ZGram - 1/23/2004 - "CSIS Agent to be Questioned in Zundel Hearing"

[zgrams at zgrams.zundelsite.org]

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

January 23, 2003

Good Morning from the Zundelsite:

This, too, is for Zundel-Watcher and, especially, for  alternative 
media on my list:

Again, here is Paul Fromm, acting as Ernst Zundel's legal 
representative on location:

[START]

CSIS AGENT TO BE QUESTIONED IN ZUNDEL HEARING

TORONTO. January 22, 2004. The ongoing hearing into a federal 
national certificate issued against German-born dissident Ernst 
Zundel started under a pall of gloom this morning in Federal Court in 
Toronto. Late yesterday, Mr. Justice Pierre Blais had brought down 
his long awaited ruling on Mr. Zundel's continuing detention. 
Declaring that the pacifist publisher "does represent a danger to the 
security of Canada," the former Solicitor-General (1989) and CSIS 
boss sent Mr. Zundel back to prison for six more months.

The defence, which has had fewer victories in Mr. Justice Blais's 
court than Jamaica's national hockey team in world competition, won a 
late afternoon concession. A January 6 decision by the federal judge 
had denied the defence disclosure of the names of CSIS and RCMP 
agents who'd investigated the Zundel case. Defence lead counsel Peter 
Lindsay had wished to subpoena some of these operatives to explore 
their methodology seeking to learn their methods and preconceptions 
which had led them to conclude that the 64-year old pacifist was, in 
fact. a terrorist. Late in the day, Mr. Justice Blais insisted that 
the Crown -- Justice Department lawyer Donald MacIntosh and CSIS 
lawyer Murray Rodych -- present CSIS spokesman Dave Stewart as a 
witness.

	Stewart testified at Ernst Zundel's detention hearing in 
Niagara Falls in late March.

	In the morning, defence lead counsel Peter Lindsay reacted to 
the fact that the judge's decision that Mr. Zundel is a threat to 
national security and must be detained strongly suggests that the fix 
is in; that he's decided that it was reasonable for the Ministers to 
conclude that Ernst Zundel is a terrorist, Mr. Lindsay moved for an 
adjournment until two appeals can be heard: one of the denial to hear 
a habeas corpus motion in Ontario Superior Court and the second in 
federal Court against Mr. Justice Blais's decision denying the 
defence disclosure of the names of CSIS and RCMP operatives who had 
interviewed people in Zundel case.

	Addressing the Court, Mr. Lindsay said: "Mr. Zundel has 
brought a motion for adjournment.  I have eight reasons. Section 
3.3.2 of the Immigration and Refugee Protection Act (IRPA) says that 
'the Act is to be construed in a manner that ensures that decisions 
taken under the Act are consistent with the Charter.' Section 78.c of 
the Act says that the judge shall deal 'with all matters informally 
and expeditiously and as the principles of fairness and natural 
justice permit.' Fairness and natural justice supercede 
expeditiousness," Mr. Lindsay argued.

	"There's prejudice to Mr. Zundel if no adjournment is 
granted," Mr. Lindsay explained as his first reason. "There's a 
pending Charter challenge to proceedings under IRPA, those used in 
this case, including secret hearings, rules of evidence and the lack 
of appeals procedures. These matters are more and more important. For 
instance, Your Lordship's decision on bail yesterday afternoon was 
all about secret proceedings."

	Quoting the judge's decision, Mr. Lindsay said "'public 
evidence might not be sufficient to conclude that Mr. Zundel is a 
threat.' If evidence taken in secret has already convinced you that 
Mr. Zundel is a danger to the security of Canada, it's plain, it's 
obvious that secrecy is crucial to Your Lordship's determination," 
Mr. Lindsay argued.

	"Mr. Zundel, like any other person, should be able to pursue 
a Charter challenge. If these hearings continue, Mr. Zundel may be 
order-removed before this challenges are complete. Mr. Zundel faces 
more than deportation," Mr. Lindsay added, "he faces certain 
prosecution in Germany. If this proceeding is not adjourned, Mr. 
Zundel's right of appeal is moot as the certificate decision, if 
positive, becomes a deportation order. Before his right of appeal 
under the Charter is exhausted, he may be sitting in a German jail 
for something that is not a crime in Canada -- denying the Holocaust."

	Challenging the judge, Mr. Lindsay, who cuts a very tall and 
imposing figure in court, said: "If this hearing is not adjourned and 
I say this respectfully, Your Lordship will have to explain to Mr. 
Zundel why the right to pursue a Charter challenge does not apply to 
him."

	Mr. Lindsay said: "My ability to conduct  a defence and a 
meaningful challenge to the evidence against Mr. Zundel is prejudiced 
by my inability to call witnesses. There is pending in the Federal 
Court of Appeal an appeal against your January 6 decision regarding 
disclosure of the names of CSIS agents in this case. An appeal of 
that decision is part of Mr. Zundel's defence." Referring to a recent 
article by another judge on the Federal Court, Mr. Justice James K. 
Huguesson, "Watching the Watchers", Mr. Lindsay stressed the 
importance of cross-examination to get to the truth. "Our appeal is 
about getting access to witnesses and to cross examine witnesses 
about the propositions of the summary."

	"In the context of what Your Lordship has called these 
'extraordinary proceedings,' rights are being stripped away: the 
right to hear real evidence, not hearsay and triple hearsay. Please 
don't strip away another right -- the right to appeal interlocutory 
motions."

	Mr. Lindsay explained that "Mr. Zundel is prepared to 
remaining custody in order to pursue his Charter rights. He's 
treating his Charter rights very seriously and wishes to have his day 
in Court."

	Mr. Lindsay read from a series of correspondence between him 
and Donald MacIntosh. "My friend [Mr. MacIntosh] refers often to 
being expeditious, but expeditious is not subordinate to natural 
justice. I wrote to him, December 16, 2003 seeking consent to an 
expedited appeal to the Ontario Court of Appeal. Mr. MacIntosh 
replied on December 18: 'The Attorney-General does not consent to 
your request to expedite an appeal to the Ontario Court of Appeals.'"

	"What is Your Lordship to take from this? The Crown doesn't 
want an appeal heard. When it comes to securing Mr. Zundel's Charter 
rights, the Crown isn't interested. The Crown's resistance to an 
expeditious Charter appeal is not assisting in any way. The Crown 
wants to be expeditious only in getting Mr. Zundel on a plane to 
Germany."

	The judge frequently interrupted Mr. Lindsay during his 
submissions. In the end, he reserved on his decision. He ruled that 
court would continue Friday, despite Mr. Lindsay's request for an 
adjournment until Monday so that he could have meaningful discussion 
with Mr. Zundel and take proper instruction.

	Perhaps indicating his ruling in the motion for adjournment, 
the judge said: "The obligation of Section 78 of IRPA is my Bible. I 
read it frequently. I have a mandatory duty under the legislation to 
review the certificate. The parties are here to help, but I have to 
go on with the process as best I can."

	The case continues in Federal Court at 361 University Avenue 
at 10:00 a.m. Friday, January 23." -- Paul Fromm

[END]