Saturday, June 26, 2004 - Page A15 Globe and Mail

Zündel trial won't hear from judge

Subpoenas for journalist, Jewish leaders also quashed at deportation hearing

By KIRK MAKIN
JUSTICE REPORTER

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.

Mr. 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 proceedings.

"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 sessions.

The 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 hearing."

According to 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 subpoena.

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 freedom.

"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 evidence."

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. Zündel.

"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 it."

Our dossier on Ernst Zündel

Reasons for the Judge's decision