ZGram - 7/21/2004 - "ZUNDEL CASE REACHES CRISIS POINT"
zgrams at zgrams.zundelsite.org
zgrams at zgrams.zundelsite.org
Wed Jul 21 13:18:59 EDT 2004
Zgram - Where Truth is Destiny: Now more than ever!
July 21, 2004
Good Morning from the Zundelsite:
Yesterday I ordered a reprint of Ernst's "Setting the Record
Straight: Letters from Cell # 7". After only two weeks, the first
edition is just about sold out!
The book is extremely popular, and people are ordering 3, 5, 10
copies at a swoop to give to friends, relatives, church and club
members, etc.. I kept the retail price low on purpose - $10 plus
courtesy postage - because it is more important to me to disseminate
Ernst's story than to make money on the title.
Also, in multiples of 100 copies, I will send you a shipment at cost
the moment I get the reprints. Write for instructions. (3152
Parkway, Suite 13-109, Pigeon Forge, TN 27863, USA)
If you are media, I will send you a copy for free, provided you will
promise to send me a tear sheet of a write-up or review.
If you have a website, please consider linking to the Zundelsite - or
if that is too "iffy" for you, let me send you an order blank to
download, which you can place on your own website and thus avoid the
Zundel Taint. Any help at all will be welcome!
If you live in Canada, you are better off ordering your copies from
Paul Fromm (instructions below) because you will get them faster and
you can pay in Canadian money and avoid the exchange rates. Also,
there won't be the problem with customs. So far, the books have
passed the Kanadian Kommissars, but you know how those lobby-obliging
censors can be - after I became associated with the Zundel name, they
designated a 1984 autobiography of mine, Furies, as "hate" material
and burned copies by the hundreds, even though it is the story of my
having raised a handicapped child, and I wrote it long before I ever
heard of something called Holocaust Revisionism! There isn't even a
glimmer of politics in that book, and there is nothing that a
reasonable person would object to in Ernst's account of what happened
with his arrest and afterwards - but just watch B'nai Brith or the
Canadian Jewish Congress weigh in and lay down the rules on what
Canadians can and can't read!
To change the subject - Paul Fromm sent a scary preface about where
the Zundel case is moving, if Judge Blais has his way - along with
the text of yet another legal submission to the Supreme Court of
Canada. If you are lawyerly inclined and would like to read the
entire text, please email me, and I will send it to you as an
attachment. However, most of my readers like their Zgrams short, and
therefore I am just giving you the gist of what this case amounts to
at this stage by sending you a portion from the text.
Paul Fromm, one of Ernst's representatives on location, first:
ZUNDEL CASE REACHES CRISIS POINT
Dear Free Speech Supporter:
We're hurtling toward a crisis point in the case of
German-born publisher and dissident Ernst Zundel. In a June 23 Order,
former Solicitor-General and CSIS boss Mr. Justice Pierre Blais set
out a timetable which would see the Zundel national security
certificate review concluded by September 14.
Cynics who have observed the judge's series of arbitrary
rulings, his quashing of four crucial defence subpoenas and his
endless chorus of "national security" to restrict the defence believe
that the judgement has already been reached. Mr. Justice Blais could
find the certificate "reasonable" -- not true that Mr. Zundel is a
terrorist, but merely reasonable that the two Liberal ministers who
signed it thought he "might be" -- on September 15. As the judge's
decision by law cannot be appealed, Mr. Zundel could be on a plane to
Frankfurt and a German jail on September 16.
The judge is in a frantic hurry because he wants to preempt
the Zundel appeal to the Supreme Court of Canada. The Crown
submissions in the leave to appeal motions need not be in until late
August. That leaves just a few weeks for the Supreme Court to decide
whether to hear Mr. Zundel's two appeals. At the glacial pace of
justice in this Dominion, Mr. Zundel could well be back in Germany by
To forestall this judicial frog-marching of the German
pacifist out of the country, Zundel defence counsel Peter Lindsay has
filed the following motion with the Supreme Court seeking a stay
(halt) to the proceedings before Mr. Justice Blais until the Supreme
Court can rule on the leave to appeal and on the appeal itself. This
motion makes shocking reading as Mr. Lindsay lays out the outrageous
and prejudicial treatment meted out to Mr. Zundel in Judge Blais's
The Crown has until August 10 to make its submissions in this
matter. Then, says Chi-Kun Shi, Mr. Lindsay's co-counsel, the Supreme
Court "either stops it now or they show they don't give a damn about
this atrocity and all these illegal rulings" by Mr. Justice Blais.
Huge expenses have been incurred this summer and we face 13
days more of court in July (27), August (9,10,11,12, 30, 31) and
September (1,2, 14, and 15). We urgently need your help and pledge of
support today. Please mail us your contribution to CAFE (Zundel
Defence Fund), Box 332, Rexdale, ON., M9W 5L3, Canada. Send a cheque
or your VISA number and expiry date. You can also e-mail your
contribution by VISA.
All donors of $100 or more will receive Mr. Zundel's SETTING
THE RECORD STRAIGHT: LETTERS FROM CELL # 7, which is hot off the
press. This incredibly eloquent and moving series of reflections from
prison will go down among the great prison literature of our people.
If you would simply like a copy of this book, send $20 (postage
included) to us or $30 for two copies.
Canadian Association for Free Expression.
Below part of the latest Supreme Court Submission.
1. The Applicant relies upon the Notice of Motion herein.
PART II - STATEMENT OF QUESTIONS IN ISSUE
2. Is it in accordance with our fundamental values of justice to
allow someone to be (i) tried in secret Star Chamber style court
proceedings and then (ii) deported to a country to be jailed for
views that are legal in Canada, without even first deciding whether
this Honourable Court will review important constitutional and legal
questions about the fairness of the process? It is important to
underline that the proceedings in issue in this case have been
ordered by Justice Blais on his own initiative to be completed by
September 14, 2004. Regrettably, the Applicant is thus forced to
respectfully ask this Honourable Court to act now. Failure to act
now will effectively legitimize and condone a 21st century Canadian
Should the answer to the above question be any different if the
subject person is notorious for holding provocative and extremely
PART III - ARGUMENT
3. The three-part test to be applied in determining whether a
stay should be granted pending a constitutional challenge or in
other circumstances was set out by this Honourable Court in Manitoba
v. Metropolitan Stores, as follows:
(A) Merits of case - where constitutional challenge is
pending (as in this case), 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)
(B) 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)
(C) 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  S.C.J. No. 6, tab 33
(A) Merits of Case
4. The serious questions here involve the rights of any
immigrant whom politicians claim to be a danger to the security of
Canada and try to deport from Canada. Specifically, should any such
immigrant have any of the following rights:
(i) the right to interlocutory appeal during a court
review of the politicians' claim, there being no appeal or judicial
review from the court's final conclusion;
(ii) the right to real disclosure of Crown's evidence
against the immigrant; and
(iii) the right to protection of the Charter while the
immigrant is detained and eventually deported without facing any
charge, such as protection against being subjected to a secret trial.
5. There is the additional very serious underlying question of
whether our law and our courts should treat people with extremely
unpopular views, such as the Applicant, differently than other
6. Furthermore, there is the serious question of what should be
done where, as here, the judicial errors in the certificate review
as set out in the Notice of Motion are so patently unreasonable, and
so palpable and overriding, that they destroy the underlying
fairness and legality of the proceedings and cannot be corrected on
appeal (because there is currently no right to launch any
interlocutory or final appeal).
7. According to Re Felderhof, the following errors are
jurisdictional in nature: (i) gross denial of natural justice; (ii)
irreparable judicial violation of constitutional rights; or (iii)
prejudgment. It is respectfully submitted that all of these judicial
errors have been committed in the security certificate review thus
far (...). Unless the hearing is stayed, such errors will never be
remedied. The security certificate review is not being conducted
fairly or according to law and therefore should be stayed forthwith.
Re: Felderhof  O.J. No. 4103 (C.A.) at
paragraphs 15 and 17, tab 34
8. Relying upon the grounds as listed in the Notice of Motion,
which will not be repeated here, it is respectfully submitted that
the above questions are all serious and important questions and the
facts as outlined in said Notice establish that the questions
referred to above are sufficiently meritorious to justify a stay.
9. Furthermore, as there is a constitutional challenge raised in
the Charter Leave Application (Court File No. 30427) which is being
relied upon, the Manitoba v Metropolitan Store test only requires
that a serious question be raised. It is respectfully submitted
that, if nothing else, the detention of the Applicant without charge
in solitary confinement for over 16 months and the effectively
secret trial which is occurring right now in this case (see Notice
of Motion, paragraphs 11-15) raise extremely serious Charter
(B) Irreparable Harm
10. With (i) no right to interlocutory appeal; (ii) no right to
meaningful disclosure; and (iii) no right to Charter protection, the
Applicant is poised to be deported to Germany upon the completion of
the Star Chamber style hearing fashioned out of the unconstitutional
Secret Trial Legislation and all the patently wrong procedural
rulings, without the chance to provide a meaningful response.
11. Hard cases make bad law, and there is no harder case than the
Applicant. It would constitute irreparable harm to deport the
Applicant without charge without first even deciding whether this
Honourable Court will review important constitutional and legal
questions about the fairness of the process.
12. Unless a stay of proceedings is immediately granted, the
Applicant's pre-ordained removal from Canada will occur and it will
legitimize all the "bad law" that has been made in this "hard" case,
some (but not all) of which bad law is as follows:
(i) A judge may prejudge a case before it is completed;
(ii) Politicians' motives and intents for deporting an
immigrant (even if they are completely improper) are of no interest
to the Court ;
(iii) An immigrant may be deported without knowing why;
(iv) "National Security" can prohibit discussion of public
(v) A judge can initiate his own discrediting of
(vi) A judge may then disallow use of those materials in
(vii) A leading question is one with a "yes" or "no" answer;
(viii) A judge may make new rules on grammar;
(ix) A judge may provide the Crown much greater latitude
than the opposing party on admissibility of evidence;
(x) The words "could be" are interchangeable with the
words "would be" in statutory interpretation;
(xi) A judge may liberally insult counsel;
(xii) Procedural issues are more important than fundamental justice;
13. Unless a stay of proceedings is granted, there is a distinct
message from all of this: it is justifiable to cut down any number
of principles of law and justice in order to "get" an unpopular
14. A more recent opinion on the supremacy of the rule of law is
that of the U.S. Supreme Court in Hamdi v. Rumsfeld where Justice
O'Connor, writing for the majority, held that an American who was
allegedly captured while fighting with the Taliban using a
Kalishnikov assault rifle against U.S. troops in Afghanistan in
2001, is entitled to the "due process of law" (p. 24) which should
afford him the opportunity to be heard in a "meaningful manner" (p.
Hamdi v. Rumsfeld 542 U.S. _2004, tab 32
15. If a country which had been attacked by terrorists and
suffered the graphic and public mass murder of its citizens on its
own soil still believes that a captive armed combatant should be
entitled to a meaningful hearing on his culpability, it is
respectfully submitted that Canada need to examine its own relative
standard of rule of law as demonstrated in the case of the
Applicant. It is respectfully submitted that the Applicant has not
received the "meaningful" hearing that the U.S. Supreme Court has
championed for an alleged machine gun toting traitor terrorist.
16. An even more recent opinion is from our own Minister of
Foreign Affairs the Honourable Bill Graham, who in the Zahra Kazemi
death recalled our Ambassador from Iran to protest the closed door
hearing for the Iranian accused in Ms. Kazemi's death and declared
publicly that "justice will not be done behind closed doors in Iran".
17. It is respectfully submitted that our Minister of Foreign
Affair's abhorrence of a secret trial reflects our value of openness
being the cornerstone of due process and justice. Justice will not
be done behind closed doors in Iran, in Canada, or anywhere else.
The legality of the Secret Trial Legislation and Justice Blais'
error-filled implementation of it must therefore be scrutinized if
Canada is to maintain any credibility in its demand for open
justice, or as a free and democratic society.
18. Although traditionally, the consideration of irreparable harm
is limited to that of the parties involved, it is respectfully
submitted that in this case, not only does the Applicant face
irreparable harm, but if a stay of proceedings is not granted
immediately, this proliferation of "bad law" under the Secret Trial
Legislation leads to the inescapable conclusion that Canada believes
that there is one law of open justice for Iran and a different law
of open justice for Canada. Furthermore, it will lead to the very
sad and disillusioning conclusion that there is also one law for
ordinary people but a very different and harsher law for unpopular
people such as the Applicant.
19. If the treatment the Applicant received under our justice
system thus far is not condemned and halted by this Honourable
Court, the Canadian society will in effect be treating unpopular
views more savagely than the Americans treat their armed combatant
20. As Justice Binnie of this Honourable Court rightly pointed
out in Re Application under s. 83.28 of the Criminal Code, upholding
constitutional rights at times of national stress is one of the
chief distinctions that sets a liberal democracy apart from the
totalitarian regimes whose threats give rise to the stress. In Hamdi
v. Rumsfeld, the U.S. Supreme Court has ensured such distinction for
the U.S. It is respectfully submitted that this Honourable Court
must now rise to the challenge of doing so for Canada.
Re Application under s. 83.28 of the Criminal Code
 S.C.J. No. 40 at para. 113, tab 36 Hamdi v.
Rumsfeld 542 U.S. _2004, tab 32
21. Justice Binnie echoed Sir Thomas More's centuries' old view
when His Honour wrote:
The danger in the "war on terrorism" lies not only in
the actual damage the terrorists can do to us but what we can do to
our own legal and political institutions by way of shock, anger,
anticipation, opportunism or overreaction.
Re Application under s. 83.28 of the Criminal Code
 S.C.J. No. 40 at para. 116, tab 36
22. It is respectfully submitted that the case herein is an
example of opportunism. It is also the frightening harvest of the
above self-destructive sentiments. Unless this Honourable Court
steps in to protect our rule of law, this grim harvest will not stop
with the Applicant.
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