Court File No.: A-534-04

FEDERAL COURT OF APPEAL

IN THE MATTER OF A CERTIFICATE SIGNED
Pursuant to subsection 77(1) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the "Act")

AND IN THE MATTER OF THE REFERRAL OF THAT
Certificate to the Federal Court of Canada pursuant to subsection 77(1),
sections 78 and 80 of the Act;

AND IN THE MATTER OF the detention of a permanent resident
pursuant to subsection 83(1) of the Act;

AND IN THE MATTER OF ERNST ZUNDEL

B E T W E E N:
ERNST ZUNDEL
Appellant
- and -

HER MAJESTY THE QUEEN
Respondent


NOTICE OF MOTION

TAKE NOTICE THAT Ernst Zundel will make a motion to this Honourable Court on
a day to be assigned by the Registrar at 330 University Avenue, Toronto,
Ontario or at a location to be assigned by the Registrar.

THE MOTION IS FOR:

1. An order staying the Security Certificate Review herein conducted under
Court File No. DES-2-03 before the Honourable Mr. Justice Blais pending the
outcome of an appeal from the order of Justice Blais dated September 24,
2004 dismissing Mr. Zundel's motion for recusal on the grounds of a
reasonable apprehension of bias; and

2. Such further and other relief as this Honourable Court deems just.
THE GROUNDS FOR THE MOTION ARE

serious issue

1. There is currently an outstanding appeal against an order dismissing Mr.
Zundel's request for the Honourable Justice Blais, the presiding judge at
the security certificate review herein conducted under Court File No.
DES-2-03 (the "Review"), to recuse himself due to a reasonable apprehension
of bias;

2. The judicial improprieties and erroneous rulings, all adverse to Mr.
Zundel, which lead to such apprehension include the following:
(a) serious lack of even-handedness in favour of the Crown, including
* allowing the Crown to cross-examine Mr. Zundel on his view on Hitler's
view on interracial marriages as an "important question";
* allowing the Crown to cross-examine Zundel witness Doug Christie on his
view of the truthfulness of Zundel's testimony that Christie has no
knowledge of;
* disallowing Mr. Zundel's counsel ("Zundel counsel") from asking CSIS to
point to a single incident of Zundel inspired violence in unclassified
materials;
* disallowing questions that address the competence of CSIS in gathering
information and its credibility.

(b) patent errors of law and refusal to correct or even acknowledge errors,
including
*  disallowing some of Zundel counsel's cross-examination questions on the
basis that the answer may disclose information which "could be" injurious to
national security. The correct test is: "would be" injurious to national
security pursuant to s. 78(b) of the Act.

* Refusal to correct or acknowledge
such errors when Zundel counsel pointed them out;
*  claiming judicial entitlement to dismiss the motion for recusal due to the
absence of an affidavit. The motion relied on transcripts.

(c) inconsistent and sometimes clearly wrong rulings in the name of
"national security", in effect prohibiting Zundel counsel from conducting
any meaningful test on Crown materials provided by CSIS, including
* insisting that some materials prepared and disseminated by Mr. Zundel may
be classified and therefore their use in court accordingly restricted;
* disallowing, on the ground of national security, all questions whether
CSIS has any unclassified evidence that Zundel was ever involved in any
violence or acts or terrorism anywhere.

(d) prejudging, including
*  indicating on January 21, 2004 while Mr. Zundel was in the midst of
responding to all Crown allegations, that His Lordship disbelieved Zundel's
evidence and was, on the other hand, convinced by secret evidence that Mr.
Zundel is actually a danger to national security;
* repeatedly commented on the positive credibility of CSIS witness Mr. Dave
Stewart during his cross-examination by Zundel counsel;
* complained that no progress was being made when Zundel counsel spent time
cross-examining CSIS witness about the means through which Zundel allegedly
perpetrated violence and endangered our national security. The judicial
complaint followed Crown counsel=s objection that those questions were a
waste of time;
* exclaimed to Zundel witness while he was on the stand that his testimony
was of no value whatsoever;
*  before the hearing of the recusal motion herein, where one the remedies
sought is that the hearing not proceed until said motion has been decided,
Justice Blais made it clear that he would continue the hearing prior to
deciding the recusal motion.

(e) insult counsel, including comments characterizing Zundel counsel as
* playing games, being tricky, trying things that were smart but against the
law, wasting time and being nervous;
* during one hearing date, Justice Blais so interfered with Zundel counsel's
submissions that His Lordship himself felt, after the lunch recess,
compelled to apologize for his conduct towards Zundel counsel;

(f) excessive interjections during crucial cross-examination by Zundel
counsel, including
 * destroying with aggressive and persistent interjection entire lines of
cross-examination by Zundel counsel on CSIS own written admission that
Zundel's alleged tool for endangering national security, the white
supremacist movement, was itself not a threat to our national security.

(g) allowing late Crown objection and subsequent witness change to previous
answer to the question, including
*  CSIS witness changed his answer from "no" to "don=t know" regarding any
Zundel criminal conviction on aiding and abetting crimes after the Crown
objected to the cross-examination question. And assume an adversarial attitude towards Zundel witness and counsel,
including
* characterizing the recusal motion as Zundel counsel's coercing the court;
* characterizing Zundel counsel's conduct as goading His Lordship;

3. The conduct of the Honourable Justice Blais during the Review to date had
been so patently unreasonable and the improprieties so palpable and
overriding, that they destroy the underlying fairness and legality of the
proceedings. Such conduct cannot be corrected by appeal or judicial review
at the end of said Review (because there is no right to launch any final
appeal or judicial review on the merits of the findings with respect to the
Certificate);

4. The improprieties of the Honourable Justice Blais are also jurisdictional
in nature according to Re: Felderhof in that they constitute (I) gross
denial of natural justice; (ii) irreparable judicial violation of
constitutional rights; and (iii) prejudgment;

5. As the Certificate Review process determines whether Mr. Zundel will be
deported to a country where he will be jailed for actions that are legal in
Canada, it engages Mr. Zundel's s. 7 Charter rights. The process must thus
be in accordance with the principles of fundamental justice. It is not in
accordance with such principles and the rule of law for Mr. Zundel's fate to
be determined by a Court which appears to be biased against him;

irreparable harm

6. Unless a stay is granted, the Security Certificate Review will continue
without Mr. Zundel being able to receive, or appear to receive, a fair
hearing;

7. The evidence in said Review has closed and closing arguments have been
scheduled to commence on October 19, 2004 with an estimate of 5 days in
total to complete them. Unless a stay is granted NOW, said Review will be
completed and, given the appearance of bias and the presiding judge's
comment in the middle of the hearing, a quick order upholding the Security
Certificate appear to be a certainty;

8. Such order will serve as a removal order pursuant to the Act. Said
removal order is unappealable and is not subject to judicial review. It is
enforceable without the necessity of holding or continuing an examination or
an admissibility hearing and the Applicant may not apply for protection from
the Minister of Citizenship and Immigration;

9. Germany, the Applicant's birthplace, has offered to  "pick up" the
Applicant at short notice and pay for his deportation back to Germany;

10. Germany has also indicated that, if deported to Germany, the Applicant
will likely face lengthy jail term for denying the Holocaust, which is not
illegal in Canada;

11. Unless this Honourable Court grants a stay, such jurisdictional errors
will continue and the appearance of a "rigged court" will remain with, in
effect, the tacit tolerance of this Honourable Court. In the meantime, Mr.
Zundel may be deported to Germany and the issue as to whether "justice
appears to be done"  in this case will become moot and buried;

12. Unless a judicial body independent from Justice Blais reviews and
adjudicates the propriety of the judicial conduct at issue fully, it remains
for posterity as a stain on our judicial system and on all courts, including
this Honourable Court, which has the opportunity to conduct such review NOW;

balance of convenience

13. Mr. Zundel has been ordered by the designated judge on September 22,
2004 to remain in custody. Therefore, should a stay be granted, Mr. Zundel
will continue to be held in solitary confinement where he has been since
February 19, 2003, without having any criminal record in Canada or facing
any criminal charges;

14. During any future detention reviews, in order that Mr. Zundel can be
released on bail pending the completion of his Security Certificate Review,
the designated review judge must find that it is appropriate to do so under
s. 83 of the Act;

15. The interests of justice require that the appellant be allowed to fully
exercise his statutory right of appeal;

16. Sections 77(1), 78(c), (i), 80(1), 81 and 83 of the Act;

17. Sections 1, 7, 9, 10 and 11 of the Charter of Rights and Freedoms,
Constitution Act, 1982;

18. Sections 44 and 50 of the Federal Court Act, R.S.C. 1985, c. F-7, as
amended; and

19. Such further and other grounds and counsel may advise and this
Honourable Court may permit.

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the
motion:

1. Affidavit of Anna Mok sworn on ?, 2004;
2. Order of the Honourable Justice Blais dated September 24, 2004;
3. Notice of Appeal regarding recusal motion;
4. Transcripts of the proceedings DES-3-02 to date; and
5. Such further and other evidence as counsel may advise and this Honourable
Court may permit.

Date: October 13, 2004 ___________________________
PETER LINDSAY
Barrister and Solicitor
233 Sheppard Avenue West
Toronto, Ontario
M2N 1N2

LSUC Reg. No. 31943V
Tel: (416)733-3313
Fax: (416)733-3433

Solicitor for Ernst Zundel

TO: The Minister of Citizenship and Immigration
Senior Counsel at Justice Canada
Immigration Section, Exchange Tower
3400 - 130 King Street West
Toronto, Ontario
M5X 1K6
Att: Mr. Donald MacIntosh

AND TO: The Solicitor General of Canada
Canadian Security Intelligence Service
1942 Ogilvie Road
Ottawa, Ontario
K1J 1B7
Att: Mr. Murray Rodych

Solicitors for the Respondent


C:\Documents and Settings\Chi Kun
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Court File No.:

FEDERAL COURT OF APPEAL

IN THE MATTER OF A CERTIFICATE SIGNED
Pursuant to subsection 77(1) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the "Act")

AND IN THE MATTER OF THE REFERRAL OF THAT
Certificate to the Federal Court of Canada pursuant to subsection 77(1),
sections 78 and 80 of the Act;

AND IN THE MATTER OF the detention of a permanent resident
pursuant to subsection 83(1) of the Act;

AND IN THE MATTER OF ERNST ZUNDEL

B E T W E E N:
ERNST ZUNDEL
Appellant
- and -

HER MAJESTY THE QUEEN
Respondent

WRITTEN SUBMISSIONS

1. This is a motion for an order staying the security certificate review
herein currently underway before the Honourable Mr. Justice Blais pending
the appeal of the dismissal of the Appellant=s motion for recusal of Justice
Blais due to a reasonable apprehension of bias.

2. Section 44 of the Federal Court Act stipulates that this Honourable Court
has the authority to grant an injunction, of which a stay of proceedings is
one type, as follows:

In addition to any other relief that the Federal Court of Appeal...may grant
or award, a mandamus, an injunction...may be granted...in all cases in which
it appears to the court to be just or convenient to do so. The order may be
made either unconditionally or on any terms and conditions that the court
considers just.

3. Section 50(1)(b) of the Federal Court Act specifically authorizes this
Honourable Court to grant a stay of proceedings, as follows:

The Federal Court of Appeal...may, in its discretion, stay proceedings in
any cause or matter...where for any other reason it is in the interest of
justice that the proceedings be stayed.

4. The three-part test to be applied in determining whether a stay should be
granted was set out by the Supreme Court of Canada in Manitoba v.
Metropolitan Stores, as follows:

(1) Merits of case - where constitutional challenge is pending, it is
sufficient that the case raises a serious question as opposed to a serious
or vexatious claim. In all other cases, a prima facie case may be required.
(Para. 31-33)
(2) Irreparable harm - whether the litigant who seeks the stay would, unless
it is granted, suffer harm not susceptible or difficult to be compensated in
damages. (Para. 34)
(3) Balance of convenience - where constitutional challenge is pending,
public interest is taken into consideration and weighted together with the
interest of private litigants. In all other cases, determination is made of
which of the two parties will suffer the greater harm from the granting or
the refusal of a stay. (para. 35, 54, 57, 79, 83)

Manitoba v. Metropolitan Stores [1987] S.C.J. No. 6

Serious Question

5. For judicial improprieties up to August 4, 2004, when the motion for
recusal was brought, which give rise to a serious question of a reasonable
apprehension of bias, Zundel relies upon his written submission on his
Motion for Recusal at tab 5-C herein.

6. After the motion record for recusal was delivered, there was more concern
of new judicial conduct which leads to a reasonable apprehension of bias,
mainly on three fronts:

(1) treatment of Zundel witness Doug Christie lacked balance;
(2) treatment of former CSIS agent John Farrell lacked balance; and
(3) adversarial approach to Zundel counsel.

7. Regarding Mr. Doug Christie, the concerns were raised by way of Reply in
the Motion for Recusal. Justice Blais refused to consider the Reply on the
basis that it occurred past the date of the Motion Record. Said Reply has
been included under tab 7 herein.

8. Regarding Mr. Farrell, he was named as the source of a non-fiction titled
Covert Entry in which it was intimated that while CSIS monitored Zundel's
mail, it may have knowingly allowed through a package which turned out to
contain a powerful pipe bomb.

Transcripts of Proceedings

9. After about six (6) months of efforts and despite Mr. Farrell's
resistance, Zundel counsel  subpoenaed him to testify at the certificate
review herein.

Transcripts of Proceedings

10. Although Justice Blais had said repeatedly how concerned he was about
the bomb which was sent to Mr. Zundel, he disallowed all questions that
Zundel counsel asked of Mr. Farrell regarding CSIS credibility, competence
and its treatment of its perceived adversaries, even though the entire
Covert Entry dealt largely with the lack of credibility and competence of
CSIS, described through what it called the story of Mr. Farrell. His
Lordship disallowed all such investigation on the repeated basis that CSIS
is not on trial. It is respectfully submitted that CSIS's evidence against
Zundel is on trial and therefore CSIS credibility, especially with respect
to the secret evidence and its competence and integrity must also
necessarily be considered.

Transcripts of Proceedings

11. His Lordship also disallowed Zundel counsel's request to cross-examine
Mr. Farrell on a prior inconsistent statement on the issue of the bomb.

12. During Mr. Farrell's testimony, at one point Justice Blais accused
Zundel counsel, who was struggling with His Lordship's many obstructions to
his questioning, of goading His Lordship. It is respectfully submitted that
it was His Lordship's conduct during Mr. Farrell's testimony which laid bare
the concern that His Lordship's manifest conduct had become more consistent
with that of an adversary against Mr. Zundel  than an impartial trier of the
truth.

13. It is respectfully submitted that the hearing has become so poisoned
that, until this Honourable Court provides clear guidance as to whether the
described judicial conduct is appropriate and how counsel should reconcile
it with the existing law, it brings the administration of justice into
disrepute to allow this hearing to continue.

14. Furthermore, Germany, Mr. Zundel's birthplace, has offered to "pick up" 
Mr. Zundel at short notice and pay for his deportation back to Germany.

Exhibit 1, Affidavit of Vanessa Yeung, tab 3, MR

15. Germany has also indicated that, if deported to Germany, Mr. Zundel will
likely face lengthy jail term for denying the Holocaust.

Exhibit 1, Affidavit of Vanessa Yeung, tab 3, MR

16. Denying the Holocaust is not illegal in Canada.

R. v. Zundel [1992] 2 S.C.R. 731

17. As the certificate review process determines whether Mr. Zundel will be
deported to a country where he will be jailed for actions that are legal in
Canada, it infringes Mr. Zundel's s. 7 Charter rights. It could only be done
in accordance with the principles of fundamental justice.

Irreparable Harm

18. Without a presiding judge who conducts himself in an impartial manner,
Mr. Zundel is in effect denied his opportunity to be heard regarding his
admissibility, contrary to s. 78(i) of the Act, as follows:

78(i) the judge shall provide the permanent resident...with an opportunity
to be heard regarding their inadmissibility;

Immigration and Refugee Protection Act, S.C. 2001, c. 27

19. Unless a stay is granted, the security certificate review will proceed
without Mr. Zundel being able to participate in any meaningful way in what
is apparently a "rigged court".

20. The resolution of the appeal on recusal is therefore essential to basic
fairness and justice of the process as perceived by the public and as
stipulated in the Act to be a governing principle of the security
certificate review process:

s. 78(c) the judge shall deal with all matters as informally and
expeditiously as the circumstances and considerations of fairness and
natural justice permit;

Immigration and Refugee Protection Act, S.C. 2001, c. 27

21. This Honourable Court has in the past granted stay of proceedings due to
concern as articulated by Justice Letourneau that "if a stay is not granted,
it is evident that [the] appeal will be rendered nugatory" (para. 11).

Said v. Canada [1999] F.C.J. No. 663 (F.C.A.)

22. If the security certificate is held to be reasonable, it constitutes a
removal order and, according to s. 81 of the Act,

"...may not be appealed against and that is in force without the necessity of
holding or continuing an examination or an admissibility hearing and the
person named in it may not apply for protection from the Minister of
Citizenship and Immigration."

Immigration and Refugee Protection Act, S.C. 2001, c. 27

23. As previously stated, the target state for deportation, Germany, has
expressed inordinate enthusiasm for immediate capture of Mr. Zundel. Unless
a stay is granted now, whether Mr. Zundel gets a chance to apply for a stay
may depend on whether, should the security certificate be upheld, Mr.
Zundel's counsel happen to be in his office when the decision comes through
his fax machine.

24. In Suresh v. Canada, where the individual had been declared by the
Minister of Citizenship and Immigration to be a danger in Canada, this
Honourable Court granted a stay and held that the individual would suffer
irreparable harm if he were to be deported prior to the hearing in question
as it would be rendered moot for all intents and purposes.

Suresh v. Canada [1999] F.C.J. No. 1180 at para. 21 (F.C.A.)

25. To deny a stay of the security certificate review process until the
recusal appeal has been determined will infringe fundamental principles of
fairness and allow the Charter violation as well as other breaches of
procedural fairness to occur to the individual's significant detriment and
without remedy.

Balance of Convenience

27. Mr. Zundel has been ordered by the designated judge on January 21, 2004
to remain in custody. Therefore, should a stay be granted, Mr. Zundel will
continue to be held in solitary confinement where he has been since February
19, 2003, without causing any danger to the security of Canada.

Order and Reasons of the Honourable Justice Blais, tab E, MR

28. In the case of permanent residents, in order that such person can be
released on bail pending the completion of his security certificate review,
the designated review judge must find that it is appropriate to do so under
s. 83 of the Act.

S. 82, 83, Immigration and Refugee Protection Act, S.C. 2001, c. 27

29. In Romans v. Canada, it was held by Mr. Justice Evans of this Honourable
Court that concern for public safety can be addressed, in appropriate
circumstances, by detention. It is respectfully submitted that such is the
case here.

Romans v. Canada [2001] F.C.J. No. 1201 (F.C.A.)

30. It was held by this Honourable Court in Suresh v. Canada that the
balance of convenience favours the individual to the extent that the
individual has already lived in Canada for an extended period of time. It is
not disputed that Mr. Zundel had previously lived in Canada for more than 40
years and has no criminal record and no outstanding criminal charges in
Canada.

Suresh v. Canada [1999] F.C.J. No. 1180 at para. 21 (F.C.A.)

31. Unless a stay is granted, should the appeal from the recusal motion be
granted, Mr. Zundel will in all likelihood be in a German jail and unable to
receive any meaningful remedy, a situation which, in the view of Justice
Letourneau in Said v. Canada, should be taken into account in determining
the question of balance of convenience. Justice Blanchard came to similar
conclusion and granted  a stay in the recent case of Almrei v. Canada.

Said v. Canada [1999] F.C.J. No. 663 at para. 11 (F.C.A.)
Almrei v. Canada [2003] F.C.J. No. 1790

32. As stated by Justice Pinard in Kindler v. Canada, the interest of
justice therefore requires that the appellant be allowed to fully exercise
his statutory right of appeal.

Kindler v. Canada [1988] F.C.J. No. 904 (T.D.)

33. It is therefore respectfully submitted that a stay of proceedings should
be granted. Justice must appear to be done.

Majcenic v. Natale [1968] 1 O.R. 189 at 199 (C.A.)

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Date: October 4, 2004 ___________________________
PETER LINDSAY
Barrister
233 Sheppard Avenue West
Toronto, Ontario
M2N 1N2
LSUC No.: 31943V
Tel: (416)733-3313
Fax: (416)733-3433

Solicitor for Ernst Zundel