The Zundelsite - Federal Court ruling allowing for secret hearings in the Zündel case, signed by Justice Pierre Blais

Court File No. M74-03

SUPERIOR COURT OF JUSTICE TORONTO REGION

IN THE MATTER OF ERNST ZUNDEL, detained on the 19th day of February, 2003; and the 1st day of May, 2003; pursuant to the Immigration and Refugee Protection Act, as an alleged threat to the security of Canada,. Contrary to the Immigration and Refugee Protection Act, section 77(1), and presently in the custody of Toronto West Detention Centre,

AND IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM, AND FOR A WRIT OF CERTIORARI IN AID THEREOF,

B E T W E E N:

ERNST ZUNDEL

Applicant

and

HER MAJESTY THE QUEEN

Respondent

_____________________________________________________________________

APPLICANT'S FACTUM

_____________________________________________________________________

PART 1 - STATEMENT OF THE CASE

1. Mr. Zundel is an unpopular 64 year old permanent resident of Canada with no history of violence, no criminal record and no outstanding criminal charges against him in Canada. A certificate has been issued by the Minister of Citizenship and Immigration and the Solicitor General of Canada certifying Mr. Zundel to be a danger to the security of Canada. As a result, there are ongoing proceedings before Mr. Justice Blais of the Federal Court of Canada (Trial Division) to determine whether the certificate is reasonable. If it is found to be reasonable, Mr. Zundel will be deported to Germany and likely jailed for denying the Holocaust. While the proceedings before Mr. Justice Blais have dragged on for many months, Mr. Zundel has been jailed in solitary confinement at the Toronto West Detention Centre. The appropriateness of his detention has not even been determined. Mr. Zundel herein challenges, by way of application for a writ of habeas corpus ad subjiciendum and for a writ of certiorari in aid thereof, the constitutionality of sections of the Immigration and Refugee Protection Act (the "Act"), S.C. 2001, C. 27 (as amended), under which (a) the certificate was issued (b) he was arrested and (c) the proceedings before Mr. Justice Blais are occurring.

2. This case is about much more than the notorious Mr. Zundel. The very serious and important question to be answered in this case is as follows: In these times of prevalent concerns about security and terrorism, to what degree will we undermine our most cherished principles of fairness and justice in our free and democratic society in order to allegedly protect society from perceived threats? Will we ensure that such principles are undermined as little as reasonably possible?

3. The Former Chief Justice of the United States Supreme Court, Earl Warren, eloquently expressed the same kind of concern about undermining cherished principles of fairness and justice which is now raised on behalf of Mr. Zundel. Chief Justice Warren wrote during the Cold War about the threat of communism, the protection of "national defense" and undermining "freedom of association", as follows:

Implicit in the term "national defense' is the notion of defending those values and ideals which set this Nation apart. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one those liberties -- the freedom of association -- which makes the defense of the Nation worthwhile.

United States v. Robel (1967), 389 U.S. 258 at 264 (U.S.S.C.)

PART 2 - THE FACTS

4. Mr. Zundel is a 64 year old permanent resident of Canada who started living in Canada in 1958.

Affidavit of Ernst Zundel, paragraph 2 Consolidated Record of Ernst Zundel, Vol. 1, tab D, page 34 Compendium, tab 1

5. Since coming to Canada in 1958, Mr. Zundel has never been involved in any violence. Mr. Zundel has no criminal record in Canada and faces no outstanding criminal charges in Canada. Mr. Zundel has faced repeated unsuccessful prosecutions for expressing his unpopular views about the Holocaust. He has received death threats. There have been documented attempts to kill him, including an incident in which his house was largely destroyed by arson and an incident in which a pipe bomb was sent to him in the mail. In the arson incident, witnesses saw a man carry a red gas can to the front of Mr. Zundel's home and set the fire. In the bombing incident, the Toronto Sun reported that "On May 15, [1995], Zundel received a bomb with a Vancouver return address. Police exploded the device - which was packed with shrapnel - at the Leslie Street spit." On March 19, 1997, in a 63 page information to obtain a search warrant, Constable Warren Ryan of the RCMP in British Columbia swore that he had reasonable grounds to believe that Darren Thursan and David Barbarash were guilty of trying to murder Mr. Zundel in May 1995 by mailing an explosive device to him. Messrs. Thursan and Burbarash were not charged with attempted murder. Mr. Zundel has also been the victim of other harassment and mistreatment for many years, based on the unpopularity of his views. His one time lawyer, now Her Honour Judge Lauren Marshall, received death threats while representing Mr. Zundel, including a telephone threat made to her 7 year old child that "If your mommy goes to court, she'll be killed."

Affidavit of Ernst Zundel, paragraphs 4-49 Consolidated Record of Ernst Zundel, Vol. 1, tab D, pages 35-49 Compendium, tab 2

Toronto Sun Article, Exhibit 23 to Zundel Affidavit Consolidated Record of Ernst Zundel, Vol. 1, tab 23, page 139 Compendium, tab 8

Information to Obtain a Search Warrant, Exhibit 31 to Zundel affidavit Consolidated Record of Ernst Zundel, Vol. 1, tab 31, page 213 Compendium, tab 10

Toronto Sun Article, Exhibit 24 to Zundel Affidavit Consolidated Record of Ernst Zundel, Vol. 1, tab 24, page 141 Compendium, tab 9

Toronto Sun Article, Exhibit 3 to Zundel Affidavit Consolidated Record of Ernst Zundel, Vol. 1, tab 3, page 56 Compendium, tab 6

6. In about 2002, Mr. Zundel moved to the United States. Mr. Zundel was later deported back into Canada by the United States on February 19, 2003, on the alleged grounds that he had missed an immigration appointment. In fact, he had not missed an appointment and his American lawyer had been trying to reschedule the appointment due to a scheduling conflict for the lawyer, when Mr. Zundel was arrested. There was no allegation that Mr. Zundel had been involved in any illegal or terrorist activities in the United States or elsewhere.

Affidavit of Ernst Zundel, paragraphs 49- 50 Consolidated Record of Ernst Zundel, Vol. 1, tab D, page 46 Compendium, tab 3

Testimony of Bruce Leichty (Zundel's U.S. lawyer) Transcript of Proceedings on July 28, 2003, pages 438-9, 451, 478 Compendium, tab 19

7. The Minister of Citizenship and Immigration (the "Minister") detained Mr. Zundel in custody from February 19, 2003 until May 1, 2003, when the Solicitor General of Canada (the "Solicitor General") and the Minister signed a certificate (the "Certificate") declaring Mr. Zundel, a permanent resident of Canada, as inadmissible to Canada on grounds of security for reasons described in paragraphs 33 and 34(1)(c), (d), (e) and (f) of the Act.

Certificate dated May 1, 2003 Respondent's Motion Record, Volume 1 of 6, tab A, page 10 Compendium, tab 16

8. On May 1, 2003, the Solicitor General and the Minister also issued a warrant under section 82(1) of the Act for the arrest and detention of Mr. Zundel, a permanent resident, named in the Certificate.

Warrant dated May 1, 2003 Respondent's Motion Record, Volume 1 of 6, tab B, page 12 Compendium, tab 17

9. The Honourable Mr. Justice Pierre Blais, P.C. of the Federal Court of Canada (Trial Division) thereafter began proceedings reviewing the reasonableness of the Certificate pursuant to sections 77(1), 78 and 80 of the Act.

Transcripts of (Public Part of ) Proceedings starting on May 9, 2003

10. The proceedings before Mr. Justice Blais have taken place on a number of dates, including May 5, 2003 (in the absence of Mr. Zundel and his counsel), May 9, 2003, May 16, 2003, July 28, 2003, July 29, 2003, July 30, 2003, early September, 2003 (in the absence of Mr. Zundel and his counsel), September 23, 2003, September 24, 2003, November 6, 2003 and November 7, 2003 and are not yet completed.

Transcripts of (Public Part of) Proceedings starting on May 9, 2003

Transcript of Proceedings on May 9, 2003, page 6 (refers to examination of information in private on May 5, 2003 in the absence of Mr. Zundel and his counsel) Compendium, tab 18

Transcript of Proceedings on September 23, 2003, page 1007 (refers to proceedings in early September, 2003 in the absence of Mr. Zundel and his counsel.) Compendium, tab 26

11. The review of Mr. Zundel's detention pursuant to section 83 of the Act has been considered on the above dates by Mr. Justice Blais, and has stretched on for more than six months without any determination about his detention (or possible release on bail) being made. (It is interesting to note that from about 1985 to 1992, Mr. Zundel was on various bail orders for his "false news" case and followed all of those orders.) The evidence has been concluded on the detention issue as of November 7, 2003. The defence made its submissions on that date, immediately after the conclusion of the evidence. The Crown asked for and received an adjournment of over one month to December 10, 2003, to make its submissions on the continuing detention of Mr. Zundel. By that date, Mr. Zundel will have been in custody for almost ten months without charge.

Transcripts of Proceedings on November 7, 2003

Affidavit of Ernst Zundel, paragraph 23 and 25 Consolidated Record of Ernst Zundel, Vol. 1, tab d, pages 39 and 40 Compendium, tab 2

Bail Orders, Exhibit 16 to Zundel Affidavit Consolidated Record of Ernst Zundel, Vol. 1, tab d, pages 113-123 Compendium, tab 7

12. Mr. Justice Blais has effectively merged the detention review into the Certificate review, by continuing the review for over six months, by directing that the evidence at the detention review will apply to the certificate review and by predicting that it should take a very short time to finish the certificate review after the lengthy detention review.

Transcript of Proceedings on July 29, 2003, pages 620 and 770 Compendium, tab 22

Transcript of Proceedings on September 23, 2003, page 992 Compendium, tab 25

Transcript of Proceedings on November 7, 2003

13. Mr. Zundel has remained and still remains in custody for many months in solitary confinement at the Toronto West Detention Centre as the proceedings before Mr. Justice Blais continue. Mr. Justice Blais has expressed the view that the Act requires that he must resolve the detention issue within six months, but his Lordship has not done so.

Transcript of Proceedings on November 7, 2003, pages 1506-1507 Compendium, tab 31

14. The "evidence" presented by the Minister and the Solicitor General at the proceedings before Mr. Justice Blais consists of 5 volumes mainly of newspaper articles, other articles, website printouts, and similar materials written by people not called by the Minister or the Solicitor General as witnesses. Most of this "evidence" is unsworn hearsay which is not subject to cross-examination. Interestingly, the Minister and Solicitor General successfully objected when Mr. Zundel called a witness and the witness, who was sworn and subject to cross-examination, referred to hearsay. In particular, when Mr. Zundel's U.S. lawyer testified about the U.S. efforts to deport Mr. Zundel, the following exchange occurred:

Q. In your experience, is it a common practice to do what was done in this case?

A. In my experience it is abnormal. I have never seen a case like it. In my own experience I have done these rescheduling requests a number of times, and they have always been re-calendared. I have spoken with INS officials about this, and they have told me the same thing, that the typical procedure...

MR. MACINTOSH: I object. That is hearsay.

THE COURT: Sustained.

Transcript of Proceedings on July 28, 2003, page 451 Compendium, tab 20

Respondent's Materials on this Application (which reproduce the 5 volumes filed in the Federal Court)

15. At times, the source of the documents in the 5 volumes presented by the Minister and the Solicitor General has not even been explained to the Court. For example, on September 23, 2003, counsel for the Minister was cross-examining Mr. Zundel about a document. The Court asked counsel about the source of the document and did not get an answer. Instead, counsel simply continued questioning Mr. Zundel about other matters, as follows:

MR. MACINTOSH: First of all, in my respectful submission, on a number of occasions the witness has attempted to control what questions can be asked of him. If his counsel has an objection, his counsel should give the objection, not the witness, in my respectful submission.

THE COURT: You are right, but so far Mr. Zundel has responded to a lot of questions and he is entitled to know to what extent and what document when you are referring to something. I think that is fair. You know those documents, and he knows them, but he doesn't have the same knowledge. He read it later, but he cannot remember it by heart.

I don't want arguments between the witness and counsel. I want to make sure that there are questions and answers, and that's it. I think Mr Zundel knows that. Sometimes I have told him not to argue, but he also has the right to know what the question is and what the reference is.

By the way, you did not mention to me where this document comes from. I don't know what ADL is. Sometimes we know what a document is and sometimes we don't know. I don't know what this is. Mr. Zundel seems to know more about who wrote it than about what was written. That is my understanding. ADL Law Enforcement Agency Resource Network -- what does that mean?

MR. MACINTOSH: (Q) I am not sure you really answered my question, and in fairness to you, I will ask you a simple question, Mr. Zundel.

Apart from this document, I put it to you that the Aryan Nations is prepared to use violence to create a racial state. Do you agree or not?

A. I have never seen the newsletter "Call to the Nation"/ To answer your initial question, I don't know. Some members...(emphasis added)

Transcript of Proceedings on September 23, 2003, pages 1149-1151 Compendium, tab 28

16. The quality of the evidence in the documents sometimes goes like this:

Mr. Zundel allegedly had "sporadic contacts" with a now-dead U.S. based white supremacist named William Pierce (date, time, place and nature of contacts unspecified). Pierce wrote a book called "The Turner Diaries" (no suggestion that Mr. Zundel had anything to do with writing the book). Timothy McVeigh loved "The Turner Diaries", which it supposedly describes a bombing similar to the Oklahoma city bombing in 1995, for which McVeigh was convicted (no evidence that Mr. Zundel ever had contact of any kind with Mr. McVeigh). This supposedly links Mr. Zundel to violence or terrorism.

Summary Summarizing Information and Evidence, Exhibit 4 to Simon Lee affidavit Consolidated Record of Ernst Zundel, Vol. 2, tab 4, pages 490 and 491 Compendium, tab 13

Transcript of Proceedings on July 28, 2003, pages 511-517 Compendium, tab 21

17. The majority of the proceedings before Mr. Justice Blais has consisted of a lengthy cross-examination of Mr. Zundel, which could be described as "wide-ranging". That cross-examination took up part or all of the following dates: July 29, 2003, July 30, 2003, September 23, 2003, September 24, 2003, November 6, 2003 and November 7, 2003. Among the many different topics discussed were far-ranging things such as Mr. Zundel's view of Adolf Hitler's view of interracial couples, which Mr. Justice Blais indicated was an important question, as follows:

Q. Do you agree with Hitler's views pertaining to mixing of races, for example interracial couples? What is your view on interracial couples, Mr. Zundel?

MR. CHRISTIE: Really, my lord, I have been fairly patient, but this is a bail hearing. I just heard the question: What is your view on interracial couples? What does that have to do with flight risk, a danger to the security of Canada or anything to do with bail? I am really struggling with this, and I object to it.

THE COURT: I take your point, but I think it is important to know where Mr. Zundel stands on it, because it is difficult to follow. It was very straightforward question. "We love him because he kept our entertainment media free of the perversion of race-mixing and race-suicide." "Stars Encourage Mongrelization By Marrying Asiatics." The next picture is Rothschild giving an award to Martin Luther King, with a comment there.

What it means is that it is a book prepared by Mr. Zundel. Mr. Zundel has put some pictures of Mr. Adolf Hitler with comments here and there, and he is asking whether Mr. Zundel shares Mr. Hitler's view on that. I think it is a straightforward and important question. He asked for precision and he got it. I think the question is acceptable.

Transcript of Proceedings on July 29, 2003, pages 765-766 Compendium, tab 23

18. No vive voce or affidavit evidence has been presented by the Minister or the Solicitor General in the public part of the proceedings before Mr. Justice Blais.

Transcripts of (Public Parts of) Proceedings starting on May 9, 2003

19. Information and/or evidence has been secretly presented to Mr. Justice Blais in the absence of Mr. Zundel and his counsel, which information and/or evidence may be used according to the Act to determine both whether Mr. Zundel should continue to be detained and whether the issuing of the Certificate was reasonable.

Section 78(e) and (h) of the Act Schedule "B" hereto

20. Where secret information and/or evidence has been presented to Mr. Justice Blais, sometimes a summary has been given to Mr. Zundel and his counsel and sometimes no summary of the information and/or evidence has been made available to Mr. Zundel and his counsel, even though the information and/or evidence may be used according to the Act both to determine whether Mr. Zundel should continue to be detained and whether the issue of the certificate is reasonable. The Order for Confidentiality of Information of Mr. Justice Blais dated May 5, 2003 stated, with respect to certain evidence, the following:

"It is determined that the information is relevant but should not be disclosed to Ernst Zundel, his counsel or to any other person on the grounds that disclosure would be injurious to national security or to the safety of persons. Pursuant to section 78(g) of the Act, the information will not be summarized in the Statements Summarizing the Information and Evidence to be provided to Ernst Zundel pursuant to section 78(h) of the Act."

Exhibit 5 to Simon Lee Affidavit Consolidated Record of Ernst Zundel, Vol. 2, tab 5, pages 499-500 Compendium, tab 14

Another Order of Mr. Justice Blais dated May 5, 2003 directed that information or evidence be heard in the absence of Mr. Zundel and his counsel and some such information not be disclosed and some be disclosed by way of summary.

Exhibit 6 to Simon Lee Affidavit Consolidated Record of Ernst Zundel, Vol. 2, tab 6, pages 502-504 Compendium, tab 15

See also this excerpt of proceedings during the middle of cross-examination of Mr. Zundel:

THE COURT: We will adjourn until 2:00p.m.

Just before we adjourn, I was told by the Registrar that the Crown has asked for a new presentation of evidence in camera. As I always did in the past with those things -- it has been done already, and there is always a possibility to have some material. This is an element of this kind of hearing. I always make sure that those presentations of evidence are made in camera, but it is known publicly that there is a presentation of new evidence.

I don't know yet when it is going to be done -- maybe today, maybe another day. I just wanted to inform the court room about that. For those who are not aware, this has been done before. It is part of the law that in the special circumstances of this case, even though there is an opportunity to be give to the individual to make his case to the Court, there is evidence that is provided in public and evidence that is provided in private. There are already documents that were filed in private and some representations were made orally in private.

I have been advised that another session in camera will be required. I just want to inform the Court. It has been done in all cases under this section of the law. I just wanted to notify the public and the parties about that.

Mr. Christie, please.

MR. CHRISTIE: Could your lordship advise me when the request was made, or is that secret, too?

THE COURT: Yesterday. I was advised yesterday (emphasis added).

Transcript of Proceedings on July 30, 2003, pages 887-888 Compendium, tab 24

See also this Excerpt of Proceedings :

Mr. CHRISTIE: On our last occasion when you informed us that you would be hearing some more secret evidence, you indicated at page 953 that you might come to the conclusion, having heard the new secret evidence, that justice would be better served if you provided more information to the individual. At page 954 you said that some new information might require additional information in the summary.

My question is: Is some information going to be added to the summary that has been given to Mr. Zundel? If it added nothing, one would expect no new summary. If it did add something, we should be allowed to answer what has been added.

THE COURT: That is good question. I have heard the evidence, as we usually do, and so far there is no such evidence that could be added to the summary that exists. I kept the door open, and the door is still open. For the moment there is no such evidence that could be identified as being made public.

I think it is important for you to raise this question. I am still conscious of that. The hearing is not over, and I will keep that in mind. There are different reasons that information cannot be made public, and this was the case the last time as well.

I should mention publicly that I also told the parties to have a second look at it to see if we could provide other elements to Mr. Zundel. Sometimes there are elements that become accessible. It happens in other cases, and it could happen in this case as well. For the moment, there is nothing new that can be added to what was provided in the summary."

Transcript of Proceedings on September 23, 2003, pages 1058-1059 Compendium, tab 27

21. It is interesting to note, on the issue of ex parte secret proceedings, that the designated judge appears to have received ex parte information about when Mr. Zundel meets with his lawyer, as became clear during the proceedings on September 24, 2003:

THE COURT: My understanding is that you met with your client during the cross-examination. We are still in cross-examination, are we?

MR. MACINTOSH: Yes.

THE COURT: Is my understanding correct?

MR. CHRISTIE: I don't understand your question. Of course, we are in cross-examination, and you allowed me to talk to my client.

THE COURT: Last time, yes, but it was not ongoing. You have to ask the Court to talk to your client during cross-examination. We discussed that earlier.

MR. CHRISTIE: I understood that I could talk to my client at any time during the cross-examination because I had ongoing issues -- for example, arranging other counsel and dealing with issues that came up. I am not to talk to him about his evidence, I understand that (emphasis added).

Transcript of Proceedings on September 24, 2003, pages 1180-1181 Compendium, tab 29

22. Mr. Zundel has brought a motion returnable on December 10, 2003 requesting that Mr. Justice Blais recuse himself based on, inter alia, a reasonable apprehension of bias. This motion arose when Mr. Zundel's counsel discovered that Mr. Justice Blais was the Solicitor General of Canada in 1989 and therefore supervised CSIS. CSIS activities and evidence allegedly gathered by CSIS during that time period with respect to Mr. Zundel figure prominently in the proceedings before Mr. Justice Blais. Accordingly, the detention review may not be completed on December 10, 2003. Mr. Justice Blais continued the hearing after all counsel requested that he halt it until said recusal motion has been disposed of.

Supplementary Record of Ernst Zundel, tab 1

Transcript of Proceedings on November 6, 2003, pages 1402-14-3, 1411, 1424 Compendium, tab 30

23. If the Certificate is held to be reasonable, Mr. Zundel will be deported to Germany and would be subject to being prosecuted and jailed for questioning the Holocaust, despite already being unsuccessfully prosecuted many times in Canada for similar activities, such as the time when the Supreme Court of Canada struck down the "false news" law under which he was being prosecuted as violating his right to freedom of expression in R. v. Zundel (1992), 75 C.C.C. (3d) 449 (S.C.C).

24. If Mr. Zundel is deported to Germany, he will likely be prosecuted and will likely go to jail each time he questions the Holocaust in the above manner. In fact, there is already an outstanding warrant in Germany for past such alleged behaviour and the German Federal Criminal Police Office has already specifically offered to pick Mr. Zundel up in Canada on "very short notice" of his deportation and take him back to Germany at Germany's expense. The German warrant, in justifying why a warrant was issued, says that Mr. Zundel "must expect imposition of a considerable prison sentence."

Affidavit of Ernst Zundel, paragraph 51 Consolidated Record of Ernst Zundel, Vol. 1, tab D, page 46 Compendium, tab 5

Opinion from Mr. Zundel's German lawyer Jurgen Reiger, Exhibit 34 to Zundel Affidavit Consolidated Record of Ernst Zundel, Vol. 2, tab 34, page 3 Compendium, tab 11

Letter from Embassy of the Federal Republic of German to Canada Immigration and Related Materials Exhibit to Proceedings on November 7, 2003 Compendium, tab 32

PART 3 - ISSUES AND THE LAW

25. There are a number of issues in this case, including the following:

A. What is the relationship between the Constitutional issues pertaining to the detention review, certificate review and the Respondent's section 106 motion?

B. Which Court has jurisdiction over the constitutional issues in this case?

C. When should the Superior Court assume jurisdiction over a case such as this case?

D. What is the statutory scheme under the Act and how does it work?

E. What problems of unfairness and injustice are created by the Act?

F. What Charter protection applies to proceedings under the Act?

G. What Charter violations have occurred in this case?

H. Can any Charter violations be justified under section 1 of the Charter?

I. What remedies does habeas corpus provide?

A. Relationship of Constitutional Issues Pertaining to Detention Review, Certificate Review and the Respondent's section 106 Motion

26. The constitutional issues pertaining to the process for determination of the reasonableness of the Certificate and the process for review of Mr. Zundel's detention overlap substantially, because both processes are governed by the same procedural and evidentiary provisions contained in section 78 of the Act.

Section 78 of the Act Schedule "B" hereto

27. In particular, section 83 of the Act incorporates the procedural provisions for determination of the reasonableness of the Certificate in section 78 thereof with respect to the review of detention.

Section 83 of the Act Schedule "B" hereto

28. The issues pertaining to the Respondent's motion to stay this application pursuant to section 106 of the Courts of Justice Act also are interwoven with the constitutional issues about the Certificate review and detention review, given that, as will be shown later in this factum (see paragraphs 37-41 below), the motion for a stay turns on whether it can be shown that the review and appeal processes under the Act (and other Federal Court remedies) are less advantageous to Mr. Zundel than the habeas corpus jurisdiction of this Honourable Court.

B. Which Court has Jurisdiction Over the Constitutional Issues In This Case?

29. It is common ground that Mr. Justice Blais, being the designated judge in the proceedings under the Act, simply does not have the authority to decide constitutional issues. The designated judge's sole function is to decide whether the Certificate is reasonable.

Respondent's factum on section 106 motion, paragraph 33 Canada (Min. of Citizenship & Immigration) v. Mahjoub (2001),199 F.T.R. 190 (T.D.)

30. A notice of constitutional question which had been filed before Mr. Justice Blais by Mr. Zundel's previous counsel was thus withdrawn on about October 15, 2003. It is respectfully submitted that the references at paragraphs 35 and 36 of the Respondent's section 106 factum to constitutional arguments before Mr. Justice Blais are thus no longer relevant.

31. Contrary to the position taken at paragraph 24-27 of the Respondent's section 106 factum, Mr. Zundel is not seeking to have this Court "sit in review of, or in effect, supervise" the proceedings before Mr. Justice Blais. Rather, Mr. Zundel is seeking to have this Court rule on constitutional issues over which Mr. Justice Blais simply does not have jurisdiction.

32. The Respondent argues at paragraph 37 of its section 106 factum that, because the constitutional issues before Mr. Justice Blais were deferred to the end of those proceedings, the case brought raises a hypothetic or abstract question which a court may decline to decide at this point. However, it is respectfully submitted that, as already noted above, the notice of constitutional question before Mr. Justice Blais has been withdrawn. Moreover, an applicant who alleges that a legal process is unconstitutional is not obliged to go through that process to a conclusion and only then raise the issue of its unconstitutionality if he or she is unsuccessful.

33. It is also common ground that habeas corpus relief is not available to Mr. Zundel in the Federal Court in this case.

Respondent's factum on section 106 motion, paragraph 40

Section 18(2) of the Federal Court Act (allows habeas corpus applications in relation to any member of the Canadian forces serving outside Canada) Schedule "B" hereto

Poirier c. Centre federal de Formation (comité disciplinaire) (1988), 26 F.T.R. 215 (T.D.) (Federal Court does not have jurisdiction to entertain an application for a writ of habeas corpus with certiorari in aid save in the circumstances mentioned in now section 18(2) of the Federal Court Act.)

34. Pursuant to the combination of Rules 61 and 300 of the Federal Court Rules, 1998, as amended, Mr. Zundel cannot bring an application in the Federal Court to challenge the constitutionality of sections of the Act.

Rules 61 and 300 of the Federal Court Rules, 1998 Schedule "B" hereto

35. The Respondent has suggested at paragraph 38 of its section 106 factum that Mr. Zundel has a remedy in the Federal Court - to bring an action in that Court. One of the problems with that suggestion is that it would likely take years to bring such an action to trial. For example, based on the current trial listings in the Federal Court of Canada, the average length of time which it takes for an action to get to trial is 5.7 years from when the action is commenced. Since Mr. Zundel is in custody, such delay makes this application, which is to be heard on November 18-19, 2003, a much more advantageous route. The calculation of the delay associated with bringing a Federal Court action to trial comes from averaging the age of all the matters listed for trial in the Federal Court of Canada sittings in 2003-2004, as follows:

(i) Federal Court Trials during 2003-2004 sitting

Court File No. Age of Case Court File No. Age (years) of case (years)

T-2442-98 5 T-609-99 4

T-2058-99 4 T-1849-01 3

T-1489-99 5 T-2166-00 4

T-747-94 10 T-1357-01 3

T-652-00 3 T-1515-00 4

T-1478-97 6 T-1406-99 5

T-1040-01 2 T-617-85 18

T-2112-99 5 T-782-97 6

T-927-00 4 T-2804-97 6

T-1822-97 7 T-182-99 4

T-1439-01 3 T-1335-01 3

T-620-99 5 T-2022-89 14

T-2298-00 4 T-1254-92 11

T-1689-00 4 T-1227-00 3

T-2371-00 3 T-2243-95 8

T-320-02 1 T-2908-94 10

T-687-88 15 T-923-95 9

T-203-96 7 T-2100-01 2

T-736-01 2 T-39-94 10

T-2235-99 4 T-251-01 3

T-1361-98 5 T-1151-00 4

T-1398-94 10 T-926-02 2

T-2270-00 4 T-2637-97 7

T-2836-92 12 T-747-94 10

T-286-01 3 T-1300-97 6

T-2547-97 7 T-1773-98 6

T-1655-99 5 T-1774-98 6

T-190-01 3 T-1777-98 6

T-1471-92 12 T-1780-98 6

T-1402-95 9 T-1785-98 6

T-2184-98 6 T-1796-98 6

T-837-00 4 T-399-99 5

T-31-01 3 T-923-99 4

T-2547-97 7 T-1452-98 6

T-954-01 3 T-2134-00 3

T-2203-00 3 T-2204-00 3

Average age of case = sum of years/no. of cases = 411/72

AVERAGE AGE OF CASE = 5.7 years

Affidavit of Ernst Zundel, paragraph 52 Consolidated Record of Ernst Zundel, Vol. 1, tab D, pages 46-47 Compendium, tab 5

Federal Court of Canada's Hearing List, Exhibit 35 to Zundel affidavit Consolidated Record of Ernst Zundel, Vol. 2, tab 35, pages 321-421 Compendium, tab 12

(ii) This Court Has Concurrent Jurisdiction With the Federal Court Over the Constitutional Issues In This Case

36. The Respondent acknowledges at paragraph 26 of its section 106 factum that there is concurrent jurisdiction between the Federal Court and the Superior Court where, as here, the Applicant is seeking to challenge the constitutionality of legislation or where the Applicant seeks a Charter remedy.

Respondent's factum on section 106 motion, paragraph 26

C. When Should the Superior Court Assume Jurisdiction Over a Case Such as This Case?

37. The Respondent then refers at paragraph 35 of its section 106 factum to "a long line of authority..." which holds that a provincial Superior Court should decline to assume jurisdiction in proceedings under immigration legislation.

Respondent's factum on section 106 motion, paragraph 35

38. It is respectfully submitted that what the Respondent fails to clearly explain in its factum is when the Superior Court will assume jurisdiction over a habeas corpus application in such proceedings.

39. A long line of cases from the Court of Appeal for Ontario and the Supreme Court of Canada has held that "unless it could be shown that the review and appeal process [ in the Federal Court] was less advantageous than the habeas corpus jurisdiction, the Court should decline to exercise its discretion to grant relief".

Re Peiroo and Minister of Employment and Immigration [1989] O.J. No. 805 at page 7 (C.A)

Shepherd v. Canada (Minister of Employment and Immigration) (1989), 70 O.R. (2d) 765 at pages 12, 13 (C.A.), application for leave to appeal to S.C.C dismissed December 4, 1989

Reza v. Canada [1994] 2 S.C.R. 394 at pages 399, 405 (in which Ferrier J. applied the same "less advantageous" test and the S.C.C. found that "Ferrier J. took into account all relevant considerations [in considering whether to grant a section 106 stay]")

40. The issue of timing in the Federal Court versus the Superior Court was specifically addressed by the Court of Appeal for Ontario in another case, as follows:

As to the issue of timing, I do not question that habeas corpus implies promptness as reflected in the several human rights conventions to which the appellant referred. However, the length of time that it takes to review a detention must depend upon the circumstances of the particular case. In the present case, looking from today forward, it is unlikely that the General Division could accommodate a hearing and decision on the habeas corpus application prior to the end of February of 1995. We were told at the time of argument that a Federal Court trial could be conducted in the spring of 1995. In my view this difference is not sufficient to alter the effectiveness of the remedy.

Thus, on the basis of the principles expressed in Peiroo, supra, and Shepherd v. Canada (Minister of Employment and Immigration) (1989), 70 O.R. (2d) 765, 52 C.C.C. (3d) 386 (C.A.), and R.v. Pearson, [1992] 3 S.C.R. 665, 12 C.R.R. (2d) 1, I conclude that the trial procedure in the Federal Court is an adequate and effective alternative remedy which provides relief to the appellant in a forum where proceedings relating to the appellant's detention are in progress.

Re Baroud and Minister of Citizenship and Immigration et al. [1995] O.J. No. 43 at page 5 (C.A.), application for leave to appeal to S.C.C. dismissed June 15, 1995.

41. It is thus submitted that, if it can be shown that the review and appeal process under the Act is less advantageous than the habeas corpus jurisdiction, the Superior Court should exercise its discretion to grant relief on a habeas corpus application. That review and appeal process, with respect to constitutional issues, is to bring an action in Federal Court, which will take years. The timing of the remedy was specifically considered by the Court of Appeal for Ontario in Baroud in relation to the "less advantageous" test, and, based on the evidence of Federal Court delay in bringing actions, strongly militates in favour of granting habeas corpus relief.

(i) Why One Must Consider the Statutory Scheme Under the Act

42. The Respondent suggests that the comprehensive statutory scheme provided by Parliament contemplates that these matters will be dealt with by the Federal Court of Canada. That suggestion, coupled with the fact that, on the issue of jurisdiction and the Respondent's section 106 motion, the Court must consider how habeas corpus compares to the review and appeal process under the Act, necessitates a detailed constitutional examination of the statutory scheme under the Act.

D. The Statutory Scheme Under the Act and How It Works

43. The Act, S.C. 2001, C.27, which primarily came into face on June 28, 2002, represents the first complete revision of immigration legislation in Canada since 1978. It replaces the Immigration Act, R.S.C. 1985, C. I-2, as amended.

Lorne Waldman, 2004 Canadian Immigration & Refugee Law Practice, pages 13, 291

44. Section 3(3)(d) of the Act provides as follows:

This Act is to be construed and applied in a manner that ...ensures that 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 the official languages of Canada.

Section 3(3)(d) of the Act Schedule "B" hereto

45. Section 27(1) of the Act provides as follows:

RIGHT OF PERMANENT RESIDENTS -

(1) A permanent resident of Canada has the right to enter and remain in Canada, subject to the provisions of this Act.

Section 27(1) of the Act Schedule "B" hereto

(Note: Pursuant to sections 27, 28 and 46 of the Act, Mr. Zundel remains a permanent resident despite living in the United States for a relatively short time.)

46. Section 77 of the Act, who can lead to the removal of a person from Canada, is triggered by the Minister and the Solicitor General signing a certificate stating that someone, who is either a permanent resident or a foreign national, is inadmissible on grounds of

a) security; b) violating human or international rights; c) serious criminality; or d) organized criminality.

Section 77 of the Act Schedule "B" hereto

47. The certificate is required to be referred to Federal Court for determination of whether it is reasonable.

Sections 77(1), 80(1) of the Act Schedule "B" hereto

48. In the event that the person applies to the Minister for protection from the consequence of the certificate under section 112(1) of the Act, the Federal Court must also determine whether the Minister's decision on such application is lawfully made.

Section 77(1), 80(1) of the Act Schedule "B" hereto

49. Until the judge makes the determination under the certificate, no other proceedings under the Act may proceed, except the section 112(1) Minister protection application, which takes precedence.

Sections 77(2), 79(1) of the Act Schedule "B" hereto

50. Section 78 of the Act sets out the following provisions to "govern" the judge's determination:

a) the judge shall hear the matter; b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; c) the judge shall deal with all matters as informally and expeditiously as the circumstances and consideration of fairness and natural justice permit; d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination; e) on each request of the Minister of Immigration or the Solicitor General of Canada made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; f) the information or evidence described in paragraph (e) shall be returned to the Minister and the Solicitor General of Canada and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary;

g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person; h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed; i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence.

Section 78 of the Act Schedule "B" hereto

51. The judge shall, on the basis of the information and evidence available, determine

a) whether the certificate is reasonable; and b) whether decision on any application for protection is lawfully made.

Section 80(1) of the Act Schedule "B" hereto

52. The judge shall quash a certificate if he is of the opinion that it is not reasonable.

Section 80(2) of the Act Schedule "B" hereto

53. If the judge does not quash the certificate but determines that the decision on the application for protection is not lawfully made, the judge shall quash the decision and suspend the proceeding to allow the Minister to make a decision on the application for protection.

Section 80(2) of the Act Schedule "B" hereto

54. The determination of the judge is final and may not be appealed or judicially reviewed.

Section 80(3) of the Act Schedule "B" hereto

55. If a certificate is determined to be reasonable under section 80(1),

a) it is conclusive proof that the permanent resident or foreign national in it is inadmissible; b) it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing; and c) the person named in it may not apply for protection under section 112(1).

Section 81 of the Act Schedule "B" hereto

(i) Relevant Provisions of the Act - Fairness and Natural Justice

56. Section 78(c) of the Act purports to inject "fairness" and "natural justice" into the Certificate review and detention review proceedings. It provides that "the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit".

Section 78(c) of the Act

Schedule "B" hereto

(ii) Secret Proceedings Allowed by the Act

57. The principles of fairness and natural justice include the principle that one party should not be allowed to give evidence to the decision maker in the absence of the other party. The Supreme Court of Canada strongly so held in the pre-Charter Kane v. University of British Columbia, as follows:

It is a cardinal principle of our law that, unless expressly or by necessary implication, empowered to act ex parte, an appellante authority must not hold private interviews with witnesses (de Smith, Judicial Review of Administrative Action (3rd ed.) 179) or, a fortiori, hear evidence in the absence of a party whose conduct is impugned and under scrutiny. Such party must, in the words of Lord Denning in Kanda v. Government of the Federation of Malaya [[1962] A.C. 322], at p.337,"...know the case which was made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them....Whoever is to adjudicate must not hear evidence or receive representations from one side behind the back of the other." In Errington v. Ministry of Heath [[1935] 1 K.B. 249], Greer L.J. held that a quasi-judicial officer must exercise powers in accordance with the rules of natural justice, and must not hear one side in the absence of the other:

If...he takes into consideration evidence which might have been, but was not, given at the public inquiry, but was given ex parte without the owners having any opportunity whatsoever to deal with that evidence, then it seems to me that the confirming Order was not within the powers of the Act. (p.268).

The principle was summarized in the headnote in these words:

If the Minister holds a private inquiry to which the owners are not invited or takes into consideration ex parte statements with which the owners have had no opportunity of dealing he is not acting in accordance with correct principle of justice...

In the early case of Re Brook and Delcomyn [(1864), 16 C.B.R. (N.S.) 403], Erle C.J. came to the conclusion that the law had been violated when an arbitrator brought before the umpire evidence which had never been communicated to the other arbitrator and which, consequently, one of the parties never had an opportunity of meeting by contradictory evidence. Erle C.J. referred to this as "not a point of form" but a matter of substance, and "one of the last and deepest importance." A similar case is Re an Arbitration between Gregson and Armstrong [(1984), 70 L.T. 106], in which an award was set aside at the instance of a landlord when, all of the evidence on both sides having been heard, the arbitrators on a subsequent day, before making their award, held a meeting on the farm at which the outgoing tenant was present, but not the landlord. In a much later case, R.v. Deputy Industrial Injuries Commissioner, Ex p. Jones [[1962] 2 Q.B. 677], the tribunal received evidence which was both fresh and highly prejudicial to the applicant's position. The case at bar cannot be put so strongly, but the principle to be applied is the same. Lord Parker C.J., in granting the order for certiorari, stated that a tribunal is not entitled to continue privately to obtain evidence between the end of a hearing and the reaching of decision "without notifying the parties thereafter of the advice or information received, so as to give the parties an opportunity of having a further hearing if need be, or, at any rate, commenting on the information and making their submissions thereon" (p. 686).

A recent decision of this Court which has relevance for this appeal is Pfizer Company Limited v. Deputy Minister of National Revenue for Customs and Excise [[1977] 1 S.C.R. 456], in which Pigeon J., speaking for the Court, said at p.463:

While the Board is authorized by statute to obtain information otherwise than under sanction of an oath or affirmation...this does not authorize it to depart from the rules of natural justice. It is clearly contrary to those rules to rely on information obtained after the hearing was completed without disclosing it to the parties and giving them an opportunity to meet it.

Pfizer is not a case in which a tribunal heard one party in the absence of the other. It establishes, however, the principle that each party to a hearing is entitled to be informed of, and to make representations, with respect to evidence which affected the disposition of the case. See also R. v. Birmingham City Justices, Ex p. Chris Foreign Foods (Wholesalers) Ltd. [[1970] 1 W.L.R. 1428]; R. v. Barnsley Metropolitan Borough Council, Ex p. Hook [[1976] 3 All E.R. 452]; R. v. Justices of Bodmin, Ex p. McEwen [[1947] 1 K.B. 321].

Kane v. University of British Columbia [1980] 1 S.C.R. 1105 at pages 6-8

Please note that the reference at the start of the quotation to "unless expressly or by necessary implication, empowered to act ex parte" is a comment made in the pre-Charter era. Now statutes are subordinated to the Charter.

58. The principles of "fundamental justice" contained in section 7 of the Charter clearly include principles of natural justice plus more, as found by the Supreme Court of Canada:

For this reasons, I am of the view that it would be wrong to interpret the term "fundamental justice" as being synonymous with natural justice as the Attorney-General of British Columbia and others have suggested. To do so would strip the protected interests of much, if not most, of their content and leave the "right" to life, liberty and security of the person in a sorely emaciated state. Such a result would be inconsistent with the approach adopted by this Court toward the interpretation of Charter rights in Law Society of Upper Canada v. Skapinker (1948), 11 C.C.C. (3d) 481, 9 D.I.R. (4th) 161, [1984] 1 S.C.R. 357, per Estey J. and Hunter v Southam Inc., supra...

Thus, it seems to me that to replace "fundamental justice" with the term "natural justice" misses the mark entirely. It was, after all, clearly open to the legislator to use the term "natural justice", a known term of art, but such was not done. We must, as a general rule, be loath to exchange the terms actually used with terms so obviously avoided.

Whatever may have been the degree of synonymy between the two expressions in the past (which is in any event has not been clearly demonstrated by the parties and intervenants), as of the last few decades this country has given a precise meaning to the words "natural justice' for the purpose of delineating the responsibility of adjudicators (in the wide sense of the word) in the field of administrative law.

It is, in my view, that precise and somewhat narrow meaning that the legislator avoided, clearly indicating thereby a will to give greater content to the words "principles of fundamental justice", the limits of which were left for the courts to develop but within, of course, the acceptable sphere of judicial activity.

Reference re Section 94(2) of the Motor Vehicle Act [1985] 2 S.C.R. 486 at pages 10 and 11.

It is worth noting that the interests at stake for Kane (a 3 month suspension from his job) are clearly less than those at stake for Mr. Zundel - deportation and a real chance of going to jail.

59. Section 78(b) of the Act, which allows the judge to "hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person", allows for secret proceedings. It is respectfully submitted that Section 78(b) thereby denies the person named in a certificate even the most basic entitlement to fairness, natural justice and thus, based on the Reference re Section 94(2) of the Motor Vehicle Act case, "fundamental justice".

60. Section 78(b) of the Act further allows the secret proceedings to happen repeatedly, "on each request of the Minister or the Solicitor General of Canada". It is respectfully submitted that this provision exacerbates the denial of fairness, natural justice and thus fundamental justice. Such repeated secret proceedings have taken place in this case (see paragraph 20 above).

61. Section 78(b) of the Act further allows the repeated secret proceedings to occur "at any time during the proceedings", thereby, it is submitted, further exacerbating the denial of fairness, natural justice and fundamental justice. It is a fundamental principle of our adversarial judicial system that one party presents its case fully and then the other party responds, knowing the case it has to meet. What has happened in this case is that after the Minister and Solicitor General presented their case and while Mr. Zundel was in the middle of presenting his response, the Minister and Solicitor General have secretly presented more of a case against Mr. Zundel (see paragraph 20 above). The additional case being presented is not limited to reply evidence. It is not limited at all. The case can secretly change in any way while being responded to. Mr. Zundel and his counsel do not know if it has changed in this case. Neither does this Honourable Court. It is not an overstatement to say that this is completely contrary to the fundamental principles of our judicial system.

62. To the extent that summaries of secret proceedings may be provided to the person named in the certificate and his or her counsel, it is respectfully submitted that the chance to have a mere summary after the fact does not undo the unfairness and denial of natural justice and fundamental justice caused by proceeding in the absence of the person and his or her counsel in the first place.

63. In a non-constitutional case, the Federal Court has criticized the secret proceedings, but said it was permitted by the Act:

I do acknowledge that under IRPA a person who is the subject of the MInisters' certificate and his or her counsel may not see the information relied upon by the Ministers, an invidious position but one provided by Act of Parliament.

Re Jaballah [2003] F.C.J. No, 822 at page 23 (T.D.)

64. Section 78(i) of the Act provides that "the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility".

65. It is respectfully submitted that the right to be heard in section 78(i) is an illusory right, taken in the context of a process which allows for information and/or evidence to be used which is introduced in the absence of the person named in a certificate and of his or her counsel throughout the proceedings.

66. There is another different way to look at the significance of the repeated secret proceedings permitted by the Act.

67. In particular, the Act raises the issue of whether the inequality between the parties created by the secret proceedings destroys the appearance of independence and impartiality of the designated judge.

68. It is submitted that it is inconsistent with the appearance of independence and impartiality of a judge for that judge to have ex parte communication with one party and to make decisions on materials which are not disclosed to the other party, while appearing at the same time maintaining the appearance of independence and impartiality and of doing justice between the parties. The problem is made worse in this case when the designated judge receives ex parte communication as to matters such as when Mr. Zundel speaks to his lawyer.

69. The effect of ex parte relations between one party and the bench has already been explored in Canada and such relations have been treated seriously. For example, in Canada v. Tobiass, two judges of the Federal Court had had ex parte communication with a representative of the Attorney General of Canada in a hearing about revocating Tobiass' Canadian citizenship. The communication was about the slow pace of the proceedings. The Supreme Court of Canada held that the contact caused damage to the appearance of judicial independence and directed that the two judges have nothing more to do with the case. By contrast, the Act allows the designated judge to have ex parte communication with the representatives of the Minister and Solicitor General about not the pace of proceedings, but rather about the far more important fact of introducing secret evidence. The designated judge then determines the reasonableness of the certificate based in part on the secret evidence. It is respectfully submitted that the Act flies in the face of the principles enunciated in Canada v. Tobiass.

Tobiass v. Canada [1997] 3 S.C.R. 391

(iii) "Anything" Can Be Evidence

70. Section 78(j) of the Act allows the judge to "receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence".

71. Section 78(j) of the Act apparently allows anything to be used - articles, hearsay, double hearsay, triple hearsay. The evidence does not have to given under oath or solemn affirmation. It does not have to be subject to cross-examination in order to test it. It is respectfully submitted that there are no meaningful limits.

72. As a result, in the proceedings before Mr. Justice Blais, it is respectfully submitted that Mr. Zundel faces mountains of hearsay "evidence" which is not sworn and not subject to challenge through cross-examination, thereby denying him any basic entitlement to principles of fairness and fundamental justice.

(iv) Low and Uncertain Standards of Proof

73. Section 80 of the Act does not require the judge to determine whether the person is actually a danger to national security, but simply whether the Certificate is reasonable (a clearly lower standard). For example, if the judge concludes that the person is not a danger to national security but that others (such as the Minister and Solicitor General) could disagree (and have disagreed) with that conclusion, the judge is required to find the Certificate reasonable and the Certificate becomes a removal order, which is not subject to appeal.

74. It is respectfully submitted that section 80 of the Act does not even specify the standard of proof with respect to whether the certificate is reasonable, that is, whether proof is on the balance of probabilities, or, perhaps more appropriately, given the severe consequences if the Certificate is found to be reasonable, beyond a reasonable doubt. Section 80 also does not clearly state who has the onus of proof.

75. In making a decision under section 80 of the Act, the judge must (in a security grounds case) consider section 34 of the Act, which defines the circumstances in which a permanent resident is inadmissible on security grounds.

76. It is respectfully submitted that the criteria in section 34 of the Act are very broad and, in one case, circular. For example, a person who has assaulted his wife and child by slapping them is caught by section 34(e) for "engaging in acts of violence that would or might endanger the...safety of persons in Canada". Section 34(1)(d) circularly defines "inadmissibility on security grounds" as "being a danger to the security of Canada".

[Note that Mr. Zundel is not saying that "being a danger to the security of Canada" is unconstitutionally vague - The Supreme Court of Canada held that it was not in relation to the former Immigration Act in Suresh v. Canada [2002] S.C.J. No. 3 at page 29]

77. Section 33 of the Act then expands section 34 to provide that facts underpinning a finding of inadmissibility under section 34 may "include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur".

Section 33 of the Act Schedule "B" hereto

78. It is respectfully submitted that section 33 thus allows for speculation about things that might happen to be a basis for a finding of reasonableness (not correctness) under section 80, leading to deportation of a person.

(v) No Reasonable Bail

79. Section 82(1) of the Act provides that the Minister and the Solicitor General of Canada may issue a warrant for the arrest and detention of a permanent resident who is named in a certificate if they have reasonable grounds to believe that the permanent resident is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal.

Section 82(1) of the Act Schedule "B" hereto

80. Section 83(1) of the Act provides that not later than 48 hours after the beginning of detention of a permanent resident under section 82, a judge shall commence a review of the reasons for the continued detention. Section 78 of the Act applies with respect to the review, with any modifications that the circumstances require.

Section 83(1) of the Act Schedule "B" hereto

81. Section 83(2) of the Act provides that the permanent resident must, until a determination is made under subsection 80(1), be brought back before a judge at least once in the six-month period following each preceding review and at any other times that the judge may authorize.

Section 83(2) of the Act Schedule "B" hereto

82. It is respectfully submitted that the scheme of the Act contemplates that the initial decision about detention will be made expeditiously and in far less than six months. At the very least, section 83(2) of the Act means that there must be a complete review within six months and every six months thereafter. This has simply not happened in Mr. Zundel's case. It is respectfully submitted that it is not good enough (and not in compliance with the Act) for Mr. Justice Blais to wonder aloud in court about whether the detention review ought to have been done within six months. Respectfully, His Lordship simply did not follow the law and Mr. Zundel's detention at this point is unlawful for that reason, standing alone.

83. It is also respectfully submitted, on the jurisdictional issue and section 106 motion, that the review process under the Act with respect to detention is far less advantageous than a habeas corpus application. A habeas corpus application is much quicker, as witnessed by the fact that it was scheduled in October, 2003 and was only adjourned because of a change in counsel. By contrast, the detention review under the Act goes on and on. Moreover, the detention review has the same weaknesses as the Certificate review (secret proceedings, "anything" in the way of "evidence" and the like), none of which is the case with a habeas corpus application.

(vi) No Appeal or Judicial Review

84. Section 80 of the Act provides that "the determination of the judge [as to the Reasonableness of the Certificate] is final and may not be appealed or judicially reviewed".

Section 80 of the Act Schedule "B" hereto

85. Section 81 of the Act provides that a determination that the Certificate is reasonable is conclusive proof that the person named is inadmissible and is a removal order not subject to appeal. As well, the person may not apply for protection, such as the protection offered to a convention refugee (see section 96 of the Act). So the person may be deported to a place where the person has a "well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion".

Section 81 and 96 of the Act Schedule "B" hereto

86. It is thus respectfully submitted that, if a certificate is found to be reasonable after the fundamentally flawed and unfair process which includes secret proceedings and "anything" in the way of "evidence", then the applicant is completely denied the most basic right of appeal to a higher court (or even judicial review).

87. It is respectfully submitted that the basic right of appeal to a higher court (or judicial review) is part of the principles of fundamental justice as guaranteed by the Charter.

88. The lack of a right of appeal or judicial review heightens the appropriate concern about the other previously-described failings in the Act (secret proceedings, "anything" as "evidence" etc). The Supreme Court of Canada has held that greater procedural protections will be required where, as here, no appeal procedure is provided within the Statute, or when the decision is determinative of the issue and further requests cannot be submitted.

Suresh v. Canada [2002] S.C.J. No. 3 at page 34

89. While the person named in a certificate found to be reasonable has no appeal or review rights, if a certificate is quashed as being unreasonable, the Crown can (and has in the past) issued a new certificate and started the entire unfair process again. For example, Mahmoud Jaballah come to Canada from Egypt. A certificate was issued in 1999 and was found to be unreasonable: see Jaballah v. Canada [1999] F.C.J. No. 1681 (T.D.). A second certificate was issued in 2001, based on additional evidence, some of which supposedly contradicted evidence given in the hearing with respect to the first certificate: see Re Jaballah [2003] F.C.J. No. 822 (T.D.) The second certificate was held to be reasonable. By contrast, there is no mechanism for the person named in a certificate to have a second "kick at the can" if that person later obtains evidence to contradict evidence given in a hearing in relation to a certificate found to be reasonable.

F. Applicability of Charter Protection to Proceedings Under the Act

90. There is a threshold question as to whether and to what extent section 7 (and other sections of the Charter) apply to proceedings under the Act.

91. It is respectfully submitted that the current solitary confinement of Mr. Zundel in the Toronto West Detention Centre pursuant to the Act clearly engages his "liberty" interest as protected by section 7.

92. It is also respectfully submitted that the potential removal of Mr. Zundel, a permanent resident, from Canada against his will clearly engages his "liberty" and "security of the person" interests as protected by section 7.

"There are also very strong indications that section 7 of the Charter is engaged in cases involving the deportation of permanent residents."

Lorne Waldman, Immigration Law and Practice, Vol. 1, pages 2.14 - 2.16

Hence, it is permissible to deport a permanent resident for the commission of a serious offence without violating the Charter, as long as fundamental justice has been accorded to that person before doing so. The question, therefore, is whether there has been a violation of the principles of fundamental justice in this case. The legislation and the earlier jurisdiction of this court must yield to the dictates of section 7.

Grewal v. Canada (Minister of Employment and Immigration) (1991), 85 D.L.R. (4th) 166 at page 4 (C.A)

Subsequently in Al Yamani v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 317 (IMM-1919-98, March 14, 2000) (F.C.T.D.), Gibson J. considered whether on the facts before him section 7 was engaged. Justice Gibson adopted the view of Justice Pratte as expressed in Chiarelli v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 299 (F.C.A.) at paragraph 59 that "deportation necessarily implies an interference with the liberty of the [applicant]" so as to engage section 7 of the Charter.

Subsequently, the Supreme Court of Canada has released its decision in Blencoe v. British Columbia Human Rights Commission), [2000] 2 S.C.R. 307, in which the majority of the Court commented that section 7 of the Charter must be interpreted broadly and that the liberty interest is not restricted to mere freedom from physical restraint. The majority stated that in a free and democratic society, an individual has the right to make fundamental personal choices, free from state interference. The majority went on to note that in the Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at paragraph 66, LaForest J., writing for L'Heureux-Dube J. and McLachlin J. (as she then was), reiterated his position that the section 7 right to liberty protects an individual's right to make inherently private choices, and that choosing where to establish one's home had been found to be one such inherently personal choice.

The consequence of the issuance of the deportation order against an individual is profound. The deportation order prohibits Mr. Romans from making the fundamental personal choice to remain in Canada where he receives the love and support of his family, financial support, and the support of his social worker and the health-care system. I am satisfied that in the circumstances before me the issuance of a deportation order pursuant to subsection 27(1) and subsection 32(2) of the Act engages section 7 of the Charter.

Romans. v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No 740 (T.D), affd without deciding this point [2001] F.C.J. No. 146 (F.C.A.)

Al Yamani v. Canada (Minister of Citizenship and Immigration) [2000] 3 F.C. 433 (T.D)

The liberty interest protected by s.7 of the Charter is no longer restricted to mere freedom from physical restraint. Members of this Court have found that "liberty" is engaged where state compulsions or prohibitions affect important and fundamental life choices. This applies for example where persons are compelled to appear at a particular time and place for fingerprinting (Beare, supra); to produce documents or testify (Thomson Newspapers Ltd. v. Canada (Director of Investigations and Research. Restrictive Trade Practices Commission), [1990] S.C.R. 425); and not to loiter in particular areas (R. v. Heywood, [1994] 3 S.C.R. 761). In our free and democratic society, individuals are entitled to make decisions of fundamental importance free from state interference. In B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R., 315, at para. 80, La Forest J., with whom L'Heureux-Dubé, Gonthier and McLachlin JJ. agreed, emphasized that the liberty interest protected by section 7 must be interpreted broadly and in accordance with the principles and values underlying the Charter as a whole and it protects an individual's personal autonomy:

...liberty does not mean mere freedom from physical restraint. In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance. (emphasis added)

Blencoe v. British Columbia (Human Rights Commission) [2000] 2 S.C.R. 307 at page 20

93. The engagement of section 7 is also affected by the impact of deportation on the particular individual. Therefore, the fact that there is an outstanding warrant for Mr. Zundel in Germany and that, he is likely to be jailed in Germany for acts of denying the Holocaust, which acts have not been successfully prosecuted in Canada because of Mr. Zundel's right to freedom of expression, militates in favour of engaging section 7 in this case.

Lorne Waldman, Immigration and Refugee Protection Act and Commentary 2003, page 14

94. For the above reasons, it is respectfully submitted that the ongoing process against Mr. Zundel under the Act engages his rights under section 7 (and other sections) of the Charter, and must therefore comply with the principles of fundamental justice.

G. Constitutional Violations In This Case

95. It is respectfully submitted that the entire above described process, with its provisions for secret evidence, "anything" being used as evidence, low and uncertain standards of proof, no reasonable bail and no appeal or judicial review violates the principles of section 7 of the Charter, which guarantees everyone the "right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice". As discussed above, the proceedings under the Act are completely contrary to the principles of natural justice, which is part of fundamental justice.

Section 7 of the Charter Schedule "B" hereto

96. The legal rights contained in section 8-14 of the Charter are examples of the principles of fundamental justice referred to in section 7. Thus, in considering section 7 in this case, it is respectfully submitted that the Court may consider the principle in section 11(e) of the Charter that a person is "not to be denied reasonable bail without just cause", notwithstanding that section 11 itself does not directly apply to Mr. Zundel because he is not "charged with an offence". It is respectfully submitted that (a) the above - described problems with the detention review process and (b) the fact that it has taken more than six months to complete a detention review both violate the right not to be denied reasonable bail without just cause.

Reference re: Section 94(2) of the Motion Vehicle Act (1985), 23 C.C.C. (3d) 289 at page 10 (S.C.C.)

Section 8-14 of the Charter Schedule "B" hereto

97. It is respectfully submitted that the above described process also violates the protection in section 9 of the Charter against "arbitrary detention", for the reasons already discussed.

Section 9 of the Charter Schedule "B" hereto

98. Mr. Zundel also relies on his right under section 10(c) of the Charter which provides that "everyone has the right on arrest or detention...to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful". It is respectfully submitted that Mr. Zundel's detention is unlawful both under the Charter as discussed and also under the Act because of the lengthy delay of over six months in completing an initial detention review.

Section 10 of the Charter Schedule "B" hereto

99. The Federal Court has dealt with a constitutional challenge to the provisions in section 40.1 of the former Immigration Act, which are a bit similar to the provisions in section 77 and following. The case is Ahani v. Canada [1995] F.C.J. No. 1190 (T.D.), affd [1996] F.C.J. No. 937 (C.A.), application for leave to appeal to S.C.C. dismissed. The former Immigration Act's provisions were upheld. It is respectfully submitted that, for the reasons which follow, the decision in Ahani is:

A) distinguishable;

B) wrong; and C) not binding on this Court.

100. The decision in Ahani is distinguishable from the Zundel case for a number of reasons, including the following:

a. Mr. Ahani was not a permanent resident like Mr. Zundel (let alone a resident for over 40 years). Mr. Ahani was a refugee. This distinction is critical because of the constitutional rights given to permanent residents facing deportation (see paragraph 92 hereof). It was also critical in the mind of the trial judge in Ahani, who wrote as follows:

In the 1988 amendments to the Part III Exclusion and Removal provisions in the Immigration Act, [See Note 3 below] Parliament enacted two completely separate and distinct legislative schemes, under the heading "Safety and Security of Canada", governing the removal from Canada of persons with criminal or terrorist backgrounds or propensities; sections 39 [as am. by S.C. 1992. C. 49, s. 29] and 40 [as am. idem. S.30] for permanent residents and sections 40.1 and 40.2 [as enacted idem. S. 32] for persons other than Canadian citizens and permanent residents (paragraph 16). A review of section 38.1 of the Immigration Act further confirms that, in enacting different legislative procedures for permanent residents and for persons who are not Canadian citizens or permanent residents, Parliament expressly recognized that the latter group have no right to come into or to remain in Canada, while permanent residents have only a qualified right to do so. (paragraph 16)

b. The judge in Ahani was dealing with a statute where permanent residents had a greater entitlement to disclosure than foreign nationals:

In particular, the designated judge must provide the named person with a statement summarizng the information available "as will enable [him] to be reasonably informed of the circumstances giving rise to the issue of the certificate." [See Note 9 below] In preparing the statement of information for the named person, the designated judge must assess the right of the named person to be "reasonably informed of the circumstances...having regard to whether, in [his] opinion..., the information should not be disclosed on the grounds that the disclosure would be injurious to national security or to the safety of persons...

The designated judge must also bear in mind that the "reasonably informed" standard which Parliament chose to adopt in relation to persons other than Canadian citizens and permanent residents is lower than the standard applicable to permanent residents in the parallel scheme enacted in section 39 of the Immigration Act. With respect to permanent residents, Parliament provided in subsection 39(6) of the Immigration Act that a permanent resident must be provided with a "statement summarizing such information...as will enable the person to be as fully informed as possible of circumstances giving rise to the report.(paragraph 19)

That is no longer the case. Section 77 and 78 do not distinguish between permanent residents and foreign nationals on the issue of disclosure of evidence, which means that the procedural rights of permanent residents have now been decreased.

c. The judge in Ahani found that Ahani, unlike Zundel, was deliberately not pursuing a hearing on the reasonableness of the certificate because he did not want to be deported. Ahani's complaints about detention and delay were seen in that context:

Since June 25, 1993, the defendant has been ready and willing to participate in the procedure outlined in paragraph 40, 1(4)(d) [as enacted idem] of the Act to determine the reasonableness of the certificate signed by the Solicitor General and the Minister. To date, the plaintiff has not exercised his right to be heard and no hearing has taken place...(paragraph 6)

It bears noting that, in the case at bar, the plaintiff has attempted to use the length of his stay in custody, which has occurred as a result of his failure to avail himself of his statutory right to be heard, in support of his argument that his detention violates the principles of fundamental justice or is arbitrary...(paragraph 20)

d. The Court in Ahani held that:

Furthermore, a review of the provisions of section 40.1 of the Immigration Act and its legislative purpose as expressed in section 38.1 confirms that the proceedings are to be conducted expeditiously, with the concomitant expectation that the detention of the person will not be lengthy.

Tell Mr. Zundel that his detention has not been lengthy.

e. There were additional steps after the certificate against Mr. Ahani was found to be reasonable before he could be deported. There were also a number of appeal rights. By contrast, in the case of Mr. Zundel, pursuant to section 81(b) of the Act, a finding that the Certificate is reasonable becomes a removal order. Furthermore, Mr. Zundel has no appeal rights.

The proceedings under section 40.1 of the Immigration Act are directed solely and exclusively to determining the reasonableness of the ministerial certificate identifying the named person as a member of certain inadmissible classes of persons. This section of the legislation does not deal with the question of deportation. In the present case, the provisions in section 53 [as am. by R.S.C., 1985, (4th Supp.), c. 28, s. 17; S.C. 1992, c.49, s. 43] of the Immigration Act would be applicable in relation to deportation, by virtue of the fact that the plaintiff is a Convention refugee. In the event that a designated judge determined the certificate to be reasonable on the basis of evidence and information available, the Minister would be required under section 53 of the Immigration Act to make the separate determination of whether the plaintiff constitute a danger to the security of Canada. The plaintiff would be entitled to challenge this decision by bringing an application for leave and for judicial review. Furthermore, if a removal order were made against the plaintiff, subsections 70(2) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18], (3) [as am. idem] and (4) [as am. idem; S.C. 1992, c. 49, s. 65] of the Immigration Act would permit him to appeal that order to the Appeal Division of the Immigration and Refugee Board on a ground of appeal involving a question of law or fact or mixed law and fact. The plaintiff would also be entitled to make an application for leave and for judicial review of any ensuing decision of the Appeal Division (paragraph 22).

The extra step required and appeal rights given to Ahani are important because the Supreme Court of Canada has said that the finality of the decision and lack of rights of appeal or judicial review in a matter increases the procedural protections which are required (see paragraph 88 of this factum).

f. Evidence was called on behalf of the government in Ahani which was relied on in considering the Charter issue:

In response to all aspects of the constitutional challenge to the validity of section 40.1 of the Immigration Act, counsel for the Attorney General of Canada tendered as an exhibit at trial the affidavit of Harry Norman Southern, the Chief of the Counter Terrorism Section of the Toronto Regional Office of the Service. Counsel for the plaintiff consented to the filing of the affidavit at trial and cross-examined Mr. Southern on his evidence. (paragraph 11)

There is no such evidence in this case.

g. There was no issue raised in Ahani about the right not to be denied reasonable bail without just cause under section 11(e) of the Charter. That section is in issue in the case of Mr. Zundel.

101. The decision in Ahani is wrong for a number of reasons, including the following:

a) The Court in Ahani held as follows:

In conducting his review on the reasonable of the certificate, the designated judge is permitted to "receive, accept and base [his] determination" of reasonableness on such evidence or information as he sees fit, "whether or not the evidence or information is or would be admissible in a court of law." [See Note 13 below]. This relaxed evidentiary standard applies to all aspects of the review conducted by the designated judge and, as such, benefits all parties to the proceedings (paragraph 21).

In our adversarial system, the litigants should have some input into the decision of what benefits them. It is respectfully submitted that Mr. Zundel is not benefitted by the unacceptably loose standards of evidence being applied in his case.

b) The Court in Ahani held as follows:

At a minimum, "a reasonable opportunity to be heard" would permit the named person and his counsel to appear before the designated judge, subpoena and call witnesses, and make submissions on matters, including the disclosure of information to the named person (paragraph 20).

It is submitted that the Court mistakenly concludes that the parties had the right to make submissions as to what should be disclosed.

c) The Court in Ahani held as follows:

Furthermore, the facts deposed by Mr. Southern in support of his statement that the interests of public safety require such detention indicate that the individuals who are engaged in terrorism are often dangerous, are frequently fanatical, have little regard for human lives and are transient. He further indicated that the international obligations of Canada require it pursue vigorously all legal avenues to identify and deal with terrorists. In my opinion, the facts established in the evidence of Mr. Southern assist in demonstrating that, in the immigration context, the principles of fundamental justice are not violated by the pre-[ho] determination detention of a person certified by two ministers to have a terrorist background or propensities. Given the compelling state interests involved in dealing with alleged terrorists, I am of the opinion that the failure of Parliament to provide for a mechanism of pre-determination release does not violate the principles of fundamental justice (paragraph 40).

The Court thus effectively presumes that the Ministers are right and says bail is never appropriate. Even the current Act provides for bail, at least for permanent residents.

102. It is also respectfully submitted that the principle of stare decisis dictates that the Superior Court of Ontario is not bound by a decision of the Federal Court such as Ahani.

103. The Supreme Court of Canada refused to grant leave to appeal in Ahani. The Supreme Court has made it clear that a refusal to grant leave in any case is not an endorsement of the lower court's decision in that case.

R. v. Cote [1978] S.C.R. 8 at page 7

104. There are two other decisions which are arguably of some relevance: Suresh and Chiarelli.

R. v. Cote [1978] S.C.R. 8 at page 7

105. In Suresh v. Canada [2002] S.C.R. No.3, the issue was the constitutionality of the process by which a Minister issued an opinion under section 53(1)(b) of the former Immigration Act that Suresh was a danger to the security of Canada. Section 53(1)(b) of the Act was upheld. However, it was found that Suresh was, in the circumstances of his case, entitled to a new deportation hearing. There are a number of important points about Suresh, including the following:

- Prior to the ministerial decision, Suresh had already had 50 days of hearings on the reasonableness of a certificate under section 40.1 of the former Immigration Act (paragraph 13). That was followed by a second deportation hearing, which led to the conclusion that Suresh would be deported on grounds of membership in a terrorist organization. (paragraph 14). The ministerial decision in issue then followed.

- The issue was the following procedure with respect to the ministerial decision:

Donald Gautier, an immigration officer for Citizenship and Immigration Canada, considered the submissions and recommended that the Minister issue an opinion under section 53(1)(b) that Suresh constituted a danger to the security of Canada. Noting Suresh's links to LTTE, he stated that "[t]0 allow Mr. Suresh to remain in this country and continue his activities runs counter to Canada's international commitments in the fight against terrorism". At the same time, Mr. Gautier acknowledged that Mr. Suresh "is not known to have personally committed any acts of violence either in Canada or Sri Landa" and that his activities on Canadian soil were "non-violent" in nature. Gautier found that Suresh faced [page 17] a risk on returning to Sri Lanka, but this was difficult to assess; might be tempered by his high profile; and was counterbalanced by Suresh's terrorist in Canada. He concluded that, "on balance, there are insufficient humanitarian and compassionate considerations present to warrant extraordinary consideration." Accordingly, on January 6, 1998, the Minister issued an opinion that Suresh constituted a danger to the security of Canada and should be deported pursuant to section 53(1)(b). Suresh was not provided with a copy of Mr. Gautier's memorandum, nor was he provided an opportunity to respond to it orally or in writing. No reasons are required under section 53(1)(b) of the Immigration Act and none were given (emphasis added) (paragraph 16).

- The section 53(1)(b) opinion could be appealed to the Federal Court, Trial Division with leave (paragraph 31)

- For section 7 purposes, a deprivation of liberty which is foreseeable and can only occur after deportation occurs engages section 7 Charter rights (paragraph 54). This is relevant to the German arrest warrant for Mr. Zundel.

- The greater the effect in the life of an individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under section 7 of the Charter (paragraph 118). Deportation from Canada engages serious personal, financial and emotional consequences. It follows that this fact militates in favour of heightened procedures under section 53(1)(b). This is helpful to Mr. Zundel.

- The Court concluded as follows:

Weighing these factors together with all circumstances, we are of the opinion that the procedural [page 65] protections required by section 7 in this case do not extend to the level of requiring the Minister to conduct a full oral hearing or a complete judicial process. However, they require more than the procedure required by the Act under section 53(1)(b) - that is, none-- and they require more than Suresh received.

We find that a person facing deportation to torture under section 53(1)(b) must be informed of the case to be met. Subject to privilege or similar valid reasons for reduced disclosure, such as Mr. Gautier's recommendation to the Minister. Furthermore, fundamental justice requires that an opportunity be provided to respond to the case presented to the Minister. While the Minister accepted written submissions from the appellant in this case, in the absence of access to the material she was receiving from her staff and on which she based much of her decision, Suresh and his counsel had no knowledge of which factors they specifically needed to address, nor any chance to correct any factual inaccuracies or mischaracterizations. Fundamental justice requires that written submissions be accepted from the subject of the order after the subject has been provided with an opportunity to examine the material being used against him or her. The Minister must then consider these submissions along with the submissions made by the Minister's staff (paragraphs 121-122).

The reference to "fundamental justice requires that an opportunity be provided to respond to the case presented by the Minister" is very helpful to Mr. Zundel, since it directly references what has been denied him.

106. Another case which has been referred to in the Zundel proceedings is Canada v. Chiarelli [1992] S.C.J. No. 27. In that case, the Supreme Court of Canada upheld the constitutionality of the statutory scheme providing for the deportation of a permanent resident on conviction of a serious criminal offence. A number of points should be made about Chiarelli:

- It dealt with a fundamentally different issue - the deportation of a permanent resident convicted of a criminal offence for which a term of imprisonment of five years or more may be imposed. Mr. Chiarelli had been convicted of uttering threats to cause injury and possession of a narcotic for the purpose of trafficking. There was also evidence that he "was a member of a criminal organization which engaged in extortion and drug related activities, and further that the respondent personally took part in the extortion and drug related activities of the organization."

- There was also a question about whether a hearing before the then Review Committee, which was partly ex parte, was in accordance with the principles of fundamental justice. The Court wrote as follows:

In this case the respondent was first provided with the "Statement of Circumstances giving rise to the making of a Report by the Solicitor General of Canada and the Minister of Employment and Immigration to the Security Intelligence Review Committee." This document set out the nature of the information received by the Review Committee from the Ministers, including that the respondent had been involved in drug trafficking, and was involved in the murder of a named individual. Also prior to the Review Committee hearing, the respondent was provided with an extensive summary of surveillance of his activities (the "Chronology of Information") and a "Summary of Interpretation of Intercepted Private Communications relating to the murder of Domenic Racci." Although the first day of the hearing was conducted in camera, the respondent was provided with a summary of the evidence presented. In my [page 746] view, these various documents gave the respondent sufficient information to know the substance of the allegations against him, and to be able to respond. It is not necessary, in order to comply with fundamental justice in this context, that the respondent also be given details of the criminal intelligence investigation techniques or police sources used to acquire that information.

The respondent was also given the opportunity to respond, by calling his own witnesses or by requesting that he be allowed to cross-examine the RCMP witnesses who testified in camera. The Chairman of the Review Committee clearly indicated an intention to allow such cross-examination:

Certainly, it would be my inclination that if the RCMP wish to call witnesses in support of any or all of the comments that they may make in support of the Statement of Circumstances, there would be the opportunity for the applicant's counsel to cross-examine.

The respondent chose not to exercise these options. Having regard to the information that was disclosed to the respondent, the procedural opportunities that were available to him, and the competing interests at play at this area, I conclude that the procedure followed by the Review Committee in this case did not violate principles of fundamental justice (paragraph 50-51).

Chiarelli thus received summaries of all ex parte evidence and an opportunity to cross-examine in camera witnesses. Mr. Zundel has received neither.

H. Can Any Charter Violations be Justified Under Section 1 of the Charter?

107. If Charter violations exist with respect to the statutory framework complained of, then the Respondent must meet the onus of justifying the violations under section 1 of the Charter.

108. The section 1 test is set out as follows in the leading case of R. v. Oakes:

The onus of proving that a limit on right or freedom guaranteed by the Charter is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation.

The standard of proof under section 1 is the civil standard, namely, proof by a preponderance of probability.

Having regard to the fact that section 1 is being invoked for the purpose of justifying a violation of the constitutional rights and freedoms the Charter was designed to protect, a very high degree of probability will be in the words of Lord Denning, "commensurate with the occasion". Where evidence is required in order to prove the constituent elements of a section 1 inquiry, and this will generally be the case, it should be cogent and persuasive and make clear to the court the consequences of imposing or not imposing the limit: see Law Society of Upper Canada v. Skapinker. supra. at p.502 C.C.C., p. 182 D.I.R. p. 217 S.C.R. A court will also need to know what alternative measures for implementing the objective were [page 348] available to the legislators when they made their decisions. I should add: however, that there may be cases where certain elements of the section 1 analysis.

To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom": R. v. Big Drug Mart Ltd., supra at p. 430 C.C.C., p. 366 D.L.R., p. 352 S.C.R. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain section 1 protection. It is necessary, at a minimum, that an objective relates to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

Secondly, once a sufficiently significant object is recognized, then the party invoking section 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Secondly, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R. v. Big M Drug Mart Ltd., supra. Thirdly, there must be a proportionality between the effects of the measures which are reasonable for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".

R v. Oakes (1986) 24 C.C.C. (3d) 321 (S.C.C.)

The words "as little as possible" have arguably since been changed to "as little as reasonably possible."

R.J.R. MacDonald Inc. v. Canada [1995] S.C.J. No. 68 at page 84

109. It is conceded that the objective of the impugned provisions of the Act is of sufficient importance to meet the first point of the Oakes test. However in so conceding, it is respectfully submitted that the courts must be careful to ensure that the second part of the Oakes test is met, especially the requirement that the means chosen to protect "national security" should impair "as little as reasonably possible" the rights or freedoms in question.

110. Put bluntly, the court must not get carried away, in difficult times, with notions of "national security" and thereby countenance broad and overreaching infringements of rights.

111. The Canadian courts have a tradition of being vigilant to protect individual rights even in the context of real security threats. An example is the reaction of the Supreme Court of Canada to certain laws enacted during the Cold War to protect against the legitimate threat of communism.

112. In the 1953 case Smith & Rhuland Ltd v. Nova Scotia, the issue was whether a Labour Relations Board could refuse to certify a union local because its secretary treasurer, who exercised a "dominant influence in it", was a Communist. The Supreme Court of Canada courageously upheld the certification of the union local, in part as follows:

The domination found was evidenced by Bell's forcefulness in the key position of general secretary treasurer and organizer, by his acceptance of communistic teachings and by the fact that the party espousing those teachings demands of its votaries unremitting pressure, by deceit, treachery and revolution, to subvert democratic institutions and to establish dictatorship subservient to Soviet Russia. That is to say, the circumstance that an officer of a federated labour union holds to these doctrines is, per se, and apart from illegal acts or conduct, a ground upon which its local unions, so long as he remains an officer, can be denied the benefits of the Trade Union Act.

No one can doubt the consequences of a successful propagation of such doctrines and the problem presented between toleration of those who hold them and restrictions that are repugnant to our political traditions is of a difficult nature. But there are certain facts which must be faced.

There is no law in this country against holding such views nor of being a member of a group or party supporting them...

To treat that personal subjective taint as a ground for refusing certification is to evince a want of faith in the intelligence and loyalty of the membership of both the local and the federation. The dangers from the propagation of the communist dogmas lie essentially in the receptivity of the environment. The Canadian social order rests on the enlightened opinion and the reasonable satisfaction of the wants and desires of the people as a whole: but how can that state of things be advanced by the action of a local tribunal otherwise than on the footing of trust and confidence in those with whose interests the tribunal deals? Employees of every rank and description throughout the Dominion furnish the substance of the national life and the security of the state itself resides in their solidarity as loyal subjects...

I am unable to agree, then, that the Board has been empowered to act upon the view that official association with an individual holding political views considered to be dangerous by the Board proscribes a labour organization. Regardless of the strength and character of the influence of such a person, there must be some evidence that, with the acquiescence of the members, it has been directed to ends destructive of the legitimate purposes of the union, before that association can justify the exclusion of employees from the rights and privileges of a statute designed primarily for their benefit.

Smith & Rhuland Ltd. v. Nova Scotia [1953] 2 S.C.R. 95 at pages 3-4

113. In Switzman v. Elbling, the issue was the constitutionality of "The Act Respecting Communistic Propaganda of the Province of Quebec" which provided, inter alia, that "it shall be illegal for any person, who possesses or occupies a house within the Province, to use it or allow any person to make use of it to propagate communism or bolshevism by any means whatsoever." The Supreme Court of Canada struck down the law as an impermissible provincial intrusion into criminal law. In one of several concurring judgments, Rand J. wrote in part as follows:

Whatever the deficiencies in its workings, Canadian government is in substance the will of the majority expressed directly or indirectly through popular assemblies. This means ultimately government by the free public opinion of an open society, the effectiveness of which, as events have not infrequently demonstrated, is undoubted...

But public opinion, in order to meet such a responsibility, demands the condition of a virtually unobstructed access to and diffusion of ideas...

This constitutional fact is the political expression of the primary condition of social life, thought and its communication by language. Liberty in this is little less vital to man's mind and spirit than breathing is to his physical existence.. Switzman v. Elbling [1957] S.C.R. 285 at page 16

114. It is respectfully submitted that the courageous Supreme Court of Canada decisions in Smith & Rhuland and Switzman, while they may now seem quaint, must be viewed in the context of the real fear of communism which existed in the 1950s. There is a real fear of terrorism in the world in 2003. However, it is respectfully submitted that this Honourable Court, in looking at how far the law may go to protect against terrorism, must jealously guard constitutional rights to ensure that they are infringed "as little as reasonably possible". To do otherwise is to ironically undermine our most cherished values, as was so eloquently observed by Chief Justice Warren in United States v. Robel (see paragraph 3 above).

115. It is respectfully submitted that the provisions in the Act do not impair the rights in question "as little as reasonably possible". Examples of smaller infringements which would be very possible include the following:

1) Eliminate secret proceedings. 2) If there are to be secret proceedings, they could be limited to one occasion. Presumably the evidence exists at the start of the proceedings, when the certificate is issued. Any secret proceedings could be required to take place at that time, rather than allowing repeatedly secret proceedings. 3) In the further alternative, the secret proceedings could all take place before the person named in the certificate is required to start responding to the evidence against him. 4) In the further alternative, any secret proceedings after the person named in the certificate starts to respond could be limited to proper reply evidence, rather than being completely open-ended.

5) Summaries could be provided to the object of the certificate and his or her counsel. It is interesting to note that section 39(6) of the Immigration Act, which governed permanent residents named in security certificates until 2002, did require that a summary be made available to the person and his/her counsel.

Section 39(6) of the Immigration Act Schedule "B" hereto

6) Alternatively, withholding of summaries should only be permitted if "its disclosure would be injurious to national security" and not also "to the safety of any person". Witnesses testify every day in open court before accused persons in criminal cases where safety could be an issue. What about witnesses in an infamous case such as the murder trial of Hell Angels' leader "Mom" Boucher? Such witnesses must testify in court before the accused. 7) Evidence must be given under oath or solemn affirmation. 8) Evidence must come from live witnesses who can be cross-examined. 9) Evidence must at least be admissible in court. 10) Evidence must not be hearsay. 11) Evidence must be, at least, be "credible and trustworthy". (a term used in some statutes such as section 515 of the Criminal Code with respect to bail hearings). 12) The Designated Judge must determine that the person is actually a danger to national security. 13) Facts must be proven on the balance of probabilities, rather than the lower standard of reasonable ground for belief in the facts. 14) Alternatively, with respect at least to facts which "may occur", such facts must be proven on the balance of probabilities rather than just on reasonable grounds of belief. 15) A right of appeal could be allowed. 16) Alternatively, at least a right of judicial review could be allowed.

116. It is respectfully submitted that the Respondent cannot justify the Charter violations under section 1 of the Charter, especially since they do not impair rights as little as reasonably possible. The relevant provisions of the Act are thus of no force and effect pursuant to section 52 of the Constitution Act.

Section 52 of the Constitution Act Schedule "B" hereto

117. It is respectfully submitted that the entire legislative scheme in Sections 77, 78, 80, 81, 82 and 83 of the Act is thus of no force and effect.

118. It is respectfully submitted that the detention of Mr. Zundel pursuant to that legislative scheme is therefore unlawful and unconstitutional, and he ought to be ordered released forthwith.

I. What Remedies Does Habeas Corpus Provide?

119. The remedy of habeas corpus is particularly applicable in a case like this one, since that remedy is admirably suited to the protection of the person's right not be deprived of liberty except in accordance with the principles of fundamental justice, as stated by the Supreme Court of Canada:

A purposive approach should, in my view, be applied to the administration of Charter remedies as well as to the interpretation of Charter rights and, in particular, should be adopted when habeas corpus is the requested remedy since that remedy has traditionally been used and is admirably suited to the protection of the citizen's fundamental right to liberty and the right not to be deprived of it except in accordance with principles of fundamental justice. The superior courts in Canada have, I believe, with the advent of the Charter and in accordance with the sentiments expressed in the habeas corpus trilogy of Miller, Cardinal and Morin, displayed both creativity and flexibility in adapting the traditional remedy of habeas corpus to its new role. I find instructive the following innovative uses of the habeas corpus as a Charter remedy: see Re Cadeddu and The Queen (1982), 4 C.C.C. (3d) 97 (Ont. H.C.); Swan v. Attorney General of British Columbia (1983), 35 C.R. (3d) 135 (B.C.S.C.); Lussa v. Health Science Centre 91983), 9 C.R.R. 350 (man. Q.B.); MacAllister v. Director of Centre de Reception (1984), 40 C.R. (3d) 121 (Que. S.C.); Re Marshall and The Queen (1984), 13 C.C.C. (3d) 73 (Ont. H.C.); Re Jenkins (1984), 8 C.R.R. 142 (P.E.I.S.C. in banco); Jollimore v. Attorney-General of Nova Scotia (1986), 25 C.R.R. 28 (N.S.S.C.); Balian v. Regional Transfer Board (1988), 62 C.R. (3d) 258 (Ont. H.C.). I agree with the general proposition reflected in these case that Charter relief should not be denied or "displaced by overly rigid rules": see Swan, at p. 148.

R.v. Gamble [1988] S.C.J. No. 87 at page 30

120. The detention of like Mr. Zundel for more than six months without completing a detention review is contrary to the Act and can also be remedied by habeas corpus:

Where a statute requires that the detention of an individual be reviewed within a particular period of time and such review is not held, habeas corpus provides one avenue for securing the person's release. For example, where a person is arrested and ordered detained in custody on what is referred to colloquially as a "material witness warrant", failure to bring the witness before a superior court judge within 30 days of the order will constitute a failure to comply with the requirements set out in s. 707 of the Criminal Code and will provide the basis for a successful habeas corpus application.

Gover, The Criminal Lawyers' Guide to Extraordinary Remedies, page 91-92.

PART 4 - ORDER REQUESTED

121. It is respectfully submitted that an order be made:

A. declaring that the entire legislative scheme in section 77, 78, 80, 81, 82 and 83 of the Act violates sections 7 and 9 and 10(c) of the Charter, is not saved by section 1 and is thus of no force or effect.

B. declaring that the detention of Mr. Zundel is unlawful and unconstitutional; and

C. an order releasing Mr. Zundel from custody forthwith; and

D. such further and other relief as may seem just.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

DATED at Toronto, this 14th day of November, 2003.

_________________________

Peter Lindsay

_________________________

Chi-Kun Shi

Counsel for the Applicant