Here now is Day Two of the misnamed "Zundel Bail
Hearing", summarized by Paul Fromm:
YOU WILL SPEND THANKSGIVING WITH YOUR FAMILY; ERNST
WILL SPEND IT IN JAIL
Dear Free Speech Supporter:
On Wednesday, the final day in this round of Revisionist
publisher Ernst Zundel's detention hearing, before Mr. Justice Pierre
Blais, Donald MacIntosh, the Crown Attorney, talked out the clock,
ensuring that Mr. Zundel will remain in prison for another 13 weeks until
the hearings resume for three days on December 10.
Hour after hour, MacIntosh picked away at Mr. Zundel with
an ever more obscure series of questions about people he might have
interviewed once or known slightly. Allegations, often from hostile Jewish
sources and sometimes third and fourth-hand hearsay, were put to him for
his agreement or comment.
Political prisoner Ernst Zundel arrived in court with five
plainclothes guards. Two sat near him beyond the barrier separating the
court officials and lawyers from the spectators, three more sat among the
spectators or stood along the walls.
While the lawyers toted their piles of legal volumes on
suitcase-like carts with wheels, Mr. Zundel had to haul his legal papers
in two white pillow cases.
The day opened with a testy exchange between defence
lawyer Douglas H. Christie and the judge. The judge expressed unhappiness
that Mr. Christie had had a number of meetings with Mr. Zundel, while he
was under cross examination. On July 30, it had been agreed that, provided
he did not discuss Mr. Zundel's evidence, Mr. Christie could phone or
visit Mr. Zundel, to get instructions or to discuss other aspects of the
case.
"I didn't hear a caveat that each and every time I
wish to talk to my client I must inform or ask the Court," Mr.
Christie snapped. When agitated, the judge pronounces "asked"
with an aspirate: thus, "hasked". At the end of the exchange, it
was agreed that Mr. Christie could continue to consult with Mr. Zundel as
long as he is under cross-examination -- at least until December 10 --
provided he does not discuss his evidence or coach his responses.
Then Crown Attorney MacIntosh commenced a long and
laborious series of questions about Tom Metzger. Hovering, crow-like in
his black robe, his nose an inch or two above the document on the podium,
MacIntosh would spend long minutes searching for a quotation. More time
would be wasted as the judge, Mr. Zundel on the witness stand, and Mr.
Christie, would have to locate the often unnumbered page being referred
to. After each answer, Mr. MacIntosh would painstakingly make notes of the
answer, despite the fact he had three other legal assistants backing him
up. It was a classic time-waster, like a veteran hockey player who hogs
the puck while his team is ahead to run out the clock.
In the fishing expedition about Tom Metzger, Mr. MacIntosh
quoted from an author named Kaplan who wrote The Encyclopedia of White
Power and quoted Morris Dees quoting Harold Covington's brief quotation of
something Tom Metzger allegedly said. An angry Douglas Christie objected:
"My position on all these documents is that they're all inadmissible
hearsay. You have allowed the process to degenerate into a political
inquisition and filibuster. It's creating a prejudicial record of
guilt-by-association. This is prejudicial hearsay. It's bad enough that we
have to deal with secret hearings. This is fourth hand hearsay."
MacIntosh argued: "The statutory scheme of Section 78
[of the Immigration and Refugee Protection Act] clearly states that you
can rely evidence you might not otherwise." Then, in a remarkable one
liner indicating how slight the Crown's burden of proof is, he reminded
Mr. Justice Blais: "The case law is the reasonableness, not
necessarily the correctness, of the certificate."
The whole sinister process then became clear as a mountain
pool. CSIS's case is a wild series of guilt-by-associations. Mr. Zundel
knows or knew a series of people, some of whom at some time or other may
have made an extreme statement, or are alleged to have done so. Under
questioning, he admits he knew these people. Often, he is called to
acknowledge that he disagrees with a statement he never knew they'd made
or to acknowledge that if they did or advocated what a third party says
they did, they might be considered a terrorist. Then, with this record,
the Crown will argue that the CSIS accusation that Mr. Zundel is a
terrorist is "reasonable" -- even if it isn't true. After all,
he admits knowing all these extreme people. Once again, truth will be no
defence.
Outside the Court, Mr. Christie said: "This is like a
Soviet show trial. It's a process of guilt-by-association. The condemned
man is forced to disown or denounce all his friends or associations (like
Terry Long, Tom Metzger, Ewald Althans). That doesn't save him. The Court
then says that his denunciations are untruthful and just calculated to
save himself. Then, all alone now, the prisoner if found guilty and
shot."
This is Canada. Canada ostentatiously doesn't have capital
punishment. However, it condemns a man who is seriously ill to solitary
confinement, denied proper herbal medication, where the reasonable
likelihood of the State's action is the prisoner's death or incapacity.
In answering Mr. Christie's objection, Mr. Justice Blais
was a study in apparent fairness and convoluted expression. "Mr.
Metzger is not here. He is not the object of this case. The problem I have
is that we have 1,806 pages of documents filed by the Crown. [Ernst had
counted them and told the Court the number the day before.] When he [Mr.
Zundel] says 'I don't know or have any relation with this individual,'
that's it. I take very seriously Mr. Christie's objection. Anyone can make
speeches, but it does not mean he's responsible for others' actions. In a
sense, we must be careful about guilt-by-association. We're here to trial
[sic] Mr. Zundel's certificate."
So far, so good. Then, with a verbal pirouette, the Judge
said that, as these documents were before the Court, the interrogation
could continue and Mr. MacIntosh was off again.
When questioned on passages from the book The Encyclopedia
of White Power, Mr. Zundel said: "Mr. MacIntosh, I sent a researcher
to the University of Toronto Library to get a copy of this book. I'm not
even in the glossary. Yet, I'm supposed to be the guru of the White racist
right."
In the morning session, a Globe and Mail reporter
complained to both the Crown and to Mr. Christie that his tape recorder
had been confiscated by the Court security guards. After the break, Mr.
Christie argued: "The Ontario Court of Justice Act permits bringing
of recorders into Court for note taking. My position is that we should
allow the widest latitude for recording."
No, said Mr. Justice Blais. "I don't think our rules
allow that."
A casual observer might have concluded that Tom Metzger
was on trial in Courtroom 1 in Toronto on September 24. Mr. Zundel was
asked if he knew of a publication called "White Berets",
published by a branch of the Ku Klux Klan. Mr. Zundel said he didn't know
the publication, but was sent some Klan literature from time to time by
supporters. "You never asked anyone not to send you Klu[sic] Klux
Klan literature," Mr. MacIntosh said triumphantly, as if he'd scored
a knock-out point.
Douglas Christie leaped to his feet objecting: "The
Ku Klux Klan literature is another prejudicial document thrown into the
hopper. Mr. Zundel didn't recognize it, hadn't received it and didn't
adopt it."
Now, Mr. Justice Blais admonished Mr. Christie for
objecting so often: "Talking about a filibuster, but I don't want to
stop any objection. I try to be flexible pursuant to Section 78.j."
He then ruled: "The Klan document will be admitted."
In the afternoon, the Crown played a portion of a video
entitled "Hearts of Hate" produced with buckloads of Canadian
taxpayers' money. The video seemed to show Ernst Zundel singing
"Happy Birthday" in a pub on the occasion of the birthday of
Toronto skinhead Chris Newhook. Mr. Zundel had earlier testified that he
could not recall singing "Happy Birthday" on that evening almost
a decade ago.
Douglas Christie objected: "What is the relevance and
purpose of the T.V. tape? If it shows Ernst Zundel involved in violence,
okay. If it shows him singing 'Happy Birthday,' it's collateral and should
not be allowed."
Although he permitted showing of the propaganda video, it
was too much even for Mr. Justice Blais: "Section 78.j allows
flexibility, but we should apply it in good faith. No one will be deported
for singing 'Happy Birthday.' Frankly, Mr. MacIntosh, it happens to
everyone. People start singing 'Happy Birthday' in a bar and everyone
joins in."
Then, Mr. Zundel was questioned about Church of the
Creator founder Ben Klassen, whom he had never met and didn't know, and
his alleged sale of property to William Pierce. Again Mr. Christie
objected: "Guilt-by-association is what this is all about. The
witness was asked whether he knew Mr. Klassen. He said 'no'. Then, he was
asked if he knew of a connection between Mr. Klassen and Mr. Pierce. I
just point out that it's like asking whether person A, whom I don't know,
has any connection with person B, whom I don't know. Where's the relevance
to actions?"
The later part of the afternoon was taken up with setting
the agenda for the next round of hearings December 10-12. Mr. MacIntosh
said he'll need another hour and a half to complete his cross-examination.
Both lawyers will prepare written submissions as to whether Mr. Justice
Blais has jurisdiction to decide Mr. Christie constitutional challenge to
the Immigration and Refugee Protection Act; particularly, to the sections
surrounding the CSIS certificate, which allow no appeal of the judge's
decision and which permit secret hearings. The jurisdictional question
will be argued. If the judge decides he has jurisdiction, the
constitutional question will be argued. Both parties are preparing written
submissions on this point as well. Finally, Mr. Zundel's detention will be
argued.
Optimists feel there's a chance Mr. Zundel will be free
for Christmas. Despite the incarceration which will be 10 months come
December, Mr. Justice Blais said: "The personal question for Mr.
Zundel is important, but we're breaking new ground with a new law. So, we
must take our time. I'm pre-occupied by this point, by Mr. Zundel's
detention."
Later that night, speaking to the Alternative Forum in
Toronto, Mr. Christie praised those loyal 25-30 people who had filled the
courtroom each day in support of the dissident publisher. "Every
minute you're in the court bears witness to the fact that you have not
surrendered to a corrupt government. It's a political inquisition, "
Mr. Christie said.
-- Paul Fromm
