don't consider
themselves to be a Nazis or White Supremacists or neo-Nazis, Mr. Zundel
doesn't consider himself to be a Nazi, a neo-Nazi or a racist.
That is not determinative of the issue. There are some
people who neo-Nazis or Nazi or racists who would never consider themselves
to be racists. Their views are so extreme they're not subject to any
reasonable analysis. Whether someone is a racist or not does not depend on
the lens of the racist. There's an objective standard for judging whether or
not someone is a Nazi or neo-Nazi or incites hatred.
My friend is proceeding as though this is all subjective.
There's no objectivity to it. There is objectivity to it. There are
reasonable grounds. It's not simply subjectivity with no objective basis.
Now, my friend has commented on Section 2(c) of the CSIS Act
and Section 2 of the CSIS Act generally. Let me point out that the CSIS Act
clearly says you can use lawful advocacy protects or dissent, but you can't
use that in conjunctions with the activities that are set out in Section
2(c).
So there's limits as I've demonstrated by referring to
Kikstra and Zundel. There are limits to freedom of expression. So my friend
talks about Section 2 of the Charter that's quite right, but the Charter has
to be judged in its totality and is subject to reasonable limits.
Freedom of expression is subject to reasonable limits as
evidenced by Section 1 of the Charter and that's why the constitutionality
of the hate propaganda provisions were upheld under Section 1 of the
Charter, because freedom of speech is not absolute. One doesn't have the
right to incite hatred against a particular group of people with the
intention that others would act on that hatred.
Now, Mr. Fromm said that Mr. Stewart's testimony was not
credible and trustworthy and he made certain what I would call picayune
comments about the testimony in relation to his failure to know whether
there had been a conviction in 1981 or what had happened in respect of the
conviction.
That is a patently ridiculous suggestion that his testimony
is not credible and trustworthy. His testimony is absolutely credible and
trustworthy, particularly when it's looked at objectively in its totality.
He was extremely forthright and not only was he forthright,
he answered in an intelligent fashion and demonstrated a tremendous capacity
and knowledge of affairs pertaining to Mr. Zundel and to the record in
relation to Mr. Zundel and indeed, the record of various White Supremacist
groups that he dealt with in his testimony.
I would point out that my friend has taken the position that
the Kikstra case and the Zundel case really don't have any relevance. That
they deal with matters under the Criminal Code. That's a very narrow reading
of those cases. Those cases are broad and overarching significance. They
deal with the intersection of international law and Charter law. They're not
simply confined to the Criminal Code and International Conventions were
cited in that, in those cases, the International Covenant of Civil and
Political Rights deals with the intersection of national security as I
pointed out in those clauses and human rights.
Furthermore, when my friend attempts to limit the definition
of danger to the security of Canada in the CSIS Act the CSIS Act is only a
starting point for what constitutes danger to the security of Canada. Danger
to the security of Canada has to be read out in conjunction with what is set
out in the Immigration Act and what is set out in relation to the common law
and international law interpreting that threat.
Mr. Zundel's testimony has provided ample grounds for the
government's investigation as to whether he constitutes a danger to the
security of Canada.
Now, Mr. Fromm stated that I had stated to you that Mr.
Zundel had complied with all bail conditions with respect to his various
offenses under the Criminal Code. That's not what I stated in my respectful
submission.
What I stated was that he had appeared. That's a very
different thing. I don't know what the terms of the bail conditions were and
whether or not he complied. I can't say that he didn't comply and I can't
say that he did comply. I just don't know. We don't have all those bail
conditions here and that would require investigation..evidence by police as
to whether or not he complied.
Mr. Stewart's testimony was credible and trustworthy indeed
when one considers the totality of evidence. The evidence is replete with
examples of what it is that there are reasonable grounds to believe that Mr.
Zundel's activities constitute a danger to the security of Canada. Thank
you.
MEMBER: I'm going to adjourn to try and make a decision.
Recess.
--- PROCEEDINGS RECESSED
--- PROCEEDINGS RESUMED
MEMBER: This detention review is now resumed. What I've had
to resolve at this detention review is whether or not I'm prepared to make a
Release Order for Mr. Zundel or whether or not he should be detained
pursuant to 58 of the Immigration and Refugee Protection Act.
Specifically, I've looked at 58(1)(c) which reads, "The
Immigration Division shall order the release of a foreign national unless it
is satisfied that the Minister is taking steps to inquire into a reasonable
suspicion that they are inadmissible on grounds of security."
Mr. Stewart, who is a CSIS Officer, testified at this
hearing that CSIS, along with the Citizenship and Immigration Commission are
in the process of compiling a report that will be presented to the Minister.
He stated that the gathering of this information for the
report is presently ongoing and that because of the volume of material that
is involved it is taking some time to get that report before the Minister.
I am satisfied that the Minister is taking steps to inquire
into the reasonable suspicion. Now, I don't think there's much doubt that
CSIS and the Immigration Commission are taking steps. There's no doubt, I
believe, that the Department is actively carrying on an investigation or a
compiling of information that they wish to put before the Minister in order
to..in order that the Minister can determine if you are inadmissible on
grounds of security.
So, the first portion of that Section, taking necessary
steps, in my opinion has been met.
The second portion that I have to look at is, is there a
reasonable suspicion that Mr. Zundel is inadmissible on grounds of security.
The test, reasonable suspicion, is an extremely low test. It is less than
the balance of probabilities. It is less than on reasonable grounds to
believe.
A suspicion is defined in Black's Law Dictionary as, "A
belief or an opinion based on facts or circumstances which do not amount to
proof." I am asked to order the continued detention of Mr. Zundel
because the Minister believes that there are grounds that he would be found
inadmissible to Canada on security, for security grounds.
In support of their request they're stating that they have
presented to me, both in a private hearing, an ex parti hearing and at this
review, reasonable..a reasonable suspicion.
Now, a reasonable suspicion is not proof of what they say,
but a concern that they hope and hope that some time they will be able to
present all of the evidence to prove that suspicion.
In support of their concern they have relied on, among other
things, the conviction in 1991 of Mr. Zundel in Germany for inciting racial
hatred. They have relied on excerpts of a CBC Fifth Estate program that took
place in February of 1993 and Mr. Stewart has outlined in great detail what
their concerns were that arose from that when he was a witness here.
They have pointed out that they have concerns that have
arisen from the 1993 article in Search Light where it was reported that Mr.
Zundel was one of the six most important distributors of revisionist
material in Germany and that he was a very important link as his material
brought together the hard line of the neo-Nazi fringe and those would be
seek to be more respectable, such as academics and revisionists.
They have presented me or turned over to me the decision of
the Minister of Citizenship and Immigration, the Honorable Sergio Marchi, a
decision of the 2nd of August 1995, wherein the Minister then stated,
"Pursuant to Subsection 19(2) of the Citizenship Act the undersigned is
of the opinion that there are reasonable grounds to believe that Ernst
Kristoff Freidrich Zundel will engage in activity that constitutes a threat
to the security of Canada in that he has been associated with and has
supported groups of individuals and may engage in acts of serious violence
in the furtherance of political objectives."
Mr. Stewart has testified that Mr. Zundel has been linked to
groups that espouse hatred and engage in acts of violence and specifically
I've been referred to the Heritage Front and the B.N.P.
The Human Rights Commission had indicated that they believe
that Mr. Zundel is the person ultimately responsible for the web site,
Zundel Site, and the Immigration Department has presented Exhibit 11 which
is titled, Mirrors of the Zundel Site, and they have indicated that portions
of that site cause them concerns.
We have had presented at this review the document marked as
DR number 7, a document roduced by Ingrid Zundel and as pointed out on page
11 there s a statement, "He" referring to Mr. Zundel, "felt
that a genuine American cop had done a superb job and that he, Ernst, had
dispelled any ridiculous and informed notion that he had connections to
international terrorism" and as pointed out by the counsel for the
Minister this is one more area now that the Minister will have to
investigate to determine exactly what, if anything, there is in connection
with any concerns that the United States government may have had about Mr.
Zundel and any connection he may have had with international terrorism.
I am satisfied that I've heard sufficient information, both
at this detention review and the ex parti review, to believe that the
conclusion stated at the end of Exhibit 1, specifically paragraph 17 and 18,
are reasonable conclusions and they are that, "There are reasonable
ground to believe that Mr. Zundel has supported groups who advocate and use
violence to achieve other objectives," and "A consequence of his
participation, involvement and support of the neo-Nazi White Supremacist
Movement in Canada, there are reasonable grounds to believe that Mr. Zundel
has been and would be in a position to influence followers to commit acts of
serious violence in Canada or abroad."
What I want to go back to once again is the test that I see
here. The test is, is the Minister taking necessary steps to inquire into a
reasonable suspicion. There is no doubt they are taking steps and I am
satisfied they are reasonable and when we're talking about a reasonable
suspicion we're not talking about true. We're talking about a concern the
government has and they want time to investigate and I see no reason not to
believe that the Minister has a reasonable suspicion that Mr. Zundel may be
inadmissible on grounds of security.
I'm therefore ordering his continued detention and will not
make an order for his release. Having made that decision I intend to set the
next detention review for the 2nd of May unless there's any objections. That
being the case this review is concluded.
--- PROCEEDINGS CONCLUDED
I HEREBY DECLARE THAT THIS IS A TRUE TRANSCRIPT OF THE TAPE
AND THAT I HAVE SWORN THE OATH OF SECRECY
______________________________________ Barb Strachan
94031539
FOR XL TRANSCRIBING
April 7, 2003
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Write to Canada's Immigration Minister and complain
over the unfair treatment Ernst Zündel has received.
Immigration Minister Denis Coderre
House of Commons
Parliament Buildings
Ottawa, Ontario
K1A 0A6
Telephone: (613) 995-6108
Fax: (613) 995-9755
Email: Coderre.D@parl.gc.ca |
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