ZGram - 12/22/2003 - "Judge Blais refuses to recuse himself in the Zundel Case"

[zgrams at zgrams.zundelsite.org]

Zgram - Where Truth is Destiny:  Now more than ever!

December 22, 2003

Good Morning from the Zundelsite:

As I stated already, yesterday's and today's Zgrams belong together. 
In yesterday's Zgram, written about a week before the last bail 
hearings December 10-11, Ernst talked about Judge Blais's 
less-than-transparent role as a former boss of CSIS  - the very 
agency whose accusations, obtained and poured into cement in secret 
hearings, are keeping Ernst in solitary confinement. 

What Ernst predicted yesterday, has come to pass and is exposed for 
all the world to see, to Canada's shame - Judge Blais did NOT see fit 
to recuse himself and take himself off the Zundel case as a 
less-than-objective participant. 

As I  also said, which bears repeating,  this IS for the record! 

Paul Fromm introduces the rather long, wordy ruling:

[START]

Dear Free Speech Supporter:

	On December 17, Mr. Justice Pierre Blais denied Ernst Zundel's lawyer
Douglas H. Christie's motion to recuse himself for creating a reasonable
apprehension of bias. Blais had been Solicitor-General in 1989. On his
watch,  Canadian Security and Intelligence Service (CSIS) agent Grant
Bristow was tasked to infiltrate and mis-direct the just formed White
rights group called the Heritage Front. Also, CSIS -- allegedly contrary to
Blais' directive -- used human sources to target then Reform Party leader
Preston Manning.

	Blais, thus, had a strong supervisory role over Canada's dirty trick
security service. There is, at the very least, the concern that he might be
easily influenced by the members of the team he used to command. After all,
CSIS's evidence, public and secret, is the very core of this case. It is
their contention that pacifist publisher Ernst Zundel is, in fact, a
terrorist committed to serious acts of violence in Canada and Germany that
is key to declaring him as threat to national security.

	What follows are Mr. Justice Blais' reasons.

	Several of Blais' comments crave a response. He argues: "The 
ministerial
Directive of October, 1989 ... was basically a reminder to CSIS to respect
the law and the 'most sensitive institutions of our society.' The SIRC
report on the Heritage Front Affair, as well as both the majority and
minority reports of the Subcommittee of the House all indicate that CSIS
failed to follow the Direction on the handling of sources given in 1989. I
cannot fathom how that fact can be invoked to support a reasonable
apprehension of bias." (32)

	On this point, interestingly, CSIS has never been disciplined for
infiltrating Grant Bristow through the Heritage Front so that he could get
close to Preston Manning and politically embarrass him. What we have is that
the Minister (Blais) says all the right things. CSIS ignores him. No one is
disciplined. An observer might wonder whether the directive was given with
a nudge-nudge-wink-wink I-have-to-say-this,-but-you-don't-have-to-obey
understanding. If so, Blais would be very vulnerable to a CSIS that knows
his hands are dirty. This is speculation; it's not proof, but's it's
reasonable. And Mr. Zundel's fate hangs in the balance.

	Mr. Justice Blais adds: "I no longer know what are the 
policies operating
within CSIS, no more than any other Canadian citizen. Moreover, this link
has been severed for a very long time. " (36) The former Solicitor-General
is being a little disingenuous. It's said that once in, you never really
leave the spy/intelligence game. Furthermore, as a sworn member of the
Privy Council Mr. Justice Blais had access to deep and secret information.
It strains reasonable belief to accept that he knows no more about CSIS
today than the average Pierre Peasant in Chicoutimi.

	Finally, Mr. Justice Blais dons the mantle or the dignity and
incorruptibility of the judiciary: "The judiciary is presumed to be
impartial and this presumption cannot be lightly set aside." (38) And it's
not being lightly set aside. As Solicitor-General, Pierre Blais was the
boss of and had close and intimiate dealings with CSIS, the partly secret
accusers whose allegations are at the core of this case. A reasonable
person might see Mr. Justice Blais  either as being prone to favour his old
pals from "the game" or as being susceptible to pressure, as CSIS knows
where the skeletons, maybe even HIS skeletons, are buried.


					Paul Fromm
					Director
					CANADIAN ASSOCIATION FOR FREE 
EXPRESSION

JUSTICE BLAIS "...IN THE MATTER OF ERNST ZUNDEL REASONS FOR ORDER AND
ORDER" 12/17/03

1. The respondent Ernst Zundel has filed a motion for an order of recusal.
Mr. Zundel submit that I should recuse myself because as Solicitor General
in 1989, I was the Minister responsible for CSIS before Parliament. Mr.
Zundel also alleges that certain of my comments n a book introduced in
evidence show my favourable bias to CSIS.

2. Mr. Zundel argues that I should have recused myself from the start
because having been responsible for CSIS I would not be able to be
impartial in dealing with a matter where CSIS provides a great deal of
evidence. Moreover, some of the evidence is confidential and neither Mr
Zundel nor his layers have access to it. Therefore, according to Mr.
Zundel, there is reasonable apprehensive of bias, because of both my former
connection to CSIS and the nature of the evidence presented against Mr.
Zundel.

3. The Ministers have responded by arguing on both a technical and
substantive basis. On the technical side, the Ministers submit that the
motion was not properly constituted, having been introduced without written
representation and supported by an affidavit which contains not only facts
but allegations and arguments.

4. As to the substantive issues, the Ministers argue that the doctrine res
judicata applies, since this is the second motion brought for recusal, and
none of the facts on which it is based occurred after the first motion.
Moreover, the Ministers also suggest that there are no serious grounds for a
reasonable apprehension of bias, a very serious allegation which requires
that the person alleging reasonable apprehension of bias meet a very high
threshold. The Solicitor General, although responsible for CSIS before
Parliament, has under the Act very little direct, daily involvement with
CSIS affairs, which come under the Director, it is thus unlikely that as
Solicitor General I would have been directly involved in any activity
concerning Mr. Zundel. The Ministers further argue that the passage of
time, following the Supreme Court decision in Wewaykum Indian Band v.
Canada [2003 ] S.C.J. No. 50 ["Wewaykum"], certainly applies in this case.
Finally, the Ministers contend that there was no requirement to disclose
since I was not in a relationship with CSIS that would raise a reasonable
apprehension of bias.

5. There are four main groups for dismissing this motion for recusal: the
doctrine of waiver, the irrelevance of the evidence, the passage of time
and the presumption of impartiality.

1) Waiver

6. The fact that I was Solicitor General in 1989 was a matter of public
record from the start. A quick perusal of the Federal Court website would
indicate the inclusion of that fact in my biography. I did not believe, and
I still do not, that having been Solicitor General 13 years ago, at a time
when right-wing extremist groups were not a pressing policy concern for
Canada, would have any bearing on a hearing for which I was appointed in
2003.

7. If the matter is of concern to Mr. Zundel, then it should have been
raised at the start of these hearing, not now, not after six months have
gone by.

8. In Re Human Rights Tribunal and Atomic Energy of Canada Ltd., [1986] 1
F.C. 103, leave to appeal dismissed, (1986), 72 N.R. 77, MacGuigan J.A.
stated at pp. 112-113 of that case:

The only reasonable course of conduct for a part reasonably apprehensive of
bias would be to allege a violation of natural justice at the earliest
practicable opportunity. Here, AECL called witnesses, cross-examined the
witnesses called by the Commission, made many submissions to the Tribunal,
and took proceedings before both the Trial Division and this Court, all
without challenge to the independent of the Commission. In short, it
participated fully in the hearing and must therefore be taken implicidly to
have waived its right to object.

9. In Zundel v. Canada (Canadian Human rights Commission) (re Canadian
Jewish Congress ) [2000] F.C.J. No. 1838, the Federal Court of Appeal
presents the doctrine of waiver in a case of reasonable apprehension of
bias as follows, at paragraph 4:

At common law, even an implied waiver of objection to an adjudicator at the
initial stages is sufficient to invalidate a later objection. Re Thompson
and Local 1026 of International Union of Mine, Mill and Smelter workers et
al. (1962), 35 D.L.R. (2d) 333 [Man. C.A.]; Rex v. Byles and others; Ex
parte Hollidge (1912), 108 L.T. 270 (Eng. K.B.D.); Regina v. Nailsworth
Licensing Justices. Ex parte Bird, [1953] 1 W.L.R. 1046 (Eng. Q.B.D.);
Bateman v. McKay et al., [1976] 4 W.W.R. 129 (Sask. Q.B.). The principle is
stated as follows in Hasbury's. Laws of England (4th ed.). volume 1,
paragraph 71, page 87:

The right to impugn proceedings tainted by the participation of an
adjudicator disqualified by interest or likelihood of bias may be lost by
express or implied waiver of the right to object. There is no waiver or
acquiescence unless the party entitled to object to an adjudicator's
participation was made fully aware of the nature of the disqualification
and had an adequate opportunity of objecting. Once these conditions are
present, a party will be deemed to have acquiesced in the participation of
a disqualified adjudicator unless he has objected at the earliest
practicable opportunity.

10. In that case, the Federal Court of Appeal ruled that since the grounds
for objection existed form the outset, being a part of the Act, they should
have been raised at the start of the hearings. In the case at bar, my
mandate as Solicitor General in 1989 was a matter of public record and
appeared as public information on the Federal Court website ands also other
public books of reference like Canadian Who's Who, Canadian Parliamentary
Guide, International Year Book and Statesmen's Who's Who. The fact that the
applicant in this motion only recently found out it is of no concern to
this Court. Mr. Zundel has presented evidence, called witnesses and
presented an earlier motion for recusal based on other grounds. It appears
to me that Mr. Zundel waived his right to challenge my designation on the
basis of my former duties as solicitor General.

11. Mr. Zundel contends that I should have made the parties aware of my
term as Solicitor General in 1989. Mr. Zundel seems to imply that my
situation would be one of automatic disqualification, where, because of a
conflict of interest, I should disqualify myself.

12. The most recent authority on this issue sacroiliac the decision of the
House of Lords in R. v. Bow Street Metropolitan Stipendiery Magistrate, Ex
parte Pinochet Ugarte (no. 2), [1999] 2 W.L.R. 272, where the House of
Lords has=d to decide whether one of the Lords sitting on the Appellate
Committee had been automatically disqualified. The Appellate Committee of
the House of Lords had had to rule on whether General Pinochet, accused in
Spain of crimes against humanity, was extraditable from Great Brittain or
whether he was protected by diplomatic immunity. The Committee ruled in
favour of extradition in a split 3-2 decision. One of these who supported
the ruling was Lord Hoffman. The lawyers for General Pinochet discovered
after the ruling that Lord Hoffman was Director and Chairperson of Amnesty
International Charity Limited ["AICL"], a registered charity incorporated
in 1986 to fund the charitable aspects (according to U.K. law) of the work
of Amnesty Internation Limited.

13. In the hearing before the Appellate Committee, Amnesty International
["AI"] was an intervener. Moreover evidence showed that AICL had funded
research by AI on the situation of human rights abuses in Chile and
non-prosecution of parties thought to be responsible for these abuses. The
House of Lords ruled that Lord Hoffman had to be disqualified. This was not
a matter of bias or apprehension of bias. Rather, because he waw directly
involved in AI's work, lord Hoffman was automatically disqualified. In the
words of Lord Goff of Chieveley, concurring in the judgment:

51. It is important to observe that this conclusion is, in my opinion, in
no way dependent on Lord Hoffmann personally holding any view, or having
any objective, regarding the question whether Senator Pinochet should be
extradited, nor is it dependent on any bias or apparent bias on his part.
Any suggestion of bias on his part was, of course, disclaimed by those
representing Senator Pinochet. It arises simply from Lord Hoffman's
involvement in AICL; the close relationship between I, AIL and AICL, which
here means that for present purposes they can be regarded as being, in
practical terms one organization: and the participation of AI in the
present proceedings in which as a result it either is or must be treated as
a party.

14. In such a case, it is clear that the involvement was s close that the
principle became one of nomo judex in sup propria causa. In the case at
bar, the situation is completely different. There is no conflict of
interest given the time that has passed and the complete absence of
involvement with CSIS in the last 13 years. A judge would have the duty to
disclose a present conflict of interest but not a reasonable apprehension
of bias based on past connections. The reasonable apprehension of bias
necessarily arises (when it does) in the mind of one of the parties before
the judge. The judge may raise it to avoid the issue being brought up
later, but in the instant case, there was no reason for the judge to bring
it up, for the same reasons as there was no reason for Justice Binnie to do
so in Wewaykum supra, namely, no recollection whatsoever of the matter
during his term.

2) Irrelevance

15. A good part of the CSIS actions in the context of the white supremacist
movement occurred largely outside the time of my mandate as Solicitor
General. In support of his affidavit, Mr. Zundel presents a number of
documents dealing with CSIS activities. These do not concern the period of
time when I was Solicitor General, in his affidavit, Mr. Zundel takes issue
with the fact that as Solicitor General in 1989 I issued a direction to
CSIS regarding the use of human sources. Mr. Zundel then states that the
Security Intelligence Review Committee ["SIRC"] in its Report on the
Heritage Front Affair, presented to the Solicitor General on December 9,
2994, considered the directions I had issued and regarded them as
"seriously deficient". As a matter of fact, the Report of SIRC was written
in 1994 and states "... current directions from the Solicitor General and
the Director should be expanded and improved...". This, after a change of
government , and three Solicitor General later. I cannot be held
responsible for the directions from the Solicitor General which were
current in 1994.

16. It is probably worthwhile to reproduce the exact passage from the SIRC
Report on the Heritage Front Affair where the words "seriously deficient"
appear. It should be noted that this whole issue has nothing to do with Mr.
Zundel.

13.11 Ministerial Direction - CSIS and Policies Concerning

All human source activities are governed by the limits of the CSIS Act and
direction issued by the Solicitor General under section 6(2) of the CSIS
Act. It is also governed by CSIS internal direction in the CSIS Operational
Manual, in their directions to sources, CSIS officers are bound by the
limits of sections 2 and 12 of the CSIS Act.

Under the CSIS Act, the Minister can provide written direction to the
Service. On October 30, 1989, the then Solicitor General [Pierre Blais]
released comprehensive guidelines for the use of Human Sources. In the
direction, the Minister notes that "a special responsibility rests with the
Service to do everything reasonable to ensure that its confidential sources
operate within the law, and do not behave so as to bring discredited on the
Service or the Government".

The Minister further stated that confidential sources shall be instructed
not to engage in illegal activities in carrying out their work on behalf of
the Service and that they should be instructed not to act as 'agents
provocateurs' or in any way incite or encourage illegal activity.

However, the level of policy guidance available to CSIS officer is, we
believe deficient.

We believe Direction and Policy in this area should be re-examined. It
should be at a minimum provide full assistance to CSIS staff by providing
thoughtful answers to a number of important questions. Among them:

* what kind of a proactive role sacroiliac acceptable for a source in an
organization targeted by CSIS?

* is it appropriate to have a source direct or be a leader within an
organization or movement?

* should sources be engaged in counter measures which would serve to
destroy, rather than maintain terrorist groups or movements?

* do the benefits of maintaining a source outweigh the benefits to be
gained by taking measures (i.e. with Police Forces) to destroy the group?

Our investigation of the Heritage Front Affair made us aware of the fact
that there was insufficient policy direction available. For example, we
observed no clear direction concerning what was taking place in relation to
the harassment campaign, there was no "global picture" of what was going on.

We consider that the Service should regularly draw up a "balance sheet" on
the benefits of a particular source operation. In other words, the
management and staff associated with a high-level sources should regularly
stand back from day-to-day transactions to assess the operation in its
totality. To a certain extent this takes place during the application
process for the renewal of target authorizations. But in the current case,
a major activity of the source, the "IT" campaign, was not brought before
Senior Management and so was not discussed: we think that this was an
important oversight.

Our conclusion is that current directions from the Solicitor General and
the Director should be expanded and improved to deal with some of the
issues we have described, [emphasis added].

17. Every year, SIRC reports to the Solicitor General on the activities of
CSIS, around the end of September. The SIRC'S mandate is to review the
legality of CSIS' actions and to carry out this mission, it has access to
all of the information available to CSIS.

18. No mention of the white supremacist movement is made in any of the
reports until the 1994-1995 annual report, which follows the special report
on the Heritage Front Affair presented on December 9, 2994. This latter
report makes clear that from its inception, CSIS watched closely the
activities of what it considered potentially dangerous right-wing
extremists. This activity, however, was never mentioned by SIRC, although
other potentially controversial areas are exhaustively explored, such as
the surveillance of the native movement or of the labour unions.

19. Report by SIRC to the Solicitor General on December 9, 1994 on the
Heritage Front Affair:

The targeting of the white supremacist movement, since the establishing of
CSIS, has been reviewed continuously since 1985. The individual targets
have changed and the scope of the investigations has narrowed and then
recently expanded again. Over the years, a considerable number of people in
positions of authority, both in government and the judiciary, have known of
and approved the Service's operations in this area.

The list of those who have scrutinized the targeting of individuals with
the white supremacist movement since the creation of CSIS includes: seven
solicitors General; four inspectors General: twelve members of the Security
Intelligence Review Committee; and four Directors of CSIS. In addition,
judges of the Federal Court have granted warrant powers to the Service to
investigate in this area.

20. According to the Report, those who were targeted by CSIS were those who
were suspected of violent activities, such as Wolfang Droege or Tom Long.
Ernst Zundel might have been a target of surveillance by CSIS As early as
1989, but this information, as far as I can recall, was not disclosed to
the Solicitor General at that time. Other issues were more pressing in
1989, and this is clear from the SIRC Report for 1988-1989, the only year I
received one as Solicitor General of Canada.

21. In the Heritage Front Affair Report, I find the following passage on
the targeting of the right-wing extremist for surveillance rather telling:

The Service also sought to develop human sources close to the extreme-right
in order to ascertain the white supremacist strategy. CSIS sought to
differentiate its investigation from criminal investigations.

In March 1991, TARC [Targeting Approval and Review Committee] added a
significant condition:

"The range of investigative techniques to be deployed under the
authorization will be subject to consultation with the Minister."

>From this point on, the Service was required to send an aide-memoire to
the Solicitor General - prior to implementing the TARC Certificate.
[emphasis added]

22. Most of the CSIS activities concerning the handling of the Source
within the white supremacist movement, reported in the Heritage Front
Affair Report, occurred after I had ceased being Solicitor General.
Moreover, evidence shows that the infiltration of the Reform Party by
Heritage Front was known to CSIS, but not to the Solicitor General of the
day (the Honourable Doug Lewis).

23. The Subcommittee of the House of National Security produced a report on
the Heritage Front Affair, and the Bloc Québécois and Reform Party members
of the Subcommittee produced a joint dissenting report. In both these
reports, the only mention that is made of my actions as Solicitor General
is the issuance of a direction that sought precisely to ensure the greatest
respect for rights and freedoms (it was modified in August 1993 by the
Minister then in office).

24. From the dissenting report at para. 20:

In the view of the opposition members of the Subcommittee, the leadership
of the extreme right and its most prominent emerging organization, the
Heritage Front, were appropriately targeted in the initial stages of the
refocused investigation [targeting Wolfang Droege when he returned to
Canada in 1989].

At para. 27:

However, there came a time, as indicated in the preceding section of this
Report, when it was concluded in a 1990-1991 submission to TARC that
extreme right organizations and their related activities were petty
criminal in nature and did not constitute a threat to the security of
Canada. It is not clear to the opposition members of the Subcommittee why
the Service did not simply refer these matters to law enforcement agencies,
rather than redirecting the investigation and the Source for more than an
initial period to the leadership of the extreme right wing. The key
question sacroiliac what was the justification for the continued targeting
ad the presence of the Source after 1990. [emphasis added]

25. Need I remind Mr. Zundel that I no longer had anything to do with CSIS
by that time. I was Solicitor General from January 30, 1989 to February 22,
1990. The Honourable Pierre Cadieux was appointed on February 23, 1990.
>From 1991 to 1993, the Solicitor General of Canada was the Honourable Doug
Lewis. With the change of government in 1993, a new Solicitor General was
appo9nted, the Honourable Herb Gray. In 1993, I returned to private
practice. In 1998, I was appointed to the Federal Court.

26. In Wewaykum. Supra, the Supreme Court of Canada dealt with an
allegation of reasonable apprehension of bias brought by the Campbell River
Band and the Cape Mudge Band against Justice Binnie, who had written the
unanimous judgment of the Court dismissing the Bands' appeals in a land
claim case where each Band claimed the reserve occupied by the other.
Fifteen years earlier as Associate Deputy Minister of Justice from 1982 to
1986, Mr. Binnie, as he then was, had had occasion to deal with the claims
by giving policy advice on the matter, which came under his jurisdiction.
"As Associate Deputy Minister of Justice, Binnie J. was responsible for all
litigation involving the government of Canada, except cases originating
from the province of Quebec and tax litigation. He also had special
responsibilities for aboriginal matters." ["Wewaykum" para. 5]. The Bands
sought an order to have the judgment set aside.

27. The motion was dismissed by the eight sitting judges of the Court
(Justice Binnie having recused himself from the matter). The case is
relevant here for its in-depth discussion of what constitutes a reasonable
apprehension of bias for a former Crown Minister who hears a case which
once came under his ministerial authority.

28. The court restates the well-known test for reasonable apprehension of
bias (at para. 60):

In Canadian law, one standard had now emerged as the criterion for
disqualification. The criterion, as expressed by de Grandpre J. in
Committee for Justice and Liberty v. National Energy Board, supra, at p.
394, is the reasonable apprehension of bias:

... the apprehension of bias must be a reasonable one, held by reasonable
and right minded persons, applying themselves to the question and obtaining
thereon the required information. In the words of the Court of Appeal, that
test is "what would an informed person, viewing the matter realistically
and practically - and having thought the matter through - concluded. Would
he think that it is more likely than not that the [decision-maker], whether
consciously or unconsciously, would not decide fairly.

29. The Court notes (at para. 77) that "this is an inquiry that remains
highly fact-specific". There are no hard and fast rules that apply and the
circumstances of the case must be examined carefully.

30. In the case at bar, we find two factors that were present in the
Wewaykum: the extent of the involvement with the parties in the
proceedings, and the passage of time. In the case of Justice Binnie,
several memoranda were produced to show that he had been made aware of the
situation of the claims. His response was that, frankly, he could not
remember dealing with those issues. His responsibilities covered literally
thousands of files. Once he had left the public service, his mind had
turned to other matters. His consideration of the case before the Supreme
Court was therefore fresh and unbiased.

31. The same holds true in my case. Hundreds of issues, only a fraction of
which are related to CSIS, are brought to the attention of the Solicitor
General on a weekly basis. I cannot remember them all, and I certainly do
not remember Mr. Zundel's case. The SIRC reports show that the extreme
right movement was not a matter of pressing concern at the time I was
solicitor General. Things changed during the early 90s, but I was no longer
at the helm.

32. The most direct link that has been argued in the Ministerial Direction
of October 1989. It was basically a reminder to CSIS to respect the law and
the "most sensitive institutions of our society". The SIRC report of the
Heritage Front Affair as well as both the majority and minority reports of
the Subcommittee of the House of all indicate that CSIS failed to follow
the Direction on the handling of sources given in 1989. I cannot fathom how
that fact can be involved to support a reasonable apprehension of bias.

33. Mr. Zundel presents the evidence from Paul Kennedy, Senior Assistant
Deputy Solicitor General of Canada for National Security, who appeared
before the Subcommittee on National Security of the Standing Committee on
Justice and Human Rights of the House of Commons, on June 3, 2003, to
introduce the ministerial directions from the Solicitor General for the
year. Mr. Kennedy details the involvement of the Solicitor General in the
affairs of CSIS, although he does state that day-to-day activities come
under the Director of CSIS. I do not find this evidence very useful of our
purposes. Obviously, the Solicitor General needs to be kept abreast of what
is happening in his department; that is the meaning of responsible
minister. It does not make it likely that I would remember details of
investigations 13 years later, nor does it make bias more probable. And I
would add that in the reports to Parliament by SIRC and the House
Subcommittee of the years 1989 to 1995, there are many instances where the
deficiencies which are flagged relate precisely to the lack of information
given to the various Solicitors General of the time.

3. Passage of time.

34. One of the main points which Chief Justice McLachlin emphasizes in
Wewaykum, supra, related to the importance of being fact-specific, is the
passage of time in the case of Justice Binnie (at para. 85):

To us, one significant factor stands out, and must inform the perspective
of the reasonable person assessing the impact of this involvement on Binnie
J.'s impartiality in the appeals. That factors is the passage of time. Most
arguments for disqualification rest on circumstances that are either
contemporaneous to the decision-making, or that occurred within a short
time prior to that decision-making.

35. The Court quotes the English Court of Appeal [Locabail (U.K.) Ltd. v.
Bayfield Properties Ltd., [2000] Q.B. 451 at 480] at para. 86:

... every application must be decided on the facts and circumstances of the
individual case. The greater the passage of time between the event relied
on as showing a danger of bias and the case in which the objection is
raise. The weaker (other things being equal) the objection will be.

36. I would think the same consideration would apply here. I have had no
contact with CSIS in an official capacity in 13 years. Over the course of
these 13 years, a number of Solicitors General have followed, the party in
power has changed, in short, I no longer know what are the policies
operating within CSIS, no more than any other Canadian citizen. Morever,
this link has been severed for a very long time.

37. Mr. Zundel argues that this argument cannot stand, since the
allegations against him go back in some instances to 1981. In the Wewaykum
case, the history of the claims also went back in time to even before
Justice Binnie was responsible for all federal litigation. That is not the
point. What needs to be applied is the test for reasonable apprehension of
bias - whether a position held 13 years earlier can affect one's judgment
now, given that there is no evidence there was every any involvement in the
Zundel case, and that CSIS acted largely on its own in those years. (And
given that the only evidence presented to link CSIS, the white supremacist
movement and my tenure as Solicitor General is that the Ministerial
Direction was not followed!).

4. Impartiality.

38. Lastly, I believe that it is important to deal with the presumption of
impartiality. As Chief Justice McLachlin states in Wewaykum, supra, the
judiciary is presumed to be impartial, and this presumption cannot lightly
be set aside. There has to be a very good reason to rebut this presumption.

39. Mr. Zundel state in his. affidavit that he began to suspect that I had
closer links to CSIS than impartiality would require when I questioned the
veracity of a document he had filed to show the truth of his allegation
that CSIS was responsible for, or at least aware of, a bomb that had been
sent to his house through the mail. With respect, and the transcript would
confirm this interpretation, I was trying to determine whether or not he
agreed with the evidence that he himself had file. On the one hand, the
book at issue, Covert Entry by Andrew Mitrovica, spoke of the bomb; on the
other hand, it also stated that a list had been delivered to Mr. Zundel,
which he denied receiving. My comment was no more than suggesting that if
the book was a work of fiction, then the seeming contradiction could be
resolved. The Act allows me to accept a great deal of evidence that would
otherwise be ruled inadmissable. For this reason, I must exercise extra
caution in weighing it. Mr. Zundel expects no less when it comes to the
evidence of the Crown; the same rules apply to all. That being said, I do
not believe that questioning evidence in any way reflects partiality to one
party rather than the other.

40. I was Solicitor General of Canada for a year. I was a lawyer for many
more years, in the same way that a judge may, after some time, hear cases
where his former colleagues are counsel, I do not think that having been
the Minister responsible of CSIS before Parliament disqualified me forever
from hearing a case where CSIS plays a part. If this were so, very few
judges anywhere in Canada would be able to carry out their duties.

41. I f I ha been personally involved in deciding matters related to Mr.
Zundel, I would have of course recused myself. I have no such recollection
and there is no evidence to that effect. I am not an interested party in
this matter, and I have no reason to favour the Crown over the respondent,
no more here than in any other matter.

42. Another judge of this Court, Justice Dube, faced a similar issue in
Fogal v. Canada [1999] F.C.J. No. 129, where he was asked to recuse himself
since the suite was against the government of Canada and he had ben a
Cabinet Minster and a Member of Parliament of for party still in power.

43. Justice Dube refused to recuse himself because there was no basis for
the allegation of reasonable apprehension of bias. I think it worthwhile to
reproduce his very eloquent words (at paragraph 10):

Judges do not descend from heaven. They come from various fields of
activities. Some of us are former academics, other were in the public
service other practiced law in small towns or large firms. And some of us
were in politics. The variety of our individual careers is a rich source of
knowledge and experience for the courts. Once we took our oath at office,
we divorced ourselves from our past and dedicated ourselves to our new
vocation. Our duty is to render justice without fear or favours.

44. Thirteen years have passed since I was Solicitor General. My link today
to CSIS is the same as for any other judge of the Federal Court. The
arguments that Mr. Zundel presents in favour of my recusal are linked to
actions by CSIS that occurred after my mandate as Solicitor General. I
never thought of recusing myself because, frankly, I do not recall being
privy to any special information about Mr. Zundel during the time I was
Solicitor General. I have no special loyalty to CSIS. My first and only
loyalty is embodied in the oath of office. I swore upon becoming judge of
the Federal Court.

45. The test of the reasonable apprehension of bias is whether a
well-informed person would consider that there is a possibility of bias. I
do not believe, given the facts and on the strength of the relevant case
law, that a well-informed person would think that I would be biased.

46. It is unfortunate that so much energy had to be expended on this mater,
while Mr. Zundel still awaits a decision on his continued detention.

THIS COURT ORDERS THAT:

For the reasons given above, the motion is dismissed.

Pierre Blais/JFC

[END]