Saturday, June 26, 2004 - Page A15
Globe and Mail
trial won't hear from judge
for journalist, Jewish leaders also
quashed at deportation hearing
By KIRK MAKIN
AN Ontario judge will
not have to testify at a special
deportation hearing where Holocaust denier
Ernst Zündel has been branded
a risk to national security, the presiding
judge has ruled.
Justice Pierre Blais of the Federal
Court of Canada concluded that in spite of
Ontario Court Judge Lauren Marshall
having acted as Mr. Zündel's lawyer
20 years ago, she can add little to his
understanding of deportation
"I do not need to be reminded of the
perils of ex parte proceedings, nor
to be told how to carry out my judicial
duties," Judge Blais said.
He also quashed defence subpoenas
requiring a journalist and two prominent
Jewish community leaders to be questioned
at the hearing. Judge Blais said they
would add little of relevance.
Mr. Zündel's deportation was
ordered under a rarely used security
certificate, a process by which the
Canadian Security Intelligence Service can
provide information in secret
Zündel defence team is not privy
to the information, yet it must still
convince Judge Blais that it is
unreliable. Should Mr. Zündel
fail, he will be deported to Germany to
face a five-year prison term for the
crime of denying the Holocaust.
Judge Blais' ruling brought an angry
response from Peter Lindsay, Mr.
Zündel's lawyer. "Is it justice to
deny someone even a chance to question the
intent or motive of politicians?" he asked
in an interview. "Is it justice to allow
secret evidence and deny the person
against whom the secret evidence is being
used even an opportunity to challenge it
in any real way?"
Mr. Lindsay had been hoping the
testimony would paint a picture of an
unprecedented, 20-year campaign waged
against his client by politicians, police
and lobby groups.
"It is already difficult enough to
represent someone in a trial where the key
evidence is kept secret," he said.
"Regrettably, Justice Blais' decision
makes it even more difficult. The court
has thus left Mr. Zündel powerless
against the secret evidence and
effectively denied him any meaningful
Mr. Lindsay, Judge Marshall initially
agreed to recount the extraordinary
lengths to which authorities went in
1985 to deport her former client. But
on the day she was expected to testify,
she sent a lawyer to quash the
Judge Blais noted in his ruling that
the onus is on the party who subpoenas a
witness to show that he or she is likely
to provide "material evidence."
Mr. Lindsay subpoenaed journalist
Andrew Mitrovica in hopes of
shaking the general credibility of CSIS.
Mr. Mitrovica would have been questioned
about a 1995 incident described in his
book, Covert Entry, in which CSIS
allegedly knew a pipe bomb was being sent
to Mr. Zündel through the mail, yet
failed to warn him.
Judge Blais said that to allow the
subpoena would be to threaten press
"The benefits of having Mr. Mitrovica
testify seem rather doubtful, as against
certain harm to the freedom of the press,"
he said. "Compelling him to produce his
notes and materials is unduly intrusive,
and given the probative value that I could
attach to such hearsay materials, I see no
need to disturb the journalistic privilege
that attaches to Mr. Mitrovica's
In quashing subpoenas against Keith
Landy, president of the Canadian
Jewish Congress, and Frank Dimant,
executive vice-president of B'nai
Brith Canada, Judge Blais said it is
no revelation that their organizations
lobbied federal ministers to deport Mr.
"The intent or motives of the ministers
is of no interest to this court," he said.
"The certification stands or falls on the
strength of the evidence supporting
Our dossier on
for the Judge's decision