Posted Friday, March 12, 2004

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Ontario appeal court approves Zündel hearing

By KIRK MAKIN
Justice Reporter
Toronto Globe and Mail

THE Ontario Court of Appeal has scheduled a rush hearing of a constitutional challenge by Ernst Zündel to ensure the case is heard before the internationally known Holocaust-denier can be deported to Germany.

Over objections from the Crown yesterday, Mr. Justice Marc Rosenberg said a three-judge panel will hear the case in mid-May.

Mr. Zündel aims to strike down a controversial anti-terrorism measure known as a security certificate that is used to deport non-citizens who may pose a security risk. A security certificate is signed by two federal cabinet ministers who, based on secret intelligence, decide that an immigrant should be deported as a danger to Canadians.

Even alleged spies and terrorists normally targeted this way are not permitted access to the precise allegations against them.

Judge Rosenberg made his ruling yesterday after hearing defence lawyers Peter Lindsay and Chi-Kun Shi argue that their client has been in solitary confinement for a year and faces deportation as soon as a Federal Court of Canada judge completes a review of his case.

They also cited a dramatic speech made by Federal Court of Canada judge to a security conference in 2002. It went unreported at the time, but Mr. Justice James Hugesson roundly condemned the security certificate procedure.

The veteran judge said there was widespread discomfort on the Federal Court bench about the way fundamental legal rights are denied under the process. "I can tell you because we talked about it; we hate it," he said. "We hate hearing only one party. We hate having to decide what, if any, sensitive material can or should be conveyed to the other party."

The judge said he felt like "a bit of a fig leaf" used to cover a dubious procedure.

"This is not a happy posture for a judge, and you are in fact looking at an unhappy camper when I tell you about this function," Judge Hugesson said. "With these national security affidavits, if they are successful in persuading the judge, they will never see the light of day. The fact that something improper has been said to the court may never be revealed."

While Justice Department lawyers strive to be fair at security certificate hearings, he said there is no substitute for having two opposing parties reveal the shortcomings of the each other's arguments.

"It does not matter how good and how honest the lawyer is," he said. "If you have a case that is only being presented on one side, you are not going to get a good case."

Mr. Zündel retired to the United States three years ago. Last year, he was arrested and returned to Canada after failing to make a routine appointment with U.S. Immigration Services. The federal government commenced deportation proceedings.

Mr. Justice Pierre Blais of the Federal Court of Canada has been conducting a review of the certificate for several months, and is scheduled to hear final arguments in early May. Since there is no appeal of a certificate review, an adverse decision would mean Mr. Zündel's immediate deportation.

"If this proceeding is not expedited, it will likely be moot," Mr. Lindsay told Judge Rosenberg yesterday. "The German government has already offered to pick Mr. Zündel up on two existing warrants for denying the Holocaust. Mr. Zündel could be on a plane to Germany and a jail cell before his constitutional rights are determined."

Mr. Zündel lived in Canada for 42 years with a clean criminal record.

However, Crown counsel Donald MacIntosh argued that the courts have already effectively decided against the constitutional issues Mr. Zündel intends to raise. He said that in any case, an Ontario Court of Appeal ruling would not be binding on Federal Court judges.

The only unclassified portion of the security certificate against Mr. Zündel accuses him of being a dangerous preacher of anti-Semitic, white-supremacist hatred. Even if he doesn't advocate violence, it reads, he is dangerous because he's seen as a guru by those who do.

Of the 27 security certificates issued since 1991 -- only five since the 9/11 attack -- virtually all have involved suspected terrorists from such countries as Iran and Algeria.

Kirk Makin is The Globe and Mail's justice reporter.

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